Counsel:

¶ 1      LOW J.:— The accused has been charged with possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, possession of cocaine, and possession of proceeds of crime. He has brought an application to quash the warrant issued by a justice of the peace under section 529.1 of the Criminal Code (which I will refer to as the "Feeney" warrant) under which the police entered his home and arrested him, to quash a warrant under the Controlled Drugs and Substances Act authorizing the police to enter and search his home, and to exclude real evidence discovered upon the execution of each of the two warrants.  The accused contends that his rights under sections 7, 8 and 9 of the Charter have been violated and that the admission of the evidence seized upon execution of the two warrants would bring the administration of justice into disrepute.

¶ 2      On this application I heard the viva voce evidence of Karen Bogo, the sister-in-law of the accused, and of Detective Constables Mike Abbott and Mark Denton of the Toronto Central Field Command Drug Squad.

¶ 3      Detective Abbott testified that early in the morning of July 21, 1998, he received an anonymous telephone call.  The caller refused to identify himself or herself.  The caller told Detective Abbott that a male person named Ashley Chandrasekaran had been living at 1215 Bathurst Street in Toronto for the last two weeks, and that that person was using those premises as a "safe house" as he was wanted by Immigration Canada for being in the country illegally.  The caller told Detective Abbott that he believed the person's actual first name was "Kris".  The caller also told Detective Abbott that Ashley Chandrasekaran was a male black, approximately 35 years of age, approximately 5'6" in height and 160 pounds in weight.  The caller did not make any reference to drugs.

¶ 4      Having received this tip, Detective Abbott caused a search to be done on CPIC to ascertain whether Ashley Chandrasekaran or Kris Chandrasekaran was wanted by Immigration Canada on a warrant for being unlawfully in the country.  Detective Abbott testified that he believed he searched the database for the name Ashley Chandrasekaran.  He believes he did the search and did not get a positive response.  He searched the database for the name Kris Chandrasekaran, and after receiving one or more responses from the database that did not match but which generated similar names, he generated a report of a match when he inputted the name Krishnasam Chandrasekaran with a birthdate of February 24, 1963.  According to the database report which was entered in evidence, that person lived at 95 Hounslow Heath Road, Toronto, and was described as a 35 year old non-white male, 5 feet 5 inches in height and 151 pounds with black hair and brown eyes.  The report indicated that one Krishnasam Chandrasekaran was wanted under an immigration warrant of arrest with an offence date of February 16, 1998.  It also indicated that this person had an alias of "Krishnasamy, Chandra Sekaran."  The CPIC report showed a telephone contact number at Immigration Canada which Detective Abbott called to verify that the warrant was still outstanding.

¶ 5      Detective Abbott did not ask Immigration Canada for a copy of the warrant. He did not ask Immigration Canada for a photograph of the person sought under the warrant.  He did not check the address shown in the CPIC report for the person wanted.  Detective Abbott did nothing to check whether the person, Ashley Chandrasekaran, said by the anonymous caller to be residing at 1215 Bathurst Street was in fact Krishnasam Chandrasekaran sought under the Immigration warrant.

¶ 6      Detective Abbott dispatched an officer to ascertain that no one departed the premises at 1215 Bathurst Street and he prepared an arrest warrant to enter a dwelling house.  On the face of the warrant there is a clause,

which the informant is to initial if he seeks authorization under section 529.4(1) of the Criminal Code to enter the dwelling house without prior announcement.  Detective Abbott initialed the clause. In his testimony, Detective Abbott acknowledged that he had no information that the person residing in 1215 Bathurst Street was armed and there was no testimony before me that he had any evidence to suggest that Krishnasam Chandrasekaran had any history of violence.  Nor was there evidence that there were reasonable grounds to believe that prior announcement of the entry would expose the peace officer or anyone to bodily harm or death, imminent or otherwise.  Detective Abbott testified that he routinely asks for the authorization for his drug raids.

¶ 6a      Detective Abbott swore an information in support of the issuance of the warrant, the relevant portion of which is set out below:

[The Court did not number this paragraph.  Quicklaw has assigned the number 6a.]

