



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ting, 2016 ONCA 57

DATE: 20160120

DOCKET: C58999

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Suet Stacy Ting

Respondent

Chris de Sa, for the appellant

Philip Campbell and Eva Tache-Green, for the respondent

Heard: September 8, 2015

On appeal from the acquittals entered by Justice B.A.
    Allen of the Superior Court of Justice, on June 2, 2014.

Miller J.A.
:

Overview

[1]

An investigation into a large-scale drug network led police to a mixed
    commercial and residential plaza. The police obtained a warrant (the First
    Warrant) to search one of the rear apartments in the plaza, where they
    believed an Asian woman known as Momo sold drugs.

[2]

Acting on incorrect information about the layout of the plaza, the
    police entered the respondents basement apartment, mistaking it for an
    entrance to a landing that would lead to the target apartment. At the same
    time, the police entered the target apartment through an entrance in the rear
    of the plaza. Though the police quickly realized that this basement apartment
    did not connect to the target apartment, they nevertheless searched the apartment.

[3]

As a result of the search, the police concluded that the respondent, and
    not the occupant of the rear apartment, was in fact Momo. After an hour and
    forty minutes, the search was stopped so the police could obtain a second
    warrant (the Second Warrant) to continue the search of the basement apartment.

[4]

On the second search, the police found methamphetamine and cocaine. As a
    result, the respondent was charged with two counts of possession of controlled
    substances for the purposes of trafficking.

[5]

On a
voir dire
, the First Warrant was held to be invalid
    because it failed to describe the precise location to be searched. The
    respondents apartment was not the target apartment listed in the warrant.

[6]

The Second Warrant was also held to be invalid, as the police were still
    present in the apartment at the time they received the Second Warrant.
    Alternatively, the application judge found that the Second Warrant was also insufficiently
    precise and was invalid on its face.

[7]

After weighing the
Grant
factors, the application judge
    excluded the evidence under s. 24(2) of the
Canadian Charter of Rights and
    Freedoms
. The respondent was subsequently acquitted of both charges.

[8]

For the following reasons, I would dismiss the appeal and uphold the respondents
    acquittals.

Facts

(1)

The Investigation

[9]

In April 2011, police from Durham and York Region began Project
    Gladiator, an investigation into a large-scale drug network that they believed
    to be operating throughout the Greater Toronto Area.

[10]

One
    of the individuals at the centre of the investigation was Alireza Kharizfar.
    Surveillance and intercepted communications from Kharizfar led to a woman known
    as Momo, who was believed to be one of his crystal methamphetamine suppliers.

[11]

Following
    an intercepted conversation between Kharizfar and Momo on September 15, 2011,
    police followed Kharizfar to 4204 Dundas Street West, which is a mixed commercial
    and residential plaza. The police believed he was at that address for a drug
    transaction.

[12]

The
    police observed Kharizfar entering and exiting one of the plazas front-facing doors.
    This door was labelled 4204B (the Target Door). The police later observed
    Kharizfar going in and out of the Target Door on two other occasions, where an
    Asian woman was seen opening the door for him.

[13]

Based
    on the information obtained through Project Gladiator, the police concluded
    that the woman observed at the Target Door was Momo.

[14]

The
    police then searched the registrations of the vehicles in the parking lot. Two
    of these vehicles were registered to Valerie Pham. A check with Toronto Hydro showed
    that Tammy Pham, Valeries sister, was the hydro subscriber for the rear unit
    of 4204B Dundas Street West.

[15]

After
    observing the Asian woman believed to be Momo at the Target Door on several
    occasions and comparing her to Valerie Phams drivers licence photo, an investigating
    officer concluded that Valerie Pham was Momo.

[16]

As
    discussed below, this identification was later found to be incorrect.

(2)

The First Warrant

[17]

Police
    obtained building layout information from Toronto Fire Services, which
    indicated that 4204B Dundas Street West was divided into two, two-storey
    residential units, one front and one rear. The information also showed that the
    address had one front and at least one rear door. On the ground floor there was
    also a commercial unit occupied by Dominos Pizza.

