By Mike Novakowski
Just because a search warrant has been denied, the police need not change what they suspect or believe to be true, Ontario’s top court has declared. In R. v. Buchanan, 2020 ONCA 245, police received information from a confidential informer that a person was trafficking heroin and fentanyl from a specific residential address. There were also several citizen complaints about vehicle and pedestrian traffic at the residence.
The police set up surveillance over two days and saw activity consistent with what they believed to be drug trafficking at the home. Based on the confidential tip and the surveillance, the police unsuccessfully applied for a search warrant. The justice denied the warrant stating, “Grounds as presented and when considered in totality, falls short of rpg [reasonable and probable grounds] to believe that items to be searched for will be at the location. No evidence to show that heroin and fentanyl would be in residence.”
After learning that the search warrant had been denied, the police decided to arrest “the next suspected buyers.” Buchanan’s vehicle was next to arrive at the address. He and his passenger went into the home, stayed about 15 minutes and then left. This observation led police to believe that there were grounds to arrest the occupants for being in possession of a controlled substance. The vehicle was stopped and both men arrested.
Upon searching the vehicle incident to arrest, the police found a stolen, loaded, restricted firearm in a case that had been secreted behind a modified glove box; four cell phones; a significant amount of cash; and cocaine and heroin packaged in small baggies and secreted in an air vent. Other evidence related to the ownership, insurance and financing of the vehicle was also found.
In the Ontario Court of Justice, the team leader testified that he understood the warrant to have been denied because there were insufficient grounds to believe that heroin and fentanyl, as opposed to other controlled substances, were in the residence. He then instructed his team to “arrest the next suspected buyers … [p]ersons that come and show behaviour similar to what we’ve observed over the last couple of days.” It was the team leader’s hope the police would then obtain grounds to advance a second search warrant application for the home.
The judge nevertheless concluded that Buchanan’s ss. 8 and 9 Charter rights had been violated. Buchanan’s arrest was unlawful as the police lacked sufficient reasonable grounds to arrest him. Although the police subjectively believed Buchanan had purchased drugs in the residence, their belief was not objectively reasonable in the circumstances. Thus, the arrest was arbitrary under s. 9. Since the arrest was unlawful, the search flowing from that unlawful arrest was unreasonable under s. 8.
Upon balancing all three factors of the s. 24(2) analysis, the judge was not satisfied that the admission of the evidence would bring the administration of justice into disrepute.
Despite the Charter breaches, the judge admitted the gun and drugs under s. 24(2) anyways. First, the breaches were serious, but not egregious, abusive or flagrant. Although the police did not have sufficient grounds to arrest Buchanan, they had enough to justify an investigative detention. However, an investigative detention would not have permitted a search of the vehicle where the drugs and gun were located. Second, the impact of the breach on Buchanan’s Charter-protected interests was significant and favoured exclusion. Finally, the charges were serious and the value of the evidence was significant. It was reliable and critical to the Crown’s case. This favoured inclusion.
Upon balancing all three factors of the s. 24(2) analysis, the judge was not satisfied that the admission of the evidence would bring the administration of justice into disrepute. Buchanan was convicted of various drug trafficking and firearms offences and he was sentenced to four-and-a-half-years in prison.
Buchanan challenged his convictions before the Ontario Court of Appeal. He argued the trial judge made several mistakes in relation to her s. 24(2) assessment concerning the seriousness of the Charter-infringing police conduct. These mistakes included the trial judge’s determination that the police had the grounds to conduct an investigative detention and misinterpreted the denial of the search warrant as an invitation to arrest the next suspected buyer. In Buchanan’s view, these errors required a new s. 24(2) analysis and mandated the exclusion of the evidence.
In agreeing with the trial judge that the police had sufficient grounds to detain the accused for investigation, Justice Fairburn, delivering the opinion of the Court of Appeal, first described this power:
The police may detain an individual for investigation where, in all of the circumstances, there exist reasonable grounds to suspect that the individual is connected to a particular crime and the individual’s detention is necessary. Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The first engages a reasonable possibility, while the latter engages a reasonable probability. When determining whether those thresholds have been reached, a common sense and practical approach to considering all of the circumstances is called for. [references omitted, para. 23]
In this case, Fairburn agreed with the trial judge that the officer’s grounds rose to the level of a reasonable suspicion that Buchanan was in possession of a controlled substance, which was sufficient to justify an investigative detention. The police were dealing with information coming from a confidential informer that had been amply confirmed. The police had much more than the simple attendance of a person at a suspected drug house. All of the circumstances known to the police at the time they intercepted Buchanan, filtered through “their practical, everyday experience to the interpretation of what they were seeing,” needed to be considered:
… There was a confidential tip about drug trafficking at the exact residence where civilians had made complaints about activity that suggested short visits to buy drugs. Police surveillance confirmed that activity, revealing numerous people, some of whom were known to the police from the local drug community, attending at the residence for very short periods of time. The police even observed what they believed to be a hand-to-hand drug transaction through the window of a vehicle out front of the residence, just prior to the appellant’s attendance at the home. He was only in the home for 15 minutes. Again, the police testified that this was consistent with a drug transaction.
There was an ample factual foundation upon which the trial judge could conclude that the police had sufficient grounds to detain the appellant for investigation. Indeed, so plentiful were the grounds that this may well have been a case where the s. 9 issue could have resolved differently. [paras. 34-35]
Search warrant refusal
The Court of Appeal found the police did not improperly ignore the denial of the search warrant application. Far from seeing the denial of the search warrant as an “invitation” to arrest the next person who came to the residence, the denial “caused the police to pursue alternative means to advance their investigation.” Fairburn noted there was nothing inherently wrong with “the police using a lawful arrest to advance an investigation, even where that arrest is to assist with furnishing the grounds upon which a search warrant application may rest.”
Plus, the police did not simply set out to arrest the next person to arrive at the home. “Rather, they set out to arrest the next person who they believed to have done a drug transaction in the home,” Fairburn said. “In other words, they set out to arrest the next person they had reasonable grounds to arrest. Given the short time that the [accused] attended at the residence, the police believed that he fit the same pattern as the people who they had been previously seen coming and going from the residence.”
Moreover, “the denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes.” The role of a justice in determining whether to issue a search warrant and the role of the police in determining whether they have sufficient grounds to arrest are different. A justice determines “whether there are sufficient reasonable grounds to support the statutory prerequisites” to issue a warrant while “the grounds for arrest involve an assessment of all of the circumstances known to the police at the time of the arrest.”
Here, the police not only knew of the circumstances included in the Information to Obtain the search warrant, but also made observations while the warrant was being considered, which included what appeared to be a hand-to-hand drug transaction outside of the home.
“While I accept that it would be wise for the police to pause and consider the strength of their grounds in the face of a search warrant denial, particularly where their grounds to arrest overlap with the grounds for the search warrant, there is nothing inherently wrong with the police pursuing other investigative options based upon their own view of the facts,” Fairburn said. “In other words, the police are not required to alter what they believe (or suspect) to be true, simply because a search warrant has been denied.”
In this case, the justice denying the search warrant said it was because she was not satisfied that the specific drugs – heroin and fentanyl – would be found in the place to be searched. ”The police were not, as [Buchanan] suggests, flouting the Justice of the Peace’s decision,” Fairburn said. “Indeed, to the contrary, they showed respect for that decision and worked toward obtaining further grounds to fill what the Justice of the Peace perceived as the gap in the warrant application: evidence respecting the actual drugs of heroin and fentanyl.”
Buchanan’s appeal was dismissed.
Mike Novakowski is Blue Line’s case law columnist.