) ) HER MAJESTY THE QUEEN Respondent – v. –, 2010 ONSC 6699

CITATION : R. v. Cranham, 2010 ONSC 6699 COURT FILE NO.: 08-6236 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – WILFRED DOUGLAS CRANHAM Applicant ) ) ) ) ) ) ) ) )) ) ) )) Michael N.

Jones and Mark Holmes, for the Respondent Gary Chayko, for the Applicant ) ) HEARD: December 2, 2010 decision relating to an application to exclude evidence pursuant to section 24(2) of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS C. mCKINNON j. [ 1 ] The Applicant submits that the search of his home was carried out pursuant to a facially invalid warrant which made the search unreasonable, requiring the fruits of the search to be excluded from evidence at his trial.

The Facts [ 2 ] Following a two month investigation Detective Jeff Pilon of the Ottawa Police Service applied for a warrant pursuant to s. 11 of the Controlled Drugs and Substances Act (the “CDSA”). Detective Pilon submitted a package of materials, including four appendices, to Justice of the Peace Barry Moran. He identified himself to J.P. Moran with his police badge, and swore to the truth of the contents of his Information in his presence. Detective Pilon then left the warrant with him. [ 3 ] The first document presented to the Justice of the Peace was the Warrant to Search.

The face of the Warrant to Search states in bold letters that the warrant is “PURSUANT TO

SECTION 11 OF THE CONTROLLED DRUGS AND SUBSTANCES ACT . ” It i s issued to the “Ottawa Police Service and Peace Officers in the City of Ottawa.” It refers to the sworn information of “Detective Jeff Pilon.” It states “that there are reasonable grounds to believe that there is a controlled substance or precursor, a thing in which such a controlled substance or precursor is contained or concealed, offence-related property, or a thing that will afford evidence in respect of an offence under the Controlled Drugs and Substances Act , to wit, see Appendix “A,” in respect of which one or more offences have been committed contrary to the following

section of the said CDSA , namely, see Appendix “B,” is or are in a place, namely 2474 Autumn Hill Crescent, Ottawa, Ontario”.

Page two of the warrant authorizes the police “to enter the said place between 11:00 a.m. on the 2 5th day of January, 2008 and 8:59 p.m. on the 2 5th day of January, 2008, and thereafter to search for and to seize the said controlled substance, precursor, property or thing as the case may be, and to deal with it according to law.” The warrant is dated January 25, 2008 and signed by Justice of the Peace Barry Moran. [Bold letters in original] [ 4 ] Appendix “A” to the warrant lists the items to be searched for at 2474 Autumn Hill Crescent, Ottawa, Ontario, which are: 1.

Cocaine, Crack Cocaine and Cannabis Marihuana. 2. Documentary evidence, and without limiting the generality of the foregoing including, letters, notes, address books in print or electronic form, diaries in print or electronic form, electronic agendas and bills related to, or referring to the owner or occupant of the

property and vehicle. 3. Documentary evidence related to, referring to or pertaining to the premises located at 2474 Autumn Hill Crescent, Ottawa, Ontario. 4. Packaging materials, debt lists, weighing devices. 5. Canadian currency. [5] Appendix “B” lists the offences of which Mr. Cranham was believed to be involved, namely that “Wilfred CRANHAM (1948-08-14) on or about the 25th day of January, 2008, at the City of Ottawa, in the residence located at 2474 Autumn Hill Crescent,Ottawa, Ontario, unlawfully did, for the purpose of trafficking, possess a substance included in

Schedule I, of the Controlled Drugs andSubstances Act, to wit: COCAINE, CRACK COCAINE and CANNABIS MARIJUHANA contrary to Section 5(1) of the said Act,thereby committing an indictable offence under Section 5(3)(

a) of the said Act.” [6] Appendix “C” lists the location to be searched, namely “The dwelling unit located at 2474 Autumn Hill Crescent, Ottawa,Ontario, and without limiting the generality of the forgoing, the residence.” [7] Appendix “D” is the Information to Obtain the Warrant. It consists of 21 typewritten single-spaced pages detailingextensive surveillance carried out in relation to the residence of the accused, being 2474 Autumn Hill Crescent in the City of Ottawa.

The surveillance evidence is highly indicative of a dwelling being used for drug trafficking on a fairly constant basis, including visits tothat residence by one known cocaine dealer. In addition, Detective Pilon also relied upon a highly reliable informant who gave DetectivePilon grounds to believe that the accused was a trafficker in drugs, including cocaine, crack cocaine and marijuana, and the fact that theinformant purchased cocaine from the accused on January 25, 2008. [8] Mr.

