



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Strauss, 2017 ONCA 628

DATE: 20170731

DOCKET: C59800

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Strauss

Appellant

James Lockyer and Richard Posner, for the appellant

Kevin Rawluk, for the respondent the Attorney General of
    Ontario

Bradley Reitz, for the respondent the Attorney General
    of Canada

Heard: June 28, 2017

On appeal from the convictions entered on November 25,
    2014 by Justice Gerald E. Taylor of the Superior Court of Justice, sitting
    without a jury.

Benotto J.A.:

A.

Introduction

[1]

The police broke into a barn on private property and searched it without
    a warrant. They seized a cache of firearms and ammunition. After the search,
    they received information that there were more firearms in the barn hidden
    behind a false wall. They applied for and obtained a search warrant. They
    searched again and found firearms, ammunition, cash, and drugs. The appellant
    was charged with multiple firearm and drug offences.

[2]

The trial judge found the first search violated s. 8 of the
Canadian
    Charter of Rights and Freedoms
and therefore excluded the firearms seized
    in that search from evidence. With respect to the second search, the trial
    judge upheld the search warrant as valid. He then determined that because the
    results of the second search were obtained in a manner that infringed the
Charter
,
    he was required to conduct a s. 24(2) analysis to determine the admissibility
    of the evidence. He did so and concluded the evidence seized in the second
    search was admissible.

[3]

For the reasons that follow, I would allow the appeal on the basis that
    the trial judge erred in law with respect to the s. 24(2) analysis and his conclusion
    was unreasonable.

B.

Facts

(1)

Background

[4]

On February 16, 2012, there was a break-in at a residence in Cambridge,
    Ontario. Twenty-nine firearms and large quantities of ammunition were stolen.
    The Waterloo Regional Police Service started an investigation. Detective
    Sergeant Harrington was the senior investigating officer.

[5]

The police investigation led to the arrest of Jordan Thomas on February 19,
    2012. After his arrest, Thomas told investigators that he brokered the sale of the
    firearms and ammunition to the appellant in exchange for cocaine and marijuana.
    The appellant was known to police as a member of the Hells Angels.

[6]

Thomas told police the details of the sale. He said he and the appellant
    loaded the firearms and ammunition into his car and drove in separate vehicles
    to a rural location west of Kitchener, Ontario. They switched vehicles so the
    appellant could drive the guns and ammunition to a safe house. Thomas then
    drove to the appellants home at a nearby farm, where the appellant arrived 45
    minutes later after having dropped off the guns. Thomas took the police to the
    location of the vehicle exchange, but he did not know where the safe house was
    located.

[7]

The police were determined to find the firearms. On February 24, 2012,
    the police embarked on what Harrington described as a needle in a haystack
    search. This involved Harrington and two other officers conducting a
    free-ranging search of properties within a 15 to 20-minute radius of the drop-off
    point Thomas had identified. The police basically travelled the region, going
    onto properties and looking for the safe house. They did not find it.

(2)

February 29, 2012 search and seizure

[8]

On February 29, 2012, the police learned about two properties in the vicinity
    of the vehicle exchange that were connected to the appellant. One was a
    farmhouse the appellants parents owned, which the police put under
    surveillance. The second was a rural property on Erbs Road, which was five
    kilometres away from the location of the vehicle switch. Roughly six months earlier,
    police had seen a vehicle with the appellants licence plate on this property while
    conducting unrelated surveillance. Harrington directed another officer to set
    up surveillance on the Erbs Road property.

[9]

In the evening of February 29, 2012, Harrington and two other experienced
    officers from the Waterloo Regional Police Service drove to the Erbs Road
    property. The property has a long driveway leading to a barn and then
    continuing on to a house. The police drove to the barn. They did not attempt to
    locate any dwelling house and did not attempt to identify the owner of the
    property or seek permission to enter. Instead, they stopped at the barn and
    looked through its windows with flashlights. Harrington then picked the lock on
    the door to the back of the barn and entered the building. He discovered two
    bundles wrapped in blankets on a couch. He opened one and found it contained a
    long gun. Further searching revealed 16 long guns, one handgun, and 4,500 rounds
    of ammunition, along with drug trafficking paraphernalia.

[10]

The
    officers called the Ontario Provincial Police (OPP) to the site. At least one
    OPP officer arrived and took photographs. Although there was some discussion
    about an
ex post facto
search warrant, the decision was made not to
    seek one.

