



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mackey, 2020 ONCA 466

DATE: 20200720

DOCKET: C67301

Tulloch, Roberts and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Sean Patrick Mackey

Respondent

Matthew Asma, for the appellant

Mark Halfyard, for the respondent

Heard: June 16, 2020 by video conference

On appeal from the acquittals entered by
    Justice Nyron Dwyer of the Ontario Court of Justice on July 15, 2019.

Thorburn J.A.:

A.

OVERVIEW

[1]

This is an appeal by the Crown against
    acquittals resulting from a
Charter

ruling.

[2]

The respondent, Sean Patrick Mackey, was charged
    that from February to June in 2018 he committed twelve offences: five
    residential break and enters at different addresses in the Regional
    Municipality of York (counts 1-5); theft of a motor vehicle (count 6); prowling
    by night (count 8); possession of break and enter tools (count 9); wearing a
    mask with intent to commit theft (count 10); and possession of proceeds of
    crime (counts 7, 11, and 12). He elected to be tried in the Ontario Court of
    Justice.

[3]

At trial, the respondent applied for an order to
    quash two search warrants and exclude evidence seized pursuant to those warrants.
    The two search warrants included one to search his residence (the home
    warrant) and the other to secure a DNA sample (the DNA warrant). The
    respondent claimed they were obtained in breach of his s. 8 rights under the
Canadian
    Charter of Rights and Freedoms
. He sought to exclude the evidence obtained
    pursuant to s. 24(2) of the
Charter
.

[4]

The trial judge found that the Information to
    Obtain (ITO) the home warrant and the DNA warrant did not contain reliable
    evidence that could form the basis for issuing the warrants as there were no
    reasonable and probable grounds to believe the respondent was the person who
    committed the break and enters. He therefore found the warrants were unlawful,
    contrary to s. 8 of the
Charter
and should be quashed.

[5]

The trial judge excluded the evidence obtained
    from the searches of the residence and the respondents person pursuant to s.
    24(2) of the
Charter
. Applying the factors set out in
R. v. Grant
,
2009
    SCC 32
,
[2009] 2 S.C.R. 353
, he concluded that although exclusion of the evidence would bring
    an end to the prosecution, the serious infringement on the respondents strong
    liberty and privacy interests warranted exclusion of the evidence.

[6]

Thereafter, the Crown elected to call no evidence
    and invited a dismissal of the charges. The respondent was acquitted of all
    charges.

[7]

The Crown appeals the decision to quash the DNA
    warrant and exclude the evidence obtained therefrom. The Crown seeks a new
    trial on four related charges where police recovered DNA that matched the
    respondents DNA.

[8]

For reasons that follow, I would allow the
    appeal and order a new trial on counts one, four, five, and ten.

B.

THE EVIDENCE

[9]

In 2018, police investigated a series of
    residential break and enters, which yielded DNA and other important evidence.

The Break and Enter at 1068 Harden Trail

[10]

On April 3, 2018, a man in a black toque and
    mask broke into a residence at 1068 Harden Trail in Newmarket. The man was
    interrupted by the resident while at the window on a ladder. He fled the scene.

[11]

Police recovered a flashlight abandoned on the
    ground near the residence.

DNA from the Crime Scene and its Connection to
    the Respondent

[12]

The batteries taken from the flashlight found at
    the site of the Harden Trail break-in yielded a DNA sample. The Centre of
    Forensic Sciences tested the DNA and linked the DNA sample to DNA from five
    other crime scenes (the DNA sample).

[13]

Two of the matches were to blood left behind near
    broken windows at 795 Millard Street and 15 Green Spruce Road in the Town of
    Whitchurch-Stouffville. Both locations were the scene of break and enters that
    were reported on February 26, 2018. The perpetrator appears to have gained
    access to the homes by smashing a window near the door and unlocking it.

[14]

The DNA sample also matched DNA found in a stolen
    Ford F-150 in 2013 (the stolen truck DNA).

[15]

According to records, on December 11, 2013 the
    stolen truck was noticed driving at high speed. A short time later, police
    found it unoccupied. The driver had fled. Police found the stolen truck DNA on
    a cigarette butt in the truck.