[18]

Based
    on this information, police believed that the rear apartment could be accessed
    through both the Target Door and one of the rear entrances.

[19]

Having
    concluded that Valerie Pham was Momo, and that her sister was a tenant of the
    rear unit, police obtained the First Warrant to search 4204B (rear unit)
    Dundas Street, West and Valerie Phams vehicles for evidence of drug
    transactions.

[20]

The
    police executed the First Warrant on November 30, 2011.

[21]

Two
    teams of officers entered 4204B at 6:00 a.m., one through the Target Door at
    the front of the plaza, where Kharizfar had been observed, and the other through
    one of the rear entrances. As planned, the team at the rear entrance entered
    and searched the rear unit, which was Phams residence.

[22]

The
    team entering through the Target Door, however, was surprised to discover that it
    did not lead to Phams residence, either directly or via a common corridor. Instead,
    it led down a staircase directly into a basement apartment.

[23]

Until
    the police entered the Target Door, they did not know that it opened into the
    basement apartment, or that the basement apartment even existed.

[24]

On
    their descent down the staircase, the police encountered the respondent, Suet
    Stacy Ting.

[25]

The
    police entered the basement apartment. It was immediately apparent that there
    was no access from the basement apartment to Phams apartment.

[26]

The
    police detained Ting, at first believing her to be Pham.

[27]

The
    police proceeded to search the basement apartment and one of Tings cell
    phones. They saw a quantity of what they believed to be crack cocaine in plain
    view. They also seized, among other things, $600 and six cell phones.

[28]

At
    some point, suspicion about Momos identity shifted from Pham to Ting, and
    police decided to seek a new warrant for the basement apartment.

(3)

The Second Warrant

[29]

At
    7:40 a.m., one hour and forty minutes after the search of the basement
    apartment began, a detective instructed the officers to discontinue the search until
    they obtained a new warrant. Ting was arrested and an officer remained in the
    basement apartment to secure it.

[30]

Seven
    hours later, the police obtained the Second Warrant. The address on the warrant
    was specified as the residence of 4204B Dundas Street, West, Toronto,
    Ontario. It did not specify which of the three residential units at 4204B was
    to be searched.

[31]

The
    amended Information to Obtain (ITO) in support of the Second Warrant included
    the following information:

a. Just after 6:00am, investigators entered the front door of
    4204B Dundas Street West.

b. Upon entry, investigators learned there is only one
    apartment behind the door for 4204B. Investigators originally believed 4204B
    was separated into two units one in the front and one in the rear of the
    building. Investigators entered the apartment and located a female inside.

c. In plain view, investigators located a small quantity of
    crack cocaine and marihuana.

d. Investigators had difficulty identifying the lone female at
    the residence. The female appeared to be Valarie PHAM, however she identified
    herself as Suet (Stacey) TING (15-JAN-1965).

e. Investigators learned the rear unit can not be accessed
    through the front door.
The front door (4204B) is the door KHARIZFAR
    attended each time to pick up or sell drugs.
[Emphasis in original.]

[32]

The
    second ITO also set out that [i]nvestigators have determined the actual
    apartment unit for Momo is 4204B and not 4204B (rear) as originally believed.

[33]

Armed with the Second Warrant, police returned to the
    basement apartment and resumed the search. They found 70 grams of
    methamphetamine and 6.6 grams of cocaine. Ting was charged with two counts of
    possession of controlled substances for the purposes of trafficking under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, s. 5(2).

The
Voir Dire

(1)

Validity of the Warrants

[34]

On
    a
voir dire
, the application judge ruled that the First Warrant was invalid
    on its face, as it lacked an adequate description of the premises to be
    searched.

[35]

She
    found that 4204 Dundas Street West had a rather complicated structure and the
    ITO did not describe the property in such a manner as to allow the justice of
    the peace to appreciate where the door to be entered and the residence to be
    searched were situated in the building structure. (at paras. 59, 62).

