Case Name:

R. v. Park

 

 

Between

Her Majesty the Queen, and

Sungbok Park and Woo Jin Yi, Applicants

 

[2007] O.J. No. 3921

 

162 C.R.R. (2d) 236

 

Docket: F 763/06

 

 

 Ontario Superior Court of Justice

 

E.P. Belobaba J.

 

Heard: October 2, 3 and 10, 2007.

 Judgment: October 15, 2007.

 

(46 paras.)

 

Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Protection against unreasonable search and seizure -- Remedies for denial of rights -- Specific remedies -- Exclusion of evidence -- Where administration of justice brought into disrepute -- Application by accused to exclude evidence of drugs and money that was seized during search of business premises and residence allowed -- Justice of the peace initially refused to issue warrant, so police then took same information to judge, disclosing the refusal by the justice of the peace, and obtained the warrant -- However, information did not disclose that there was a residence above business premises in location to be searched -- Police did not have warrant in hand when they searched premises including upstairs residence -- Breaches were serious and search violated s. 8 of the Charter.

 

 Criminal law -- Powers of search and seizure -- Search -- Warrantless searches -- Application by accused to exclude evidence of drugs and money that was seized during search of business premises and residence allowed -- Justice of the peace initially refused to issue warrant, so police then took same information to judge, disclosing the refusal by the justice of the peace, and obtained the warrant -- However, information did not disclose that there was a residence above business premises in location to be searched -- Police did not have warrant in hand when they searched premises including upstairs residence -- Breaches were serious and search violated s. 8 of the Charter.

 

Application by the accused, who were charged with possession of cocaine and marijuana for the purpose of trafficking, possession of ecstasy, and possession of property (money) from the proceeds of crime, to exclude evidence of drugs and money that was seized during a search of their business premises and residence under s. 24(2) of the Charter -- A justice of the peace had initially refused to grant a search warrant to the police with respect to these premises -- However, the officer then presented the same material to a judge, with disclosure of the refusal by the justice of the peace, and a search warrant was issued -- The officer did not advise the judge that there was a residence above the business premises -- Officers searched the premises, including the upstairs residence, before the search warrant was in hand -- Officers found about 1.2 kg of cocaine, 2.5 kg of marijuana, 1,409 ecstasy pills, $62,055 in Canadian currency and $630 in U.S. currency.

HELD: Application allowed -- Making successive applications for a search warrant on the same material to different judges, even with full disclosure of a previous refusal, was a breach of s. 8 of the Charter -- The officer did not disclose to the issuing judge that there were residences above the store -- The search warrant did not describe the place to be searched as a "dwelling house" -- In continuing the search of the upstairs residence without obtaining a telewarrant, the officers conducted a warrantless search -- The search constituted a serious breach of s. 8 in circumstances where good faith could not be claimed on the part of the officers -- There was no urgency -- The two occupants had been arrested and handcuffed -- The police should have waited for the search warrant to arrive -- When the breaches were combined, the cumulative effect was sufficient for the evidence to be excluded as the admission of the evidence would bring the administration of justice into disrepute.

 

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 24(2)

 

Counsel:

Andre Chamberlain for the Crown/Respondent Respondent.

Leora Shemesh for the Accused Sungbok Park/Applicant.

A. Monaco for the Accused Woo Jin Yi/Applicant.

 

 

 

RULING ON APPLICATION TO EXCLUDE EVIDENCE

1     E.P. BELOBABA J.:-- The accused, Sungbok Park and Woo Jin Yi, have been charged with possession of cocaine and marijuana for the purpose of trafficking, possession of ecstasy, and possession of property (money) from the proceeds of crime.

2     They bring this application to exclude the drugs and money evidence that was found by the police during a search of their business premises and residence at 1424 Bloor Street West, Toronto on January 29, 2004. The police found about 1.2 kilos of cocaine, 2.5 kilos of marijuana, 1409 ecstasy pills, $62,055 in Canadian currency and $630 in US currency.

3     Following a two-day voir dire, extensive written submissions and oral argument, I advised counsel of my decision: the drugs and money evidence would be excluded under s. 24(2) of the Charter for reasons that would follow shortly. These are my reasons.