[16]

Two fingerprints were also found in the stolen truck,
    one of which the police identified as belonging to the respondent.

Surveillance Footage Linked to the Respondent

[17]

On March 20, 2018, someone reported a suspicious
    car parked in their driveway at 3 Horn Street in the Town of Whitchurch-Stouffville
    at 1:32 a.m.

[18]

Surveillance footage from March 20 showed a
    white man in his 30s wiping down the steering wheel and interior door handle of
    a white SUV then walking away from the vehicle and putting on a balaclava. A
    white Mercedes-Benz SUV had been reported stolen one month prior in the Town of
    Kleinburg. The mans face and body are visible in the footage. The footage also
    shows the man checking vehicles in the neighbourhood then checking the front
    and back doors at 23 Horn Street. There was no break and enter at that address.

[19]

Surveillance footage also captured a lone man
    and a white SUV at the scene of the 1068 Harden Trail break and enter. The
    mans face was visible in the footage but not clearly enough to ascertain anything
    other than his general facial features. The resident of 1068 Harden Trail
    reported that the perpetrator was wearing a mask when he appeared at the window.

[20]

The remaining surveillance stills show a pattern
    of a man robbing locations in a balaclava.

The Home Warrant and the Search of the
    Respondents Home

[21]

Detective Constable Greg West swore an ITO to
    search 831 Greenbriar Drive in Oshawa for evidence of the break and entry at
    1068 Harden Trail in Newmarket.

[22]

In his affidavit in support of the application, he
    advised as follows:

a)

The resident at 1068 Harden Trail said the
    intruder wore a mask and used a ladder to reach her second-storey bedroom
    window;

b)

The intruder left the ladder propped against the
    house and dropped a flashlight on the ground below;

c)

Det. West watched the surveillance video of the
    burglar, compared it with a police mugshot photo of the respondent, and thought
    the burglar appeared to be the respondent;

d)

A white SUV was observed in another suspicious
    occurrence where a man Det. West said bore a likeness to the respondent was
    caught on video prowling around a home at night; and

e)

The DNA on the flashlight batteries matched the DNA
    found at five other crime scenes, including the truck theft in 2013. A
    fingerprint belonging to the respondent and a cigarette butt with a DNA sample
    on it were found in the stolen truck.

[23]

A justice of the peace granted the home warrant.

[24]

The police searched the home and found stolen jewellery,
    balaclavas, flathead screwdrivers, and other items. The respondent was arrested
    during the execution of the home warrant.

The DNA Warrant and Comparison of the
    Respondents DNA to the DNA Found at the Break and Enters

[25]

After his arrest, police sought the DNA warrant to
    compare the respondents DNA with the crime scene DNA profiles.

[26]

The affiant relied on the same grounds as those
    used to secure the home warrant and the fact that police had seized evidence of
    break and enters including stolen jewellery, balaclavas, flathead screwdrivers,
    and other evidence from the respondents residence at the time of his arrest.

[27]

A provincial court judge granted the DNA warrant
    and a DNA sample was taken from the respondent.

[28]

Comparison of the respondents DNA sample with
    crime scene samples provided crucial evidence incriminating the respondent.

[29]

The Centre of Forensic Sciences analysis established
    that the respondents DNA was found at the break and enter crime scenes at 1068
    Harden Trail in Newmarket, as well as at 795 Millard Street and 15 Green Spruce
    Road in the Town of Whitchurch-Stouffville.

C.

THE PROCEEDINGS BELOW

[30]

The respondent challenged the validity of both warrants
    at trial. The trial judge ruled on the validity of the home warrant first,
    followed by the DNA warrant.

[31]

The trial judge found that the grounds for both
    ITOs were inadequate to issue the search warrants and excluded the evidence
    from both searches.

The Affiants Additional Evidence at Trial in
    Respect of the Warrants

[32]

The affiant, Det. West, testified on the
Charter
    voir dire
.

[33]

Det. West testified that he relied on the DNA
    profile hits that he believed linked the crimes to the respondent. He also reviewed
    the respondents police mugshot and based on the similarities he observed, he believed
    the respondent was the person in the surveillance images.

