CITATION: R. v. Campbell, 2010 ONCA 588 |
DATE: 20100913 |
DOCKET: C49978 |
COURT OF APPEAL FOR ONTARIO |
Doherty, Juriansz and Karakatsanis JJ.A. |
BETWEEN |
Her Majesty the Queen |
Appellant |
and |
Norman Martin Campbell |
Respondent |
Susan Ficek, for the appellant |
Dirk Derstine and Mariya Yakusheva, for the respondent |
Heard: May 6, 2010 |
On appeal from the acquittal entered by Justice Bonnie L. Croll of the Superior Court of Justice, dated January 7, 2009. |
Juriansz J.A.:
[1] This is a Crown appeal from a trial before a judge of the Superior Court of Justice sitting without a jury. The respondent was charged with weapons offences, alleging he possessed a sawed-off shotgun and ammunition, and that he did so while under a weapons prohibition and while on probation with conditions not to possess weapons. The police found the shotgun and ammunition in the respondent’s room in a rooming house during the execution of a search warrant in the course of a murder investigation. Another resident of the rooming house was charged with and has been convicted of the murder.
[2] The trial essentially consisted of an application brought by the respondent on the basis that his right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms was infringed. The application was heard and the evidence was excluded pursuant to s. 24(2) of the Charter. Upon that ruling the Crown called no evidence and the respondent was found not guilty of all charges.
[3] For the reasons that follow, I would find that the trial judge misapprehended parts of the evidence, and failed to properly consider some of the evidence. On a proper review of all the evidence, I would allow the appeal and set aside the acquittals and order a new trial. In my view, there were sufficient grounds upon which the issuing justice of the peace could have granted the search warrant. Consequently the search and seizure were constitutional and the shotgun and ammunition were admissible.
[4] Submissions were made at the trial and on appeal about the expectation of privacy that a person has in a rooming house. In my view, nothing in this appeal turns on the degree of the respondent’s expectation of privacy. The evidence seized was found in the exclusive space of the respondent within a rooming house, and his expectation of privacy there from state intrusion was as high as that of a resident of a single dwelling unit. There is also nothing that turns, in my view, on the fact that a single warrant was sought with respect to the entire rooming house with more than one tenant. The places for which search warrants are sought are often complex and frequently involve more than one person’s interests.
[5] On July 14, 2006, the body of a female was discovered
on the grounds of a townhouse complex located on
[6] Two other garbage bags were also found with the large black sports bag. In the other two garbage bags were found a number of significant items, including:
· An empty torn open plastic bag labelled as having contained a drop sheet.
· Green masking tape.
· Newspapers dated June 30, July 6, and July 8, 2006.
· Papers appearing to be an application for a live-in care-giver.
· A receipt for Chinese food, which had a delivery address of 246 John Garland #77.
· A torn
· A purse, containing blood stained papers and two cellular phones.
· Identification
of a female, later confirmed to be of the deceased, with an address of
· A pair of pants turned inside out with a set of keys attached to them.
· Shoes, and other clothing.
· A bed sheet, pillow case, white tank top, and a Denver Hayes shirt, all soaked in blood.
· Another cellular phone with some blood on it.
[7] The police conducted searches of their computer
databases in relation to the address
[8] Out of concern for any other occupants who may have been in danger or in need of any medical attention the police decided to enter townhouse #77. The Emergency Task Force entered the townhouse and extracted three people, Imona-Russell, the respondent and the respondent’s girlfriend. Once the ETF cleared the building, it was sealed and guarded by the police, who prevented anyone from entering.
[9] The police tentatively confirmed the identity of the deceased with her family using a description of distinctive tattoos which were found on the body, and later definitively with dental records. It was also confirmed by the police that the deceased was last seen at work on July 8 and that she failed to return for her shift on July 9, just prior to the sports bag first being noticed by residents of the townhouse complex on July 10.
[10] The police interviewed Imona-Russell, the respondent, and his girlfriend, as well as the owner/landlord of townhouse #77. It was then confirmed that the deceased, Imona-Russell, the respondent and one Gregory Ryder were all residents of townhouse #77 which was a rooming house. Ryder was also interviewed by the police shortly thereafter.
[11] From these interviews police learned more specifics about the living arrangements within the townhouse. The landlord in particular indicated that the four individuals were renting furnished rooms and each tenant had a lock on his or her door. He indicated that there is a shared bathroom on the second floor and a shared kitchen on the main floor. This appears to have been an oversimplification, because in fact there is also a living room and a dining room on the first floor and a kitchen and a bathroom in the basement. The landlord indicated that the deceased, Imona-Russell, and Ryder had their rooms on the second floor, and the respondent had a room in the basement. The respondent had to go through the first floor to get to his room in the basement.
[12] The respondent indicated to the police that he had moved into townhouse #77 in mid-June, only a few weeks prior to the deceased’s disappearance. During his interview with the police, Imona-Russell indicated that the respondent used black bags and luggage when he moved into the townhouse – that he had two or three bags that were all black.
[13] The police applied for a warrant to search townhouse #77, and as required by s. 487 of the Criminal Code, one of the investigating officers swore an Information to Obtain Search Warrant (ITO). The ITO in this case consisted of the prescribed Criminal Code Form 1, dated July 19, 2006, which references three appendices (A, B, and C) consisting of 53 pages in total, which in turn refer to further appendices D, E, F, G, H, I, and J, consisting of another 125 pages. On the basis of this ITO, a justice of the peace issued a search warrant, and the police conducted a search of townhouse #77 including the respondent’s room in the basement. During that search, the police located a sawed-off shotgun and ammunition in the respondent’s room, which were the basis of the charges the he faced.
