R. v. Rocha,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Rosenberg and Juriansz, JJ.A.
• Neutral Citation: 2012 ONCA 707
• Citation: (2012), 296 O.A.C. 357 (CA),2012 ONCA 707,112 OR (3d) 742,292 CCC (3d) 325,[2012] OJ No 4991 (QL),[2012] O.J. No 4991 (QL),112 O.R. (3d) 742,296 O.A.C. 357,296 OAC 357,(2012), 296 OAC 357 (CA)
• Date: 22 June 2012
• Court: Court of Appeal (Ontario)

R. v. Rocha (J.) (2012), 296 O.A.C. 357 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. OC.032

Her Majesty the Queen (appellant) v. Jason Rocha (respondent)

(C53745; 2012 ONCA 707)

Indexed As: R. v. Rocha (J.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Rosenberg and Juriansz, JJ.A.

October 24, 2012.

Summary:

Search warrants were executed at a restaurant operated by the accused and his brother and at the residence where the accused lived with his brother and his parents (the restaurants' owners). The restaurant search yielded the seizure of a small amount of cocaine. The residence search yielded a seizure of prohibited weapons, cash, cocaine, Oxycodone pills and a shotgun. The trial judge held that the informations to obtain the warrants (ITOs) were insufficient and accordingly the accused's right against unreasonable search and seizure under s. 8 of the Charter was violated. She held that admitting the evidence found at the residence would bring the administration of justice into disrepute and accordingly it had to be excluded under s. 24(2) of the Charter. She would have admitted the evidence relating to the search of the restaurant. See [2011] O.T.C. Uned. 2518. Following the ruling, the Crown elected to offer no further evidence and the accused was acquitted of the drug and weapons charges against him. The Crown appealed against the acquittal on the charges relating to the search of the accused's residence only.