[34]

Det. West also explained that while the DNA
    samples found at the crime scenes did not match any identifiable person, they
    showed that the same person was at all of the crime scenes. Moreover, the
    respondents fingerprint was found in the stolen truck. On cross-examination,
    defence counsel confirmed with Det. West that the DNA samples that matched
    one another did not match any identifiable person in the National DNA Data Bank.

[35]

Defence counsel incorrectly asserted that the
    respondent had previously given a DNA sample to the Data Bank, which suggests
    the respondents DNA was not a match. Det. West replied that no offender
    profile for the respondent came up when he searched relevant police databases.

[36]

Defence counsel went on to say that:

That DNA was never tested, it doesnt compare
    to anybody. [T]heres no forensic evidence tying Mr. Mackey, short of that
    thumbprint in something that is not part of your investigation[.]

[37]

The affiant did not adopt defence counsels
    suggestion that the DNA had not been tested.

[38]

On re-examination, Det. West clarified that he
    believed the respondent was the burglar because, in part, the same DNA profile
    from the other crime scene samples was found in the stolen F-150 truck, along
    with the respondents fingerprint. The exchange reads as follows:

Q: Lastly, with respect to the DNA  part of
    your belief is that the unknown male DNA profile was associated with a
    thumbprint identification to Mr. Mackey?

A: Yes.

Q: And that was with respect to a 2013 vehicle
    theft in Halton?

A: Thats right, it recovered, yeah. Yes.

Q: And from those other or in total six
    locations where that unknown male DNA profile was found, I take it that that
    inference that you drew that the DNA could belong to Mr. Mackey, it stems from
    the fingerprint identification?

A: Thats right.

The Trial Judges Ruling on the Home Warrant

[39]

In quashing the home warrant, the trial judge believed
    there was little connection between the respondent and the DNA left at the
    various crime scenes.

[40]

The trial judge found it difficult to
    understand why the DNA evidence seized at the crime scenes was not compared
    against the respondents DNA profile and how Det. West could have missed the
    respondents profile. The trial judge held that:

DNA was found on batteries from a flashlight
    apparently abandoned by the person who committed the April 3, 2018 break and
    enter. There was a sample suitable for comparison that was linked to 5 other
    incidents in York Region. The difficulty here is that it is not tied to Mr.
    Mackey.

On December 11, 2013, Mr. Mackeys print was
    found in a stolen car in York Region. There was also DNA suitable for
    comparison found in the car. This DNA has not been analyzed. There is a
    conclusion that the DNA will be linked to Mr. Mackey and further that it will
    be linked to other DNA found.



A link to Mr. Mackey is hoped for but not
    established. There is no identification and no testing of the DNA. A link by
    DNA or by identification would tie the investigation together.

[41]

The trial judges understanding was incorrect.

[42]

Counsel subsequently corrected this
    misapprehension by informing the trial judge that while the respondent had
    provided a DNA sample to the National DNA Data Bank, the sample was never
    included in the Data Bank because he was not required to provide a sample. Counsel
    also clarified that the fingerprint in the stolen truck was positively
    identified as the respondents and that DNA from the stolen truck, where the
    respondents fingerprint was found, had been tested and matched to the DNA
    found at the various crime scenes.

The Trial Judges Ruling on the DNA Warrant

[43]

Before ruling on the DNA warrant, the trial
    judge acknowledged the clarifications but maintained that the affiant had
    failed to establish reasonable grounds to believe the respondent was the
    burglar. He held that:

The clarification of these points does not
    change my analysis in the search warrant motion. The presence of the
    applicants print in the car was important at the time but did not lead
    anywhere. He was not charged with any offence related to the car. Without more
    context it is not possible to conclude when the prints were left or if that
    should raise suspicion. We have no idea about the presence of others in the car
    at the time, or some other time, that could have been the source of the DNA
    found on the cigarette butt. Again, without context it is also difficult to
    determine whether the DNA found from that time was left proximate in time to
    the print. In the end there was no analyzed DNA evidence that linked the
    applicant to any of the incidents. This was conceded by the affiant on
    cross-examination.

[44]

In his ruling on the home warrant, the trial
    judge had previously rejected the surveillance footage as he found that the
    videos were without detail sufficient to identify any individual or vehicle
    or the stolen Mercedes-Benz.