[14] The respondent re-elected to be tried by a judge without a jury in the Superior Court of Justice, and pled not guilty to all charges. Prior to the Crown calling any evidence, the respondent brought an application to exclude the evidence of the shotgun and ammunition seized by the police from his room. The basis of the application was that the ITO prepared in the course of the murder investigation was overly broad and insufficient as it related to the respondent’s room, that the search of his room infringed his s. 8 right to be secure from unreasonable search or seizure, and that the evidence should be excluded pursuant to s. 24(2) of the Charter.
[15] The application record, containing a copy of the ITO, was filed as an exhibit, as was a diagram of the townhouse complex, a floor plan of all three levels of townhouse #77, and a transcription of the respondent’s interview with the police. There was no viva voce evidence adduced by the applicant or the Crown. After hearing submissions from the respondent’s counsel and the Crown, the trial judge granted the application and excluded the evidence of the shotgun and ammunition.
[16] Upon receiving that ruling, the Crown elected to call no evidence, and the respondent was found not guilty of all the charges he faced.
Ruling by the Trial Court
[17] The trial judge framed the issue to be determined as whether the affiant of the ITO established reasonable grounds to believe that there was evidence to be found in the place to be searched, which in the case of the respondent was his room. The trial judge also indicated that,
[T]he task of the reviewing justice is more limited than that of the authorizing justice. The reviewing justice must determine whether the authorizing justice could have granted the warrant on the basis of the record presented to him or her as amplified on review ... [T]he question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued.
[18] The trial judge found four main problems with the ITO in this case, which can be summarized as follows:
· The backgrounds of the three male residents, the respondent, Imona-Russell, and Ryder were unfairly “melded” to suggest any one of them could have been involved with the murder. Because the murder likely had a sexual nature to it, only Imona-Russell’s criminal background was relevant to the offence for which the warrant was being sought.
· The familiarity and knowledge of all the tenants about each other’s comings and goings and dealings was exaggerated. At most, the connection between the tenants, beyond their shared address, was the opportunity to have participated in the offence, but opportunity does not amount to the grounds necessary for a warrant.
· The “possibility” indicated in the ITO that the residents’ rooms could be insecure, thus allowing the offence and disposal of the body to be committed in any of them, was mere speculation.
· The Chinese food receipt that was found in the garbage bags with the body would not alone give rise to reasonable grounds to search the respondent’s room.
[19] Later in her ruling, the trial judge concluded,
I find that the ITO is deficient in establishing a specific basis for believing that evidence of the murder could be found in Mr. Campbell’s separate apartment.
For all these reasons, I am not persuaded that the totality of the information establishes a nexus between the murder and Mr. Campbell’s apartment such that the authorizing judge could have made the inference that there may be some evidence in Mr. Campbell’s apartment. Given the physical layout of the building, the approach was simply too general to justify a search of Mr. Campbell’s residence.
[20] In R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont.
[T]he usual deference is owed to the findings of the trial judge in her assessment of the record “as amplified on the review” and her disposition of the s. 8 application. In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere with the trial judge's conclusion.
[21] The trial judge framed the issue and her task correctly. However, upon review of her ruling and the trial record, I would conclude she failed to consider relevant evidence, and misapprehended evidence.
[22] Firstly, the trial judge explicitly and in my view improperly focussed on a relatively brief portion of the ITO in her reasons, namely a two and a half page section at the end of Appendix C, entitled “Grounds to Believe That Things are at the Place to be Searched”. It is important to note that this section appears near the end of a fifty page narrative in the ITO, which as a whole describes the series of events and investigative steps taken in this murder investigation to that point. If anything, the section might best be described as a summary of some of the salient grounds. The Form 1 in this case, the document required by s. 487 of the Criminal Code, clearly directs the reader to Appendix C for the grounds on which the affiant believes items will be found at the place to be searched. The Form does not highlight any particular part of Appendix C.
[23] More importantly, a narrow focus on the summary section is inconsistent with the legal requirement that the issuing justice of the peace act judicially, which would include diligently and independently reviewing the entire ITO and considering all of its contents.
[24] An apt example of the problem inherent in the trial judge’s focus on the summary section of Appendix C is her concern about the following statement in that section.
Each of the above males is known to the police for various criminal offences (although not associated) where there is a history of sexual assaults and domestic violence.
The trial judge found that,
By making this very broad and arguably misleading assertion, the Affiant melds the three tenants together to suggest, somewhat disingenuously, that any one of them could have been involved in the murder.
However, immediately after this statement in Appendix C, the ITO clearly states in parentheses, “Refer to Appendix’s [sic] I, E, AND F for complete details.” Appendix F sets out the detailed police records of the respondent’s criminal record of assaults, as well as all other police contacts with him. These records indicated that he had a significant history of violence, including violence against women. He had convictions for assault, assault causing bodily harm, and obstructing a police officer. The ITO sets out the respondent’s criminal background clearly and distinctly from that of the other two tenants. Moreover, within the lengthy narrative in Appendix C are clear and separate references to when the police conducted the searches of their databases with respect to each of the respondent and the other two tenants, the records they found, as well as references to the respective appendices where the records themselves can be found.
[25] It is apparent the trial judge considered the above statement disingenuous because she read it as implying that all the tenants had a reputation for sexual assaults. The trial judge found this objectionable, evidently on the presumption that the murder was committed in the course of a sexual assault. The circumstances, including the fact that the victim’s lower body was not clothed and her legs were bound, gave the trial judge good reason to believe that. However, there was no conclusive evidence that that was so. The references to the autopsy performed were simply about cause of death and the scissors found implanted in the upper body. No specific evidence of a sexual assault was indicated.