The Ontario Court of Appeal dismissed the appeal. The court agreed with the trial judge that the ITO relating to the seizures at the accused's residence was insufficient. While the court did not agree that the ITO for the warrant to search the restaurant was insufficient, the trial judge's error in relation to the restaurant ITO did not taint her ruling under s. 24(2) in relation to the contraband seized from the residence. The court held that the trial judge erred in her application of the s. 24(2) test, especially in the manner in which she characterized the police conduct in obtaining the warrants; however, on a proper application of the R. v. Grant test (2009 SCC), the evidence should nevertheless be excluded.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused was charged with drug and weapons offences - Search warrants were executed at a restaurant operated by the accused and his brother and at the residence where the accused lived with his brother and his parents (the restaurants' owners) - The trial judge held that both the informations to obtain (ITOs) were insufficient to support granting search warrants - The Ontario Court of Appeal held that the trial judge erred in her assessment of the sufficiency of the ITO supporting the warrant to search the restaurant - Contrary to the trial judge's finding, the information predicting that drugs would be found in the restaurant was compelling - The informer had personally observed 10 to 15 drug transactions in the restaurant - The informer described in detail where the drugs were stored, how they were packaged, how they were obtained by the accused's brother for clients of the restaurant and where the clients used them - The information did not take the form of bald conclusory statements or mere rumour or gossip - While the court agreed with the trial judge that the information concerning the informer's credibility was weak, there was some indication of the informer's credibility - Further, the police would rarely be able to confirm a tip to the extent of having observed the offence being committed and that level of confirmation was not required - Here, the police had confirmed the address and layout of the restaurant's interior and the involvement of the accused and his brother in the restaurant - Considering the totality of the circumstances and particularly the compelling nature of the informer's tip, the ITO concerning the restaurant was sufficient - See paragraphs 16 to 25 and 45.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused was charged with drug and weapons offences - Search warrants were executed at a restaurant operated by the accused and his brother and at the residence where the accused lived with his brother and his parents (the restaurants' owners) - The trial judge held that both the informations to obtain (ITOs) were insufficient to support granting search warrants - The Ontario Court of Appeal held that the trial judge erred in her assessment of the sufficiency of the ITO supporting the warrant to search the restaurant - However, the court agreed with the trial judge that the ITO was not sufficient to justify granting a warrant to search the accused's home - Unlike the restaurant, the information in the informer's tip was a mere conclusory statement that drugs were stored at the house - While it was apparent that the informer had personally observed drug transactions in the restaurant, the source of the informer's information about the house was completely unknown - Given the weaknesses in the informer's credibility and independent confirmation, the totality of circumstances could not support granting the warrant - See paragraphs 26 and 45.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with drug and weapons offences - Search warrants were executed at a restaurant operated by the accused and his brother and at the residence where the accused lived with his brother and his parents (the restaurants' owners) - The trial judge held that both the informations to obtain (ITOs) were insufficient to support granting search warrants - The trial judge found that the resulting s. 8 breach was not technical or inadvertent "as it was deliberate in the sense it was planned in advance and obtained through the warrant authorization process" - The Ontario Court of Appeal stated that this was not the correct approach - The touchstone of analysis of this first inquiry was whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct" (R. v. Grant (2009 SCC)) - Applying for and obtaining a search warrant from an independent judicial officer was the antithesis of wilful disregard of Charter rights - The search warrant process was an important means of preventing unjustified searches before they happened - Unless, the applicant for exclusion of evidence could show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, told in favour of admitting the evidence - See paragraphs 27, 28 and 45.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with drug and weapons offences - Search warrants were executed at a restaurant operated by the accused and his brother and at the residence where the accused lived with his brother and his parents (the restaurants' owners) - The trial judge held that both the informations to obtain (ITOs) were insufficient to support granting the search warrants and thus the accused's s. 8 Charter right to be secure against unreasonable search and seizure were violated as a result - The trial judge further held that the evidence obtained as a result of the searches should be excluded under s. 24(2) of the Charter - The Ontario Court of Appeal agreed with the trial judge that the ITO relating to the seizures at the accused's residence was insufficient, but not the ITO for the warrant to search the restaurant - However, the trial judge's error in relation to the restaurant ITO did not taint her ruling under s. 24(2) in relation to the contraband seized from the residence - The court held that the trial judge erred in her application of the s. 24(2) test, especially in the manner in which she characterized the police conduct in obtaining the warrants, but that on a proper application of the R. v. Grant test (2009 SCC), the evidence should nevertheless be excluded - The informant's full criminal record was not disclosed, as was the drafting officer's practice - There was also a lack of care demonstrated in drafting other important part of the ITOs - The impact of the Charter breach on the accused was serious - A residence had a high expectation of privacy - See paragraphs 27 to 43 and 45.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See both Civil Rights - Topic 1604 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The Ontario Court of Appeal stated that "The test for sufficiency of an ITO that is based on an informer's tip is ... dependent upon whether the tip is compelling, whether the informer is credible and whether the tip has been confirmed by independent police investigation: R. v. Debot [1989 SCC] ... Weaknesses in one area may be compensated by strengths in the other two areas." - See paragraph 16.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence and proof - The Ontario Court of Appeal stated that it was not at all uncommon that the question of whether a warrant should have been issued was decided on the basis of a redacted Information to Obtain (ITO) - The court discussed the dilemma inherent in deciding whether a warrant should have been issued on the basis of a redacted ITO - The court encouraged the Crown to use "step 6" in R. v. Garofoli (1990 SCC) more often - The procedure provided in "step 6" in Garofoli provided permitted the Crown to apply to have the reviewing judge consider as much of the excised material as was necessary to support the search warrant, which the trial judge could do upon providing the accused with "a judicial summary of the excised material" to attempt to ensure "the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence" - Where the Crown was dissatisfied with the judicial summary the judge proposed to provide to the accused, it could decline to rely on the excised information to support the search warrant - See paragraphs 45 to 59.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See both Civil Rights - Topic 1604 ].

Narcotic Control - Topic 2048

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See both Civil Rights - Topic 1604 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 3].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 10].

R. v. Caissey (L.M.), [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, affing. (2007), 422 A.R. 208; 415 W.A.C. 208; 2007 ABCA 380, refd to. [paras. 22, 23].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 29].

R. v. Blake (O.) (2010), 257 O.A.C. 346 (C.A.), refd to. [para. 31].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 40].

R. v. Learning (J.), [2010] O.T.C. Uned. 3816; 258 C.C.C.(3d) 68; 2010 ONSC 3816, refd to. [para. 54].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, consd. [para. 54].

Counsel:

Nicholas E. Devlin and Aaron Shachter, for the appellant;

P. Andras Schreck, for the respondent.

This appeal was heard on June 22, 2012, by O'Connor, A.C.J.O., Rosenberg and Juriansz, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on October 24, 2012, which included the following opinions:

Rosenberg, J.A. - see paragraphs 1 to 44;

Juriansz, J.A. (O'Connor, A.C.J.O., concurring) - see paragraphs 45 to 59.