[45]

The trial judge quashed both the home and DNA
    warrants and excluded the evidence obtained therefrom.

D.

THE ISSUE

[46]

The only issue on this appeal is whether the
    trial judge erred in quashing the DNA warrant and excluding the evidence
    obtained as a result of the execution of the warrant. The Crown does not
    dispute that the home warrant was properly quashed but for different reasons
    than those given by the trial judge, which are not relevant to this appeal. The
    Crown seeks a new trial on the counts affected by the exclusion of the DNA
    evidence, counts one, four, five, and ten, and does not contest the acquittals
    on the other counts.

E.

THE POSITIONS OF THE PARTIES

[47]

The Crown argues that the trial judge wrongly
    quashed the DNA warrant and the evidence obtained pursuant thereto.

[48]

The main focus of the Crowns submissions
[1]
is that the trial judge failed
    to apply the correct standard of review. The Crown submits the trial judge
    looked at the evidence in a piecemeal fashion and substituted his own view of
    whether the affiant demonstrated reasonable grounds for the DNA warrant,
    instead of following the correct procedure which is to assess whether the
    issuing judge could reasonably have decided there were reasonable grounds to
    issue the warrant.

[49]

In the alternative, the Crown submits that the
    trial judge misapplied the law under s. 24(2) of the
Charter
, leading
    him to conclude that the evidence obtained from the DNA warrant should be
    excluded.

[50]

The respondent submits the trial judge correctly
    decided that the grounds in the ITO were not sufficient to justify issuance of
    the warrant. The respondent claims the affiant objectively lacked reasonable
    and probable grounds to connect the respondent to the break-ins for the following
    reasons:

a)

The trial judge became aware that in 2013 (five years before these
    break-ins), a thumbprint and DNA that matched the respondents were found in
    the stolen truck. However, the respondent was never seen in this car. It was
    therefore open to the trial judge to find that the evidence was not sufficient
    to support a reasonable inference that the fingerprint and DNA on the cigarette
    donor belonged to the same person;

b)

The trial judge rejected the other grounds put forward by the
    affiant including his belief that the respondent stole the Mercedes used in
    some of the break-ins, that the perpetrator of the break-ins used the same
modus
    operandi
, and that the respondent used the stolen Mercedes when committing
    the offences; and

c)

The affiant failed to disclose information regarding alternate
    suspects in respect of two of the break-ins. Someone reported that a black male
    and white female broke into a home a few doors away from two of the other houses
    under investigation in the ITO.

F.

ANALYSIS AND CONCLUSION

The Test for
    Reviewing a Warrant that has been Issued

[51]

A judge issuing a warrant at first instance must
    decide whether there are reasonable grounds to believe the statutory
    preconditions for issuance of the warrant are met:
Hunter v. Southam
,
    [1984] 2 S.C.R. 145, at p. 168.

[52]

Section
487.05
(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, provides that, for a DNA
    warrant to be issued, there must be reasonable grounds to believe that:

a)

A designated offence has been committed;

b)

A bodily substance has been found or obtained at
    specified places, including at the place where the offence was committed, or at
    any place associated with the commission of the offence;

c)

The person targeted by the warrant was a party
    to the offence; and

d)

Forensic DNA analysis of a bodily substance from
    that person will provide evidence about whether the bodily substance referred
    to in (b) was from that person.

See also
R. v. S.A.B.
, 2003
    SCC 60, [2003] 2 S.C.R. 678, at para. 4.

[53]

The judge must also be satisfied that it is in
    the best interests of the administration of justice to issue the warrant:
Criminal
    Code
,
s. 487.05(1).

[54]

By contrast, a reviewing judge is not to decide
    whether he or she would have issued the warrant but, rather, is to determine
    whether the ITO, as excised and amplified, provides sufficient credible and
    reliable evidence upon which the issuing judge
could

be satisfied
    that there were reasonable grounds to issue the warrant:
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421, at p. 1452;
R. v. Morelli
, 2010 SCC 8, [2010] 1
    S.C.R. 253, at paras. 40-41;
R. v. Ebanks
, 2009 ONCA 851, 97 O.R. (3d)
    721, at para. 21, leave to appeal refused, [2010] S.C.C.A. No. 84.