Background

4     On January 29, 2004, DC Olsen, who was then with the Toronto Drug Squad, obtained a search warrant for "the building located at 1424 Bloor St. West" because he had reason to believe that a targeted drug dealer was sourcing his cocaine from somewhere in these premises. DC Olsen's 'information to obtain' describes an intensive undercover operation that involved undercover officers, a "go-between" and the targeted drug dealer. The target was being set up by the police to sell a kilo of cocaine to the undercover officer.

5     On January 28, the evening before the scheduled drug deal, police followed the target to a variety store and coin laundry operation on Bloor St. West. The variety store was located at 1422 Bloor. It was connected via an open inside doorway or archway to the coin laundry that was next door at 1424 Bloor. Although joined by way of an inside doorway, each store had its own front entrance and separate municipal address. Inside the coin laundry at 1424 was an interior green door that was locked and marked "private."

6     The surveillance team saw the target arrive with his girl friend and enter through the variety store, talk and joke with the two men who were working behind the counter, walk with one of the men through the connecting doorway into the coin laundry area and then go through the interior green door. The target and girl friend emerged from the green door about a half hour later. Based on their observations of the duffel bag that the target was carrying and based on the timing and content of certain phone calls between the target, the go-between and the undercover officer, the police concluded that the target had just picked up the kilo of cocaine.

7     The next day, the day of the drug buy, DC Olsen applied for a search warrant for the target's Queen's Quay residence and for 1424 Bloor from a Justice of the Peace at Old City Hall. The JP agreed that "there was something going on at these addresses" but he refused to grant the search warrant. He told DC Olsen that he didn't have enough. DC Olsen did not agree with this decision and advised the JP that he would be making a second application. Olsen then proceeded to add a paragraph to his affidavit disclosing the refusal by the JP and presented the same material to a Judge who agreed to issue the search warrant. Olsen's partner, PC Masters, called her supervisor to advise him that the search warrant for 1424 Bloor had been obtained and that they were en route.

8     Upon receiving this phone call, drug squad officers, led by DC Gibson, entered 1422 and 1424, advised the occupants that they had a warrant to search the premises, arrested the two accused, and proceeded with the search. In due course, they opened the green door in 1424 and discovered a set of stairs leading to an upstairs residence. They were told by one of the accused that "someone lives up there." The police nonetheless proceeded to search the upstairs residence and found and seized the drugs and money in issue. DC Olsen and PC Masters arrived an hour or so later with the search warrant. The drugs and money evidence was inventoried and secured. Because of a misunderstanding between them, Olsen and Masters failed to file the required return to a Justice.

Alleged breaches of s. 8

9     The two accused live in the upstairs residence. They submit that the search of their residence breached their rights under s.8 of the Charter, that the breaches were deliberate, and that the cumulative effect of the breaches is such that the drugs and money evidence should be excluded under s. 24(2). They allege four separate s. 8 violations:

 

(1)          Judge shopping;

(2)          Failure to advise the issuing justice of the upstairs residence;

(3)          Police not in possession of search warrant during search of premises; and

(4)          Failure to file a return to a Justice.

Analysis

10     If a search is found to be unreasonable and in breach of section 8, the ill-gotten evidence must be excluded under s. 24(2) if, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

11     I will deal first with the alleged breaches of s. 8. I will then consider whether these breaches require that the evidence in question be excluded under s. 24(2).

 

(1)          Judge shopping

12     I agree with the applicants' submission that making successive applications for a search warrant on the same material to different judges, even with full disclosure of a previous refusal, is probably "judge shopping" and a breach of s. 8. I say "probably" because in Colbourne,¹ the Court of Appeal noted that the question of making successive applications with full disclosure of prior refusals has not yet been decided at the appellate level in Ontario. Other courts, however, have expressed understandable concern about this practice and its impact on the integrity of the judicial process: see, for example, the comments of Wood J.A. in Eng² and McLachlin J., as she then was, dissenting in Scott.³