[36]

The
    application judge went on to find the Second Warrant invalid, on the basis that
    the police were still present in the apartment at the time they received the
    Second Warrant.

[37]

In
    any event, even if the information had been obtained through a valid warrant,
    the application judge held that the Second Warrant was invalid on its face. The
    Second Warrant simply identified the target as the residence of 4204B, and
    did not specify which of the three apartment units were to be searched. It did
    not rectify the imprecision in the First Warrant in any appreciable way.

[38]

The
    application judge went on to find that there were insufficient reasonable and
    probable grounds to issue the warrants.

(2)

Exclusion of the Evidence

[39]

The
    application judge considered whether the evidence should be excluded under s.
    24(2) of the
Charter
, which provides that where evidence is obtained
    in a manner that infringes a persons
Charter
rights, it shall be
    excluded if its admission would bring the administration of justice into
    disrepute.

[40]

The
    application judge followed the three inquiries set out in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, to assess whether the admission
    of the evidence obtained in the searches would bring the administration of
    justice into disrepute. These inquiries assess:

1.

the seriousness of the
Charter
-infringing state conduct;

2.

the impact of the breach on the
Charter
-protected interests of
    the accused; and

3.

societys interest in the having the case adjudicated on its merits.

[41]

With
    respect to the seriousness of the infringement, the application judge
    characterized the police conduct as being on the more serious end of the spectrum.
    In particular, she identified the following:

·

the imprecision in the description of the residence was not a
    technical error, but the result of a substandard investigation, a failure of
    due diligence [and] neglect to take the steps necessary to understand the
    layout of the building;

·

the police who entered the basement apartment quickly realized
    they were in the wrong apartment;

·

the police accessed text messages from Tings cell phone, which
    was not part of the original investigation and which was done without a warrant;
    and

·

the search continued for one hour and forty minutes before being
    halted. Even then, an officer remained in the apartment for seven hours under
    the invalid warrant before a new warrant was obtained.

[42]

Although
    the application judge characterized the initial error as a result of a reckless
    and substandard investigation, she found that the subsequent conduct 
    remaining in the apartment and carrying on with the search despite knowledge
    that they were not where they were supposed to be  crossed the line into a
    flagrant disregard of Ms. Tings rights.

[43]

With
    respect to the impact of the breach on Ting personally, the application judge
    characterized this as being on the more severe end of the spectrum (at paras.
    90-91):

The police entered the apartment in the early morning hours and
    found Ms. Ting in her night wear. Over a half dozen officers were in her small
    apartment at one time. They proceeded to walk through her private living space,
    searching, videotaping and seizing items. They accessed texts on the Nokia
    cellphone without authority.

This was a flagrant invasion by the police of the private and
    personal spheres of Ms. Tings life and home. The court must dissociate itself
    from that conduct.

[44]

With
    respect to societys interest in having the case adjudicated on its merits, the
    application judge noted that [d]rugs of the nature seized in the case before
    me have become a serious threat to the well-being and security of many
    communities.

[45]

Her
    overall conclusion was that the nature and the extent of the infringement of
    the
Charter
rights meant that the long-term interest of the
    administration of justice would not be served by admitting the evidence in this
    case. She therefore ordered the exclusion of the methamphetamine and cocaine.

[46]

As
    a result, the respondent was acquitted of both charges.

Issues on Appeal

1.

Did the application judge err in finding that the warrants were invalid?

2.

Did the application judge err in excluding the evidence under s. 24(2)
    of the
Charter
?

Analysis

(1)

Did the application judge err in finding that the warrants were invalid?

(a)

Facial Validity of the Warrants

[47]

Broadly
    defined, a search warrant is an order issued by a justice of the peace that authorizes
    the police to enter a specified place to search for and seize specific property:
    see
A.G. (Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, at 179.