[26] In any event, the trial judge relied on R. v. Debot, [1989] 2 S.C.R. 1140, in deciding that it was only Imona-Russell, who was facing serious sexual assault charges, whose reputation was relevant to the search. In my view she applied the principle in Debot – that reputation evidence as part of the purported grounds to conduct a search must be related to the ostensible reasons for the search – too narrowly. In Debot, Wilson J. provided, at para. 58, as a negative example of this principle that a background for driving offences would have little relevance to drug trafficking. In contrast, the respondent’s background for violence directed towards women is related to the reason for this search warrant, the investigation into the violent death of a woman. It is worth noting that of the tenants of the townhouse, only the respondent had been convicted of offences involving violence against women. In referring to the respondent’s record as “an unrelated criminal record”, the trial judge erred in disregarding evidence that was in fact relevant.
[27] Another example of the problem inherent in focussing too narrowly on one part of the ITO is the trial judge’s explanation of why she did not consider relevant the information that the respondent had used black bags and luggage when he moved into the townhouse. She simply stated that this information was not pursued with the respondent in his interview and was not reiterated in the summary section. The fact the police did not emphasize this information, is not an adequate reason for discounting it. Discounting it does not accord with the relative importance and numerous references throughout the ITO to the black bag in which the body was found.
[28] The black bag, which is clearly highly relevant to the investigation as it was used to dispose of the body, was described variously as a gym, hockey, duffel and sports bag. It was listed in the property section of the occurrence report for this investigation, which was included as Appendix J, as “Sports Equipment – Additional Description: 2 straps and zipper, Make: Hockey bag, Model: Sport, Primary Colour: Black …” Also, it was related to items listed in Appendix A, a list of the items to be searched for in the dwelling. Among many other things in Appendix A, “any sport bag or similar with Brand name ‘Sport’” and “any receipts for such a Sport bag” were listed as items to be searched for in the dwelling. The reference in the ITO to the respondent moving in with black bags and luggage is the only reference to anyone having had a black bag.
[29] To the extent that the trial judge focused too narrowly on one part of the ITO, to the apparent exclusion of other parts of the ITO, I find there to have been a failure to consider relevant evidence.
[30] Another area in which the trial judge fell into error was in her ruling, albeit in the context of her s. 24(2) analysis, where she said,
I recognize that precise drafting is not a precondition for a valid warrant. However, in my view, given the experience of the Affiant expressed in the ITO, and the pervasive lack of transparency about the living arrangements and the criminal histories of the various tenants, this drafting was not just imprecise, it was intentionally confusing and opaque. [Emphasis added.]
She later repeated her concerns:
The ITO as it related to Mr. Campbell was inadequate and grounded in vague and ambiguous assertions that, in my view, intentionally commingled the living space and reputations of the tenants.
With respect, upon my review of the record in this case, I fail to find the basis on which the trial judge could have found that there was a pervasive lack of transparency or that the ITO was intentionally confusing or opaque.
[31] The formal Criminal
Code Form 1 “Information to Obtain Search Warrant”, names the place to be
searched as the “Dwelling – Rooming House [of] Yasmin ASHAREH, William IMONA-RUSSELL, Gregory RYDER, and Norman CAMPBELL [at] 246
John Garland Blvd., Unit#77, in the City of
Although the address of Unit #77 is that of a rooming house, where occupants have private rooms and common areas, the affiant will be seeking a Search Warrant for the entire premise.
[32] The summary of the interview of the landlord in the ITO is clear in setting out the living accommodations of the respective tenants in the rooming house. It is clear that the deceased, Imona-Russell, and Ryder had rooms on the second floor and that the respondent was in the basement.
[33] There may have been a minor discrepancy in that the landlord described the respondent as having a room in the basement, and that the house had a bathroom on the second floor and a kitchen on the first floor. From the evidence admitted at trial, it appears there is also a kitchen and bathroom in the basement and the respondent described it as an apartment rather than a room. However, on all the evidence there is no issue that the respondent had to go through the first floor area common to all the tenants to get to the basement. The landlord also indicated that each tenant had a lock on his or her door, and it is not clear from the record whether the respondent’s lock is on his room, or on a door to the entire basement. In my view, not much turns on this ambiguity.
[34] As I have noted already, specific information about the respondent’s criminal record and prior contact with police was clearly referenced and fully disclosed in Appendix F of the ITO.
[35] I find no evidence in the ITO or trial record to support a finding that there was a pervasive lack of transparency in the ITO in setting out the tenants’ accommodations in this rooming house and the criminal histories of the male tenants. I see no basis for finding that there was an intention to make these matters confusing or opaque, or as the trial judge implied earlier in her ruling that the affiant had been disingenuous in respect of these matters.
[36] However, perhaps the trial judge also had in mind the personal relationships among the tenants when she found that there was a pervasive lack of transparency about their living arrangements. Earlier in her reasons, she had found the following statement in the ITO troubling:
All [the tenants] would have direct knowledge and have stated so in their interviews of knowing when the other tenants come and go and who is doing what with who. This would then allow them to be in a position to carry out whatever actions they wished and any subsequent clean-up with little or no chance of being seen.
Again these statements are found in the summary section of the ITO. Upon reviewing the entire ITO including the summaries of the police interviews with the tenants, it is quite clear that not every tenant had the familiarity with and knowledge of each other that the statement above implies. For example, the summary of the respondent’s interview set out earlier in the ITO specifically seems to indicate otherwise in stating, “He does not spend much time in the house and does not really know the other occupants.”
[37] Similarly, the trial judge found another statement troubling in this ITO. Again, the statement appears in the summary section at the end of Appendix C. It reads:
With the possibility that the individual rooms are not properly secured, it would allow the perpetrator an opportunity to carry out this murder and disposal of the deceased in any room of the dwelling.
The trial judge found this statement to be “mere speculation, and not rooted in a credibly based probability.” If the statement is regarded as a statement of fact, it fails to accord with the information from the landlord that the tenants had locks on their door.