13     In Eng, the B.C. Court of Appeal noted that "it would of course be improper" to bring successive applications for a search warrant based on the same material.⁴ In Scott, McLachlin J. related the underlying policy concerns to the dignity of the judiciary and the integrity of the judicial process:

 

                    The normal and proper operation of the judicial system contemplates that judicial errors are corrected through the appeal process. That process should not be subverted without good reason. From the point of view of theory, an order or ruling stands as valid until set aside on appeal. Any other assumption leads to uncertainty and confusion. It may, moreover, result in the "error" of one trial judge being implicitly "corrected" by another judge of the same level.⁵

14     I am persuaded by the reasoning in Eng and in Scott, and also by this court's decision in Chan.⁶ I therefore conclude that "judge shopping" for a search warrant, even with full disclosure of a previous refusal, constitutes a breach of s. 8 - albeit in this case, because the law in Ontario is not yet settled, it was at most a marginal breach.

(2) Failure to advise issuing justice of the residence on the premises

15     The applicants make two points under this head of argument. First, they argue that DC Olsen should have advised the Judge when he applied for the search warrant that 1424 Bloor had a residential area on the upper floor. Secondly, they say that DC Gibson, the officer in charge of the search team, should have stopped the search and sought a telewarrant when he realized that the green door led to an upstairs residence.

16     It is trite law that, absent exigent circumstances, police cannot enter and search a private dwelling without a search warrant for that dwelling. The expectation of privacy accorded to a private residence is undeniably high. As the Supreme Court stated in Silveira, "there is no place on earth where persons can have a greater expectation of privacy than within their dwelling-house."⁷

17     Indeed, Crown counsel concedes that DC Gibson, the leader of the search team, should have obtained a telewarrant to search the upstairs residence and, in failing to do so, breached s. 8. However, continues the Crown, this breach was committed in good faith and should not result in the exclusion of evidence under s. 24(2). I will return to this point.

18     Let me first consider DC Olsen's actions, and then DC Gibson's, in more detail.

19     DC Olsen testified on the voir dire that when he swore the information to obtain the search warrant he did not know that 1424 Bloor had a residence on the second floor or that the green door inside 1424 led to an upstairs residence. However, at the preliminary inquiry, DC Olsen testified that he was aware that there were residences over the stores along this stretch of Bloor, including 1424, and although he did not know what was behind the green door, "it was a fair assumption" that the door led to an upstairs residence. When he was asked at the preliminary inquiry why he did not mention the upstairs residence in his information to obtain, Olsen said this: "I have no answer to that; I didn't put it in the warrant. I didn't indicate that it [the residence] was there. It may have been an oversight on my part."

20     Given that DC Olsen's testimony at the preliminary inquiry was closer in time to the events in question and was more detailed in content, I prefer to accept the evidence that he presented at the preliminary hearing. Knowing as he did that there were residences over the store fronts along this stretch of Bloor, including the premises at 1424, and that it was a "fair assumption" that the inside green door led to an upstairs residence, DC Olsen should have disclosed this information to the issuing Judge. I accept Olsen's evidence that not doing so was an oversight, but nonetheless a mistake was made. The search warrant should have described the place to be searched as both a "building" and "dwelling house." I think it significant that DC Olsen candidly agreed when cross-examined at the voir dire that he "wouldn't write the warrant the same way today."⁸

21     Turning next to DC Gibson's actions - in my view, the errors made by Gibson and his search team were more than mere oversight. First, according to DC Gibson's notes, he knew that the upstairs was a private residence before he opened the green door. He was told by Mr. Park, that "someone lives up there." Even without this information, however, it was obvious to the officers when they opened the door and climbed a few stairs that the staircase led to an upstairs apartment. DC Gibson testified that as he went up the stairs he could see a kitchen and some bedrooms. At this point, he should have stopped the search and obtained a specific warrant for the private residence.

22     I recognize that the police had a search warrant for "the building located at 1424 Bloor" and that the upstairs residence was in the building located at 1424 Bloor. I also recognize that the police did not know in fact what was behind the green door - it could have been a main-floor office or storage room, a staircase leading to the basement, or indeed, as it turned out, a staircase leading to an upstairs residence. However, once the door was opened and a couple of stairs were climbed, it was obvious to the police that the stairs led to a private residence.⁹

23     As I have already noted, Crown counsel concedes that s. 8 was breached when Gibson and his team discovered the residence and continued the search without first getting a telewarrant to authorize this search. In failing to obtain the telewarrant, the police in essence conducted a warrantless search of a private residence. This constitutes a serious breach of s. 8.

