2020 QCCQ 971, 2020 QCCQ 971

R. c. Baptiste 2020 QCCQ 971 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-159108-171 DATE : February 14 th 2020 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution – Respondent on the application v.

NICHOLAS BAPTISTE Accused – Applicant ______________________________________________________________________ JUDGMENT ON THE APPLICATION TO EXCLUDE EVIDENCE ( ss. 7 , 8 , 9 , 10(a) (b), 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ INTRODUCTION [ 1 ] On November 23 rd 2017, while executing a search warrant in a basement apartment below the applicant’s home, the Violent Crimes Unit of the Montreal Police Service seized a semi-automatic assault rifle resembling an AK-47, equipped with a prohibited high- capacity magazine. [ 2 ] Earlier that day, in the events leading up to the seizure, the police had obtained a first warrant for the upstairs apartment on the basis of information received from an informer.

When the time came to execute the first warrant, the police simultaneously arrested the accused at a remote location a few blocks away from his home. After his arrest, the accused revealed to the investigator that the weapon sought was in the basement. It was that statement that in turn served as the basis for the prompt acquisition of the second search warrant. [ 3 ] The accused is charged with various weapons offences, including possession of an SKS-762 semi-automatic assault rifle (s. 91(1)(

a) C.C. ), possession of a prohibited high-capacity ammunition magazine (s. 91(2) C.C. ) and possession of a set of brass knuckles (s. 91(2) C.C. ). [ 4 ] On September 15 th 2019, he filed an application seeking to exclude the evidence. [1] [ 5 ] This ruling addresses the validity of both search telewarrants.

It also addresses the legality of the police’s conduct from the moment the accused was arrested, including the fact that he was apprehended in a dynamic takedown by a heavily armed SWAT team and the fact that the investigator spoke to the arrestee before he had consulted a lawyer. [ 6 ] The accused’s application is multi-pronged insofar as it sets out a number of discrete alleged breaches of his rights. Among them, he essentially alleges: 1. Both search telewarrants were invalidly issued, since the I.T.O.s did not establish sufficient reasonable and probable grounds ( s. 8 ); 2.

The police did not have reasonable and probable grounds to arrest him (s. 9); 3. The arrest of the accused was conducted with excessive and unnecessary force (s. 7, citing principles applicable to s. 25 of the Criminal Code ); 4. The police failed to promptly inform the accused of the grounds for his arrest (s. 10(a)); 5. His right to counsel was breached ( s. 10 (b)) when the discussion took place from the back of the police car; 6. His right against self-incrimination was breached ( s. 7 ).

[ 7 ] During final arguments, point #4 was abandoned. At the end of the voir dire , the defence conceded that the arresting officers did in fact promptly inform him of the grounds for his arrest. TABLE OF CONTENTS PROCEDURAL OVERVIEW 5

a) The format of the voir dire 5

b) The application is dispositive of the verdict 5

c) Evidence not to be considered at this stage 6

d) The voluntary testimony of the affiant and the redacted portions of the I.T.O.s 7 FACTUAL OVERVIEW 8 1- THE EVIDENCE OF THE PROSECUTION 8

a) The I.T.O. for the first search telewarrant 8

b) The I.T.O. for the second search telewarrant 10

c) The testimony of detective Carlos Bran-Lopez 11

d) The testimony of officer Alexandre Nadeau 16

e) The testimony of officer Martin Courchesne 17

f) The testimony of lieutenant Alexis Castonguay 17 2- THE EVIDENCE OF THE DEFENCE 20 POSITIONS OF THE PARTIES 23 ANALYSIS 24 1- THE BURDEN OF PROOF AND THE ASSESSMENT OF CREDIBILITY ON A CHARTER VOIR DIRE 24

a) The onus to establish the Charter claims 24

b) Evaluating the credibility and reliability of the witnesses 24

c) The Court’s findings of fact 26 2- THE VALIDITY OF THE SEARCH TELEWARRANTS 29 a) “Reasonable and probable grounds” defined 29

b) The standard of review 31

c) The standard of review applied to redacted I.T.O.s 33

d) The I.T.O. was amplified as to the significance of the box 35

e) Reasonable grounds based on information obtained from an informer 36

f) Application to the case at bar 41

i) Was the information compelling? 42 ii) Was the C.I. a credible source? 44 iii) Was there sufficient corroboration? 46 iv) Balancing the factors 49 3- WAS THE ACCUSED’S ARREST LAWFUL? 49

a) The focus of the assessment: whose reasonable and probable grounds? 49

b) The validity of the first telewarrant is dispositive of the issue 53

c) The fact that the accused was no longer on the scene and the gun was not yet discovered 53

4- DID THE POLICE USE EXCESSIVE FORCE IN THE WAY THE ACCUSED WAS ARRESTED? 55

a) A pragmatic approach to assessing the level of force 55

b) The use of a SWAT team 57

c) Application to the case at bar 59 5- WAS THE ACCUSED’S STATEMENT FROM THE BACK OF THE POLICE CAR VOLUNTARY? 62

a) The burden of proof applicable to the common law confessions rule 62

b) Application to the case at bar 63 6- WAS THE ACCUSED’S RIGHT TO COUNSEL INFRINGED DURING THE DISCUSSION FROM THE BACK OF THE POLICE CAR? 64

a) The implementational and withdrawal duties of the police were not triggered 64

b) Even if duties 2 and 3 applied, the accused volunteered the information 68 7- WAS THE WARRANTLESS ENTRY INTO THE BASEMENT APARTMENT TO SECURE THE PREMISES UNLAWFUL? 70 8- SHOULD THE STATEMENT OR THE RESULTS OF THE SEARCH BE EXCLUDED UNDER S. 24(2)? 76

a) There is no automatic exclusion 76

b) Application to the case at bar 77

i) The seriousness of the Charter-infringing State conduct 77 ii) The impact of the breach on the Charter-protected interests of Mr. Baptiste 79 iii) Society’s interest in the adjudication of the case on its merits 80 iv) Balancing all three factors 81 CONCLUSION 81 PROCEDURAL OVERVIEW

a) The format of the voir dire [ 8 ] From a procedural standpoint, at the start of the trial, the parties agreed to blend the voir dire with the trial proper. Thus, it was agreed that the police officers would testify only once in the context of the applications and that their testimony would subsequently be applied to the trial on its merits, subject of course to any ruling excluding their evidence or portions thereof. [ 9 ] As mentioned above, the validity of both telewarrants is contested in the case at bar.

Chronologically, after the issuance of the first telewarrant, a statement was made by the accused in the police car and the contents of that statement were relied upon by the police to obtain the second subsequent telewarrant. [ 10 ] To be clear, in addition to the validity of the telewarrants, the defence is also explicitly contesting the admissibility of that statement made in the police car – both on the merits and as a basis for the issuance of the second warrant – on s. 10 Charter grounds and on the basis of the common law confessions rule. [2] As such, the parties agreed that when detective Bran-Lopez reached the “statement portion” of his account in his testimony, the Court would open “a voir dire within the voir dire ” to address the statement’s admissibility.

b) The application is dispositive of the verdict [ 11 ] Various formal admissions were filed by the parties in written form at the start of the proceedings. [3] [ 12 ] Informally, [4] albeit on the record, defence counsel also stated that this Charter application was dispositive of the case. In other words, should the application be dismissed, his client “would be declared guilty” [5] . He repeated: if the application was not granted, “well, the accused will be declared guilty”. [6] [ 13 ] It was not specified if this was an undertaking to plead guilty, or instead an admission that the essential elements of the substantive offences charged would be established beyond a reasonable doubt.

[ 14 ] For that reason, on January 23 rd 2020 during the closing submissions, the Court asked the parties to clarify what they meant. [ 15 ] The clarification took the form of a formal admission: • If the Court grants the application and excludes the evidence, the Crown will concede the acquittal. • If the Court dismisses the application (and thus admits the evidence of the statement and firearm), the defence acknowledges that the essential elements are made out beyond a reasonable doubt. In other words, a guilty verdict will ensue. Specifically, the defence confirmed on the record that it would present no further evidence. [7]

c) Evidence not to be considered at this stage [ 16 ] As mentioned above, the parties agreed to present the entire Crown’s case in the context of the blended voir dire . [ 17 ] This was appropriate and had the obvious advantage of administrative efficiency. The trial judge enjoys a significant amount of discretion in determining how a voir dire is to be conducted.