[48]

An
    adequate description of the place to be searched is a fundamental component of
    a search warrant. Its importance cannot be overstated: see
R. v. Le
,
    2011 MBCA 83, 270 Man.R. (2d) 82, at para. 77; James A. Fontana and David
    Keeshan,
The Law of Search and Seizure in Canada
, 8th ed (Markham:
    LexisNexis Canada Inc., 2010) at 87-92.

[49]

Without
    an adequate description of the premises, the issuing justice of the peace would
    not be assured that he or she is not granting too broad an authorization, or an
    authorization without proper reason. The police officers called on to execute
    the search warrant would not know the scope of their search powers. Further, those
    subject to the warrant would be left in doubt as to whether there is valid
    authorization for those searching their premises.

[50]

Accordingly,
    a warrant that does not adequately describe the place to be searched is invalid.
    As articulated in
Re McAvoy
, [1970] N.W.T.J. No. 5 (Terr. Ct.), at para.
    50,:

To avoid search warrants becoming an instrument of abuse it has
    long been understood that if a search warrant fails to adequately describe the
    offence, fails to accurately describe the premises to be searched, or fails to
    give an accurate description of the articles to be seized then it will be
    invalid.

[51]

Just
    what constitutes an adequate description will vary with the location to be
    searched and the circumstances of each case. With respect to a multi-unit,
    multi-use building, as seen in this case, it is not enough to simply provide a
    street address that distinguishes the building from others. The description must
    adequately differentiate the units within the building, as those in a
    multi-unit dwelling have the same expectation of privacy as those in a
    single-unit dwelling. The Supreme Court of Canada articulated this point in
R.
    v. Campbell
, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15:

[The accuseds] expectation of privacy in his room within the
    townhouse is just as high as that of a resident of a single dwelling unit. In
    drafting ITOs proposing to search more than one unit within a multi-unit
    dwelling, this principle should be reflected by clearly setting out reasonable
    and probable grounds for each unit to be searched.

[52]

In
    this case, although the First Warrant was specific about the premises to be
    searched, it specified an apartment other than Tings. The premises specified
    was 4204B (rear unit). This rear unit was where police believed drugs were
    sold by Pham, who was the target of the investigation at that time.

[53]

On
    its face, therefore, the First Warrant did not authorize a search of Tings basement
    apartment. It targeted a different apartment and a different person. The application
    judge did not err in her conclusion to invalidate the First Warrant.

[54]

The
    application judge then invalidated the Second Warrant on the basis that the
    police failed to leave Ms. Tings apartment when they realized, or ought to
    have realized, that the First Warrant was invalid, and were still present at
    the time the Second Warrant was obtained.

[55]

The
    application judge did not err in this conclusion. Had the police promptly
    vacated the apartment, however, the initial entry would not have precluded
    obtaining a second warrant for the basement apartment on the information contained
    in the initial ITO plus the new information clearly identifying the premises to
    be searched as the basement apartment.

[56]

However,
    the Second Warrant also failed on the basis of facial invalidity, that is, for
    inadequately describing the premises to be searched.

[57]

The
    Second Warrant specified the residence of 4204B as the place to be searched.
    This description could have equally signified any of the three residential
    units in the building and the application judge did not err in finding that this
    made the Second Warrant facially invalid.

[58]

That
    being said, the Crown submits that the second ITO made it clear that the
    warrant was intended for the basement residence. I agree that the application
    judge erred in finding the ITO to be ambiguous in that respect. There is only
    one residence in the basement of the building, and there is only one door that
    can be used to access it.

[59]

It
    is not enough, however, for the ITO to accurately describe the premises to be
    searched. For a search warrant to fulfill its functions, those who are relying
    on it  including police officers who are executing it and third parties whose
    cooperation is sought  must not be required to look past the warrant to the
    ITO. The warrant itself must be clear and limited on its face with respect to the
    location to be searched: see
Re Times Square Book Store and the Queen
(1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and
R. v. Parent
(1989), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

[60]

A
    function of a warrant is to guide and limit the actions of the police officers.
    A warrant that is ambiguous cannot perform that function. Neither can the
    subject of the warrant know whether the police are authorized to search the
    premises.