(3) Police were not in possession of the search warrant during search of premises

24     The search team was advised by PC Masters, who was with DC Olsen at Old City Hall, that the search warrant had been obtained and was being delivered to the search site. However, the police began the search without waiting for the search warrant to arrive. It is an elementary proposition in the law of search and seizure that police should have the search warrant in their possession when the search begins. It would, at the very least, have been prudent for the search team to wait until the warrant was physically in hand and the scope and content of the search authorization could be verified and shown to the occupants. DC Gibson agreed on cross-examination that it would have been "more ideal" had the police waited for the search warrant.

25     There was no urgency. The two occupants that were found on-site had been arrested and handcuffed. The police should have waited for the actual search warrant to arrive. In failing to do so, they breached s. 8: see J.E.B.¹⁰ and Gordon.¹¹

 

(4)          Failure to file a return to a Justice

26     Police are statutorily required to return to a justice of the peace or a judge and report on the evidence that was seized under the search warrant.¹² In Cunliffe¹³ a judge of this court quashed a search warrant because the police neglected to make the required return. In that case, however, there was evidence before the court that the police had "routinely" failed to make these returns, and that the officer in question did not even realize that he was statutorily required to do so. The judge in Cunliffe was clear that he would not have quashed the warrant had the failure to make the return been simply an oversight in that one case.¹⁴

27     There was no suggestion in this case that the failure to make the return was a "routine" and accepted part of the police officers' practice. Nor is this a case where the officers involved did not realize that they had an obligation in this regard. PC Masters believed it was DC Olsen's obligation as the affiant to make the required return but, she explained, because of a misunderstanding, Olsen thought that Masters would make the return. The return was not made. This failure was a breach of s. 8: Cunliffe.¹⁵ Even if s. 8 was breached, says Crown counsel, this was at most an inadvertent error. I will return to this point in my discussion of s. 24(2).

28     In sum, the applicants have clearly established three breaches of s. 8. In order of seriousness, I would rank the breaches as follows:

 

*               very serious - the warrantless search of the upstairs residence;

*               serious - conducting the search of the building without having the search warrant on hand;

*               less serious - failure to make the required return to a Justice;

*               marginal (given the state of the law) - judge shopping.

29     Crown counsel argues that none of these breaches standing alone should preclude the evidence from being admitted. This may well be the case. However, when the breaches are combined, the cumulative effect may be sufficient to require that the evidence be excluded under s. 24(2).

(5) Should the drugs and money evidence be excluded under 24(2)?

30     Under s. 24(2) of the Charter any evidence obtained as a result of a Charter breach must be excluded if, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. The analysis under s. 24(2) requires a court to consider the three factors set out in Collins¹⁶ - the impact on trial fairness, the seriousness of the breaches and the effect that admission or exclusion would have on the administration of justice.

31     Counsel for the accused concedes that the drugs and money evidence at issue herein is real, non-conscriptive evidence and that its admission would not negatively impact on trial fairness. The first factor from Collins is therefore not in play. This leaves the second and third factors - the seriousness of the breaches and the effect on the administration of justice.

32     The seriousness of the breach is determined by considering the following: was the breach willful and deliberate or unintended and inadvertent? Was it a case of simple negligence or mistake or is there evidence of bad faith? The case law is clear that even in cases of police negligence or incompetence, the court can find that the police acted in good faith if they tried to comply with the law and believed they were doing so, but not if they were careless, in the sense that they took no care: Lighthouse Video.¹⁷

33     Further, good faith cannot be claimed if the Charter violation was committed because of a police officer's unreasonable error or ignorance as to the scope of his authority: Mann.¹⁸ Ignorance of the law is not consistent with good faith. And, if other lawful techniques were available but not used (such as the telewarrant in this case) the breach will be seen as more serious: Calderon.¹⁹

34     As already noted, the most serious breach was the search team's failure to get a proper warrant that authorized the search of the upstairs residence. The failure of DC Olsen to advise the issuing judge about the probability of the upstairs residence, although noteworthy, could have been rectified with the telewarrant. Thus, it was DC Gibson's failure to get the telewarrant that is the heart of the breach. The latter resulted in a warrantless search of a private dwelling. As serious a breach as this was, it is aggravated, in my view, by the evidence that was given by DC Gibson at the voir dire.