The judge controls the procedural aspects pertaining to the hearing of Charter applications and these are not subject to rigid or prefabricated rules. [8] In the normal course, where the parties have come to an agreement, the Court accepts to follow the proposed procedure. [ 18 ] Despite any such agreement, the Court must always exercise caution to scrupulously respect differing burdens and the rules governing admissibility of evidence. [9] [ 19 ] I mention this because in the written admissions (# 9, 10 and 11), the defence acknowledged that after his arrest, the accused made an incriminating statement at the police station.

It further recognized that said statement was voluntary as per the common law confessions rule and was equally Charter -compliant. Furthermore, the defence explicitly admitted that the statement is admissible as evidence. [ 20 ] In his testimony on this voir dire , detective Bran-Lopez described the contents of the incriminating statement in some detail. [10] [ 21 ] In the circumstances, I have carefully instructed myself to disregard this evidence for the purposes of this voir dire .

Fundamentally, evidence and information acquired by the police after an arrest or after a search can never be used to ex post facto justify said arrest or search. Instead, the Court must assess the information relied upon by the police at the time of the arrest and the information relied upon by the justice of the peace at the time of the warrant’s signature.

d) The voluntary testimony of the affiant and the redacted portions of the I.T.O.s [ 22 ] In the course of the voir dire , the Crown produced as a witness detective Bran-Lopez, who was incidentally the affiant in the information to obtain [11] each of the search warrants. [ 23 ] The Crown voluntarily presented the witness.

In other words, there was no application brought by the accused to compel his testimony or his cross-examination, commonly known as a Garofoli [12] application. [ 24 ] Throughout his testimony, the investigator provided some details in the form of amplification of the I.T.O., which will be discussed below. [ 25 ] Finally, both I.T.O.s, [13] as presented to me in the course of the voir dire , contain certain redacted portions. The redacted excerpts are hidden in order to protect the identity of the confidential informer. [14] The Crown made no attempt to engage step six of R. v.

Garofoli . [15] It presented no application requesting that the reviewing Court take cognizance of the redacted portions, subject to providing the accused with a judicial

summary of the excised material. [ 26 ] The Crown therefore implicitly considers that the authorizations are supportable even without the excised portions of the I.T.O.s. In other words, the prosecution relinquishes the possibility of relying on the hidden portions in support of the telewarrants at this stage of the proceedings. [ 27 ] Accordingly, as highlighted in R. v. Rocha , the sufficiency of the I.T.O.s stands or falls on the redacted versions thereof. [16] FACTUAL OVERVIEW 1- The evidence of the prosecution

a) The I.T.O. for the first search telewarrant [17] [ 28 ] The following review is meant as a cursory

summary of the allegations in the I.T.O. for ease of reference. Errors in syntax and ambiguities have intentionally been left in, in order to reflect the original form of the allegations. [ 29 ] In the I.T.O., dated November 23 rd 2017, detective Bran-Lopez alleges:

• “Source A” is a trustworthy (“ digne de confiance ”) C.I. that has already given the police information in the past which led to various arrests and searches & seizures, specifically in the field of firearms and drug trafficking.

The information [plural] provided by the C.I. is corroborated by police observations and validations in the C.R.P.Q. database. • In November of 2017, Source A informed the police that a man named Nicholas Baptiste was in possession of a firearm, in the style of an AK-47 machine gun, said firearm having been seen in recent days. • The firearm is in Baptiste’s residence in Lasalle, which is a duplex. Baptiste lives on the main floor with his spouse, a chubby black woman who is not very tall.

There are 3 children on the scene as well as a pitbull dog. • In order to access the home, you must go up a few steps and you enter the main floor of the building. • Baptiste drives a grey minivan. • The firearm is an AK-47. • The firearm was seen within the last few days. It is hidden… [redacted]. • [redacted] • Baptiste has access to the building’s garage. He uses that space to sell food and alcohol during meetings. • Source A informs the police that Nicholas Baptiste uses a public Facebook account.

The officer used the photos therein to validate Baptiste’s identity. • The officer then includes colour screen shots from the Facebook page, including profile pictures of Baptiste, past and present. The Facebook page is entitled “Nicholas Baptiste”. The current profile picture shows the accused’s face from the side; he is wearing a baseball hat. The photo is captioned “Easter weekend”.

The earlier profile picture shows the accused’s face from the front; he is not wearing a hat. • Source A also mentions that the accused’s residence is visible on his Facebook photo. • The officer then includes a closer-up colour screen shot from the Facebook profile photo. In the background of the photo, we see duplex-style buildings across the street, one of which has white façade bricks. The white-brick building’s address is 8788. • According to the police databases, Nicholas Baptiste, D.O.B. 1984-[...], lives at [...] in Lasalle.

He does not have a firearms licence, nor does any adult living at that address, including his girlfriend Shaquanna Britton, D.O.B. 1989-[...]. • An older booking photo of Nicholas Baptiste (from the police databases) is included in the I.T.O. and placed next to the Facebook profile picture, confirming that it is the same man. • When you search on Google Maps using the Google Street View application, it is revealed that the white-brick building (8788) is located across the street from Nicholas Baptiste’s residence.

The Google Street View photo also corresponds to the photo on Baptiste’s Facebook page. • The records of the Ministry of Transportation list two vehicles registered in Nicholas Baptiste’s name. One of them is a 2005 Saturn Relay, which is a minivan. The other is a blue Honda Civic. • The subject, Nicholas Baptiste, is known to police “in matters of firearms”. On multiple occasions, he was involved in incidents with persons of interest with street-gang ties and was the target of many criminal investigations, including one pertaining to a shooting in 2007.

Police Surveillance • On November 23 rd 2017, at 5:02 pm, Nicholas Baptiste was seen driving the blue Honda Civic. He parked across the street and entered 8789 Chartrand, his address. • On November 23 rd 2017, at around 6:04 pm, Nicholas Baptiste was seen exiting his address and going downstairs towards two doors adjacent to the building’s garage. The adjacent door to the garage “ est déverrouillée ” [the door was already unlocked [18] ]. Baptiste exited the door with a cardboard box (4 feet x 8 inches x 8 inches). He then went back upstairs to the main floor and entered his residence with the box at 6:05 pm.

A black woman was seen inside. In his testimony, detective Bran-Lopez specified that the subject was seen quickly entering and exiting the downstairs unit. [19] • Baptiste later left the scene, on board the 2005 Saturn Relay registered to his name. • The officer concludes that he has reasonable and probable grounds to believe that a firearm, ammunition and cartridge magazines are located in 8789 Chartrand Street.

b) The I.T.O. for the second search telewarrant [20] [ 30 ] This I.T.O., also dated November 23 rd 2017, was submitted after the arrest of the accused. In it, detective Bran-Lopez reproduces the allegations from the first I.T.O. and adds:

• On November 23 rd 2017, at 9:35 pm, officer Nadeau proceeded to arrest the accused with the assistance of the SWAT team. The accused was verbally informed of his constitutional rights in English. • At approximately 9:53 pm, as the first telewarrant was being executed, detective Bran-Lopez met with the accused, who was detained in a police car. The investigator confirmed that the accused properly understood his right to counsel and his right to remain silent. He then showed the accused a copy of the search warrant for 8789 Chartrand and explained what it was.

The accused understood and spontaneously uttered that if he wanted to kill someone with the weapon, he would have. He added that he did not want the police to search his residence since they would not find anything. He further stated “If I have something – but it’s not mine – I will tell you where it is”. Although the investigator reiterated his right to silence, the accused stated that what the police was looking for was in the basement apartment. The investigator asked him which one, since there were two doors (including apt. A where his grandmother lived).

The accused answered that it was in the other one, apartment B, whose door was adjacent to the garage (the same one he was seen exiting from earlier during the police surveillance).

c) The testimony of detective Carlos Bran-Lopez [ 31 ] In November of 2017, detective Carlos Bran-Lopez was an investigator with the Violent Crimes Unit of the Western Division. [ 32 ] He received the above-mentioned information from a C.I. alleging that the accused was in possession of a firearm. [ 33 ] On November 23 rd 2017, his work shift began in the afternoon.

After their team’s standard briefing meeting, Bran-Lopez approached his supervisor, informed him that his source had given him this information and that it was recent. [21] The lieutenant directed him to “start your footwork” and begin an investigation in order to verify the information received.