[55]

The Crowns appeal against acquittals is
    restricted to questions of law alone:
Criminal Code
, s. 676(1)(a). The trial
    judges application of the standard of review for reviewing a warrant is a
    question of law:
R. v. Araujo
,
2000 SCC 65, [2000] 2 S.C.R. 992,

at para. 18;
R. v. Shepherd
,
2009 SCC 35, [2009] 2 S.C.R.
    527,

at para. 20. The question is whether that application is correct:

R. v. Le
, 2019 SCC 34, 434 D.L.R. (4th) 631, at
    para. 23
.

Analysis

[56]

In my view, the trial judge erred by misapplying
    the test for reviewing a warrant. This error of law led him to conclude
    incorrectly that there was insufficient evidence to support the issuance of the
    DNA warrant.

[57]

The only s. 487.05 criterion in issue is whether
    there were reasonable and probable grounds to believe that the respondent was a
    party to the offences in issue.

[58]

It is agreed that initially, the trial judge
    mistakenly believed:

a)

The respondents DNA was in the National DNA Data
    Bank; and

b)

There was no link between the DNA found on the
    flashlight at the crime scene and the DNA on the cigarette in the stolen
    vehicle found five years before these crimes were committed.

[59]

As I earlier noted, clarification was provided
    to the trial judge to explain the absence of the respondents DNA from the
    National DNA Data Bank and the link between the DNA on the cigarette in the
    stolen vehicle and the DNA found on the flashlight at the 1068 Harden Trail
    crime scene, as well as at other crime scenes. However, he remained of the view
    that the warrant could not have been issued.

[60]

The trial judge noted that it was impossible to
    determine when and under what circumstances the fingerprint and cigarette butt were
    deposited. He concluded:

Given the shortcomings of the other grounds in
    the Information to Obtain, [the link between the print and the unknown DNA in
    the stolen truck] is not enough when combined with those grounds. There was no
    DNA linked to the applicant in any of the occurrence[s], only a print in 2013
    that was presented without context and with some unknown DNA.

in the end there was no analyzed DNA
    evidence that linked the applicant to any of the incidents.

[61]

I do not agree. For the reasons that follow, I find
    that, when considered as a whole, there was sufficient credible and reliable evidence
    upon which the issuing judge could reasonably

be satisfied that
    reasonable grounds existed and that the DNA warrant could therefore have
    properly issued.

[62]

The respondent argues that the issuing judge could
    not have inferred that he was the perpetrator of the offences. He relies on
    this courts decision in
R. v. Phillips
, 2020 ONCA 323.

[63]

In my view,
Phillips
does not assist
    the respondent. In
Phillips
,
this court held that the fingerprint
    and/or DNA evidence was not sufficient to constitute proof beyond a reasonable
    doubt of the commission of an offence. The appellant had been convicted of
    breaking and entering a home and stealing a truck based on DNA evidence placing
    him in the truck within a few days of the truck being stolen. Apart from that
    evidence, there was nothing to connect the appellant to the break-in.

[64]

This court overturned the convictions. The basis
    for overturning the convictions was that the evidence was equally consistent
    with an inference that the appellant became involved with the vehicle some time
after
the break-in:
Phillips
, at para. 12 (emphasis added). This
    court reasoned that [a]bsent a finding that the appellant was in possession of
    the truck, the further inference he was the person who broke into the  home and
    stole the  keys was not reasonably available:
Phillips
,
at para. 10.

[65]

The respondent asserts it is nothing more than
    speculation to suggest he was the one who left the cigarette butt in the stolen
    truck. There was no information about when the cigarette butt was left in the
    truck, where the cigarette butt was found in the truck, when his fingerprint
    was deposited in the truck, or how many other people had access to the truck.
    More information was needed to make this inference available to the issuing judge.

[66]

I disagree. In my view, this inference was
    reasonably available to the issuing judge on the evidence as excised and
    amplified on review. It is important to remember that this appeal is not about
    whether or not the respondent is guilty of the offences as charged. It is about
    whether the DNA warrant could have issued.

[67]

The affiant of the ITO was not required to provide
    proof beyond a reasonable doubt that the respondent was the perpetrator of the
    offences but simply that there were reasonable grounds to believe he was. The
    record provides an ample basis to conclude that there were reasonable grounds
    for the affiants belief.