¶ 7      A justice of the peace, whose identity is unknown because his or her signature is illegible, issued a Feeney warrant to enter the dwelling house at 1215 Bathurst Street to arrest, without prior announcement, Krishnasam Chandrasekaran. The authorization to enter without prior announcement was subject to the conditions in section 529.4(2) of the Criminal Code which provides:

¶ 8      Pursuant to the Feeney warrant, a team of six police officers from the Toronto Central Field Command Drug Squad of the Metropolitan Toronto Police Services attended at 1215 Bathurst Street around noon on July 21, 1998.  They effected what was described by Detective Denton as a "dynamic" entry, which in lay terms means a breaking open of the door. They did not make a prior announcement of their entry.  Upon entry, the officers arrested Mr. Chandrasekaran and Ms Bogo, his sister-in-law.  1215 Bathurst Street is a two-bedroom apartment.  Ms. Bogo was arrested in her bedroom.  Mr. Chandrasekaran was arrested elsewhere in the premises.  There was no warrant for the arrest of Ms. Bogo and the reason for her arrest was not made clear in the evidence before me but is not an issue here.  According to Ms. Bogo, one of the officers searched her closet and went through her drawers upon arresting her.  I accept her evidence in this regard.

¶ 9      Ashley Chandrasekaran is not the same person as Krishnasam Chandrasekaran sought under the Immigration warrant.  He told the officers this upon being arrested.  It was only upon being apprised by Mr. Chandrasekaran at some length that he was not Krishnasam Chandrasekaran that Detective Abbott obtained from Immigration Canada a photograph of the person sought under the warrant.  The photograph confirmed that Ashley Chandrasekaran was not Krishnasam Chandrasekaran.

¶ 10      In the process of making the arrest under the Feeney warrant, a quantity of cocaine was seen in a plastic bag on a dresser in Mr. Chandrasekaran's bedroom.

¶ 11      Detective Mark Denton, one of the team of 6 officers who effected the forcible entry into 1215 Bathurst Street, was dispatched to prepare and seek issuance of a search warrant under the Controlled Drugs and Substances Act to be executed at the premises.  The information sworn by him and used in support of the issuance of the search warrant indicates, inter alia:

¶ 12      At 1:06 p.m. on July 21, a justice of the peace issued a search warrant pursuant to section 11 of the Controlled Drugs and Substances Act which was then executed at the premises.  Mr. Chandrasekaran co-operated by telling the officers the combination to his safe.  Inside the safe, the officers found a quantity of cocaine, and quantity of cash. There was also a quantity of marijuana in the apartment.

¶ 13      The first issue before me is whether the Feeney warrant can stand.  Counsel for the accused has urged upon me that all of the circumstances clearly demonstrate bad faith on the part of the police and that the obtaining of the Feeney warrant was a cynical ruse, and a misuse of the most invasive kind of police power in order to disguise what was in reality a drug raid that would not have received judicial approval for lack of reasonable and probable cause.  In my view, the evidence falls short of substantiating bad faith.  That, of course, does not end the matter.

¶ 14      There are, in my view, two bases upon which the arrest can impeached:  first, that the warrant for arrest itself was issued without reasonable and probable cause; second, that the warrant was unlawfully executed.  I will deal first with the issuance of the warrant.

¶ 15      I find that there are three substantial defects in the issuance of the warrant, two of which are apparent on the face of the evidence upon which the justice of the peace acted, one of which is not apparent on the face of the material but apparent from the viva voce evidence which I have heard.  I find that Detective Abbott misled the justice of the peace by swearing that he had received a call from a "confidential informant".  Detective Abbott did not receive a call from a confidential informant.  He received an anonymous telephone call from a person who refused to identify himself or herself.  There is no evidence that Detective Abbott either knew or believed this unknown person to be a reliable source of information and there is no evidence that there existed any relationship of confidence.  For the purposes of this application, I need not comment whether Detective Abbott was deliberately trying to mislead the justice of the peace or did so negligently or thoughtlessly, but I am satisfied that a reasonable reader of the affidavit would conclude from the term "confidential informant" that there was some history of confidence, trust or connection between the informant and the police and not merely an anonymous telephone call.  Secondly, and this clear on the face of the material that was before the justice of the peace, there were no reasonable and probable grounds set out to show that Ashley Chandrasekaran is one and the same person as Krishnasam Chandrasekaran and that therefore the person wanted in the Immigration warrant was likely to be present at 1215 Bathurst Street, a requirement under section 529.1.