The lieutenant also told him to draft an I.T.O. when he had sufficient probable grounds. [22] [ 34 ] The entire investigation took place within that one day, between 2:00 pm and 9:00 pm. [ 35 ] Once he successfully validated the suspect’s address and confirmed it by cross-referencing the Facebook photo and Google Street View images, Bran-Lopez requested that a surveillance team be promptly mobilized on the scene.

Said surveillance quickly confirmed that the accused was there and appeared to reside there, based on his movements, entries and exits. [ 36 ] Having received the information from the surveillance officers, the investigator engaged the process to obtain a telewarrant, since it was already past the Montreal courthouse’s opening hours. [ 37 ] Bran-Lopez was the one who drafted the I.T.O. Lieutenant Castonguay did not correct it or edit it. [23] Bran-Lopez did however inform Castonguay of everything they had validated regarding the C.I.’s tip in the course of the afternoon and evening’s investigation.

All the elements enumerated in the I.T.O. were explained to the lieutenant. Thus, the lieutenant had essentially the same information as the investigator. [24] [ 38 ] At 9:10 pm, the justice issued the first search telewarrant for the dwelling at 8789 Chartrand Street, Lasalle and its outhouses/annexes. [ 39 ] Once the warrant was signed by the justice, the decision to arrest the accused was made.

In this specific case, Bran-Lopez considered that there were reasonable and probable grounds to simultaneously arrest the accused, as opposed to waiting to see if the search did in fact yield a firearm. [25] [ 40 ] Once the warrant was obtained, the supervisor of the surveillance team (still on the scene) was advised. Since the search was focussed on a firearm, the SWAT team was placed on standby.

Due to the potential danger of the situation, from an operational standpoint, the final say belonged to the SWAT team to determine the exact timing of the bust. [ 41 ] With respect to the administrative division of tasks, another investigator, officer Nadeau, had been designated to formally arrest the accused. Ultimately, the order to proceed to the arrest was made by the lieutenant in charge, Castonguay “when he deemed that they were ready to proceed”.

Once that order was given, the SWAT team would in turn determine the appropriate moment – based on safety concerns – for the accused’s arrest and give the green light to proceed. [26] [ 42 ] When the operational “green light” was in fact given by the SWAT team, the accused was driving his vehicle. He was a few blocks away from his residence. [ 43 ] Detective Bran-Lopez was nearby, but in the “external perimeter”. Officer Nadeau formally arrested the accused once apprehended and neutralized by the SWAT team. [ 44 ] The arrest took place at 9:35 pm.

After the accused was secured, the SWAT team remitted their arrestee to officer Nadeau, who in turn placed the accused in a police car. The SWAT team then proceeded to 8789 Chartrand, where the warrant would be executed. [ 45 ] Similarly, the patrol car carrying the accused also relocated to the site of the search. [ 46 ] It turns out that the building was a semi-detached triplex, as opposed to a duplex. The main floor was in fact 8789 Chartrand. At the basement level, there were actually two different apartments. One of them was a converted garage, where the accused’s grandmother [27] lived: 8789-A.

She was present on the scene and vocally expressing her displeasure with the police. This unit was of no interest to the officers; they had not observed any movement coming in or out of its door. [ 47 ] However, on the left of the garage was unit 8789-B, whose door was a side door, under the stairs [28] (not facing the street, but instead facing the inner driveway). This was the door that the surveillance officers had seen the accused entering and exiting with the box. [29]

[ 48 ] Bran-Lopez attended the triplex at 9:50 pm. Once there, he approached the accused, who was detained in the back seat of the police car.

The accused was handcuffed at the time, although the investigator remembers that at some point, at the accused’s request, the cuffs were switched from the back to the front. [ 49 ] Even though officer Nadeau had already informed the accused of his rights, [30] once at the police car, the investigator “advised him, to make sure he understood”, that he was under arrest” [31] and informed him of the grounds: possession of a firearm. [32] He also gave him his rights again. [33] He then showed him a copy of the warrant and read aloud the items the police was looking for. [ 50 ] During the exchange, Bran-Lopez did not ask the accused any questions. [34] Instead, on his own initiative, the accused stated “if I have something – but it’s not mine – I will tell you where it is”. [35] The investigator at that point reminded the accused of his right to remain silent. [36] [ 51 ] The accused then volunteered that he did not want the police to search the place and make a mess on the main floor of 8789 since there were children there, as well as his parents.

He did not want the officers to go there. Instead, he revealed that the weapon was downstairs. [37] [ 52 ] The accused was very cooperative. He spoke quietly. His attitude was agreeable, in the sense that he showed no signs of hostility or animus. The exchange was described as “civil” by the investigator. [ 53 ] It was at that point that Bran-Lopez did ask a question: “where downstairs?”, referencing the fact that there were two downstairs units, including the one where his grandmother lived.

The accused answered “no, the other one”, identifying 8789-B, [38] with a sense of resignation in his tone of voice. [39] The investigator then asked him where the keys for the unit were. The accused had them in his possession. [ 54 ] In cross-examination, the investigator was asked why he even approached the accused. He explained that his direct attention went towards the detainee, since there were several other officers on the scene already in charge of conducting the search in the triplex:

Q) But you didn’t have any specific role for the search.

A) No. I’m the lead investigator.

Q) Right. Agent Nadeau was responsible for the arrest of Mr. Baptiste.

A) Yes.

Q) OK. He had given Mr. Baptiste his constitutional rights.

A) Correct.

Q) OK. He hadn’t made any statements when you came on the premises. He hadn’t made any statements.

A) Not to my knowledge.

Q) Not to your knowledge. When was he arrested?

A) He was arrested, if my memory serves me well, at 9:35. Q) 9:35. You arrive on the premises around 9:50, you go meet him around 9:53, and… and… why… Why do you decide to… to ensure that his rights were respected?

A) Sometimes… It’s procedure. We just go. And I went to see the detainee, make sure everything was OK. I wanted to make sure that he was collaborating, that he wasn’t being aggressive. Usually, I like to advise the detainee of what’s going to happen, the procedures. So I said “you understand that you’re under arrest”. I repeated to him his rights. I made sure that he understood. I also explained to him that he was going to be transported to the Detention Centre West and that I was the detective in charge of the investigation. And I made sure to show him the warrant, what we were searching for. And that’s when he gave the statement.

Q) That was officer Nadeau’s job. The procedure you’re referring to, is it your procedure or is it the SPVM’s procedure?

A) No, no, no. It’s not a “procedure”. It’s just something, it’s just for me to establish a first contact with a detainee, to make sure that everything’s good, to make sure, you know, that he feels that the situation is not out of control. We were in front of his house with the SWAT. He had been jumped by the SWAT. So I was just making sure that the rapport was OK.

Q) Why would you want to make an initial contact with the detainee?

A) It’s just to make sure that everything was OK.

Q) Right. That wasn’t your job. Judge) Uh, hold on. Hold on. Is that a question or is that a statement of argument? […] I’ll wait for the question to be reformulated in the form of a question and we’ll see. [question withdrawn] [40] [ 55 ] During that discussion, which lasted less than 10 minutes, officer Nadeau and lieutenant Castonguay were nearby, though the former was more withdrawn. There were also two uniformed patrolmen in the police car, seated in the front seats. They were the ones

who had driven the accused to this location. It was those officers who unlocked the back doors, giving Bran-Lopez access to the arrestee. Bran-Lopez believed that Castonguay heard the accused’s statement. [ 56 ] By then, the actual search of 8789 was on the verge of beginning. Officer Nadeau was in charge of its execution. Officers had already taken preliminary steps, such as doing the walk-through while taking photos and installing label papers. [ 57 ] However, given the accused’s statement, 8789 was not ultimately subjected to an extensive search.

The police did “look around”, speak to the occupants and search the specific area where Mr. Baptiste had his possessions, but did not conduct a thorough search of the entire dwelling. [ 58 ] Bran-Lopez asked his lieutenant to quickly secure the downstairs apartment in order to ensure that no one was inside, and also to rule out any possibility that the two downstairs units were interconnected from the inside. At 10:05 pm, officers promptly secured the apartment accordingly and then withdrew as they waited to obtain a second telewarrant.

