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CASE LAW SUMMARIES
1.) R. v. KNELSEN, 2016 ONSC 286
Judge: Justice Harper
Issue:
This is an application brought by Johan Knelsen for the following Orders:
Prohibiting the Crown from relying on any information it has not disclosed or any derivative of information not disclosed, pursuant to s. 24(1) of the Charter of Rights and Freedoms;
Order for disclosure of information in the Crown’s possession or control that has not been disclosed that is relevant to the pending proceedings;
Order re-opening the Applicant’s s. 11(b) Application.
Rule:
The Defence will be challenging the validity of the arrest and the subsequent search incident to arrest.
The pre-trial Charter applications (ss. 11(b), 8, 9 and 24) commenced on January 11, 2016. During the voir dire being held as part of the applications, the Crown adduced evidence that included evidence of the lead detective in this investigation, Detective Brazeau. Within this voir dire, It was ruled that the Officer could use the contents of the Information to Obtain (ITO) in respect of Authorization #4 in order to refresh his memory.
Early in his testimony, Officer Brazeau was testifying about certain facts that spoke to the credibility and reliability of Confidential Informant #1 (CI-1). Officer Brazeau had also testified early in his testimony to information about CI-1 that was not contained in any ITO and had not otherwise been disclosed to the Defence.
Analysis:
The Crown conceded that there were two facts in the testimony of the Officer that had not been previously disclosed. The Crown asked for an adjournment of the Application in order to conduct a further review and provide an additional summary of the information contained in the Source Debriefing Reports and the Handler’s Notes. The Crown wanted time to ensure that no Confidential Informant Privilege and identifying information would be a part of any summary that may contain information not previously disclosed.
The Defence sought to obtain copies of the Source Debriefing Reports and the Handler’s Notes, redacted to protect privilege, given what had transpired. The adjournment for the Crown was granted to conduct the review and provide summaries. Depending on what the summaries revealed, the Defence could reopen their request to obtain further disclosure. The matter was then adjourned to February 8, 2016 to be spoken to.
The Defence identified certain information that was submitted to fall within that category of information that should have been disclosed, even upon this rushed review of the Crown summary. One example that the Defence points out that is extremely significant is the notation in the Crown summary that CI-1 was both a casual user of marijuana and cocaine and a trafficker in cocaine. The trafficking part of the information was not part of the original disclosure. The Defence gave other examples of information that falls within this category and should have been disclosed.
The position of the Defence is that, given the circumstances, the only way to place the Defendant in a position that will allow a full answer and defence is to have the Crown disclose the source documents.
The Crown takes the position that it will not rely on any material not previously disclosed, making the non-disclosed information irrelevant.
The Confidential Informant’s credibility and reliability is material on an Application to determine whether the Police had reasonable and probable grounds to make a warrantless arrest. If the police are relying on information provided by the Informant, information such as CI-1 being a drug trafficker is very relevant. The only factor that would prevent disclosure is if that information would tend to identify the Informant. That cannot be the case as the Crown summary blatantly disclosed that information.
Conclusion:
In McKenzie, Justice Campbell points out at para 24 that the Ontario Court of Appeal in R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109, at para 72 stated that, before the reviewing Court is able to rely upon the original, un-redacted ITO in determining the validity of a search warrant under ‘step six’ of Garafoli, the Accused must be made aware of the general nature of the redactions, and his or her awareness must be sufficient to permit the Accused to challenge the redacted details both in argument and by evidence.
Any documentation passed along to the Affiant and/or any notes about what information was passed along to the Affiant (redacted to protect privilege) should be disclosed to the Accused.
Taking a similar approach to this issue to that of Justice Campbell in McKenzie. I order the following to be disclosed by the Crown (redacted to protect privilege):
The Source Debriefing Reports (also referred to as Confidential Informant Debriefing Reports);
The debriefing and Handler reports and notes as they relate to the investigation of this Accused and the charges in this indictment only.
Once the items set out in paragraph 26 a and b had been reviewed by the Defence, the Defence may bring an application for the Crown to produce to the court an un-redacted version of those reports in order to determine if there is relevant material that is not protected by privilege that should be disclosed.
2.) R. v. KRAMSHOJ, 2017 ONSC 2951
Judge: Justice Healy
Issue:
The Applicant, Adam Kramshoj, is charged with one count of making available child pornography and two counts of possession of child pornography, contrary to subsections 163.1(3) and (4) of the Criminal Code. By agreement of Counsel, this matter proceeded as a blended s. 8 Charter motion and trial, following a Garafoli/Charter motion to quash the warrant.