Chayko takes no issue with the fact that the Information to Obtain the Search Warrant was free from defect andprovided sufficient grounds for Justice of the Peace Moran to issue the warrant. [9] In due course, Detective Pilon was called back into the office of J.P. Moran, who signed the warrant in the presence ofDetective Pilon. Detective Pilon left with the original warrant. He failed to notice that the appendices were not attached. Had henoticed, he testified that he would have attached his copies of Appendices “A” and “B” to the original signed by J.P. Moran.

At alltimes, Detective Pilon possessed a copy of the warrant and the appendices that were presented to J.P. Moran. [10] Detective Pilon then met with the tactical team, the drug unit team, the street team and the district team, all of whom wereassembled and ready to execute the warrant. He informed all present of the contents of Appendix “A” and Appendix “B” in an oralbriefing. All officers, being approximately 20 in number, initialled pages 1 and 2 of the original warrant. The evidence does not disclosewhether any officer noticed that Appendices “A” and “B” were not appended to the original warrant.

Officers who testified at thepreliminary inquiry understood from the oral briefing that they were looking for crack cocaine, cocaine and marijuana. [11] The warrant was executed through a “mechanical entry.” Both the front and back doors of the residence were breached withbattering rams. Mr. Cranham and certain other individuals in the residence were detained while the residence was searched. There isnothing in the evidence to suggest that Mr. Cranham was shown the warrant or that he asked to see it.

Found during the search werefunctional digital scales, cellphones, packaged marijuana, cocaine, psilocybin (magic mushrooms), cannabis resin, oxycodone pills, fourlong guns and a loaded handgun. The Issue [12] Mr. Chayko submits that the failure to have Appendices “A” and “B”, namely the list of items to be searched for and the listof offences, pursuant to which the search was being conducted, renders the warrant facially invalid, as a result of which the search wasunlawful and all items seized should be excluded from evidence. It is not disputed that should Mr.

Chayko’s argument be accepted, theCrown would have no case against Mr. Cranham. [13] Mr. Chayko argues that the right to be secure against unreasonable search or seizure, as guaranteed by s. 8 of the Charter, actsas a limitation on search and seizure powers of the government and guarantees a broad and general right to be secure from unreasonablesearch and seizure beyond mere protection of property.

It protects an individual’s reasonable expectations of privacy by preventingunjustified searches before they happen, and not simply determining after the fact that they ought not to have occurred: Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145. [14] There is a high expectation of privacy in a private residence, as recently confirmed in R. v. Dhillon, 2010 ONCA 582, [2010] O.J. No. 3749 (O.C.A.). Mr. Chayko submits that where a search warrant is defective in substance, it is tantamount tothe police searching a home without a warrant.

The onus is on the Crown to prove that the search was, on a balance of probabilities,reasonable. A precondition of a reasonable search is that it be authorized by law: R. v. Collins, (SCC), [1987] 1 S.C.R.265; R. v. Dombrowski (1985), (SK CA), 18 C.C.C. (3d) 164 (Sask. C.A.) [15] A search warrant cannot be a carte blanche to an officer to search generally. It must be a judicially authorized documentauthorizing the entry of a specific building to search for specific goods involving specific offences, otherwise it would amount to a“fishing expedition”: Shumiatcher v.

A.G. (Sask.) (1960), (SK KB), 129 C.C.C. 270 (Sask. Q.B.) [16] It is submitted in the case at bar the warrant was issued without description of items to be seized or offences to which theyrelate. These are matters of substance. The warrant was insufficient to permit the peace officers executing the warrant to identify theobjects to be seized and to link them to the offence described in the warrant: R. v. Comic Legends (1987), (AB KB),40 C.C.C. (3d) 203 (Alta.

Q.B.) [17] To avoid search warrants becoming instruments of abuse it has long been understood that if a search warrant fails toadequately describe the offence, fails to accurately describe the premises to be searched or fails to give an accurate description of the

articles to be seized, then it will be invalid: R. v. Comic Legends, supra. [18] Mr. Jones and Mr. Holmes submit that the absence of the appendices being attached to the warrant, while unfortunate, cannotin the circumstances of this case negate the validity of the warrant. As noted, Sergeant Pilon had a copy of the appendices with him andin the briefing of all officers engaged in the search he orally informed them of the contents of Appendices “A” and “B”.

The officersknew exactly what they were searching for and the offence to which the items related. [19] They further submit that warrants issued under s. 11 of the Act are different than those issued under s. 487 of the CriminalCode. The difference has been recognized in R. v. Saunders, 2003 NLCA 63 , [2003] N.J. No. 309 (Nfld. & Lab. C.A.) aff’d bythe S.C.C. [2004] S.C.J. No. 66. That case held that s. 11 of the Act contains comprehensive provisions respecting the issuing andexecution of search warrants.

