R. v. Evans (E.D.), 2014 MBCA 44

Citation: R. v. Evans (E.D.), 2014 MBCA 44 Date: 20140506 Docket: AR 12-30-07886 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN: ) G. F. WiebeHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler and ) D. L. Carlson- and - ) for the Respondent ) ) Appeal heard andELWYN DAVID EVANS ) Decision pronounced: ) April 28, 2014 (Accused) Appellant ) ) Written reasons: ) May 6, 2014 MAINELLA J.A.

Introduction and Issues [1] The appellant was convicted by a judge and jury of manufacturing STEN submachine guns (a circa World War IIfirearm) contrary to s. 99(1) of the Criminal Code (the Code) and four other related firearm offences. He appeals his convictions on thebasis that his rights under ss. 8 and 11(

b) of the Canadian Charter of Rights and Freedoms (the Charter) were infringed by the search ofhis property and the unreasonable delay of his trial. [2] After calling on the Crown to address only the issue related to the search of the appellant’s property, the courtannounced that the appeal was dismissed with reasons to follow. These are those reasons. Unreasonable Delay [3] Decisions regarding unreasonable delay are “extremely fact-specific” (R. v. George (D.P.), 2006 MBCA 150 at para.72, 208 Man.R. (2d) 300). The total delay in this case, factoring in waivers, was 57 months.

Only the last approximately 18 monthsafter a mistrial of the appellant’s first trial is contentious. In dismissing the appellant’s motion for a stay of proceeding, the trial judgedetermined there had been unreasonable delay as a result of the mistrial and she went on to balance the prejudice to the appellant againstthe societal interest in having a trial on serious allegations. Her reasons demonstrate a careful weighing of the relevant s. 11(

b) factors asdiscussed in R. v. Morin, (SCC), [1992] 1 S.C.R. 771. Her decision is sound and entitled to deference (R. v. Byron(M.C.), 2001 MBCA 81 at para. 10, 156 Man.R. (2d) 154). Challenge to the Search Warrant Background [4] On August 4, 2006, based on the information to obtain (ITO) sworn by Det. Sgt. John Joseph O’Donovan (O’Donovan)of the Winnipeg Police Service, search warrants, pursuant to s. 487(1)(

b) of the Code, were issued for the properties of the appellant andhis common-law son-in-law, near Gimli, Manitoba. Items seized from the appellant’s property included 19 STEN submachine guns,magazines and ammunition. [5] The appellant brought a pre-trial motion alleging two breaches of s. 8 of the Charter: (1) the ITO lacked sufficientgrounds to meet the requirements of the Code; and (2) the search warrant should be quashed in its entirety because O’Donovan provided

false and misleading information to the authorizing justice. [6] After conducting a Garofoli hearing (R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421) (where O’Donovantestified) the reviewing judge dismissed the motion, despite in her words this being a “very close case” (at para. 79).

It is agreed thatO’Donovan exhibited bad faith in the ITO by: placing prejudicial information in it (details of a bombing that the appellant was acquittedof in 1992 and information of the appellant’s link to a white supremacist group); deliberately failing to disclose the existence of oneinformant relied on in the ITO; and lying in the ITO that STEN submachine guns “have been showing up at the property of Elwyn Evanssince 1989” (a bald assertion with no foundation). [7] The reviewing judge excised the erroneous information and then reviewed what remained in the ITO, as clarified bythe Garofoli hearing.

She determined that there was sufficient remaining reliable information upon which the authorizing justice couldhave granted the search warrant for the appellant’s property. She was satisfied that information from two of the five informants in theITO (Y and K), who both had seen the appellant in possession of a STEN submachine gun, either on his property or elsewhere, wassufficiently detailed and corroborated to provide the necessary reasonable grounds, although both were first-time informants. [8] Three findings of the reviewing judge relating to O’Donovan’s bad faith were key to deciding this appeal.

First, she didnot make an adverse credibility finding as to the reliability of all of his information in the ITO. Second, after excising erroneousinformation, she was satisfied that there remained a sufficient basis on which to issue the search warrant because, in her view, theinformation from informants Y and K was reliable. Third, she concluded, after weighing the impact of the misleading and falseinformation, that it was not necessary to quash the search warrant in its entirety. Analysis and Decision [9] The standard for a judge conducting a Garofoli review was summarized by Charron J. in R. v.

Campbell, 2011 SCC 32,[2011] 2 S.C.R. 549, as follows (at para. 14): …. In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide “reasonable and probable grounds,established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”(Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is “not whether thereviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit anissuing justice to authorize the warrant (Morelli [2010 SCC 8, [2010] 1 S.C.R. 253], at para. 40). In conducting this analysis, thereviewing court must exclude erroneous information from the ITO and may have reference to material properly received as“amplification” evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41).

The accused bears theburden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para.68; Morelli, at para. 131). [10] In determining whether there is a sufficient evidentiary basis, the reviewing judge should take into account reasonableinferences that can be drawn from the information in the ITO (R. v. Vu, 2013 SCC 60 at para. 16, [2013] 3 S.C.R. 657). [11] Errors, even fraudulent ones, do not automatically invalidate a search warrant. In R. v.