Following the first motion, it was ruled that the Information to Obtain (ITO), after excision, supported the conclusion that there were sustainable, reasonable grounds for the ITO's Affiant to believe that a search of the identified premises would likely produce the evidence set out in Appendix A of the ITO, and that such evidence would be probative of the commission of the offences. It was also ruled there had been a breach of s.8 of the charter as a result of the warrant being invalid on its face, due to a "Branton error.”
The ITO limited itself to the Officer's belief that an offence had been committed, and contained no basis for a search focused on the suspected or intended commission of such offences.
Rule:
At the conclusion of that ruling, no decision was made with respect to the exclusion of evidence, as Defence counsel intended to advance several additional s. 8 violations following the trial. A full argument was heard with respect to those alleged violations and the application of s. 24(2) of the Charter at the conclusion of the evidence, as well as submissions in respect to the evidence of each charge.
Analysis:
The investigation into the charges was led by Det. Lockhart, who has been a member of the Child Sexual Exploitation Section of the Ontario Provincial Police (OPP) for 17 years. On December 14, 2011, at approximately 11:26pm, Det. Lockhart was using a software program used by law enforcement, called E-Phex, to track and investigate peer-to-peer (P2P) trading and distribution of child pornography. The software allows investigators to make a connection with a computer at a specific IP address to gather a list of files it contains, compares those with the database for expected child pornography and then downloads each file to examine the contents.
At the date and time noted above, Det. Lockhart was browsing a P2P network, the Gnutella network, known to Police as being a network used to trade and share digital files containing child pornography.
On the date of his search, Det. Lockhart was able to establish a direct connection between his computer and a computer that was connected to the Gnutella Network, having first been alerted that a certain IP address was making files available that contained SHA-1 hash values of interest.
With the assistance of the E-Phex software, Det. Lockhart was able to obtain a GUID number from the computer containing that IP address. The computer with the same IP address had been seen since December 3, 2011, as a candidate for downloading suspected evidence of child pornography.
On December 16, 2011, Det. Lockhart sent a request to Rogers pursuant to the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA) for customer information pertaining to the IP address in question. In its response, Rogers provided the account subscriber name and the service address. The account subscriber was identified as Judith Cramshoj, who is the Accused's mother, and the service address identified as 39 Coldwater Road West, Apartment 2, Orillia, Ontario.
A warrant to search the address provided by Rogers was issued by a Justice on January 3, 2012, based on the ITO prepared by Det. Lockhart. The warrant allowed for entry, search and seizure on January 4, 2012, between 6am and 9pm, of the following four items:
1. Any computer contaminated with child pornography;
2. Computer graphic images/movies, electronic or printed, that show child pornography;
3. CDs or floppy diskettes that contain images/movies that show child pornography; and
4. Any computer, CDs or floppy diskettes that contain computer graphic images and computer graphic movies bearing four titles specifically listed.
As previously indicated in preparing the warrant, Det. Lockhart used the old Form 5, which extended the scope of the seizure to evidence in respect of the commission, suspected commission or intended commission of an offence. ITO had already determined that this rendered the warrant invalid on its face, and declined to sever the offending portion. Det. Lockhart agreed that the effect of the warrant was to permit a search for more than asked for in the ITO.
The warrant was executed on January 4, 2012, when Mr. Kramshoj was not at home. Its execution resulted in the police seizing a Dell desktop computer, four thumb drives, a black hardcover book, and a small plastic bag holding what was later identified as cannabis.
R v Grant sets out a three-pronged test for determining the admissibility of evidence under s. 24(2) of the Charter.
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the Accused; and
Society's interest in the adjudication of the case on the merits.
Conclusion:
There was a failure to file a report to the justice for over 6 months since the search and seizure, which is a breach.
Photos were also taken of Mr. Kramshoj's driver's license, which was placed in plain view on a hutch in the living area, and of a letter from Rogers addressed to Judith Kramshoj that provided her account number, the date on which her account was registered, and her user ID. None of the Officers were able to recall where that document had been originally located in the apartment, although it was photographed on the coffee table in the living area.
The Applicant submits that the search warrant should have been issued pursuant to s. 487.01 as it was a search for information about the identity of the user of the computer, and not a search for "things.”
The whole purpose of the search warrant was to use it as an investigative tool to assist in providing the elements of the subject offences, including knowledge, intention and control on the part of the user. The Police were clearly seizing the items with a view to investigating whether they contained child pornography, but also with a view toward identifying the person responsible for downloading it. For that reason, they took a photograph of Mr. Kramshoj's driver's license and the rooms in the apartment, even showing the type of clothing hanging in the closet, presumably as proof that he occupied the searched premises.