[61]

Had
    the warrant specified the residence of 4204B, basement apartment, it would have
    been sufficiently precise. But the residence of 4204B was impermissibly
    ambiguous. It is no answer that in this case the officers nonetheless executed
    the second warrant at the correct residence. In reality, they were not guided
    by the warrant, but by their personal knowledge of the premises to be searched:
    see
R. v. St-Pierre
(1998), 204 N.B.R. (2d) 172 (Q.B.), at para. 16.

[62]

The
    application judge did not err in quashing the Second Warrant.

(b)

The Use of Amplification Evidence

[63]

The
    role of a judge reviewing a search warrant is not to ask whether she would have
    granted the warrant were she the issuing judge, but to determine whether the
    warrant could have been issued: see
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, at 1452.

[64]

In
    doing so, the application judge may be permitted to rely on amplification
    evidence, which is additional evidence presented at the
voir dire
.
    There are limitations to the use of amplification evidence, as set out in
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43:

Amplification evidence is not a means for the police to adduce
    additional information so as to retroactively authorize a search that was not
    initially supported by reasonable and probable grounds.



Rather, reviewing courts should resort to amplification
    evidence of the record before the issuing justice only to correct some minor,
    technical error in the drafting of their affidavit material so as not to put
    form above substance in situations where the police had the requisite
    reasonable and probable grounds and had demonstrated investigative necessity
    but had, in good faith, made such errors.

[65]

In
    this case, the application judge did not use amplification evidence to validate
    the search warrants. She concluded that this was not some minor, technical
    error, but that the police had gone into the wrong unit (at paras. 62, 63).
    This was a finding of fact that the application judge was entitled to make, and
    it is entitled to deference on appeal.

[66]

The
    Crown maintains that on the basis of the amplification evidence at the
voir
    dire
 particularly that the Target Door led to the basement apartment 
    the First Warrant was sufficient to authorize the search of the basement
    apartment. The Second Warrant was, according to the Crown, not strictly
    necessary, but was obtained to err on the side of caution.

[67]

The
    Crown argues that the evidence on cross-examination set out how the
    investigation was always centered on whatever premises was behind the Target
    Door. The Crown submits that when the police entered Tings basement apartment,
    they entered the correct place  correct in the sense that it was the place
    where the transactions with Momo were believed to have occurred and correct in
    that Ting was Momo, not Pham.

[68]

I
    do not agree with this submission. The police did not know of the basement
    apartment when swearing the ITO. They could not obtain a warrant for a
    residence whose existence was unknown to them.

[69]

It
    was not enough that they believed that the Target Door was a gateway to some
    location where a drug transaction had likely taken place. They did not know
    where the Target Door led. As it happens, the Target Door in fact led to a
    single residence. But at the time they believed otherwise: that it may have opened
    to a landing that led to individual residences.

[70]

Amplification
    cannot be used to provide evidence that was not known to the police at the time
    the ITO was sworn: see
Morelli
, at para. 43.

[71]

Even
    on its face, the First Warrant did not authorize the police to enter the Target
    Door. Though they did not know this until they entered the basement apartment
    and realized that they were mistaken about it providing access to the rear unit,
    it was not merely a technical error that can be corrected on the basis of an
    amplified record.

[72]

A
    premises that is not specified on a search warrant cannot become the right
    place simply because the police conclude that it ought to have been the
    original target, and would have been but for their mistaken chain of reasoning.
    It is the warrant that makes the premises the correct premises (in terms of authorization),
    not the plan of action in the minds of the investigating officers. This is the
    same conclusion reached in the factually similar case cited by the application
    judge:
R. v. Silvestrone
(1991), 66 C.C.C. (3d) 125 (B.C.C.A.), at 131.

[73]

Neither
    can the Second Warrant be saved by amplification evidence. It did not specify which
    residential unit at 4204B was to be searched. This failure to precisely
    describe the premises to be searched is an error on the face of the warrant.
    This is a problem that cannot be cured on amplification of the record.

