




CITATION:
R. v. Morgan, 2012 ONCA 28



DATE: 20120116



DOCKET: C52843



COURT OF APPEAL FOR ONTARIO



Sharpe, Blair and Rouleau JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Calvin Morgan and Damaine Smith



Respondents



Randy Schwartz, for the appellant



Dirk Derstine and Mariya Yakusheva, for the respondent Calvin
          Morgan

Michael Dineen and Jeff Hershberg, for the respondent Damaine
          Smith



Heard:
December 20, 2011



On appeal from the acquittal entered by Justice Leonard
          Ricchetti of the Superior Court of Justice dated September 24, 2010.



Rouleau J.A.:



[1]

The Crown appeals from the acquittals entered in favour of the
    respondents and seeks a new trial on the basis that the trial judge erred in
    ruling that the respondent Morgans s. 8 rights under the
Canadian Charter
    of Rights and Freedoms
, Part I of the
Constitution Act, 1982
, being
    Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11 to be free from
    unreasonable search and seizure had been violated and that the evidence
    obtained pursuant to a search warrant should be excluded under s. 24(2) of the
Charter
.

FACTS

[2]

On the evening of December 30, 2008, masked and armed assailants invaded
    an apartment at 30 Tullamore Road in Brampton.  They wielded a gun (or an
    imitation gun) as well as machetes.  The victims, Kyle Campbell, Nancy Caines
    and Jordan Northcott, were home that evening.  A scuffle resulted in Mr.
    Northcott receiving several wounds.  The perpetrators took cellular telephones,
    electronic equipment and various pieces of identification belonging to the
    victims.  The police were called immediately after the perpetrators left the
    apartment.  Police officers arrived shortly thereafter and conducted an
    investigation.

[3]

As a result of their investigation, the police obtained a search warrant
    on January 2, 2009, authorizing them to search a residence located at 76
    Abelard Avenue in Brampton.  The police executed the search warrant.  In the respondents
    bedrooms, they found property taken from the apartment at 30 Tullamore Road
    during the robbery, including pieces of identification belonging to the victims. 
    They also found clothing stained with blood containing the DNA of Mr.
    Northcott.

[4]

At pre-trial, Mr. Morgan brought an application for an order declaring that
    his s. 8
Charter
rights were breached and excluding all evidence derived
    from the search of 76 Abelard Avenue pursuant to s. 24(2) of the
Charter
.

DECISION OF THE TRIAL JUDGE

[5]

The trial judge found that the information to
    obtain (ITO), which formed the basis for the issuance of the search warrant, contained
    extensive misinformation, misleading information and incomplete evidence
    which went to the very core of the evidence necessary to the issuing judges
    decision.  The trial judge concluded that there had been a clear and
    deliberate breach or, at the very least, that the polices conduct showed a
    reckless disregard of their obligation to make full and frank disclosure in the
    ITO.

[6]

In his reasons, the trial judge set out eight
    of the more significant problems with the evidence in the ITO and concluded
    that, once the ITO is stripped of its erroneous and tendentious assertions,
    only three facts remain:

(1) Mr.
    Morgan telephoned Ms. Caines on one occasion prior to December 30, 2008 from a
    telephone number registered to 76 Abelard Avenue;

(2) there
    were fresh footprints found in the snow at about 10:45 p.m. on December 30,
    2008 at the intersection of Pearson Road and Abelard Avenue; and

(3) Ms.
    Caines received a telephone call from a telephone number registered to 76
    Abelard Avenue on December 31, 2008, the morning after the robbery.

[7]

Later in his reasons, the trial judge added an
    additional uncontroversial fact: one of the stolen cellular telephones was
    located by Bell Canada within approximately a half hour of the robbery at the
    intersection of Abelard Avenue and Pearson Road.

[8]

The trial judge found that 
[
t]hese remaining facts could not reasonably have provided the
    issuing judge sufficient credible and reliable evidence to find reasonable and
    probable grounds to believe evidence of the home invasion would be found at 76
    Abelard [Avenue].  Consequently, the trial judge determined that the resulting
    search executed at 76 Abelard Avenue had been in breach of Mr. Morgans s. 8
Charter
rights.