After obtaining Castonguay’s permission, Bran- Lopez relocated to a nearby neighbourhood police station where he drafted his second I.T.O. for the second search telewarrant. [ 59 ] At 11:14 pm, the justice issued the second search telewarrant for the unit at 8789-B Chartrand Street. [ 60 ] Ultimately, in the downstairs unit, the police seized an SKS-762 semi-automatic rifle, a 30-bullet high-capacity magazine, five 9-mm calibre bullets and a set of brass knuckles. [ 61 ] When discussing the contents of I.T.O. #1 during his testimony, the investigator explained that based on his experience, he knew the AK-47 to be a very long assault rifle, longer than an arm’s length.

He further explained that in his experience as a police officer, he had often seen firearms being moved in large boxes, duffel bags or containers. This was why the box being carried by the accused caught his attention; the size of the box was long enough to house an AK-47-type firearm. [41] [ 62 ] In the steps taken to validate the C.I.’s tip, Bran-Lopez is the one that searched the police databases to find the information pertaining to Nicholas Baptiste, listed at page 4 of the I.T.O.

After finding a previous booking photo and comparing it to the Facebook profile picture, the match was obvious to the investigator. It was clearly the same person. He is also the one that cross-referenced the photo on Facebook by toggling in 360 degrees on the Google Street View of 8789 Chartrand. He is the one who verified that a Saturn Relay is in fact a minivan. [ 63 ] As for paragraph 15 of I.T.O. #1, [42] the investigator pulled this information from the police databases, which allow them to trace back any documented incident, “ fiches d’interpellation ” [43] and police report event numbers.

d) The testimony of officer Alexandre Nadeau [ 64 ] Officer Alexandre Nadeau was also an investigator with the Violent Crimes Unit of the Western Division. On November 23 rd 2017, he was in charge of the search at 8789 Chartrand. He was to assume the role of “exhibit man”, which entailed seizing, labelling and bagging all of the items found by the search team. [ 65 ] Mr. Baptiste was arrested shortly after exiting an address, as he approached a vehicle, approximately 2 or 3 streets away from the 8789 building. He was intercepted by the SWAT team, which then handed him over to officer Nadeau.

Nadeau did not have a direct view of the takedown. Although he was on the scene, he was in a withdrawn position. [ 66 ] Nadeau took charge of the detainee at 9:35 pm and proceeded to arrest him for unauthorized possession of a firearm. In English, he cautioned him regarding his right to silence and his right to counsel and ensured that Mr. Baptiste understood. Once the arrest was concluded, Nadeau placed the accused in a marked patrol car. [ 67 ] In the following minutes, Nadeau repositioned the accused’s minivan, driving it back to 8789 Chartrand and parking it there at 9:50 pm.

The drive was short since the arrest site was near the accused’s home. [ 68 ] On the scene, Nadeau took control of the premises, entering the home at 9:53 pm. When he entered, he left a copy of the warrant on a table inside. [ 69 ] The accused’s family was in the building. Ultimately, the warrant was executed, but the officers did not conduct a thorough search at 8789, as had originally been planned, since the accused told detective Bran-Lopez that the weapon was in the basement instead. Nadeau did not himself hear said statement by the accused.

Instead, Bran-Lopez relayed it to him. [ 70 ] During his testimony, Nadeau could not clearly remember at what time he saw Bran-Lopez at the triplex, or if he even saw him there at all. He believed that he probably saw Bran-Lopez interacting with the accused at the arrest site, as opposed to in front of the triplex. Nadeau could also not remember who else would have been present. Similarly, Nadeau could not remember if the accused was moved from the arrest site to the triplex location.

e) The testimony of officer Martin Courchesne [ 71 ] Officer Martin Courchesne was a uniformed patrolman working at station 13. On November 23 rd 2017, he and his partner Gosselin were requested to take charge of a detainee, the accused. [ 72 ] He arrived on Ghislaine Street, the site of the arrest, at 9:43 pm. There, they were given the handcuffed accused. Gosselin proceeded to a pat-down search and placed him in the patrol car. They were then asked by an investigator to relocate to 8789 Chartrand Street, where they parked across the street.

[ 73 ] Officer Courchesne’s only interaction with the accused was on Chartrand Street, when he asked him to loosen his handcuffs. Courchesne and Gosselin adjusted the handcuffs twice, but ultimately, they decided to replace them in front of the accused, as opposed to behind his back. The accused was cooperative. [ 74 ] They remained on the scene at 8789 Chartrand for approximately 40 minutes. During that period, investigators possibly spoke to the accused, but Courchesne was paying no attention to their conversations, if any.

Instead, he was focussed on his on-board computer. [ 75 ] At 10:22 pm, Courchesne and Gosselin transferred the custody of the accused to other officers and stayed on the scene until 12:24 am to secure the perimeter until the search was complete.

f) The testimony of lieutenant Alexis Castonguay [ 76 ] Lieutenant Alexis Castonguay was in charge of the Violent Crimes Unit of the Western Division. In that capacity, he oversaw the investigators involved in the matter at bar as well as the operation on the scene. [ 77 ] On November 23 rd 2017, after the team’s regular briefing meeting at approximately 3:00 pm, detective Bran-Lopez approached him and informed him that he had received information from a C.I. regarding a firearm and that he would be pursuing the matter further in order to corroborate the information received.

Bran-Lopez specified that the informer’s credibility had been established and that he had specific information about the place, the address, the home where the firearm would be found. The entire meeting lasted only a few minutes. [ 78 ] Castonguay told him to follow up with the investigation and specified that if it was conclusive, the operation could be conducted that very same day.

In the meantime, the lieutenant mobilized a surveillance unit at the target address. [ 79 ] Castonguay does not remember the precise information given to him by Bran-Lopez during that first meeting, although he does recall devising a game plan for the investigator to corroborate the information received.

He wanted to investigator to corroborate the most information possible. [44] Similarly, Castonguay does not remember what corroborative information Bran-Lopez relayed to him later that evening, although he asserts that Bran-Lopez did in fact update him on the corroboration he obtained. [45] [ 80 ] Once the telewarrant was signed, Castonguay made his way to the scene where he held a briefing meeting with the SWAT team and another surveillance unit.

Before the intervention took place, the accused left the scene and moved northbound to another address, a few blocks away. [ 81 ] On the basis of detective Bran-Lopez’s reasonable grounds, the lieutenant ordered that the accused be intercepted by the SWAT team once his identity was verified by two different surveillance officers. He greenlit that Mr. Baptiste be intercepted and subsequently arrested by a Violent Crime investigator. [46] The “green light” per se was given in advance in the form of a pre-authorization, since the suspect had yet to exit the building he was in.

Moreover, after the “green light”, the SWAT team ultimately decided when it was safe to actually conduct the arrest, from an operational standpoint. [ 82 ] Castonguay was at the arrest site, a few metres away, taking cover to avoid being exposed to a potential crossfire. When the accused exited on foot, the SWAT team approached and used verbal commands to ensure his compliance. [47] Once secured (which took 2 or 3 minutes [48] ), custody of the accused was transferred to officer Nadeau. [ 83 ] Incidentally, during the arrest, Castonguay only saw the early seconds of the SWAT team’s approach.

He saw at least four SWAT officers exit a police van. They were dressed in tactical gear, which included dark grey police uniforms, tactical helmets and firearms, some of which may have been assault rifles. [49] [ 84 ] Castonguay then attended Chartrand Street, where the search would take place. The Lieutenant entered the triplex along with other officers and gathered its occupants (which included children), to which the warrant was shown.

A few minutes later, he exited the building and spoke to detective Bran-Lopez, giving him an update on how the operation was progressing. [50] By then the patrol car carrying the accused had just arrived on the scene. Castonguay could not remember if he had ordered that the arrestee be brought to Chartrand Street or if the arresting officer, Nadeau, had made that decision. [ 85 ] With the lieutenant nearby, Bran-Lopez opened the police car’s door and showed Mr. Baptiste a copy of the search telewarrant. The accused was handcuffed and displayed a calm, cooperative attitude. In English, Bran-Lopez explained to Mr.

Baptiste that the police would thoroughly search the entire house, everywhere. [ 86 ] Castonguay could not remember the entirety of the exchange between the investigator and the arrestee. He denied that Bran- Lopez threatened that the accused would have to cooperate, otherwise the police would make a mess.