¶ 16      The Court of Appeal in Regina v. Lewis, (1998) 122 C.C.C. (3d) 481, per Doherty, J.A., held, in the context of a call to airport authorities from an anonymous tipster that a certain person, described in fine detail, would be carrying drugs, that "absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.".  At 489 of the report, Justice Doherty stated:

¶ 17      There is nothing in the affidavit of Detective Abbott to show that the informant has demonstrated himself or herself to the affiant to be a reliable source of information and, apart from the misleading use of the term "confidential informant", there is nothing in the affidavit to show either that the informant was considered by the affiant to be a reliable source or the basis of such a belief.

¶ 18      That an individual has been living at a particular address is the most innocuous and commonplace kind of conduct, and apart from those whose misfortunes have afflicted them with homelessness, it is a virtually universal activity.  The essence of the tip was that Ashley Chandrasekaran, the person living at 1215 Bathurst Street, was Kris Chandrasekaran, a person wanted under an immigration warrant.  There is nothing inherently reliable about the nature of the information, and indeed, it seems to me to be the kind of bald allegation that can be made with impunity behind a cloak of anonymity and with the potential for very great mischief.  The police did nothing to ascertain whether the statement made by the anonymous tipster was correct or not, and there is nothing in the material before the justice of the peace to indicate that any steps had been taken to confirm the reliability of the information.  Accordingly, there were no reasonable and probable grounds disclosed to the justice of the peace that the person residing at 1215 Bathurst Street was the person wanted under the immigration warrant.

¶ 19      There is a second basis for quashing the warrant. It lies in the authorization granted by the justice of the peace to enter without prior announcement.

¶ 20      Section 529.4(1) of the Criminal Code provides:

¶ 21      There is nothing in the evidence before the justice of the peace upon which he could be satisfied that there existed reasonable grounds to believe that prior announcement of the entry would result in either of the results set out in section 529.4(1).  The bald statement by Detective Abbott that there exist such grounds does not set out grounds.  It is merely a conclusory statement.  As the only offence which could have been applicable was that of being in the country illegally, it is obvious that subsection (b) dealing with loss of evidence would be irrelevant, and there was, as I have indicated above, no information in Detective Abbott's possession and therefore no evidence before the justice of the peace that the person sought was armed or had any history of violence.  There are undoubtedly other circumstances that would support a finding that there are reasonable grounds to believe that prior announcement would expose the peace officer or others to imminent bodily harm or death, but none presented themselves either before Detective Abbott who swore the information or before the justice who issued the warrant.  Detective Abbott testified that he routinely requests the authorization to enter without prior announcement in drug raids.  I find that evidence troubling. If the police were acting bona fide, then the Feeney warrant had nothing to do with a drug raid and the considerations that would apply in a drug raid were not relevant.  If, however, what was in Detective Abbott's mind was a drug raid, thus motivating his request for authorization to enter without prior announcement, this would tend to lend support to the argument of the defendant that the use of the Feeney warrant was in reality a drug raid in disguise.  Assuming that it is not the latter, I find that the request for and the granting of the authorization to enter without prior announcement unjustifiable.  Both on the basis of the record before the justice of the peace and on the basis the amplified record before me as described in R. v. Garifoli, (1990) 60 C.C.C. (3d) 161, I am satisfied that that there was no basis upon which the justice of the peace could properly have issued the Feeney warrant.

¶ 22      Quite apart from the issuance of the warrant, I am of the view that the six police officers who made violent entry into the dwelling pace of the accused person in executing the warrant did so unlawfully.  There were no reasonable grounds for them to suspect, immediately before entering the dwelling house, that prior announcement would expose them to imminent bodily harm or death. The suggestion that there could be danger lurking behind a closed door does not satisfy this requirement.  If that possibility were sufficient, section 529.4(2) of the Code would be meaningless and authorization would be given in every warrant. Notwithstanding authorization granted in a warrant, police officers are required to put their minds to the circumstances presenting immediately before entering a dwelling house. There must objectively be reasonable grounds to believe that announcement would expose the officer to bodily harm or death. I find that there were no reasonable grounds for the officers to suspect that they would be exposed to bodily harm if they made prior announcement and that they did not either put their minds to the issue immediately before entry or hold such a belief.