[11]

The
    Waterloo officers admitted at the preliminary inquiry and at the trial they
    knew there was no lawful authority for this search and they did not have
    reasonable grounds to obtain a warrant. Harrington testified he was aware that
    any evidence seized may be excluded. Although a senior prosecutor was involved
    in the case, Harrington did not contact her, seek her advice, or tell her about
    the search. He testified that when he decided to head out to the Erbs Road property
    on February 29, 2012, it was understood and agreed to by the officers with him
    that they were going to enter the property knowing they had no legal authority
    to do so. He knew he was taking a gamble and understood the repercussions.

[12]

The
    appellant was suspected but not arrested. On March 3, 2012, he was arrested for
    violating an unrelated bail order. On March 6, 2012, the appellant happened to
    be in custody with Thomas while waiting for a court appearance. He told Thomas the
    police had missed finding additional contraband hidden behind a fake wall in
    the barn. Thomas relayed this information to the police.

(3)

March 6, 2012 search and seizure

[13]

On
    March 6, 2012, the police applied for and obtained a warrant. In the
    information to obtain (ITO) for the general warrant, Detective Jason Bonikowski,
    set out the history of the investigation leading to the discovery of the Erbs
    Road property. With respect to the search carried out on February 29, 2012,
    Bonikowski stated he was advised by Harrington that:

As there was no house apparently attached to the property and
    no persons around a decision was made to enter the shed without a warrant to
    secure these weapons and ensure public safety.

[14]

When
    the police executed the search warrant on March 6, 2012, they found the fake
    wall and the remainder of the firearms and ammunition along with a large
    quantity of drugs and cash.

(4)

Procedural history

[15]

The
    appellant was charged with seventeen counts of firearm, drug, and breach of
    recognizance offences. He pleaded not guilty and brought a pre-trial
    application under ss. 8 and 24(2) of the
Charter
to exclude the
    evidence seized from the Erbs Road property on both February 29 and March 6,
    2012.

[16]

The
    trial judge excluded the evidence from the February 29, 2012 search and
    admitted the evidence from the March 6, 2012 search. After these rulings, the
    appellant elected not to contest the trial and was found guilty on all counts.
    He was sentenced to 11 years imprisonment.

C.

Reasons below

(1)

Ruling on the February 29, 2012
    search and seizure

[17]

The
    Crown conceded that the appellant had standing to challenge the search of
    February 29, 2012 and that it violated his rights under s. 8 of the
Charter
.

[18]

The
    trial judge then analyzed whether the guns and ammunition seized should be
    excluded from evidence under s. 24(2) of the
Charter
. In doing so, he considered
    and applied the three factors set out in
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353: (1) the seriousness of the
Charter
-infringing
    state conduct; (2) the impact on the
Charter
-protected interests of
    the accused; and (3) societys interest in an adjudication on the merits.

[19]

First,
    the trial judge noted that the s. 8 breach was serious, as senior police
    officers had entered private property without seeking consent, a warrant, or
    Crown advice. The officers conducted the search knowing there were no
    reasonable grounds to justify it. The trial judge found that exigent
    circumstances were not present. He found the officers were aware of the law and
    chose to ignore it.

[20]

Second,
    the trial judge found the appellant used the Erbs Road property as kind of a second
    home, although the barn did not have a kitchen or running water. He concluded
    the impact of the
Charter
breach on the appellants interests was
    serious, but not as serious as if the search had been carried out at a
    full-time residence.

[21]

Third,
    with respect to societys interest in the adjudication of the case on its
    merits, the trial judge found the charges were serious and the evidence in
    question was reliable.

[22]

In
    weighing the factors, the trial judge concluded admitting the evidence would be
    more likely to bring the administration of justice into disrepute than excluding
    it, noting the weighing exercise is not one of comparing the misdeeds of the
    police with the heinous nature of the offence charged. Accordingly, he ordered
    the 17 firearms, 4,500 rounds of ammunition and drug paraphernalia seized in
    the February 29, 2012 search excluded from evidence.

(2)

Ruling on the March 6, 2012 search and seizure

[23]

The
    police carried out the March 6, 2012 search pursuant to a warrant. As such, the
    trial judge first considered the validity of the warrant. He considered whether
    the warrant could have been issued even without the improperly obtained information
    arising from the illegal February 29, 2012 search.