Had he said that, the lieutenant would have intervened. [ 87 ] After the accused volunteered his first statement to the investigator (indicating that the weapon could be found downstairs), Bran-Lopez reiterated his right to silence. [ 88 ] After receiving the specific statement by the accused identifying where the firearm was, Castonguay gathered his staff and had them secure the basement apartment while they waited to obtain a second search telewarrant. The securing process took place at approximately 10:05 pm and lasted around 2 minutes.

The lieutenant’s objective was to ensure that there was no inner access to the basement apartment from the garage, as well as ensuring that no one else was present in the house who might destroy or move the evidence. No search was conducted during that time. [ 89 ] Incidentally, there was in fact a connecting door within the basement apartment leading to the garage, but the officers were unable to open it.

[ 90 ] From an operational standpoint, lieutenant Castonguay explained that whenever the police plans to conduct an arrest or a search involving firearms, a risk assessment form is completed and where the risk is deemed to be “high” or “moderate”, the SWAT team is always involved. [ 91 ] This standard procedure is in accordance with the program developed at the National Police Academy. The risk assessment depends on various factors, including the person’s history, his prior convictions, the nature of the weapon(

s) that might be in his possession, etc. It is never the arresting officer who orders the assistance of a SWAT team. Instead, due to all the operational requirements and staffing involved, the request is always made by the supervising officer. [ 92 ] Lieutenant Castonguay was the superior officer who approved the request for the SWAT team’s involvement in the case at bar. After signing the form, even he had to submit it higher up to his own supervisor for further approval. At the voir dire , he explained that the SWAT team’s involvement was not automatic in all cases suspecting the presence of a firearm.

That being said, the potential presence of a firearm was a major consideration in the assessment. [ 93 ] Unfortunately, at the time of his testimony, he could not remember what the contents of the assessment report were. While he remembers the conclusion and asserts with certainty that the standard protocol was followed, he was unable to provide the Court with any detail as to why the assessment came to that conclusion. [51] [ 94 ] The risk was deemed “moderate” for Mr. Baptiste. In particular, there was no information suggesting that the suspect could turn against the police officers during the intervention.

Had that been the case, the risk status would have been marked “high”. [ 95 ] As mentioned above, the SWAT team would also decide precisely when it struck, based on safety concerns pertaining to the officers, the suspect and the general public. 2- The evidence of the defence [ 96 ] The accused testified in support of his application. On the day in question, he attended his sister’s house on Ghislaine Street, where he stayed for a few hours. [ 97 ] As he prepared to leave, he entered his minivan and began to reverse, when he felt a Jeep ram him from behind. He then quickly saw a van arrive on his left.

The van’s door rolled open and two police officers pointed laser-equipped guns at him, quickly shouting commands: “shut the car off, drop your keys outside, keep your hands on the dashboard, keep her head low, open the window, slide towards the passenger seat, exit, walk backwards with your hands up, kneel to the ground”. [ 98 ] The accused complied with all their requests. They laid him on his stomach and handcuffed him. [ 99 ] During the collision, the accused was wearing his seatbelt.

He was not injured by the impact of the ramming, nor did he later notice any damage to his vehicle. [52] [ 100 ] The takedown itself lasted approximately 5 minutes, which the accused acknowledged was “fairly quick”. [53] [ 101 ] After being handed over to a plainclothes officer, said officer read him his rights. [ 102 ] The accused was then placed in the back of a marked police cruiser. The two patrolmen inside the car did not speak to him. [54] [ 103 ] After approximately 5 minutes at that location, the police cruiser brought the accused to Chartrand Street, parking across the street from his home.

The drive itself took 5-10 minutes. Roughly 15 minutes after that, outside of his home, detective Bran-Lopez approached him. [ 104 ] Bran-Lopez introduced himself as the lead investigator and asked him if he had been read his rights. The accused answered in the affirmative. In fact, the very first thing the investigator did was ensure that he had received and understood his rights. [ 105 ] In his testimony, the accused acknowledged that he understood his rights.

He did not claim that he asked to speak to any lawyer. [55] [ 106 ] At the voir dire , the accused described the ensuing conversation between himself and Bran-Lopez. His account evolved as his testimony progressed. [ 107 ] In his first version, the accused described that Bran-Lopez told him he had a warrant. The accused answered “go ahead”. The investigator then said that he needed the accused’s consent, to which the accused responded “no, you say you already have a warrant, so do your work. Go ahead”. [56] The investigator left and spoke to other officers. [ 108 ] In the meantime, Mr.

Baptiste asked the patrolmen to adjust his handcuffs. They refused. [57] When Bran-Lopez returned, he threatened: “Mr. Baptiste, if you don’t cooperate with us, we’re going to turn your house upside-down, inside-out. Your wife and your kids won’t like it”. The accused’s kids were in fact inside the house. [58] [ 109 ] At that point, the investigator bargained: “If I adjust your handcuffs, will you cooperate with us?”. The accused answered yes. [59] Bran-Lopez then opened the door and directed the patrolman to adjust the handcuffs, bringing them to the front.

He then asked “are you ready?”, to which the accused answered “yeah, let’s go”. [60] [ 110 ] In cross-examination, Mr. Baptiste claimed that all of the foregoing sequences happened in less than one minute. [61] [ 111 ] The investigator then took the accused and brought him across the street to the search site, i.e. his home. As they were about to

walk up the stairs to his house, the investigator said: “no, we don’t want to search the upstairs. We want to search your downstairs”. [ 112 ] There were two units downstairs. One was Mr. Baptiste’s mother’s residence. The other was a bachelor unit used by the entire family for various family gatherings.

The police was interested in the latter unit. [ 113 ] The accused answered “OK, let’s go”. [62] As they approached unit 8789-B, the accused saw that the police had already broken through the door and an officer was waiting inside the apartment. [ 114 ] Once they all entered, Bran-Lopez said “I know it’s in here” and the accused said “OK, it’s there”, telling them the firearm was in a cupboard behind the bar. [63] Another police officer seized it. [ 115 ] At no point did anyone show Mr.

Baptiste a copy of the search warrant. [ 116 ] In cross-examination, the accused added that in his opening words, Bran-Lopez asked him where the gun s were, to which the accused answered “I have no guns” (this was not mentioned in examination in chief). Crown counsel asked if the threat about turning the house inside-out concerned him:

Q) Were you concerned that the police officers might make a mess of things in your apartment?

A) I wasn’t concerned. He told me that… His exact words: “if I don’t cooperate, he’s going to turn the house inside out… and your family will not like it”. [64] […]

Q) So you yourself were not concerned?

A) After he said that, I was. [65] [ 117 ] Yet, minutes later, he instead claimed that he was not concerned:

Q) So, he tells you that if you don’t cooperate, he’s going to turn your house upside-down, your family won’t like it… How did you react?

A) I was like, “OK” [dismissive or nonchalant tone]. Q) “OK”, as in, “go ahead. Make a mess of things”?

A) Yeah.

Q) So again, if I submit to you that you were not concerned about his statement of him making a mess of things.

A) But he kept talking to me concerning that. OK? And then I said “OK, I agree. Let’s go”… He said it one time . Then I said “OK, go ahead”. Then I thought about it and I agreed, and I said “OK, let’s go”. [66] [ 118 ] According to the accused, when he said “OK let’s go”, he was not agreeing to show him where the gun was.

Instead, he agreed to take him to 8789 and show him that there were no guns inside. [67] POSITIONS OF THE PARTIES [ 119 ] The accused attacks the facial validity of the first search warrant, alleging that I.T.O. #1 contained insufficient grounds to support its issuance. [ 120 ] There is also a significant sub-facial challenge to the contents of I.T.O. #2. To say the least, the defence argues that the record before the authorizing justice did not accurately reflect what the officer knew, and that if it had, the warrant could not have issued.

In essence, the defence alleges that the investigator completely fabricated paragraphs 21 and 22 of the I.T.O. Those portions should therefore be excised from the affidavit, leaving no basis for the issuing of the second search warrant. [ 121 ] Even if the Court were to believe the investigator’s testimony, the defence submits that a clear violation of the accused’s right to counsel was established by the evidence, since detective Bran-Lopez engaged in a conversation with the accused in the back of the police car before he was given an opportunity to speak to a lawyer.