[38] To the extent that these statements were incorrect, they should have been excluded from the ITO, and the reviewing trial judge should have then continued to evaluate the balance of the ITO to determine whether there were sufficient grounds for the issuance of the search warrant: see R. v. Araujo, [2000] 2 S.C.R. 992, at para. 58. See also R. v. Morelli [2010] 1 S.C.R. 253, at para. 41.
[39] The trial judge did carry out an analysis of the balance of the grounds as follows:
There is, in essence, nothing more than proximity, a generic receipt for delivery of Chinese food about which there is no information to indicate that any steps were taken to ascertain who may have ordered the food, and an unrelated criminal record.
She concluded:
I find that the ITO is deficient in establishing a specific basis for believing that evidence of the murder could be found in Mr. Campbell’s separate apartment.
For all these reasons, I am not persuaded that the totality of the information establishes a nexus between the murder and Mr. Campbell’s apartment such that the authorizing judge could have made the inference that there may be some evidence in Mr. Campbell’s apartment. Given the physical layout of the building, the approach was simply too general to justify a search of Mr. Campbell’s residence.
[40] In reaching this conclusion, she erred by not taking into account all the relevant evidence.
[41] Given that the trial judge failed to consider relevant evidence and misapprehended parts of the evidence, it follows that this court cannot extend the usual deference to the trial judge’s analysis. It falls to this court to determine whether there was a basis upon which the warrant could issue.
[42] How a court should proceed when an application pursuant to s. 8 of the Charter has been brought to challenge the issuance of a warrant and the standard of review it should apply are well established. The salient principles were succinctly summarized by Fish J., writing recently for the majority of the Supreme Court of Canada in Morelli, at paras. 39-43.
Under the Charter, before a search can be conducted, 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. These distinct and cumulative requirements together form part of the minimum standard consistent with s. 8 of the Charter for authorizing search and seizure.
In reviewing the sufficiency of a warrant application, however, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, the reviewing court must exclude erroneous information included in the original ITO. Furthermore, the reviewing court may have reference to “amplification” evidence - that is, additional evidence presented at the voir dire to correct minor errors in the ITO - so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
[Quotation marks and citations omitted.]
[43] In this case, as previously mentioned, there was additional evidence admitted in the form of a diagram of the townhouse complex and a diagram of townhouse #77, as well as the police interview of the respondent. This “amplification” of the ITO does not do much more than clarify the layout of the townhouse − that there was a living room and a dining room on the first floor, and a bathroom and kitchen in the basement − and add the respondent’s attitude that his was a separate apartment in the basement. I take this to only have the import that the kitchen and bathroom in the basement were not common space with the other tenants, and that the respondent would then not likely have used the common areas on the first floor except to get to the basement. This does not change the overall picture that was explicit and clear in the ITO read as a whole – that the respondent did not spend much time in the house and did not really know the other tenants.
[44] As I have indicated earlier, there were statements in the summary section that were inaccurate. However, the accurate information is set out so clearly in the ITO as a whole, the inaccurate statements alone do not support the inference they were made with the intention to mislead. Therefore, I would exclude these statements from the ITO, and carry out the analysis on the balance of the ITO.
[45] In carrying out that analysis it is important to keep in mind throughout the analysis that the warrant is presumed to be valid and the correct question is whether the respondent has established that there was no basis for its authorization. This point cannot be stressed too much. The presumption means that the decision of the issuing justice must be upheld unless the applicant meets the burden of demonstrating its invalidity. The Supreme Court has made this clear.
[46] In
[T]he reviewing judge will assess the whole of the evidence submitted to him or her and to the authorizing judge, and will then decide whether the authorization should have been given. The reviewing judge will begin the analysis by recalling that the law regards the authorization as facially valid, and that it is the task of the applicant, on review, to demolish that appearance of validity. If that attempt fails, the authorization will be upheld.
[47] Earlier in R. v. Garofoli,[1990] 2 S.C.R. 1421 at para 62, Sopinka J., writing for the majority, said:
[T]he reviewing judge should not set aside the decision [of the issuing justice] unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.
[48] In Araujo at para. 54, LeBel J., writing for the whole court, said:
An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.
[49] When looking for sufficient reliable information in the balance of the ITO the statutory standard to be applied is whether the affiant had “reasonable grounds to believe” relevant evidence would be found. This standard has been the subject of much judicial consideration.
[50] In the seminal case, Hunter v. Southam Inc., [1984] 2 S.C.R. 145, Dickson J. first set the standard of reasonable and probable grounds for search warrants to be consistent with s. 8 of the Charter. He also offered the following guidance as to the application of the standard:
The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.
[51] Later, in Debot, at p. 1166, Wilson J., without alluding to the term “credibly-based probability”, described the standard of proof as one of “reasonable probability” or “reasonable belief”.
[52] Most recently the dicta of Deschamps J. in Morelli, at para. 129, are helpful in understanding the standard. Although she was writing for a minority of three out of seven justices of the Supreme Court of Canada, the following comments are not inconsistent with the majority reasons:
Determining whether evidence gives rise to a “credibly-based probability” does not involve parsing the facts or assessing them mathematically. Rather, what the judge must do is identify credible facts that make the decision to authorize a search reasonable in view of all the circumstances. I therefore agree with the non-technical, common-sense approach taken by Rehnquist J. (as he then was) in Illinois v. Gates, 462 U.S. 213 (1983):
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
[53] The Supreme Court and this court have referred to Illinois v. Gates in earlier cases. See Garofoli, at para. 61; R.
v.
[54] No matter what formulation is used, it is essential that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not on mere suspicion. The standard is necessarily qualitative and reasonable people can differ in some cases about whether the authorization should have been granted. In this context the question for the reviewing court remains could the justice of the peace have issued the warrant.