¶ 23      By reason of the unlawfulness of the execution of the Feeney warrant and the absence of a basis for issuing it I am satisfied that the rights of the accused person under section 9 of the Charter not to be arbitrarily detained or imprisoned and under Section 7 to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice have been violated.

¶ 24      I turn now to the search warrant issued under the Controlled Drugs and Substances Act.  The issuance of this warrant arose directly and solely out of the fruits of the unlawful execution of an invalid Feeney warrant.  But for the latter, there would have been no sighting of the bag of cocaine on the dresser of the accused person and no application for or issuance of the search warrant.

¶ 25      There are also troubling issues in the material put before the justice of the peace who issued the search warrant.  Detective Denton, who swore the information, deposed that a "Criminal Code search warrant" had been executed that morning.  There was no Criminal Code search warrant.  That Detective Denton referred to a search warrant lends some credence to the defence's argument that the entry into the dwelling house was in essence a drug raid, but it may also have been nothing more than a Freudian slip.  Detective Denton also deposed that he and the other members of the arrest team had arrested Krishnasam Chandrasekaran.  The person they arrested was not Krishnasam Chandrasekaran but Ashley Chandrasekaran.  It was not established in the evidence before me, however, that Detective Denton was aware of that fact, and therefore the statement in his affidavit before the justice of the peace, though untrue, was not established to have been known by him to be untrue.  On its face, therefore, the search warrant, was regular.

¶ 26      The position of the defence is that the real evidence gathered pursuant to the search warrant is poisoned fruit of a poisoned tree and that because the search warrant had an unlawful genesis, the evidence gathered under it was in breach of the accused's section 8 Charter rights.  It is argued that the only proper remedy for the violation of the accused's Charter rights under sections 7, 8, and 9 is an order under section 24(2) of the Charter excluding the evidence as admitting it would bring the administration of justice into disrepute.

¶ 27      In Regina v. Hay, [1997] B.C.J. No. 2729 (S.C.) (Quicklaw) [summarized 37 W.C.B. (2d) 3] Owen-Flood J. decided an application to exclude real evidence gathered under a search warrant issued after the accused was arrested in his home under an arrest warrant whose issuance and execution were in violation of the accused's Charter rights.  Upon entering the dwelling house to effect the arrest, the police officers observed the accused trying to dispose of some marijuana plants.  Owen-Flood J. found the arrest warrant unlawful as there was no evidence before the justice of the peace that would support its issuance, and he found the execution of the warrant to be unlawful as the warrant did not authorize arrest in the accused's dwelling house.  He concluded that the accused's privacy rights, as set out in R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 had been infringed, and he excluded not only all the evidence gathered in the arrest process but also the evidence gathered on execution of the subsequent search warrant on the basis that the finding of the marijuana plants on the execution of the arrest warrant, which was unlawful, had formed part of the information in support of the issuance of the search warrant.  In that case, the evidence was held to be in part conscriptive and non-conscriptive, the conscriptive aspect of it being the action of the accused in trying to dispose of marijuana plants upon being apprehended in his home.

¶ 28      In Regina v. Stillman, (1997) 113 C.C.C. (3d) 321, the Supreme Court, per Cory J., set out the steps in the analysis that a trial court should pursue in determining whether evidence generated as a result of a charter violation should be excluded under section 24(2) of the Charter.

¶ 29       The first step is a consideration of whether admitting the evidence would render the trial unfair.  If the trial would be rendered unfair, the administration of justice would be brought into disrepute and the evidence should therefore be excluded.  Whether the trial would be rendered unfair is addressed first by a consideration of whether the evidence is conscripted or non-conscripted.  Real evidence that would exist even in the absence of the charter violation is non-conscripted.  Real evidence, if it exists solely by reason of the charter violation is conscripted.  Statements by the accused or other evidence emanating from him that would not exist but for the charter violation is conscripted evidence.  As admission of conscripted evidence would run against the fundamental right against self-incrimination, its admission would make the trial unfair, and accordingly such evidence should be excluded.