Under the guise of being helpful, the investigator actively sought to extract incriminating statements from the detainee. In his submission, the officers acted with a blatant and alarming disregard for his rights. [ 122 ] The applicant further alleges that the police used excessive force when they arrested him after exiting his sister’s house. The use of the SWAT team was unnecessary and inappropriate. [ 123 ] Finally, he contends that the police committed a serious Charter violation by entering the downstairs apartment without a warrant for no valid reason.

Since the destruction of evidence was not a realistic danger, the officers should have waited for the second telewarrant to be formally issued before entering. [ 124 ] The accused seeks the exclusion of the statements and all the material evidence obtained by the police, including the rifle, the ammunition and the high-capacity magazine. [ 125 ] As for the Crown, it submits that the I.T.O.s for both warrants were sufficient, even in their redacted form. The Crown contends that s. 10(

b) of the Charter was not compromised at any point since the accused voluntarily chose to speak to the investigator on the

scene, unsolicited. [ 126 ] As for the warrantless entry into the basement apartment before obtaining the second search warrant, the Crown contends that it was justified by exigent circumstances. ANALYSIS 1- The burden of proof and the assessment of credibility on a Charter voir dire

a) The onus to establish the Charter claims [ 127 ] It is trite law that an accused bears the ultimate burden of persuasion to establish, on a civil standard, that the evidence was obtained in a manner that infringed or denied his Charter rights. If the evidence is not persuasive either way, the Court must conclude that there was no infringement. [68]

b) Evaluating the credibility and reliability of the witnesses [ 128 ] The assessment of the validity of the search telewarrants rests on the text of the I.T.O.s and whether or not the information therein was sufficient to justify the issuance of the authorizations by the justice. The factual underpinnings of the analysis are relatively straightforward. [ 129 ] However, on issues pertaining to the sub-facial validity and the right to counsel, contradictory evidence was presented.

The Court must make findings of fact. [ 130 ] There is contradictory evidence between the accused and the officers regarding how he was approached, what was said by each party at the back of the police car and how the search was carried out. For the purposes of this specific ruling, the conflicts must be resolved on a balance of probabilities. [ 131 ] Given the applicable onus, the tripartite methodology proposed in R. v. W.(D.) [69] has no application in this Charter voir dire .

To do so would defeat the very notion of assigning the burden of proof on a balance of probabilities to the applicant. [70] [ 132 ] In R. v. Poole , the British Columbia Court of Appeal confirmed that the W.(D.) framework does not apply on a Charter voir dire . Since the accused bears the burden of proof on a balance of probabilities, the motions judge is required to weigh the evidence to determine which version of events is more probable. It would be an error to apply the reasonable doubt standard or the W.(D.) method at that stage. [71] [ 133 ] Semenuk J. aptly summarized the notion in R. v.

Russell : This Court’s view o n the assessment of credibility of an accused testifying in a Charter voir dire was fully expressed in R. v . Kicovic , 2004 ABPC 190 . In that case, I decided that the principles enunciated by the Supreme Court of Canada in R. v. W.(D.) do not apply. The accused on a Charter application carries both an evidentiary and a legal or persuasive burden of proof on the balance of probabilities. Guilt or innocence is not in issue at this stage of the proceedings, and the reasonable doubt principle has no application… It is much the same as the Court assessing credibility in a civil case.

If the Court is left in the position of not knowing whom to believe, the application cannot, in law, succeed . The Defence will have failed to discharge its evidentiary burden. [72] [emphasis added] [ 134 ] The Superior Courts of Quebec, [73] Alberta, [74] British Columbia [75] and Manitoba [76] have consistently espoused this same approach.

Several Provincial Courts have followed suit. [77] [ 135 ] Thus, if in considering the evidence as a whole, I am unable to determine whether one version of events is more probable than the other, that inability must be resolved in favour of the respondent and the application must accordingly fail.

c) The Court’s findings of fact [ 136 ] The Court does not believe the testimony of the accused. [ 137 ] Between his examination in chief and his cross-examination, his account of his discussion with Bran-Lopez changed significantly, as did his proffered reason for cooperating and disclosing the location of the firearm. Mr. Baptiste first claimed that he began “cooperating” when the investigator accepted to loosen his painful handcuffs, a request that had previously been denied to him. Yet, in cross-examination, there was no mention of the handcuffs being the reason he chose to collaborate.

Instead, there were contradictory statements about whether or not he was concerned with the upstairs apartment being turned inside-out. He first said he was not, then corrected that he was. He claimed that Bran-Lopez made the threat once, only to then correct that he “kept talking about it”. He finally asserted that he immediately agreed to cooperate; yet, seconds later, he instead claimed that he agreed to cooperate after taking time to think about it. [ 138 ] In addition to the foregoing, certain portions of his version were unrealistic on their face.

[ 139 ] For instance, he claimed that after being shown the warrant and answering “go ahead”, the investigator told him that he needed his consent before proceeding. It is difficult to reconcile this contention with the reality of the dynamics at play. With a search warrant in hand, it is clear that Bran-Lopez did not need the accused’s consent to search. Why then would the investigator contend that he did? There was no reason to.

He could gain no conceivable advantage from soliciting consent that was not needed. [ 140 ] Similarly, it would make no sense for Bran-Lopez to state, from the outset, that “if you don’t cooperate with us, we’re going to turn your house upside-down. Your wife and kids will not like it”. This alleged threat serves as the basis of the accused’s argument that he was intimidated into disclosing the whereabouts of the rifle. However, once again, the allegation is unrealistic. At the time the first contact was made between Bran-Lopez and the accused, the police already had a valid search warrant in hand.

The search had barely begun and was still in the preliminary set-up stages. Moreover, Bran-Lopez subjectively believed that the firearm was upstairs in the 8789 apartment. He had every reason to expect to find it there – and no reason to suspect that the weapon was downstairs instead. As such, the police did not need any cooperation whatsoever from the accused. [ 141 ] While the accused contends that the investigator wanted to know where the gun s were, there is no suggestion that the police believed that there were more than one weapon inside.

Equally puzzling is the accused’s allegation that the investigator told him that he was not interested in 8789, but was instead interested in searching the basement unit, adding “I know it’s there”. If that were true, detective Bran-Lopez would have sought – and likely obtained [78] – a warrant for the downstairs unit. [ 142 ] On another note, as explained above, the timeline alleged by Mr. Baptiste is unrealistic.

Recall that he claims that in less than one minute, the following events all happened: (1) the introduction; (2) the verification that he understood his rights; (3) the discussion regarding the warrant and the supposed need for consent; (4) the departure of Bran-Lopez, who went to speak to other officers; (5) the return of Bran-Lopez; (6) the threat regarding turning the house upside-down; (7) the bargaining about the handcuffs; (8) the exiting of the accused from the car in order for the patrolmen to switch his cuffs from the back to the front.

It is impossible for these alleged events to happen so quickly. [ 143 ] Apart from the inherent incoherencies and unrealistic aspects of the accused’s account, his allegations have rather sweeping implications. [ 144 ] In essence, he alleges that detective Bran-Lopez entirely fabricated the contents of his second I.T.O. He concocted the entire false conversation, he lied in his affidavit before the issuing justice and he lied under oath at trial.

Moreover, this would also imply that officer Nadeau and lieutenant Castonguay also lied at trial in order to support the ruse, since neither of the two ever mentioned the accused being taken out of the police car and being escorted onto the search site while the search was in progress. [ 145 ] According to the defence, even officer Courchesne, the uninvolved patrolman, would be in on the conspiracy. In his testimony, Courchesne stated that the accused never exited the police cruiser, other than the brief moment his handcuffs were adjusted. When they relinquished custody of Mr.

Baptiste, the accused was taken directly to the police station. [ 146 ] There is no conceivable reason why any of these officers would fabricate such a story. It is worth reiterating: officer Courchesne was not even part of that unit. He was a random neighbourhood patrolman who happened to be assigned to the custody of a suspect.

He did not know the accused and had no involvement in the investigation, before, during or after. [ 147 ] As for the testimony of the officers, the Court accepts their accounts of the events as truthful and accurate. [ 148 ] They all testified spontaneously and readily acknowledged when there were details that they did not remember or did not know. [ 149 ] Moreover, their accounts significantly corroborate one another. [ 150 ] Defence counsel cites the matter of U.S.A. v.