35     Gibson testified that it was his understanding, based on the morning briefing, that the search warrant would permit a search of the entire building, including any upstairs residence. When cross-examined, however, he conceded that nothing was said at the morning briefing about any upstairs residence. Only two commercial locations were discussed at the morning briefing, the variety store and the coin laundry. No mention was made of any residence.

36     Gibson also stated that he could see no difference, in terms of the expectation of privacy, between a commercial premises and a private residence. And even more surprisingly, DC Gibson was of the opinion that the search warrant, which named only 1424 Bloor, allowed him to not only search the building at 1424 but also the adjacent building at 1422, including any upstairs residence - even though the search of 1422 was not authorized by the search warrant!

37     These comments are disturbing, to say the least. They reflect a casual, almost cavalier, attitude about the privacy interests that are protected by s. 8 of the Charter and about the importance of the authorization that is provided by a search warrant. I cannot find on the evidence that DC Gibson and his search team deliberately set out to deny the accused their rights under the Charter, but I can and do conclude that the failure to obtain a telewarrant for the upstairs apartment was not only a serious breach of s. 8 in its own right, it also reflected either an ignorance of the law or a level of carelessness that goes beyond mere negligence or mistake. In short, the warrantless search of the upstairs residence constitutes a serious breach of s. 8 in circumstances where good faith cannot be claimed.

38     The other two breaches, although less serious, reflect in my opinion the same kind of carelessness about Charter-protected rights and statutory requirements. Consider the following:

 

*               DC Gibson's decision to proceed with the search even though the search warrant was not yet in hand is not enough, by itself, to bring the administration of justice into disrepute. The police knew they had a signed warrant. The warrant was on its way. They should have waited until it arrived, but they didn't. The decision to execute the search without having the search warrant in hand was not a deliberate or knowing effort to deny the accused their constitutional rights. But it is another example of a lack of care.

*               Similarly, the failure to make the required return to a justice, by itself, would not have persuaded me to exclude the evidence. According to PC Masters, DC Olsen knew he had to do this, but he mistakenly believed that Masters would make the return. Was this an innocent mistake? Perhaps, but I doubt it. If Olsen thought Masters would assume the responsibility to report back to the court, and he took this statutory obligation seriously, why didn't he follow up with Masters - "Did you make the return? Did you report back to the judge?" Yet PC Masters mentioned nothing of this in her testimony. All she could say was that Olsen thought that she would make the return and that the return was not made. Full stop. It appears that weeks and months went by and neither of them ever said anything more about this to each other. I cannot find on the evidence that this failure to make the return to justice was a routine and accepted part of these police officers' practices. But I do find that this was another example of carelessness, or lack of care.

39     This was not a case where nothing was known about the building located at 1424 Bloor. DC Oslen knew that there were upstairs residences over the storefronts and that the inside door in 1424 probably led to an upstairs residence; DC Gibson was told specifically by one of the accused that "someone lives up there;" the search team saw for themselves that they were about to enter a residential dwelling; they could easily have sought a telewarrant to authorize the continuation of the search - but they did not do so. The police agreed that it would have been "more ideal" to wait for the warrant to be delivered, but they did not do so. The police understood their obligation to report back to a Justice, but they did not do so.

40     When I consider the seriousness of the warrantless search and the cavalier attitude of the supervising officer about his scope of authority and I add to this the carelessness displayed by the police officers in not waiting for the search warrant and the lack of care in failing to make the required return to a Justice, I must conclude that the breaches, in combination, were not only serious but they were not committed in good faith.