Bisson, (SCC),[1994] 3 S.C.R. 1097, the Supreme Court of Canada stated (at p. 1098): As stated in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, errors in the information presented to the authorizing judge,whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselveslead to automatic vitiation of the wiretap authorization as was done by the trial judge.

The trial judge should have examined theinformation in the affidavit which was independent of the evidence concerning Eric Lortie in order to determine whether, in light of hisfinding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit afterexcluding the paragraphs directly affected by the retraction.

On the basis of this analysis, we are satisfied that there was sufficientindependently verifiable information which was not affected by the trial judge’s finding and upon which an authorization couldreasonably be based. [emphasis added] [12] The appellant argued that the reviewing judge erred in concluding there was sufficient reliable information to uphold thewarrant after excision of the erroneous information.

In our view, when the information of informants Y and K is considered in thetotality of the circumstances, the statutory pre-conditions to issue a search warrant for the appellant’s property could have been satisfied(Campbell at para. 14). [13] There was ample evidence in the ITO that the property of the appellant’s son-in-law was being used for trafficking inSTEN submachine guns.

The inference that could be drawn from Y and K’s information is that the appellant’s property (which wasnearby to his son-in-law) was being used to store the guns and that the appellant knew that, as he was seen by both informants withSTEN submachine guns and K had seen such guns on the appellant’s property.

[14] We see no error in the reviewing judge considering the effect of informants, Y and K’s, information cross-corroboratingeach other in assessing whether, in the totality of the circumstances, reasonable grounds to search the appellant’s property existed (R. v.Saunders (G.T.), 2003 NLCA 63 at para. 15, 232 Nfld. & P.E.I.R. 22, aff’d, 2004 SCC 70, [2004] 3 S.C.R. 505). [15] The appellant also argued that the reviewing judge did not properly distinguish between what information pertained tothe appellant’s property and what related to his son-in-law. We disagree.

In parts C (at paras. 30-51) and D (at paras. 52-61) of herreasons, the reviewing judge neatly and cogently distinguished between the two properties and summarized what information existed tojustify the search for each of the properties. [16] Finally, the appellant argued that the reviewing judge should have quashed the search warrant in its entirety due to theadmitted lie and other “failures” of O’Donovan.

He argued that even if there was sufficient reliable information remaining in the ITOafter excision of erroneous information that could justify the issuance of the search warrant, it should have been quashed in the interestsof justice. [17] In R. v. Gordon (E.W.T.) (1999), (MB CA), 138 Man.R. (2d) 298 at para. 36 (C.A.), this courtadopted the following comments of Cromwell J.A. (as he then was) in R. v. Morris (W.R.) (1998), 1998 NSCA 229 , 173 N.S.R.(2d) 1 (C.A.) (at para. 91): …. …. 3. Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant.

However, it mayhave this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the priorauthorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleadingmaterial should be excised from consideration; …. See also R. v. Araujo, 2000 SCC 65 at para. 54, [2000] 2 S.C.R. 992. [18]

Section 8 of the Charter requires that the prior authorization process prevent unjustified searches before they happen(Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at 160). Because the prior authorization process is ex parte,the affiant has a legal duty to make full and frank disclosure of all material facts (whether favourable or not) in the ITO (Araujo at para.46; R. v. Morelli, 2010 SCC 8 at para. 58, [2010] 1 S.C.R. 253).

The affiant’s honest and diligent performance of that obligation isessential for the authorizing justice to be able to determine whether the state’s interest in carrying out the search outweighs the privacyinterest of the individual.

Since Bisson is clear that a search warrant is not automatically invalidated due to a deliberate fraud, it will be aquestion of degree in the particular circumstances as to whether an affiant’s deliberate breach of their ex parte duties rises to the pointthat it can be said that the prior authorization process has been subverted (i.e., it cannot perform its safeguard purpose of preventing anunjustified search before it occurs). [19] While the standard set by Morris for setting aside a search warrant is a high one, it was open to the reviewing judge hereto make such a finding, not as a substitute for the decision of the authorizing justice to issue the search warrant, but rather to ensure theprior authorization process could perform its purpose as stated in Hunter.

The reviewing judge considered setting aside the searchwarrant in accordance with the standard discussed in Morris, but came to the conclusion the prior authorization process was not corruptedby O’Donovan’s bad faith. She gave very careful reasons that are supported by the record. We see no basis to interfere with her exerciseof discretion to not quash the search warrant in its entirety. [20] Appellate deference is owed to the reviewing judge’s decision if he or she selects and applies the correct standard ofreview (R. v.

Henderson (W.E.), 2012 MBCA 93 at para. 72, 284 Man.R. (2d) 164, leave to appeal to S.C.C. ref’d, [2012] S.C.C.A. No.524 (QL)). The reviewing judge properly understood her role in conducting the Garofoli review. Therefore, we were not persuaded thatshe erred in law, misapprehended the evidence, or failed to consider relevant evidence (R. v. Sadikov (S.) et al., 2014 ONCA 72 at para.89, 314 O.A.C. 357). Conclusion [21] The appeal is dismissed. J.A. I agree: J.A.

I agree: J.A.