[55] Before applying the standard to this particular case, I make two observations. First, the grounds for the warrant to search the respondent’s room did not have to be restricted to those grounds for believing that the evidence to be found would incriminate him. The evidence to be found could incriminate any person. A general search warrant issued pursuant to s. 487 the Criminal Code authorizes the police to search for “evidence with respect to the commission of an offence”. Second, it is not relevant whether either of the other tenants may have had backgrounds or circumstances that made them more suspect of being involved in the offence than the respondent. The only question for the reviewing court is whether the justice of the peace could have issued the warrant to search the respondent’s room.
[56] In the present case, without reiterating the entire constellation of facts summarized in the ITO, I find the following salient facts and inferences to be important when assessing the grounds upon which the justice of peace could have issued the search warrant including the respondent’s exclusive space in the basement:
· The circumstances in which the deceased’s body was found lead to a compelling inference that the murder and/or the disposal of the body took place in townhouse #77.
· The garbage bags, found beside the bag with the body, contained both items related to the murder and unrelated ordinary refuse that emanated from somewhere in the townhouse.
· The living arrangements were such that the respondent had physical access to the common areas of the building, affording him the opportunity to be involved in the offence within the building. While the tenants all have private rooms with locks in the building, the respondent had unrestricted access to the deceased’s living room, kitchen, dining room, hallways and bathroom. As well he could have accessed her private room if she did not lock her door while in the townhouse or if she would have opened the door to another resident. The issuing justice of the peace could well have inferred these relevant factors from the facts in the ITO.
· While the respondent professed little knowledge of the other tenants, including the deceased, he did have, by virtue of living in this building, the opportunity to have more knowledge than he may have been willing to indicate to the police about the routines of the other tenants. This would afford him an opportunity to have been involved in this offence undetected by the other tenants. The trial judge found no evidence to support this inference. However, the issuing Justice of the Peace may have reasonably inferred this from the basic facts that form the nature of the living arrangements, as reviewed earlier.
· The respondent has a criminal history for violence, some of which was directed at women. This background is very relevant to the investigation that was ongoing into the violent death of a woman.
· Finally the deceased’s body was found in a black sports bag, and the respondent was reported to have moved in to this building only a few weeks earlier using black bags. While the quality and specificity of the information about the respondent’s black bags can be argued, it is not for a reviewing court to weigh the import of the bags afresh. The issuing justice of the peace could reason from the information about the bags and the fact they were used in moving from one residence to another that they were of a size and nature that made them significant to this investigation.
[57] In summary, the grounds were: a compelling inference that the murder was committed in this rooming house; the refuse found with the body; that the respondent was one of three people who had access to the deceased in the common areas of her home; the inference that the respondent had the opportunity to have committed the murder in the absence of the other tenants; the respondent’s background for violence against women; and specific information that the respondent used black bags when he moved into the residence. Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.
[58] I have had the opportunity to read the separate reasons of Doherty J.A.. His reasons, despite their force, do not dissuade me from concluding that the respondent did not succeed in showing that “on the whole of the material presented that there was no basis for the authorization”.
[59] In particular, I do not find it helpful to consider the hypothetical situation of a 100-unit apartment building. The tenants in this townhouse, unlike tenants of a 100-unit building, had access not only to the deceased’s front door, but to her bedroom door, and to the shared bathroom, kitchen, dining room and living room. The tenants of a 100 unit apartment building can exit their bedroom and walk to their bathroom in complete privacy. That is not the case in this townhouse. The issuing justice could have viewed the tenants’ residences in this townhouse as connected and overlapping unlike those in a large apartment building.
[60] One might equally consider an example at the opposite extreme. If the police saw a person carrying a machine gun and a bag of heroin enter a townhouse shared by two persons with locked bedrooms and then exit without the gun and heroin, could they search only the common areas of the townhouse if they had no information whatsoever about each of the two tenants?
[61] Hypotheticals, while helpful to refining the analysis, suffer from the lack of detail that a real life situation has. In this case it is unnecessary to resolve the issues that would arise in either of these hypotheticals. This appeal turns on the entire set of circumstances involving this particular townhouse shared by these four tenants. In this townhouse, the issuing justice would have understood that the deceased’s bedroom was on the second floor but that she lived in the townhouse. It was not necessary for the respondent to go the second floor to commit the crime. He had the opportunity to encounter her as she used the other areas of the townhouse in which she lived.
[62] On the significance of other matters about which Doherty J.A. and I disagree, for example the black bags and the police’s other contacts with the respondent, I take the view that the issuing justice could have found they added to the cumulative effect of all the circumstances and issued the warrant.
[63] For all of these reasons, I would find the search and seizure were constitutional.
[64] I would conclude the trial judge should not have excluded the sawed-off shotgun and ammunition found in the respondent’s room. I would set aside the acquittals entered by the trial judge, and remit the charges back to the Superior Court of Justice for trial.
“R.G. Juriansz J.A.”
“I agree Karakatsanis J.A.”
Doherty J.A. (Dissenting):
[65] I have read the careful reasons of my colleague, Juriansz J.A. I do not agree with his proposed disposition of the appeal. I would dismiss the appeal.
[66] Juriansz J.A. concludes that the trial judge misapprehended the evidence and failed to consider evidence relevant to the validity of the warrant. I agree that the trial judge misapprehended the evidence when she described the respondent’s criminal record as “unrelated”. I also agree that the trial judge failed to consider the entirety of the sworn information to obtain (“ITO”) the search warrant in reaching her conclusion that it was “intentionally confusing”.
[67] The trial judge’s errors do not, however, in and of themselves, entitle the Crown to a new trial. To succeed on this appeal, the Crown must demonstrate that on a proper appreciation of the evidentiary record the trial judge erred in law in excluding from evidence the gun and ammunition found during the search of the respondent’s residence. To do that, the Crown must show either that the trial judge erred in holding that the search was unconstitutional, or that even if the search was unconstitutional the trial judge erred in excluding the evidence obtained in that search.