[9]

Given that the search warrant was deemed
    invalid, the trial judge next assessed the admissibility under s. 24(2) of the
Charter
of the evidence seized when the search warrant was executed.  In applying the
    analytical framework for the exclusion of evidence under s. 24(2) of the
Charter
,
    the trial judge found that the seriousness of the polices misconduct coupled
    with the significant privacy interest one has in a private home outweighed the
    factors favouring the admission of the evidence.  Considering all of the
    circumstances, the trial judge found that the admission of the evidence would
    bring the administration of justice into disrepute.  As a result, the balancing
    of these factors led the trial judge to conclude that the evidence obtained
    pursuant to the search warrant would be excluded under s. 24(2) of the
Charter
.

ISSUES ON APPEAL

[10]

The Crown raises three grounds of appeal:

1)

the trial judge erred in his analysis of each of the eight
    problems that he identified in the ITO;

2)

even after removing any misstatements in the ITO, there remains
    sufficient evidence supporting the issuance of the search warrant in this case;
    and

3)

if there was nonetheless a breach of s. 8 of the
Charter
, the
    evidence obtained pursuant to the search warrant should not have been excluded
    under s. 24(2) of the
Charter
.

[11]

For the reasons that follow, I have concluded that, even after removing
    any misstatements or incorrect information in the ITO, there remains sufficient
    information supporting the issuance of the search warrant.  As I would allow
    the appeal on that ground, I need not deal with the Crowns first and third
    grounds of appeal.

ANALYSIS

[12]

In considering the second ground of appeal, I
    will assume, without deciding, that the trial judges findings that much of the
    information contained in the ITO was incorrect or misleading and is to be removed
    can be upheld.

[13]

The Supreme Court of Canada has held that even
    where the ITO contains misleading or false allegations, the reviewing judge is
    to determine whether, after disregarding the misleading or false allegations,
    there remains sufficient evidence to justify issuing the search warrant:
R.
    v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57.  I have concluded
    that, in the present case, there remains substantially more relevant
    information in the ITO than the three (or four) remaining facts listed by the
    trial judge in his reasons.  As I will explain, when the additional information
    (described below) coupled with the three (or four) facts listed by the trial
    judge are considered in the context of this case, there is reliable evidence
    that might reasonably be believed to show:

1)

a connection between 76 Abelard Avenue and the robbery;

2)

a connection between Mr. Morgan and the searched premises at 76
    Abelard Avenue; and

3)

a connection between Mr. Morgan and the robbery.

[14]

Once these connections are made, they are reasonably
    capable of supporting the issuing judges decision that there were reasonable
    grounds to issue the search warrant.

THE
    CONNECTIONS

1)

Connection between 76 Abelard Avenue and the robbery

[15]

Approximately 30 minutes following the robbery,
    Bell Canada was able to place one of the stolen cellular telephones equipped
    with GPS capabilities at the intersection of Pearson Road and Abelard Avenue. 
    That location, as determined by Bell Canada, is accurate to within 100 meters. 
    Shortly after receiving the information that the cellular telephone was located
    at the intersection of Pearson Road and Abelard Avenue, the police attended at
    that location.  It was snowing heavily when they arrived and they observed
    fresh footprints in the snow on the street located directly in front of 76
    Abelard Avenue which is at the intersection of Pearson Road and Abelard Avenue.

[16]

The stolen cellular telephones location and the
    fresh footprints provide a basis for inferring a connection between 76 Abelard
    Avenue and the robbery.

2)

Connection between Mr. Morgan and the robbery

[17]

Two of the victims identified the perpetrators
    of the robbery as being three black males, approximately 20 years old with
    medium builds and measuring between 5 feet 10 inches and 6 feet tall.  The
    third victim could only say that one perpetrator was black and was unable to
    describe the others.  Mr. Morgan matched the general description given by the
    victims.

[18]

The victims knew Mr. Morgan as he was one of
    only two black men who had been to their apartment to buy a small amount of
    marihuana.  The second black man who had attended at their apartment was a
    relative and did not match the general description of the perpetrators.  He was
    therefore not a suspect.