(2)

Did the application judge err in excluding the evidence under s. 24(2)
    of the
Charter
?

[74]

As
    outlined above,
Grant
sets the framework for assessing whether evidence
    should be excluded under s. 24(2) as a result of a
Charter
breach. This
    determination is owed considerable deference, unless the assessment of facts is
    unreasonable, or the judge made a palpable and overriding error in her analysis:
    see
R. v. Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.

[75]

On
    the first
Grant
inquiry, the application judges conclusion was
    reasonable: the s. 8 infringement was at the more serious end of the spectrum.

[76]

However,
    the application judge overstated the degree of fault of the police in obtaining
    the invalid First Warrant. The misidentification of Pham as Momo and the mistaken
    description of the premises in the warrant were errors, but they were not the
    result of substandard investigative practice or a failure to conduct due
    diligence.

[77]

I
    agree with the Crown that the police acted reasonably in relying on the
    information about the building layout that was provided to them by Toronto Fire
    Services. They had been advised that there were two, two-storey residential
    units in the building. They had no reason to look beyond this information. It
    was reasonable in the circumstances to conclude that there were no other
    residential units, and that the Target Door must therefore lead the to the rear
    unit.

[78]

Similarly,
    the initial entry into the basement apartment was not substandard practice. The
    police had reasonable grounds to seek a warrant to enter Phams apartment, and
    reasonably believed that the Target Door led to Phams apartment.

[79]

What
    was problematic was the decision to search the basement apartment when it was,
    or should have been, immediately obvious that the police did not have the
    authority to be present there. The officers in the basement apartment knew that
    there was a second team of officers executing the warrant through a rear door.
    When the team that entered through the Target Door did not meet up in the same
    residence as the rear door team, they had to know that one of the teams was in
    the wrong place. At the very least, the police knew that they did not have a
    warrant to search two separate apartments.

[80]

Knowing
    that they were in premises not authorized by the search warrant, and in the
    absence of exigent circumstances, the police ought to have left the premises
    immediately and sought a further warrant. Contrary to the Crowns characterization
    of events, this is not what occurred; up to seven police officers continued to
    search a small apartment for one hour and forty minutes before discontinuing.

[81]

As
    the application judge concluded, it is this continued action, rather than the initial
    and modest infringement, that renders the police conduct in the case serious.

[82]

With
    respect to the second factor, the impact of the
Charter
infringement on
    the accused, it is unsurprising and entirely reasonable that the application
    judge found the impact on the accused to be of a high severity, similar to the
    breach of her
Charter
rights.

[83]

Finally,
    regarding societys interest in having this case adjudicated on its merits, the
    application judge appropriately noted the seriousness of the crime of drug
    trafficking, and the threat to the well-being and security of many
    communities posed by these kinds of drugs.

[84]

The
    third inquiry is a matter of assessing the harms to individuals and groups in a
    society caused by the offence in question. The application judge correctly characterized
    the standard set by s. 24(2) of the
Charter
, through the interpretation
    given in
Grant
, as an objective one  of safeguarding societys
    interests  rather than responding to public outcry or expression of public
    concern. Although we can reasonably expect that articulations of public concern
    will most often correspond to actual public interest, it is the latter that is
    the focus of the third branch of the
Grant
inquiry.

[85]

As
    the application judge noted,
Grant
does not stipulate a mechanical balancing
    exercise. All an application judge can do is consciously bear in mind the three
    factors and determine as best she can whether the admission or the exclusion of
    the evidence better serves the interest of maintaining justice in a society
    ruled by law. The application judge did so, and her conclusions in this matter
     that the
Charter
breaches in this case are sufficiently serious to exclude
    the evidence  are entitled to deference.

Disposition

[86]

I
    would dismiss the appeal and uphold the respondents acquittals.

Released: KF JAN 20 2016

B.W. Miller J.A.

I agree. K. Feldman
    J.A.

I agree. J.C.
    MacPherson J.A.