[24]

The
    trial judge excised the portions of Bonikowskis ITO summary (set out above) containing
    information obtained as a result of the February 29, 2012 warrantless search.
    He did not excise the appellants statement to Thomas about the firearms behind
    the fake wall. He concluded the warrant could have issued even without the
    illegally obtained information. He therefore held the March 6, 2012 warrant was
    valid and complied with s. 8 of the
Charter
.

[25]

Having
    found the warrant valid, the trial judge did not go on to consider the effect
    of the investigative conduct of the police in the pre-authorization process. 
    This court has recognized a discretion to set aside a warrant  despite grounds
    for its issuance  when conduct leading up to its issuance has been
    subversive.  In
R. v. Paryniuk
, 2017 ONCA 87, 134 O.R. (3d) 321, leave
    to appeal refused, [2017] S.C.C.A. No. 81, at para. 66, this court said: a
    trial judge has a residual discretion to set aside a properly issued search
    warrant or authorization where the judge is satisfied that the conduct of the
    police has been subversive of the pre-authorization process leading to the
    issuance of the search warrant.  Such conduct includes omitting facts from an
    ITO in order to mislead the issuing judicial officer.

[26]

The
    trial judge did, however, instruct himself with respect to
R. v. Strachan
, [1988]
2 S.C.R. 980, and
R. v. Grant
,
    [1993] 3 S.C.R. 223, to consider whether the evidence seized in the March 6,
    2012 search was obtained in a manner that infringed the appellants
Charter
rights. These cases provide that a s. 24(2) analysis is triggered when an
    infringement of s. 8 has occurred in the investigatory process, apart from a
    subsequent reasonable search pursuant to a valid warrant: see
Strachan
,
    at pp. 1005-6; and
Grant
(1993), at p. 254.

[27]

Applying
Strachan
and
Grant
(1993), the trial judge found the February
    29, 2012 and March 6, 2012 searches were two separate transactions, but the first
    search was sufficiently connected to the second to require a s. 24(2) analysis
    in relation to the evidence seized on March 6, 2012. He then turned to the
    three factors set out in
Grant
(2009), referenced above.

[28]

The
    trial judge found the s. 8 breach was serious. He concluded, however, there
    were other factors at play which impacted the seriousness of the breach
    relating to the March 6, 2012 search and seizure. These other factors included:
    (i) that the police disclosed the February 29, 2012 illegal entry and seizure
    to the issuing justice and made no attempt to cover up the breach of the
    appellants rights; (ii) that Harrington acknowledged the seriousness of his
    actions and accepted full responsibility; and (iii) that the appellant was not
    under arrest in relation to the firearms and ammunition when he voluntarily told
    Thomas about the false wall.

[29]

With
    respect to the second and third
Grant
(2009) factors, the trial judge
    held the impact of the March 6, 2012 breach on the appellants rights and
    societys interest in the adjudication of the case on its merits were the same
    as they were with respect to the February 29, 2012 search.

[30]

The
    trial judge then weighed the three factors and concluded societys interest in
    an adjudication on the merits was the predominant factor. He therefore ordered
    the evidence obtained as a result of the March 6, 2012 search and seizure was
    admissible.

D.

Issues

[31]

The
    only issue on appeal is whether the trial judge erred in admitting the evidence
    seized on March 6, 2012.

E.

Positions of the parties

[32]

The
    appellant submits the trial judge erred  both with respect to s. 8 and s.
    24(2)  in admitting the evidence from the March 6, 2012 search and seizure.

[33]

First,
    the appellant submits the general warrant could not have been issued if the information
    in the ITO had been properly excised. The trial judge improperly accepted,
    without explanation, the Crowns redacted version of the ITO. In particular,
    the information from Thomas about the false wall should have been excised
    because it arose directly from the illegal February 29, 2012 search.

[34]

With
    respect to s. 24(2), the appellant submits the trial judge considered
    irrelevant factors, including: that the seriousness of the breach was mitigated
    by the officers acceptance of responsibility; the voluntariness of the
    appellants statement to Thomas; and the temporal connection between the breach
    and the valid warrant search.

[35]

The
    respondent Ontario submits the warrant could still have been issued without
    reliance on the earlier warrantless search. The appellants assertion that
    Thomas would not have spoken to him but for the February 29, 2012 search is
    speculative. It is reasonable to assume the appellant was unaware the police
    had linked him to the property where the guns and ammunition had been found.
    With respect to the s. 24(2) analysis, the respondent Ontario submits the trial
    judge properly considered the
Grant
(2009) factors and his
    determination is entitled to deference.