[68] The constitutionality of the search of the respondent’s residence turned on the validity of the warrant authorizing that search. The trial judge concluded that the warrant should not have been granted and that the search was, therefore, unconstitutional. The trial judge’s finding was, however, tainted by her misapprehension of the evidence and her failure to consider the entirety of the record. Those errors do not, however, mean that the trial judge was necessarily wrong in holding that the warrant should not have been granted. The errors committed by the trial judge mean that this court should not defer to the trial judge’s findings in determining the validity of the warrant.
[69] The validity of the warrant and, hence, the constitutionality of the search of the respondent’s residence turned on whether an authorizing justice, acting judicially, could have concluded, on the basis of the ITO as supplemented by the material filed on the motion at trial, that there were reasonable grounds to believe that a search of the respondent’s residence would reveal evidence relevant to the deceased’s homicide. If the material in the ITO as supplemented on the motion met that standard, then the warrant was properly issued, the search was constitutional and the admissibility of the fruits of that search undeniable. If the material did not meet that standard, the search violated the respondent’s right guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and the admissibility of the evidence obtained in the search turned on the application of s. 24(2) of the Charter.
[70] Juriansz J.A. has thoroughly reviewed the contents of the ITO and the additional material put forward on the motion. I need not repeat that exercise. I would, however, emphasize two aspects of the record. First, there were strong grounds to believe that the deceased was murdered and that her murder occurred in, or was otherwise connected to the townhouse where she lived. Second, the townhouse operated as a rooming house. There were four separate residences in the townhouse. Three were located on the second floor. According to the landlord, the tenants shared a kitchen on the main floor and a bathroom on the second floor. The respondent’s room was in the basement. There was a kitchen and a washroom in the basement. Each of the tenants had a lock for the door on their respective rooms.
[71] Before the police could search the respondent’s residence, they were required to establish reasonable grounds referable to his specific residence. It was particularly important in respect of the respondent’s privacy rights that the adequacy of the grounds relied on to justify the search of his residence be considered separately from the adequacy of the grounds relied on to justify the search of the rest of the townhouse. The ITO set out strong grounds justifying a search of the rooms of the other two male tenants, the deceased’s room, and the common areas of the townhouse. Whatever might be said about the grounds justifying the search of the respondent’s residence, they were far from strong. There was a substantial risk that the respondent’s individual privacy interest in respect of his residence would be lost in the force of the evidence supporting the search of the other residences in the townhouse.
[72] Juriansz J.A. identifies four areas of evidence which, in his view, taken as a whole support the issuance of the warrant to search the respondent’s residence. They are:
· evidence of the respondent’s criminal record;
· evidence of the respondent’s opportunity to have attacked and killed the deceased in the townhouse;
· evidence concerning the contents of the garbage bags found with the body of the deceased; and
· evidence concerning the “black bags”.
[73] I will examine each of the four areas of the evidence bearing in mind that it is the cumulative effect of the evidence, which must be capable of justifying the issuance of the warrant.
[74] The ITO attached the respondent’s criminal record as an appendix. Other computer printouts were also attached to the ITO indicating that the respondent had numerous other “contacts” with the police. For the purpose of determining whether there was a basis upon which to issue the warrant, I distinguish between the criminal record and the other “contacts”. The criminal record provided information that was potentially probative on the application for the warrant. In my view, the computer list of other “contacts” with the police had no probative value.
[75] The respondent’s criminal record consists of six convictions entered between September 1999 and November 2005. He has four convictions for assault, one for assault causing bodily harm, and one for obstructing police. He received either non-custodial sentences or short custodial sentences followed by periods of probation. According to the ITO, some of his criminal “charges” were “domestic related”. The ITO does not identify any of the convictions as domestic assaults. However, one entry in the computer printouts does begin with the phrase “family violence”. Another entry in the computer printouts, apparently relating to the same conviction entered in November 2005, begins with the phrase “spousal assault”. It may be that the November 2005 conviction for assault causing bodily harm involves an assault on a female partner. Aside from these references, there are no details of the facts surrounding the convictions set out in the ITO.
[76] The respondent’s criminal record for assaultive behaviour is sufficiently current and has sufficient entries to justify the inference that he has a propensity for violence. His record does, however, suggest a level and kind of violence far removed from the violence perpetrated against the victim whose death was being investigated. The criminal record, while relevant and properly included in the ITO, provides only a small step toward the establishment of reasonable grounds to search the respondent’s residence.
[77] I place no weight on the printouts listing other police “contacts”. The ITO offers no explanation for the meaning of these various printouts and I find it impossible to discern the nature of the contacts or exactly what they are supposed to mean. In my view, they do not assist in elaborating upon the respondent’s propensity for violence.
[78] Juriansz J.A. also concluded that the fact that the respondent lived in the same townhouse as the victim supported a finding that the police had reasonable grounds to search his room. As a resident of that townhouse, the respondent had access to the common areas in the townhouse and to the second floor where the deceased’s room was located. He could walk from his residence in the basement up the stairs to the second floor where the deceased lived. Because he lived in the townhouse, he also had the opportunity to observe the comings and goings of the other roomers, including the deceased. The fact that the respondent lived in the townhouse where the murder probably occurred and had access to the victim’s room and the victim in the sense described above offered some support on the application for a warrant to search the respondent’s residence.
[79] There was, however, nothing in the material to indicate that there had been any contact between the respondent and the victim in the three or four weeks he had lived in the townhouse. In his interview with the police, that was carried out prior to their application for the warrant, the respondent indicated that he had never seen the victim. There was also nothing in the material that placed the respondent on the second floor where the deceased lived at any time. Nor did anything in the ITO suggest that the respondent had any interest in the deceased or her comings and goings inside of the townhouse.