[19]

Ms. Caines told police that she had seen a photo
    image of Mr. Morgan wearing a red bandana in the same fashion as one of the
    perpetrators during the robbery.  There was, however, some inconsistency in the
    description given by the victims of the face coverings worn by the
    perpetrators.  Mr. Northcott described the face covering as being a tie-dyed
    bandana and Mr. Campbell thought that all of the face coverings were black.

[20]

These facts provide a basis for inferring a
    connection between Mr. Morgan and the robbery.

3)

Connection between Mr. Morgan and 76 Abelard Avenue

[21]

Further to the interview with Ms. Caines, the
    police were informed that sometime prior to the robbery, Mr. Morgan had placed
    a telephone call to her from a telephone number registered to 76 Abelard
    Avenue.  On the morning following the robbery, Ms. Caines received a telephone call
    from that same number but she was not home at the time.  The telephone callers
    number was, however, recorded in her telephone.  She considered this telephone
    call to be suspicious because Mr. Morgan, who was the person known to her at
    that telephone number, would have known that she was at work at that time.  She
    therefore reported this event to police.

[22]

Further to Ms. Caines report, the police
    followed up on the telephone number she provided.  The police confirmed that
    the telephone calls were made from the landline telephone number registered to 76
    Abelard Avenue.  The owner of 76 Abelard Avenue was found to be someone with
    the surname Morgan.  Although the police had a different address for Mr.
    Morgan, further investigation revealed that Mr. Morgan was no longer residing
    at that last known address.  The police therefore concluded that he was
    residing at 76 Abelard Avenue with relatives.

[23]

Consequently, there is a basis for inferring a connection
    between Mr. Morgan and the residence located at 76 Abelard Avenue.

THE ITO VIEWED AS A WHOLE

[24]

As outlined above, there was considerably more
    evidence supporting the issuance of the search warrant than the three (or four)
    remaining facts listed by the trial judge.  That information provided the basis
    for making the three critical connections noted above.

[25]

Further, the information must be viewed in the
    context of this case.  The search warrant was sought less than three days after
    the robbery and as part of an ongoing investigation.  At this stage, the burden
    on the police is not to prove, beyond a reasonable doubt, that evidence of the
    robbery would be recovered at 76 Abelard Avenue.  Rather, the test to be
    applied by a reviewing judge was set out in
Araujo
, at paras. 51 and 54,
    as follows:

In looking for reliable information
    on which the authorizing judge could have granted the authorization, the
    question is simply whether there was
at least some evidence that might
    reasonably be believed on the basis of which the authorization could have
    issued
.



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.  Again, the test is whether there was reliable
evidence
    that might reasonably be believed on the basis of which the authorization could
    have issued
, not whether in the opinion of the reviewing judge, the
    application should have been granted at all by the authorizing judge. [Emphasis
    in original.]

[26]

When the three connections and other remaining facts are viewed in the
    totality of the circumstances, the trial judge ought to have concluded that,
    stripped of the materially inaccurate and incomplete information, the ITO
    provided reliable evidence on which the issuing judge or justice could have
    issued the search warrant.  Further, the respondent Morgan did not meet his burden
    to show that, on a balance of probabilities, the warrant could not have been issued.

[27]

For these reasons, in applying the test described in
Araujo
, the search warrant could have
    issued given that it was based on sufficient reliable information in the
    totality of the circumstances.


[28]

Before concluding, let me add one further comment.  As explained, it was
    not necessary to address the appellants first ground of appeal.  Accordingly,
    I should not be taken as either accepting or rejecting the appellants
    submissions that the trial judge erred in his finding that there were many instances
    of inaccurate and incomplete information and erred in concluding that the
    police had deliberately and recklessly misled the issuing judge.

CONCLUSION

[29]

In conclusion, therefore, I would allow the appeal and order a new
    trial.

Paul Rouleau J.A.

I agree Robert J.
    Sharpe J.A.

I agree R.A. Blair
    J.A.

RELEASED: January 16, 2012