Sheppard , inviting the Court to draw an adverse inference regarding the credibility of detective Bran-Lopez and lieutenant Castonguay from the fact that they did not have handwritten notebook notes relaying the contents of Mr. Baptiste’s statements from the police car. [ 151 ] I do not accept this argument. While it is true that the failure to keep independent and contemporaneous notes will always be relevant when assessing the credibility and reliability of police officers’ testimony, the failure to take such notes must be assessed in the circumstances of each case. [79] [ 152 ] The context is key.

When Bran-Lopez approached Mr. Baptiste in the back of the police car, he did not plan on conducting an interview. Similarly, he did not anticipate that the accused would be making incriminating (or otherwise noteworthy) statements. They were outside, with the accused sitting in the police cruiser and the investigator standing on the sidewalk, as opposed to a police station setting or an interview room.

As will be fully canvassed below, detective Bran-Lopez merely wanted to ensure that everything was alright and show the accused the warrant, which was both appropriate normal. [ 153 ] The accused’s statements flowed from a short discussion that arose organically and quickly. In such circumstances, it would be impracticable and inappropriate for the investigator to tell the arrestee “wait a second… stop talking while I go fetch a notebook to jot this down”.

Such a suggestion would be wholly unrealistic. [ 154 ] After all, minutes later, Bran-Lopez went to the police station and urgently wrote out the contents of their conversation, directly into I.T.O. #2, which he drafted in some haste for obvious reasons.

In the circumstances, it is understandable that the investigator did not duplicate the same notes in another format such as a notebook. [ 155 ] At no point did detective Bran-Lopez display an attitude of nonchalance, [80] nor did he fail in his fundamental note-taking duties on the scene. [ 156 ] While police officers’ notes provide a vital record upon which to base decisions later at trial, [81] the officer’s prompt drafting of I.T.O. #2 fulfilled that very purpose.

[ 157 ] The lack of notebook notes from lieutenant Castonguay is not a source of concern either. Castonguay was on the scene as the supervising superior officer. He assumed managerial positions, overseeing the interplay between the different police units and mobilized resources. In the circumstances, it would not be expected of him to take prompt handwritten notes relaying the contents of a conversation that he did not even partake in. 2- The validity of the search telewarrants [ 158 ] As explained by the parties, the only difference between the first and second I.T.O. was the addition of the accused’s statement made from the back of the police car. [ 159 ] This

section will therefore focus exclusively on the first telewarrant.

If it is found to be invalid, the second one will also logically fail for the same reason. [ 160 ] Conversely, if the first warrant is upheld, the validity of the second warrant will then depend on the admissibility of the accused’s statements made to detective Bran-Lopez. a) “Reasonable and probable grounds” defined [ 161 ] The concept of “reasonable and probable grounds” applies both to the validity of the search telewarrants and to the legality of the warrantless arrest. [ 162 ] Between suspicion and proof beyond a reasonable doubt lies the level of reasonable and probable grounds. [ 163 ] The existence of reasonable grounds must be determined on the totality of the circumstances of each case.

The standard must be interpreted contextually. [ 164 ] Although the satisfaction of the objective requirement is a question of law, it is highly fact-sensitive. [ 165 ] A reasonable person standing in the position of the authorizing justice must be able to conclude that there indeed were, based on all the factors known or observed, reasonable grounds to believe that the evidence would be found in the place targeted by the police. [ 166 ] Similarly, with respect to the warrantless arrest, a reasonable person standing in the position of the police officer must be able to conclude that there indeed were, based on all the factors known or observed, reasonable grounds for the arrest. [ 167 ] Appellate courts have consistently held that a judge or justice is entitled to take the police officer’s training and experience into consideration in assessing whether he had reasonable and probable grounds. [82] [ 168 ] While mere suspicion will not suffice, the Supreme Court of Canada held in R. v.

Storrey that the information need not constitute prima facie evidence of guilt. [83] In fact, appellate courts have described the standard as not being high or overly onerous. [84] [ 169 ] Further, in Mugesera v. Canada , the Supreme Court added that the standard of reasonable grounds requires less than the standard applicable in civil matters of proof on the balance of probabilities. [85] [ 170 ] Along the same lines, in R. v.

Loewen , the Alberta Court of Appeal specified that a belief can be "reasonable" even if the existence of the facts is not "probable"; thus, "reasonable" relates to legitimate expectations that a fact exists, without having to say that it is "more likely than not". [86] In the more recent R. v. Ha , the same Court reiterated that “reasonable grounds” require a lower standard than “balance of probabilities”, [87] a view shared by the Saskatchewan Court of Appeal in R. v. Shinkewski , [88] by the Ontario Court of Appeal in R. v. Jacobson [89] and R. v.

Sadikov , [90] and by the British Columbia Court of Appeal in R. v. Spence , [91] R. v. Jir , [92] R. v. Henareh [93] and R. v. Glendinning . [94] [ 171 ] Similarly, the issue is not whether the officer could have conducted a more thorough investigation. [95] [ 172 ] That is not to say that the quality of the investigation will have no practical bearing on whether there are reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer’s grounds.

However, as expressed by Paciocco J.A. in R. v. Notaro , the point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming his belief. The material focus is on what the information known to the officer would mean to the reasonable person. [96]

b) The standard of review [ 173 ] The issuing justice, just like the reviewing court, must consider and assess the totality of the circumstances, viewing all of the I.T.O.’s paragraphs as a whole. [ 174 ] Fundamentally, there is a presumption of validity as to a search warrant [97] and the sworn information supporting it.

The accused bears the burden of demonstrating, on a balance of probabilities, that the I.T.O. was insufficient to establish reasonable grounds. [98] [ 175 ] The reviewing judge must show a high degree of deference to the issuing justice. [99] [ 176 ] This implies that the question of the issuance of the search warrant must not be approached de novo . A reviewing judge must not simply substitute his or her opinion or view for that of the issuing justice. The reviewing court should not ask whether it would have

reached the same decision as the issuing judge.[100] Instead, the court must determine whether there was reliable evidence that mightreasonably be believed that an offence has been committed and that evidence of that offence would be found at the specified time andplace, on the basis of which the authorization could be issued. [177] In other words, the issue is whether there was any basis upon which the authorizing justice could have issued the warrant.[101]It is insufficient for the defence to merely show that there were defects in the I.T.O.[102] [178] The I.T.O. must be read as a whole in a practical, non-technical and common-sense manner.[103] The reviewing judge mustapproach the task from a holistic perspective rather than a microscopic perspective which deconstructs the I.T.O. and inspects each pieceof information in it.[104] [179] I must also bear in mind that in this case, as is the general practice, the I.T.O. was prepared by the investigator without thebenefit of legal advice.

Often, this is done under tight time constraints,[105] as in the case at bar. As such, the quality of a police officer’swork product is not assessed using the standard expected of a legal draftsperson.[106] Police officers are not wordsmiths and the I.T.O.is not to be parsed as though produced by a meticulous lawyer.[107] It will not be surprising that an I.T.O. will have some flaws. Inreality, few applications are perfect.[108] [180] For this reason, I cannot accept the defence’s argument regarding the significance of the cardboard box observed in the hands ofthe accused.

In the closing submissions, counsel argued that the cardboard box was irrelevant and provided no corroboration whatsoeverof the C.I.’s tip. In support of his argument, counsel mentions that even though the affiant expressly mentioned the box (and went to thetrouble of describing its dimensions) at paragraph 17, he did not repeat this element 2 paragraphs later in the “conclusions” portion of theI.T.O.

As such, the defence contends that the box may not be considered in the assessment of the objective reasonableness of thegrounds to issue the search warrant. [181] The argument does not hold water. [182] First of all, the officer did in fact mention and describe the box at paragraph 17 of the I.T.O. This was no mere throwaway line.It was not included in the I.T.O. by accident. Instead, it was explicitly included for a reason. If the investigator went to the trouble ofwriting about it, it was because the element was obviously relevant to him.

The fact that he did not repeat it again in the conclusions is adrafting oversight or an imperfection that has no bearing on this Court’s analysis. [183] Moreover, as a reviewing court, much like the issuing justice, I am to assess the objective reasonableness of detective Bran-Lopez’s belief. The Court may consider any and all information included in the I.T.O. to do so. [184] That being said, hasty drafting cannot be used as an excuse for lacking details or deficiently explained allegations. [185] On that note, in the case at bar, certain portions of I.T.O. #1 were poorly written.