41     The third factor in Collins asks me to consider the effect on the administration of justice if the evidence is excluded. This was a significant drug seizure: more than a kilogram of cocaine, 2.5 kilos of marijuana, 1409 ecstasy pills and a large amount of money. Both the Court of Appeal and the Supreme Court of Canada have time and again elaborated on the perils of cocaine and the immeasurable harm it causes to society.²⁰ The offences with which the accused are charged are serious offences. If the evidence is excluded, the Crown's case will be undermined and will likely result in the acquittal of both accused.

42     Yet this is often the consequence when the s. 8 breach is serious and good faith has not been established. As Sopinka J. noted in Feeney:²¹ "if the exclusion of this evidence is likely to result in an acquittal of the accused ... then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law."

43     In my view, given the serious nature of the breaches, particularly the warrantless search of the private residence, and the lack of care with which these breaches were committed, the administration of justice (which includes proper police investigative techniques) is better served in the overall if the evidence is excluded. In my opinion, the admission of this evidence on the facts of this case would bring the administration of justice into disrepute.

44     A final comment. It is imperative that police officers, and especially drug squad officers who encounter and investigate drug dealers on a daily basis, never lose sight of the fundamental point that was made by Justice Iacobucci in Burlingham:²²

 

                    We should never lose sight of the fact that even a person accused of the most heinous crime, and no matter the likelihood that he or she actually committed this crime, is entitled to the full protection of the Charter. Short cutting or short circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system ... It must remembered that the goals of preserving the integrity of the criminal justice system, as well as promoting the decency of the investigatory techniques are of fundamental importance in applying s. 24(2).

Disposition

45     For these reasons, the application to exclude the drugs and money evidence that was seized in this case is granted. The drugs and money that were seized on January 29, 2004 at 1424 Bloor St. West Toronto are hereby excluded under s. 24(2) of the Charter.

46     I am grateful to counsel for their assistance.

E.P. BELOBABA J.

cp/e/qlgxc/qlmxt/qlhcs

 

 

 

 

1 R. v. Colbourne, (2001) 157 C.C.C. (3d) 273 (Ont. C.A.).

 

2 R. v. Eng, [1995] B.C.J. No. 329 (B.C.C.A.).

 

3 R. v. Scott, (1990) 61 C.C.C. (3d) 300 (S.C.C.).

 

4 Supra, note 2, at paras. 48-49.

 

5 Supra, note 3, at 325.

 

6 R. v. Chan, [2003] O.J. No. 188 (S.C.J.).

 

7 R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140.

 

8 DC Gibson also agreed on cross-examination that if he thought there was an upstairs residence, he would have drafted the search warrant to say "commercial premises and residence above."

 

9 The back door to the second-floor residence was along the rear-facing wall. The back door opened onto a set of exterior stairs that led down to the street and a parking space for a car.

 

10 R. v. J.E.B. (1989), 52 C.C.C. (3d) 224 (N.S.S.C.).

 

11 R. v. Gordon, [1996] O.J. No. 1856 (Ont. C.J.).

 

12 Section 13(4) of the Controlled Drugs and Substances Act.

 

13 R. v. Cunliffe, [2006] O.J. No. 3580 (S.C.J.).

 

14 Ibid, at para. 3.

 

15 Ibid, at para. 2.

 

16 R. v. Collins, (1987), 33 C.C.C. (3d) 1 (S.C.C.).

 

17 R. v. Harris and Lighthouse Video, (1987), 35 C.C.C. (3d) 1 (Ont. C.A.).

 

18 R. v. Mann, [2004] 3 S.C.R. 59 (S.C.C.).

 

19 R. v. Calderon, (2004), 23 C.R. (6th) 1 (Ont. C.A.).

 

20 See, for example, R. v. Cunningham (1996), 104 C.C.C. (3d) 542 at 547 (Ont. C.A.); R. v. Hamilton (2004), 186 C.C.C. (3d) 129 at para. 104 (Ont. C.A.); and Smith v. The Queen (1987), 34 C.C.C. (3d) 97 at 123 (S.C.C.).

 

21 [1997] 2 S.C.R. 13.

 

22 (1995) 38 C.R. (4th) 265 at 290 (S.C.C.).