Previously indicated, seizing such identifying information was outside the terms of the warrant. As counsel argued, the ITO indicates the Officer's belief that the search would afford evidence to assist in identity.
To summarize, Mr. Kramshoj's s. 8 rights were violated by: the Branton error; the unauthorized request to Rogers for personal information (the pre-Spencer error); the failure to make a timely report to justice; and the unreasonableness of the searched occasioned by the seizure of the black notebook and, most egregiously, losing important evidence about where the Rogers letter was located in the apartment during the search. The first two prongs of the Grant test were weighed and considered.
The breaches in this case are serious and there were multiple of them. In totality of the circumstances, it was determined that the Accused met the onus that all evidence obtained from the warrant must be excluded. As the Crown is unable to prove the guilt of Mr. Kramshoj without the evidence obtained during their search of his apartment, an acquittal must be entered.
3.) R v. MIRZOYAN
Purpose:
This is a ruling on evidence to exclude evidence on the basis of unreasonable search and seizure.
Background:
A confidential Informant registered with the Police said they had personally observed the Applicant in possession of cocaine and alerted the authorities that the Applicant was trafficking cocaine and marijuana. The Informant provided information about his name, a physical description, address (Brampton, Ontario) as well as his vehicle and license plate. In addition, he also included the phone number he used to conduct drug deals.
This information led to the Toronto Guns and Gang Task force to conduct surveillance on the Applicant between January 4th-6th 2018. Over the 2-day surveillance, he was seen engaging in what was believed to be 3 hand-to-hand drug transactions.
On January 7th 2018, search warrants were executed on his address and vehicle. A quantity of cocaine was seized from the vehicle and MDMA, Percocet and over $800 in cash were seized from his bedroom.
The Applicant argued during the pre-trial motion that there were insufficient grounds in the information to obtain (ITO) the search warrant, such that it ought not to have been issued. In particular, it is alleged that it failed to disclose reasonable and probable grounds; the Respondent resists the attack by arguing that the search warrant could have been issued as redacted.
It is not set out on which date the investigation in the case began. The confidential Informant indicated, however, that he/she knows the Applicant and was aware that he was dealing a large quantity of drugs on a daily basis.
After the task force confirmed the identity, address and vehicle of the Applicant with the Ministry of transportation, they set up surveillance on January 4th, 2018. Although there was no criminal activity on the 4th, on the 5th, they observed what was believed to be 3 hand-to-hand transactions outside the Applicant’s home. The core of the Applicants' arguments was that the ITO, in support of the search warrant, was based on a single confidential Informant after only 3 days of surveillance. Crown counsel, on the other hand, states at the outset that a search warrant is presumptively valid, and the Applicant bears the onus of demonstrating that it is not.
Analysis:
In weighing the evidence relied upon by the authorities when assessing the reliability of a confidential informant:
1. Was the information predicting the commission of a criminal offence compelling?
Crown counsel submits that the information furnished by the source was very compelling. He had direct observations of the Applicant’s drug possession and told the Police that the Applicant was trafficking a large quantity of cocaine and marijuana daily. Indeed, the source‘s observations were first hand, made through “personal observations and conversations.” With this information, the first branch of the test was met.
2. Where the information was based on a tip from a source outside the Police, was the source reliable?
Crown counsel begins by noting that the source was registered and that he/she had been proven reliable in the past. This was evident in the ITO. Indeed, it was indicated that information provided by the Informant in the past to the Police resulted in the arrest of drug traffickers and seizures of evidence, precisely the kind of information given by the source in the case at bar.
It was also set out in the ITO that the source had been cautioned and acknowledged that providing false information to the Police could result in criminal charges. No promises were made to the source prior to providing the information. While the motivation of the source is not apparent, it is submitted that the previous reliability of the informer is high, and the information can be considered to be very credible. It is clear that the source in the instant case was manifestly reliable or credible.
3. Was the information corroborated by the Police prior to making the decision to conduct the search?
On the evidence contained in the warrant, there were three surveillance days in total; one of which yielded no results. The two alleged hand-to-hand transactions observed the second day occurred 90 minutes apart from each other; the third took place the following evening. However, the Applicant notes that no details are provided about the transactions in the ITO, such as approximate time or duration. Neither is there any indication that the applicant was seen to be in possession of any money, drugs or other drug trafficking paraphernalia. Numerous material aspects of the tip were confirmed by the Police, including the Applicant’s whereabouts and activities suggestive of drug trafficking by him.
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