¶ 30      The evidence sought by the defence to be excluded is real evidence and is non-conscripted.  The material exists independently of the charter violation.  There is a sense, however, in which some of the evidence can be said to have been conscripted and that is that the accused, because of the unlawful warrant leading to his arrest, was caused to give the combination of his safe to the arresting police officers, leading to the discovery of the evidence contained inside. This is analogous to the action on the part of the accused in Regina v. Hay in trying to dispose of marijuana plants when arrested under the unlawful warrant.  Assuming, however, and treating the real evidence sought to be excluded here as non-conscripted evidence, I must nevertheless move to the next stage of the analysis for the fact that the nature of the evidence does not per se render the trial unfair is not an end of the matter:  it is one of the factors to be weighed.

¶ 31      What is the nature and seriousness of the charter violation?  It is axiomatic that there are core values in the charter and there are charter rights that, although sufficiently fundamental to our sense of self as a nation to be enshrined in the charter, are nevertheless more peripheral than nuclear.  The right of an individual to life, liberty and security of the person, to security against unreasonable search or seizure and the right not to be arbitrarily detained or imprisoned are, in my view central to the Charter.

¶ 32      Next, was the breach serious or merely technical? Here, there was a forcible invasion of a person's home by a contingent of six police officers without conformity with the terms of the warrant issued and in circumstances where the warrant was not validly issued.  I am not able to say that the breach was merely technical.  In the continuum between a grave and flagrant breach and one that was merely technical, this breach was, in my view, a serious one.  While I am not satisfied on the evidence that the police used the arrest warrant as a ruse to gain entry to do a drug raid, the evidence demonstrates that Detective Abbott acted with such an absence of regard for the Charter rights of Mr. Chandrasekaran that his conduct can legitimately be characterized as lacking in good faith (which, however, is not necessarily to be equated with the presence of bad faith).  Assuming as I do that the officer is possessed of a high degree of intelligence, it is impossible not to look askance at his failure or refusal to distinguish the fact that a person named Krishnasam Chandrasekaran was wanted on an immigration warrant from the proposition that the person living at 1215 Bathurst was in fact the person wanted under the warrant.  The tenor of his evidence was that a check to ascertain that a warrant was still outstanding for a person whose name to which he was led by inputting the name Kris Chandrasekaran into the CPIC database was sufficient grounds, with the unchecked and unverified anonymous tip suggesting that one person was the other, to justify a forcible entry into a dwelling house without prior announcement to effect an arrest.  At the least, the totality of the conduct, including the misrepresentation to the justice of the peace that information had come from a confidential informant, demonstrates an absence of regard for Charter values and the Charter rights of the accused.  It was not a mere inadvertence.

¶ 33      In considering the nature and seriousness of the breach, it is also germane to consider the whole of the surrounding circumstances including whether or not there were any exigencies, any urgency or any necessity in the actions of the police.  On the evidence before me, it was very clear that there were none.  This was not a case of hot pursuit or of a wanted person known to be dangerous or violent, and according to Detective Abbott, it was not a drug matter.

¶ 34      The offences with which the accused is charged here are serious ones as are all offences under the Controlled Drugs and Substances Act.  The real evidence sought to be excluded is central to the substantiation of the charges. These factors are, however, no more conclusive than the other factors which the court must consider and weigh.  There are other investigative techniques available to the drug squad, but there is no evidence that they have been employed vis-à-vis this accused.  There is no evidence before me that the real evidence collected would have been obtained in the absence of the Charter violation.  As was the case in R. v. Mellenthin, (1992) 76 C.C.C. (3d) 481, there is a clear and strong nexus between the unconstitutional arrest and search resulting directly from the arrest and the ability of the crown to discover the evidence.  In light of that nexus, and given the fundamental nature of the rights infringed and the seriousness of the breach, I am of the view that the integrity of the criminal justice system would be compromised and that the administration of justice would be brought into disrepute if the evidence is admitted.

¶ 35     The application is therefore allowed.

LOW J.

QL Update:  20000704
cp/d/qlala