[36]

The
    respondent Canada adopts the submissions of the respondent Ontario and further submits,
    as determined by the trial judge, the searches were separate and not part of a
    single transaction. The respondent Canada also argues that societys interest
    in the adjudication of the case on its merits is informed by the fact that the
    Hells Angels gang is a criminal organization.

F.

Discussion

[37]

Although
    the appellant asserts the trial judge erred in upholding the validity of the
    March 6, 2012 warrant, I have concluded it is not necessary to determine this
    issue because the trial judge made reversible errors with respect to his s.
    24(2) analysis.

[38]

I
    agree with the trial judge that the warrantless entry on February 29, 2012 and
    the search and seizure on March 6, 2012 were sufficiently connected such that a
    s. 24(2) analysis was necessary. The standard of review with respect to the
    trial judges analysis is not in dispute: a trial judges finding with respect
    to s. 24(2) is entitled to deference absent an unreasonable finding or error of
    law: see
R. v. Cô
té
,
2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. I have concluded, however, that when
    the trial judge approached the s. 24(2) analysis, he failed to give effect to the
    very factors that triggered it in the first place. He also considered
    irrelevant and impermissible factors.  This led to an unreasonable finding
    justifying appellate intervention.

[39]

I
    begin with the investigative process that triggered s. 24(2) and then review
    the trial judges analysis.

(1)

Investigative process

[40]

In
    concluding the February 29, 2012 search breached s. 8 of the
Charter
,
    the trial judge found the police officers  knowing they were not entitled to
    do so  conducted a perimeter search of the barn, peered into its windows with
    flashlights, and then picked a lock to get in. The officers knew they did not
    have grounds to obtain a warrant. They then searched the building. At no time did
    the officers contact the Crown prosecutor.

[41]

Notwithstanding
    the s. 8 breaches with respect to the February 29, 2012 search, the trial judge
    found the warrant for the March 6, 2012 search was valid. The trial judge
    acknowledged, however, that the validity of the search warrant does not end the
    inquiry as to the admissibility of the evidence when a
Charter
infringement occurred during the investigatory process that led to the search
    and seizure at issue. As the Supreme Court said in
Grant
(1993), at p.
    255:

The warrantless searches, while perhaps not causally linked to
    the evidence tendered, were nevertheless an integral component in a series of
    investigative tactics which led to the unearthing of the evidence in question 
    to find otherwise would be to ignore the possible tainting effect which a
Charter
violation might have on the otherwise legitimate components of searches by
    state authorities.

[42]

Likewise,
    in
Côté
, Cromwell J. said, at para. 81:

[B]y the time the warrants were obtained in this case, there
    had been multiple, serious and deliberate breaches of the appellants rights  this
    evidence was tainted by the earlier
Charter
breaches that involved
    serious police misconduct.

[43]

Clearly,
    the investigative process here was tainted by police misconduct. The trial
    judge recognized this and it grounded his decision to exclude the evidence from
    the February 29, 2012 search. He said, at para. 39:

Detective Sgt. Harrington, a senior police officer with
    supervisory responsibilities, knowingly entered on private property without
    seeking a warrant or the property owners consent. He then entered a locked
    building for the purpose of conducting a search knowing that he did not have
    reasonable grounds to believe that evidence of the commission of an offence was
    located in the building  the breach in question was rendered relatively more
    serious by Detective Sgt. Harrington not seeking advice from a Crown Attorney.

[44]

This
    police misconduct led the trial judge  pursuant to
Grant
(1993)  to conduct
    a s. 24(2) analysis and consider the admissibility of the evidence from the March
    6, 2012 search, even though he found the warrant was valid.

[45]

I
    agree with the trial judge that a s. 24(2) analysis was required. In
    approaching the s. 24(2) analysis, however, the trial judge erred by diminishing
    the significance of the serious
Charter
breaches at issue.

(2)

Section 24(2) analysis for the March
    6, 2012 search and seizure

[46]

The
    trial judge began with the first
Grant
(2009) factor: the seriousness
    of the
Charter
breach. His approach is set out in his reasons, at
    para. 61:

I consider Detective Sgt. Harringtons breach of section 8 of
    the
Charter
to be serious. However, there are
other factors at play
with respect to the March 6, 2012 search which impact the seriousness of that
    breach. [Emphasis added.]