[68]

The respondent was one of two individuals confirmed
    to have been in the stolen truck. While the respondent himself was not found in
    the stolen truck, his fingerprint was. The fingerprint in the stolen truck
    proves the respondent was in the stolen vehicle at one time.

[69]

Someone who had been in that truck was involved
    in the break and enters in issue. The DNA found in the stolen truck matched the
    DNA found at all three of these residential break-ins. It was found on the
    flashlight batteries that a witness said the perpetrator used in the 1068
    Harden Trail break and enter, and it was also found in blood left behind near
    broken windows at the break and enters at 795 Millard Street and 15 Green
    Spruce Road.

[70]

While this evidence is sufficient to justify the
    issuance of the DNA warrant, there was additional evidence that, together with
    the DNA and fingerprint evidence, provided sufficient credible and reliable
    evidence to support reasonable grounds to believe that the respondent was a
    party to the offences in issue.

[71]

The person in the surveillance video at 3 Horn
    Street was a white male of approximately the same age, weight, and build as the
    respondent. Although that person was not seen committing an offence, they were
    seen donning a mask and casing the surrounding vehicles and houses. A man with
    a similar build and a white SUV was also captured in the footage at the 1068
    Harden Trail break and enter. The resident of 1068 Harden Trail reported that the
    perpetrator was wearing a mask when he appeared at her window.

[72]

The respondent submits that the evidence in the
    ITO suggesting he was the perpetrator of the offences was neither credible nor
    reliable because the affiant had failed to include a report from a neighbour
    that there were alternate suspects for the break and enter crimes committed at
    another address under investigation.

[73]

I do not accept this submission.

[74]

Det. West acknowledged on cross-examination that
    he ought to have included the report about the alternate suspects in the ITO.
    He explained that he did not think to do so because he did not believe they
    were the perpetrators (who were described as a black male and a white female)
    and the trial judge accepted that he did not intend to mislead the issuing
    judge. In any event, the impact of the omission was not significant given the
    number of incidents under investigation.

[75]

As a result, I am of the view that there was
    sufficient credible and reliable evidence upon which the issuing judge could have
    been satisfied that there were reasonable grounds to believe the respondent committed
    the offences in question.

[76]

I therefore conclude that the trial judge erred
    in quashing the DNA warrant and excluding the evidence obtained therefrom.

[77]

In seeking to overturn an acquittal, the Crown
    need not

show the verdict would
necessarily

have been
    different. The Crown must simply establish that the error of law might
    reasonably be thought, in the concrete reality of the case at hand, to have had
    a material bearing on the acquittal:
R. v. Graveline
, 2006 SCC 16, [2006]
    1 S.C.R. 609, at para. 14. In my view, the Crown has met this onus.

[78]

It is beyond dispute that the exclusion of the
    DNA evidence had a material bearing on the result. The respondent applied for
    exclusion of the evidence for the very purpose of excluding incriminating
    evidence critical to the case affecting the result. The Crown told the trial
    judge there could be no prosecution without the DNA evidence to identify the
    respondent as the burglar.

[79]

In ruling to exclude the DNA evidence, the trial
    judge acknowledged that doing so would effectively end the prosecution.

[80]

As a result of the trial judges error, there is
    no question, in my opinion, that the result of the trial may very well have
    been different. Accordingly, I would order a new trial on the four counts
    requested by the Crown.

G.

Disposition

[81]

For the above reasons, I would allow the appeal
    and order a new trial on counts one, four, five and ten.

[82]

Given that I would allow the appeal and order a
    new trial, I find it unnecessary to address the s. 24(2)
Charter
grounds.

Released: July 20, 2020 (M.T.)

J.A.
    Thorburn J.A.

I
    agree. M. Tulloch J.A.

I
    agree. L.B. Roberts J.A.





[1]
In its factum, t
he Crown submits that the
trial
judge had misapprehended the evidence received on the
Charter
application but in its oral submissions, the Crown advised it was prepared to
    assume for the purposes of the appeal that the trial judge correctly dealt with
    his misapprehension after it was corrected by counsel.