Unlike s. 487 of the Criminal Code it does not specify a form which may be used or varied to suit thecircumstances. [20] One major difference is that Criminal Code warrants are required to be produced and shown when requested and wherefeasible to do so to the person who is the subject of the search, but there is no comparable

section in the CDSA. One of the reasons forthis distinction is obvious. In many circumstances the execution of warrants under the CDSA must be dynamic, with an element ofsurprise attached to the execution of the warrant. The law pertaining to the propriety of “dynamic entry” is fully and conveniently set outby Code J. in R. v. Thompson, 2010 ONSC 2862 , [2010] O.J. No. 2070 (S.C.J.). It is often the fact that executing warrantsunder the CDSA requires heightened care to be taken to ensure the safety of the officers executing the warrant and the residents of thepremises to be searched.

Frequently those executing such warrants face dangerous dogs or dangerous weapons and the opportunity forthe subject of the search to dispose of illegal substances, thus justifying “dynamic entry”. [21] Mr. Jones and Mr.

Holmes submit that the warrant should be held valid because it is titled a “Warrant to Search”, it is issuedunder the authority of the Controlled Drug and Substances Act, it identifies a controlled substance or a precursor as being the object ofthe search, it identifies the offences subject to the investigation as “offences under the Controlled Drugs and Substances Act” and itaccurately and completely identifies the residence that was the subject of the search.

It specifies the authorized time of the search andbears the legible signature of the Justice of the Peace who issued the warrant, and thus it is apparent that the police were looking forillegal drugs in relation to possible drug charges from the two page warrant that was issued. The oral information supplied to the officerswho executed the search correctly reflected Appendices “A” and “B” that were submitted to Justice of the Peace Moran. [22] It is submitted that the failure to list items searched for on the face of a warrant is not fatal. In R. v. Lee, [1998] N.W.T.J.

No.195, Vertes J. held at para. 23 that the failure to list items searched for on the face of a warrant “may sometimes be fatal and sometimesnot.” In the case before him he concluded that the alleged offence specified on the face of the warrant, namely “keeping a commongaming house” made it obvious as to what would be searched for. Analysis [23] In my view the warrant provided to Detective Pilon was deficient on its face. Where the face of a warrant refers to appendicesin bold print and the appendices are not attached to the warrant, it cannot be said that the warrant is valid.

A lay person reading thewarrant would have general knowledge that controlled drugs are being searched for, but not specific drugs. While the crime may beassumed, namely trafficking in drugs, it is nonetheless not stated which specific offences are contemplated. On its face the warrant isoverbroad and affords little, if any, limitation upon the scope of a search executed in accordance with the warrant.

The appendices areintegral to the warrant. [24] Having so found, however, I am compelled to conclude that the breach of the s. 8 rights of the accused in this case wastechnical and minor given the overall circumstances. [25] Applying the test for exclusion of evidence as recently set out in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, themore severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselvesfrom that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence tothe rule of law. [26] In my view, Sergeant Pilon and all officers involved in the search acted in good faith. Although not possessing Appendices“A” and “B” with the original warrant, Sergeant Pilon did possess Appendices “A” and “B” in the copy that he carried with him.

Appendices “A” and “B” were explained orally to all officers engaged in the search. In my view, what occurred in this case amounted toan inadvertent and minor violation of the Charter and the admission of the evidence would not undermine public confidence in the ruleof law. [27] With respect to the impact on the Charter protected interests of the accused, there is no doubt that a search of one’s home is avery serious matter. It is not as intrusive, however, as a searche of one’s person that compromises human dignity.

There is nothing inthe evidence in this case to suggest that the search was conducted outside the four corners of the warrant authorized by Justice of thePeace Moran. [28] With respect to society’s interest in an adjudication of the case on the merits, it is not disputed that to exclude the fruits of thesearch would gut the case for the prosecution. The items found are highly reliable evidence, namely drugs, drug paraphernalia andguns.

The cogent reliability of the evidence weighs in favour of admission. [29] In the circumstances of the case at bar, I am persuaded that given the technical breach of the rights of the accused, the goodfaith of the officers and the highly reliable evidence obtained as a result of the search, the evidence must be admitted. [30] In the result, the application is dismissed.

The Hon. Mr. Justice C. McKinnon Released: December 8, 2010 CITATION : R. v. Cranham, 2010 ONSC 6699 COURT FILE NO.: 08-6236 DATE: 20101208

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – WILFRED DOUGLAS CRANHAM Applicant decision relating to an application to exclude evidence pursuant to section 24(2) of the caNADIAN charter of rights and freedoms C. McKinnon J. Released: December 8, 2010