[80] Clearly, the respondent, because he lived in the townhouse, had access to the victim that was not available to non-residents. However, I do not think it can reasonably be concluded, based on that access, that he may have been watching her; he may have gained entry to her room; he may have attacked and killed her and he may have disposed of the body. That chain of reasoning goes beyond the limits of reasonable inference drawing and enters the realm of speculation.
[81] I find it helpful to consider another hypothetical that involves a different, but similar living arrangement. If instead of a four-room townhouse, the deceased had lived in a 100-unit apartment building where all tenants had access to various common areas such as hallways, parking garages and laundry rooms, and could walk up to the deceased’s door, would it be reasonable to authorize the search of all apartments occupied by tenants who had criminal records indicating some propensity for assaultive behaviour? In my view, as the probability of finding evidence in the room of any particular tenant is not a random event, the likelihood of finding evidence does not increase as the number of tenants decreases.
[82] I seriously doubt that anyone would countenance the search of the apartments of all of the tenants with criminal records for assault in the 100-unit apartment building. I do not see that hypothetical as significantly different from this fact situation. In each case, the basis for the search is premised on the opportunity to commit the crime arising from ready and unnoticed access to the place where the crime was committed and to the victim of the crime. As Juriansz J.A. observes, the respondent’s right to privacy in his own room was no less than that of a person living in a single dwelling unit. That observation applies with equal force the four-unit rooming house and the 100-unit apartment building.
[83] Juriansz J.A. finds that the contents of the garbage
bags found with the black bag containing the deceased’s body provided
additional support for the search of the respondent’s residence. The contents of those garbage bags are set
out in my colleague’s reasons. One piece
of garbage, the
[84] On my reading of the ITO, there is nothing to suggest that anything in the garbage bags could reasonably be seen to connect the respondent to the homicide, or could reasonably be seen to support the inference that there was evidence in his residence relevant to the homicide. While the police certainly had good reason to investigate the contents and source of the garbage, a legitimate investigative interest does not justify a search unless there are reasonable grounds to believe that evidence relevant to the offence will be found in the place to be searched. The police have many investigative options available to them. However, the search of an individual’s home is not one of those options unless the police can establish the requisite reasonable grounds to justify the search.
[85] Nor could the search of the respondent’s residence could be justified on the theory that if it yielded no evidence referable to the respondent, it would strengthen the evidence linking the garbage to Mr. Imona-Russell and thereby provide evidence against him in the homicide investigation. A search warrant cannot issue under s. 487 on the basis that even though there may be no reasonable grounds to believe that “anything” will be found in the place to be searched that could “afford evidence” of the crime, the failure to find evidence will afford evidence of the crime in the sense that it will increase the probative value of other evidence already in the possession of the police. That approach to granting a search warrant is inconsistent with the language of s. 487 and would significantly, and I suggest dangerously, expand the search powers of the police.
[86] The contents of the garbage bags found along with the deceased’s body did not provide any support for the application for a search warrant to search the respondent’s residence. I note that Crown counsel on appeal did not argue that the contents of the garbage bags offered any support for the issuance for the warrant to search the respondent’s home.
[87] I come lastly to the evidence concerning the black bags. The relevant part of the ITO reads as follows:
[Mr.] Imona-Russell [the killer as it turns out] states that the guy in the basement [the respondent] used black bags and luggage when he moved into the house. He had two or three bags that were all black.
[88] The respondent had moved into the townhouse a few weeks before the homicide. Nothing in the material placed before the trial judge added any further description to the bags used by the respondent when he moved into the townhouse. The deceased’s body was found inside a large black bag described as a hockey or sports bag.
[89] If the authorizing justice, acting judicially, could reasonably infer a potential connection between the black bags used by the respondent when he moved into the apartment and the large black bag in which the deceased’s body was found there would be a strong basis for the issuance of the warrant to search the respondent’s residence. I do not think that connection can be made.
[90] There is nothing in the ITO that would justify any inference as to the size or shape of the black bags possessed by the respondent when he moved into the townhouse. It does not follow that because he had them with him when he moved into the townhouse, the black bags were more likely to be a particular size or shape. Absent a basis upon which some inference could be drawn as to the size or the shape of the bags in the respondent’s possession I do not see how any connection can be drawn between them and the bag in which the deceased’s body was found. The affiant of the ITO did not allege any potential connection between the bags said to be in the respondent’s possession when he moved into the townhouse and the bag in which the body was found. Evidence that the respondent had black bags of unknown size and shape a few weeks before the homicide does not, in my view, provide a reasonable basis for any inference connecting the respondent to the black bag in which the body was found.
[91] On my analysis of the ITO and the material filed on the motion, the Crown is left only with the respondent’s criminal record and the fact that he lived in the building where the homicide in all likelihood occurred. Those two facts certainly made the respondent an appropriate subject of police investigation. For the reasons I have endeavoured to explain, however, they did not establish a basis upon which an authorizing justice, acting judicially, could be satisfied that there were reasonable grounds to believe that evidence relevant to the homicide would be found in the respondent’s home. The search warrant should not have been issued. The search was unconstitutional.
[92] The trial judge excluded the gun and ammunition from evidence under s. 24(2) of the Charter. In doing so, she found that the ITO was drafted in a manner that was “intentionally confusing and opaque”. The trial judge described the breach of the appellant’s s. 8 right as “serious” and ultimately concluded that even though the evidence was real evidence and its exclusion of the evidence would frustrate the prosecution of serious offences, the administration of justice required that the evidence be excluded. The essence of her reasoning is captured in the final paragraph of her judgment:
… the breach was serious. The ITO as it related to Mr. Campbell was inadequate and ground in vague and ambiguous assertions that, in my view, intentionally comingled the living space and reputations of the tenants. It authorized a search of Mr. Campbell’s residence, a location that has the highest expectation of privacy, when the foundation for the search was mere suspicion. In my view, the repute of the administration of justice will be better served by the exclusion of the evidence.