[47]

The
    other factors the trial judge relied on are incapable of diminishing the
    seriousness of the breach. In relying on those other factors, the trial judge
    erred in law and made unreasonable findings.  He also erred in law by failing
    to consider the systemic nature of the breaches.

[48]

At
    para. 62, the trial judge noted
The
    issuing judge was told about the illegal entry and seizure. In my view, this is
    significant.
This statement is wrong in law. First, that the
    issuing judge was told about the illegal entry does not impact the seriousness
    of the breach. It is axiomatic that there be truthful disclosure in the ITO: see
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. Anything
    less would compound the police misconduct.

[49]

Further,
    the trial judges reasons do not mention that the disclosure in the ITO was not
    full and frank. Bonikowski stated: As there was no house apparently attached
    to the property and no persons around a decision was made to enter the shed
    without a warrant to secure these weapons and ensure public safety. This was
    not true. First, there was a house on the property.  Second, the police
    officers evidence made it clear that the decision to enter the property was
    made when they set out from the station on February 29, 2012; it had nothing to
    do with the fact that there were no persons around. Further, when the
    officers entered the barn, it was not to secure these weapons because  as
    they acknowledged  they did not have reasonable grounds to believe the weapons
    were at the Erbs Road property.

[50]

In
    considering the seriousness of the s. 8 breach, the trial judge also noted the
    following about Harrington: he in no way attempted to minimize the seriousness
    of his actions; he thought he was acting in the public interest; he did not
    attempt to deflect blame on any of his fellow officers; he accepted full
    responsibility; and he had never previously conducted a warrantless entry and
    search. These comments do not minimize the seriousness of the breach. It is
    unreasonable to say otherwise. As stated in
R. v. Kokesch
, [1990] 3 S.C.R. 3, at p. 29
:

[T]he Crown would happily concede s. 8 violations if they could
    routinely achieve admission under s. 24(2) with the claim that the police did
    not obtain a warrant
because
they did not have reasonable and probable
    grounds. [Emphasis in original.]

Similarly, to rely on an after-the-fact acknowledgement
    of wrongdoing as a way to diminish the seriousness of a breach, and thereby
    achieve admission of the evidence, would give the police a licence to engage in
    misconduct and render the
Charter
s
protection meaningless.

[51]

The
    trial judge went on to consider events that occurred after the police
    misconduct. In particular, the trial judge noted, at para. 63, the
    voluntariness of the appellants statement to Thomas was an important fact,
    as the appellant was not under arrest in relation to the firearms when he told
    Thomas about the false wall. This fact was irrelevant to the seriousness of the
Charter
breach.

[52]

The
    trial judge also failed to take into account several factors, including: (i) that
    the officers knew what they were doing was illegal; (ii) that they did not
    speak to the prosecutor assigned to the case; (iii) that the February 29, 2012
    search and seizure was a series of deliberate breaches involving a perimeter
    search, a forced entry, and the involvement of officers from two police forces;
    and (iv) the untold number of private properties the police searched before the
    Erbs Road property.

[53]

More
    importantly, the trial judge failed to give effect to the systemic nature of
    the police misconduct. In
Grant
(2009),

the court explained
    that the issue is not punishment of the police but rather preservation of public
    confidence in the rule of law and its processes. Minor or inadvertent breaches
    may only minimally undermine public confidence.  Wilful and ongoing disregard
    of
Charter
rights will have a negative effect on public confidence. 
    Here the breaches were deliberate and ongoing and require that the court
    dissociate itself from such conduct particularly when the conduct was part of
    a pattern of abuse:
Grant
(2009), at

para. 75.

(3)

Conclusion

[54]

The
    trial judge impermissibly diminished the seriousness of the
Charter
breach
    and, in doing so, erred in his analysis under s. 24(2). A senior investigating
    officer and his team made a conscious decision to gamble with the law and the
    courts. To admit the evidence under these circumstances would reward and
    ultimately permit this conduct.

G.

Disposition

[55]

For
    the reasons above, I would allow the appeal, quash the convictions and enter
    verdicts of acquittals on all counts.

Released: DW JUL 31 2017

M.L. Benotto J.A.

I agree. David Watt
    J.A.

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


