



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lacelle, 2013
    ONCA 390

DATE: 20130612

DOCKET: C54433

Blair, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Lacelle

Appellant

Howard L. Krongold, for the appellant

Kevin Wilson, for the respondent

Heard: June 5, 2013

On appeal from the conviction entered on January 24, 2011
    by Justice P. Adams of the Ontario Court of Justice.

ENDORSEMENT

[1]

The convictions in this case derive from seizures of drugs and money
    made pursuant to a telewarrant.  The appellant submits that the trial judge
    erred in failing to exclude the evidence found during the execution of the
    warrant. The appellant asserts that the sworn information to obtain (ITO) was
    insufficient and false, and the execution of it constituted unreasonable search
    and seizure, contrary to section 8 of the
Canadian Charter of Rights and
    Freedoms
.

[2]

The ITO seeking the telewarrant was sworn by Constable Steve Whitehorne
    in the City of Cornwall, Ontario.  He swore that: There is no Justice of the Peace
    available at this time. Officer Whitehorne candidly admitted that he did not
    take any steps to ascertain the truth of the statement, nor did he know it to
    be true at the time that he signed.  The statement, however, turns out to have
    been true as a matter of fact.

[3]

This was Constable Whitehornes first ITO.  He had not received training
    in drafting it. He did not know the statutory requirements for an ITO or a
    telewarrant. He used a precedent. The draft ITO was reviewed by Constable
    Whitehornes supervisor, Assistant Sergeant Joseph, who proofread it for
    spelling and grammar only.

[4]

The trial judge made the following comments in his reasons for judgment
    on the
Charter
motion:

Officer Joseph, an acting Sergeant at the time had experience
    in drug prosecutions and warrants, said, and I believe his evidence to be true,
    that on January 8 after 5:00 p.m., the courthouse in Cornwall and area was
    closed He was told on cross-examination that the application was sent at 10:20
    p.m. and returned at 10:24 p.m. and in those circumstances there was no use, he
    said, to search the courthouse for a J.P. as opposed to a telewarrant.

[5]

The trial judge accepted Officer Josephs evidence that it would make
    sense to carry out the warrant immediately since the two [accused] were in
    custody and there was no justice available until the next day.  The trial
    judge concluded that there had been no breach of the
Charter
and that
    the request for the telewarrant was reasonable.

When I reviewed the paper work, secondly, filed as exhibit 2,
    endorsed thereon is the faxed time print of the warrant at 21:51 and on page 2,
    21:54 clearly these were hours that were later on in the evening and I am not
    persuaded that the standard of impractability was not met given the
    circumstances as outlined in British Columbia Court of Appeal in
R. v.
    Nguyen
, [2009] B.C.C.A. 89.  And I find that the telewarrant was both
    compelling and detailed.

[6]

The appellant urges the court to find that the telewarrant was
    inappropriately issued for two reasons.  The first is that the simple line: There
    is no Justice of the Peace available at this time, is insufficiently
    particular to justify the issuance of a telewarrant, not only in this case, but
    in general.  He submits that something more should be required, relying on
    the decision of the British Columbia Court of Appeal in
R. v. Scott
,
    [2012] B.C.J. No. 4 at para. 34.  We note, however, the observation of Neilson
    J.A. in the concluding line of that paragraph: I see nothing objectionable in
    the issuing Justice or, later, the reviewing Justice, taking judicial notice of
    concrete local circumstances in assessing the adequacy of the officers
    statement.  We find these words to be apt in the circumstances, and decline
    the appellants general invitation to go further.

[7]

We agree with the appellant that Constable Whitehornes approach to his
    task was somewhat casual, and his lack of knowledge and training was troubling. 
    That said, the context provided circumstantial guarantees that the statement
    that a JP was not available was true in fact.  There was nothing in the context
    to suggest to the officer that the statement might not be true; for example, it
    is circumstantially unlikely that Officer Whitehorne would have been pursuing a
    telewarrant in the middle of the day when J.P.s are available in Cornwall, or
    that his supervising officer would have failed to question that statement. It
    was, however, during the evening.  The receiving J.P. in Newmarket would also
    have been aware of the unavailability of J.P.s in Cornwall given the time of
    the night.

[8]

Second, the appellant urges us to excise the offending statement, since Officer
    Whitehorne had no personal knowledge when he swore the information, making the
    statement false. He urges us to take an approach analogous to
R. v. Araujo
,
    [2000] 2 S.C.R. 992 and
R. v. Morelli
, [2010] 1 S.C.R. 253. He asserts
    that there would not be a reasonable ground to issue a telewarrant under
    subsection 487.1(1) and (4) of the
Criminal Code
if the offending
    statement were excised. This is what the trial judge should have done, he
    submits.

[9]

Assuming without deciding that this submission has merit, then the appellant
    says that the evidence would have been excluded under s. 24(2) of the
Charter
,

on the basis that it was
obtained illegally. That exclusion
    would have led to an acquittal.

[10]

The
    analytical framework for the application of s. 24(b) of the
Charter
was
    set by the Supreme Courts decisions in
R. v. Grant
and
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494. The Court framed the test for
    relief under s. 24(2) of the
Charter
at para. 71 of
Grant
.
Since the trial judge did not carry out the
Grant
analysis we are
    obliged to do so.

[11]

The
    first line of inquiry under
Grant
is into the seriousness of the
Charter
-infringing
    conduct.  In
R. v. Lao
, 2013 ONCA 285, at para. 75, this court found
    that the use of the telewarrant process without having adequately demonstrated
    that it was impractical to appear in person did not amount to a serious
Charter
breach. See also
R. v. Farewell
, 2008 BCCA 9 at para. 43.

[12]

In
R. v. Farewell
, 2006 BCSC 372, at para. 56, the trial judge, who was
    upheld on appeal, stated:

It would be difficult to explain to the community that the
    results of the search have been excluded because of the failure by the police
    officer to make a phone call in circumstances where it would almost inevitably
    have made no difference  either because a telewarrant was in fact the only
    option, or because an in-person appearance, if available, would have resulted
    in the warrant being issued anyway.

[13]

The
    parallel is this: had Officer Whitehorne made the simple inquiry about the
    availability of a JP, he would have been assured that none was available, so
    that a telewarrant was in fact necessary. The search would have been
    inevitable.

[14]

There
    is no hint here of defiance on the officers part; this was more an instance of
    ignorance and inadvertence.

[15]

The
    second line of inquiry in
Grant
is into the impact of the breach on
    the
Charter
-protected interests of the accused.  The interest here
    would be the freedom from unreasonable search and seizure.

[16]

The
    bulk of the drugs were found in the stash house, in which the appellants
    expectation of privacy would not have been high.

[17]

The
    third line of inquiry in
Grant
requires the court to take into account
    the prospect that the exclusion of the evidence might well prevent the
    prosecution of the offence.  The evidence of drugs and money obtained as a
    result of the execution of the telewarrant is highly reliable; it would be
    difficult, as the justices observed in
R. v. Farewell
,
to explain the exclusion of the
    evidence in the circumstances of this case, where the officer swore to a
    statement that he did not know to be true, but which was nonetheless true.

[18]

Taking
    the three lines of the
Grant
inquiry together, we therefore find that
    there is no
Charter
reason to exclude the evidence obtained on the
    execution of the telewarrant, and dismiss the appeal.

R.A. Blair
    J.A.

Alexandra Hoy
    J.A.

P. Lauwers J.A.