[93] The trial judge’s s. 24(2) analysis tracked the then controlling three-part test first announced in R. v. Collins, [1987] 1 S.C.R. 265. After the trial was completed but before the appeal came on for hearing, the Supreme Court of Canada in R. v. Grant, [2009] 2 S.C.R. 353, reformulated the approach to be taken in determining admissibility under s. 24(2). Crown counsel and counsel for the respondent agree that on appeal the correctness of the trial judge’s decision must be determined under the reformulated approach to admissibility under s. 24(2) set down in Grant: see R. v. Blake (2010), 251 C.C.C. (3d) 4 (Ont. C.A.). In applying Grant I bear in mind that while the approach to determining admissibility has been reworked in Grant, the factors relevant to the admissibility have not changed: see R. v. Beaulieu (2010), 251 C.C.C. (3d) 455 (S.C.C.) at para. 7.
[94] This court is also obliged to show considerable deference to the trial judge’s s. 24(2) assessment unless the court is satisfied that the assessment is tainted by a failure to consider relevant factors or by unreasonable findings. As indicated at outset of these reasons, I agree with Juriansz J.A. that the trial judge’s characterization of the ITO as “intentionally confusing and opaque” is unreasonable. Although I think the organization of the ITO can be criticized, all of the relevant information was in the ITO. I do not think the affiant can reasonably be said to have intended to confuse the justice when he put all of the relevant information before the justice. One must assume that the justice reads the entire ITO with care. Consequently, in considering s. 24(2) of the Charter, I reject the trial judge’s finding that the affiant set out to intentionally confuse and thereby mislead the authorizing justice.
[95] While I would not describe the ITO as intentionally confusing, I think it can properly be criticized for failing to sufficiently separate and identify the grounds relied upon to justify the search of each of the four residences contained in the townhouse. In R. v. Morelli (2010), 252 C.C.C. (3d) 273 (S.C.C.) at para. 102, Fish J. for the majority said:
Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace.
[96] This ITO did not achieve the high standard described in Morelli. The ITO presented an evidentiary picture that made the case for the search of the townhouse as a whole, as opposed to making the case that should have been made, for the search of each of the individual residences in the townhouse. While I see no basis to suggest that the affiant intentionally drew the ITO to avoid focusing on the individual privacy rights in issue, the manner in which the ITO was drawn would have inevitably led the authorizing justice to see his or her options as either to issue a warrant to search the townhouse or to refuse to issue any warrant. On the material contained in the ITO, there was no realistic possibility of an outright refusal of the warrant. The ITO is properly criticized as failing to give sufficient attention to the individual constitutional privacy interests placed in jeopardy by the search warrant application. Bearing that criticism in mind, I turn to the evidentiary inquiry described in Grant.
[97] I have examined the application of the Grant criteria to evidence obtained by way of an unconstitutional search in two recent cases: see R. v. Blake, supra; R. v. Ramage, (2010) ONCA 488, at para. 44 and following. I will not repeat that analysis in detail but will instead move directly to my conclusions.
[98] The first of the Grant criteria requires an examination of the seriousness of the Charter-infringing state conduct. That conduct is placed on a continuum ranging from wilful misconduct to blameless conduct. The police cannot be criticized for seeking a warrant in this case. Nor can the police be criticized for the manner in which the warrant was exercised. I have already indicated why I reject the trial judge’s finding of a deliberate attempt to mislead the authorizing justice. There was, however, as I have described above, a failure to properly appreciate and identify the different privacy interest at stake and to relate the grounds on which the warrant was sought to those individual privacy interests. While I accept that there is no basis to find that the affiant intentionally misled the issuing justice, I am satisfied that the manner in which the relevant material was presented in the ITO fell below the high standard described in R. v. Morelli, supra. To meet that standard, the ITO should have focused more sharply on the individual privacy interests at stake on the application. The affiant could have met that standard by addressing separately, at some point in the ITO, the basis for the application as it related to each of the residences in the townhouse.
[99] The second factor identified in Grant, the impact of the breach on the Charter-protected interest of the accused, points strongly toward exclusion of this evidence. There are few, if any, contexts in which a person has a higher expectation of privacy than that which he or she has in respect of his or her home. The search struck directly at the core of the respondent’s constitutional right to privacy.
[100] The third factor identified in Grant, society’s interest in the adjudication of the case on the merits favours admissibility and has strong application in this case. The unauthorized possession of a firearm is a serious offence, particularly where the firearm is a prohibited sawed-off shotgun. That weapon can be used for little else other than to commit violent crimes. The evidence is entirely reliable. Exclusion would frustrate the prosecution and prevent a trial on the merits.
[101] In Blake the court addressed the admissibility of cocaine discovered in the course of an unconstitutional search of the accused’s home. In holding that the evidence was properly admitted, this court stressed at para. 33 the absence of any basis upon which to criticize the police conduct either in the obtaining or the execution of what was eventually determined to be an invalid warrant. I observed:
If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests. [Emphasis added.]
[102] The respondent has the same privacy interest that was at stake in Blake. The nature of the evidence is the same in both cases. In this case, however, the contents of the ITO reveal an “inattention to constitutional standards” in that they fail to identify and address the respondent’s individual privacy interest. That failure renders the state’s conduct more serious than the state conduct in Blake and tips the scales in favour of excluding the fruits of the unconstitutional search. I would affirm the trial judge’s ruling excluding the evidence.
[103] I would dismiss the appeal.
RELEASED: “DD” September 13, 2010 “Doherty J.A.”