For instance, as the defence correctly raises,the

preamble to paragraph 2 states that the C.I. is reliable and has given information to the police in the past which led to various arrestsand searches, including in the field of guns and drugs. It further states that the information given by the C.I. has been corroborated bypolice databases and surveillance. [186] What the paragraph fails to indicate is: (1) how many times?[109] and (2) did the arrests and searches lead to charges and/orconvictions?

Since detective Bran-Lopez is actually this C.I.’s handler, this is the type of information that he could have – and shouldhave – easily included in his affidavit. [187] This lack of detail makes it more difficult to meaningfully assess the C.I.’s credibility. [188] Similarly, paragraph 15 contains some odd wording. It is drafted in such broad terms that its effective usefulness is neutralized.The affiant states that Mr. Baptiste is known to the police service “in matters of firearms” and that he was often involved inincidents/events with “persons of interest” having gang ties.

Finally, he was the target of several investigations, including a shooting in2007. As drafted, the paragraph fails to indicate: (1) what does it mean to be “involved in incidents”? was he a witness, a participant, anobserver, a bystander? (2) who are these “persons of interest” and why are they of interest? have they ever been convicted of relevantoffences? (3) what is the accused’s purported relationship with them? (4) where the accused was investigated, was he charged,exonerated, acquitted, etc.? It is obvious that these details were all at the affiant’s disposal through the police databases.

c) The standard of review applied to redacted I.T.O.s [189] As mentioned above, the sufficiency of the I.T.O. stands or falls on its redacted version. [190] In the recent case of R. v. Herta, Fairburn J.A. explained the analytic approach to be followed in such cases: The Standard of Review and Implications of Proceeding on a Redacted ITO In reviewing the ITO for sufficiency, the trial judge was required to take a common-sense and holistic approach.

The ultimate questionwas whether the issuing justice could have found that the content of the ITO in its redacted form, and the reasonable inferences thatcould be taken from it, gave rise to a credibly-based probability that Callahan had taken a gun into 1670 Clover Avenue: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1452; R. v. Araujo, [2000] 2 S.C.R. 65 at para. 51; Sadikov, at para. 37. The answer tothat question was squarely rooted in the strength of the CI information. The trial Crown was duty-bound to protect the CI’s identity.

Accordingly, the Crown was obliged to redact anything that might haveserved to identify the CI. There is no dispute in this case over the extent of the redactions made. Garofoli sets out a six-step process for reviewing redacted wiretap affidavits, but those steps apply with equal force to search warrants.

Where redactions have been made to the grounds for belief, step five of this process allows the Crown to attempt to support thesearch warrant on the basis of the material as redacted. If successful, the authorization or search warrant will be confirmed. Wherethe redactions are so broad that the remaining information cannot support the search warrant, then step six allows the Crown torequest the reviewing judge to consider “so much of the excised material as is necessary to support the authorization”: Garofoli,at 1460-1461. As the defence cannot see the redacted information, to the extent possible, a judicial

summary (typically first drafted by the Crown) willbe provided to the accused so that he or she can be made aware of the “nature of the excised material”: Garofoli, at p. 1461; R. v. Rocha(2012), 2012 ONCA 707 , 292 C.C.C. (3d) 325 at paras. 55-57; R. v. Crevier (2015), 2015 ONCA 619 , 330 C.C.C.(3d) 305 at paras. 41-47, 83, 97. Undoubtedly, invoking step six can be both complex and time-consuming. Efficiency and economy demand that careful thought begiven in each case to whether it is necessary to proceed on that basis.

Where CI information is peripheral or superfluous to thegrounds for belief, it will often be unnecessary to resort to step six. Where, though, the CI information is central to the groundsfor belief, step six may have to be invoked in order to answer whether the warrant could have issued. This may well have been one of those cases. Not only was the CI information central to the grounds for belief, but the redactions wereheavy. In particular, I note that the contents of an appendix to the ITO were entirely redacted.

That appendix was said by the affiant tocontain information allowing the issuing justice to “make an informed decision on the reliability of the [CI] information provided.” Given that the trial Crown chose to go no further than step five, the trial judge was placed at a distinct disadvantage. He was calledupon in a CI dependent case to determine, on the basis of a reduced record, whether the search warrant could have issued.[110] [emphasis added] [191] In the case at bar, the redaction cannot be described as “heavy”, nor are entire sections blacked out. However, much ofparagraph 6 is redacted.

The beginning of the sentence – which remains visible – suggests that the hidden remainder would havedisclosed how and when the C.I. gained his/her information. The C.I. in this case is central to the grounds for Bran-Lopez’s belief. [192] The State cannot have its cake and eat it too in matters such as this. Besides, the authorizing judge is part of the “circle” ofinformer privilege, as may be the reviewing judge.[111] The redacted portions could have been revealed to this Court. The Crown chosenot to attempt to. [193] To be clear, no one at this stage is suggesting that the redaction was improper.

However, the Crown and the police always run acertain risk that over-redacting the I.T.O. may lead to the warrant being quashed.[112] Ultimately, the net effect is that the issuing justicewas better informed than myself, the reviewing trial judge.

d) The I.T.O. was amplified as to the significance of the box [194] The person deciding whether the reasonable grounds standard has been met is entitled to “put two and two together”.[113] Infact, in R. v.

Vu, the Supreme Court underscored that the reviewing judge must take into account that authorizing justices may drawreasonable inferences from the evidence in the I.T.O.; the affiant need not underline the obvious.[114] [195] That brings us to the issue of the large cardboard box seen in the possession of the accused as he exited the basement unit. [196] In the Court’s view, the logical inference associated to said box was obvious: given its large, long and flat dimensions, it couldeasily be inferred that it was used to house or contain a long assault rifle. [197] Nevertheless, in his testimony at the voir dire, detective Bran-Lopez explicitly stated the significance of the box.

He explainedthat an AK-47 is a very long assault rifle, longer than an arm’s length. He further specified that in his experience as a police officer, hehad often seen firearms being moved in large boxes, duffel bags or containers. The box observed in the case at bar caught his attention. Itwas 4-feet-long, 8-inches wide and 8-inches deep.

These dimensions were such that the box was long enough to house an AK-47-typefirearm. [198] At the review voir dire, it is permitted to amplify the I.T.O. with additional evidence that was not placed before the issuingjustice, provided there were no deliberate attempts to mislead the authorizing judge.[115] [199] Good faith is a prerequisite to the amplification process.

In the case at bar, there was nothing deceitful about the affiant’s failureto explicitly mention in the I.T.O. that the large box was compatible to the size of an assault rifle. [200] To be clear, the actual dimensions of the box were expressly stated in the I.T.O. What was not added was the explicit linkbetween the box and gun, which, as mentioned above, was rather obvious anyhow.

As such, it was arguably not even necessary toexplicitly add this information at the voir dire. [201] Nevertheless, for these reasons, it is permissible for the reviewing Court here to consider that portion of the investigator’stestimony.

e) Reasonable grounds based on information obtained from an informer [202] The value of informers to the enforcement of criminal law in this country has long been recognized and respected. However,informer information can be variable in its reliability. As such, care must be taken by the police not to act on it precipitously orcavalierly.[116]

[ 203 ] Mere conclusory statements by an informer will obviously be insufficient to constitute reasonable and probable belief. [ 204 ] In R. v. Debot , the Supreme Court held that where the police has relied on a tip for a C.I. to obtain a search warrant (or to conduct an arrest), there are at least three concerns to be addressed in assessing the sufficiency of the grounds: 1. Was the information compelling? 2. Was the source credible? 3. Was the information in the tip corroborated by police investigation? [ 205 ] As explained by Wilson J., each factor does not form a separate test.

Rather, it is the totality of the circumstances that must meet the standard of reasonableness, and weaknesses in one area may be compensated by strengths in the other two. [117] [ 206 ] Reliability of an informer may be established by past performance or by confirmation from other investigative sources of part, or all, of the information provided.

It follows logically that the quality of the corroborative evidence will need to be high where there is an inability to assess the credibility and reliability of the C.I. [118] The level of verification required of an unproven source is generally higher. [ 207 ] Conversely, where the informer is a confidential source of known identity and proven reliability, the need for independent corroboration of the information is less important and not required as a rule of law. [119] [ 208 ] The relevant framework to assessing reliability of a tip was set out by the Supreme Court: 1.

Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to est

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