R. v. Szilagyi, 2018 ONCA 695

Her Majesty the Queen v. Szilagyi

[Indexed as: R. v. Szilagyi]

Ontario Reports

Court of Appeal for Ontario, K.N. Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

August 24, 2018

142 O.R. (3d) 700 | 2018 ONCA 695

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — Police obtaining warrant to search accused's residence for firearm and ammunition on basis of tip from untested confidential informant which they made little effort to corroborate — Affiant of information to obtain ("ITO") warrant not disclosing whether informant had criminal record only that had "no prior convictions for perjury or misleading the police" — ITO not stating how, when or where confidential informant obtained the information that accused had gun — ITO not setting out sufficient basis for issuance of warrant — Trial judge finding that search of residence and arrest and search of accused when warrant was executed violated accused's rights under ss. 8 and 9 of Charter — Trial judge declining to exclude evidence under s. 24(2) of Charter — Only reasonable errors by the police can be good faith errors — Making mistake regarding well-established law that ITO must contain full and fair disclosure of informant's credibility and reliability not amounting to good faith error — Trial judge erring in equating lack of bad faith on affiant's part with good faith — Violations serious and having significant impact on accused's Charter-protected interests — Police changing practice after the fact amount to admission prior practice wrongful and not being factor favouring admission of evidence — Admission of drugs found in residence and text messages found on cellphone seized from accused incident to arrest bringing administration of justice into disrepute — Conviction quashed and acquittal entered — Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Facts

The accused was charged with drug offences. The police received a tip from an untested confidential informant ("CI") that the accused was dealing cocaine and MDMA and that he possessed a rifle with a sawed-off barrel and stock. The police did almost nothing to corroborate the tip, apart from confirming that the accused lived at the address provided by the CI and that none of the occupants of the residence had a licence to possess firearms. Despite conducting surveillance, they did not observe the accused carrying or concealing anything that appeared to be a firearm; nor did they otherwise observe him doing anything illegal or suspicious. The officers concluded that there was insufficient information from the CI to justify making a warrant request regarding drugs so they sought a warrant only in relation to a firearm and ammunition. The CI's information was included in an information to obtain ("ITO") a search for the accused's residence for firearms and ammunition. The ITO said nothing about how the CI came to know about the firearm, who it belonged to or where it was. Moreover, the affiant of the ITO had a blanket policy of not disclosing the CI's full criminal record, instead stating only that he or she "has not been convicted of mislead police or perjury". The accused was arrested outside his residence when the warrant was executed, and his cellphone was seized. Drugs were found in the residence. The police obtained a warrant to search the accused's cellphones and found text messages which were indicative of drug trafficking. The trial judge found that the ITO did not set out a sufficient basis for the issuance of the warrant, and that the search of the residence violated the accused's rights under s. 8 of the Charter. She found that the police did not have reasonable and probable grounds to arrest the accused, and that the arrest and search incident to arrest violated the accused's rights under ss. 9 and 8 of the Charter. She found that the affiant of the ITO acted in good faith and that the first Grant factor favoured admission, that the impact of the violations on the accused's Charter-protected interests was "moderate", which favoured exclusion, and that the evidence of the drugs and text messages was reliable and essential to the Crown's case. She declined to exclude the evidence under s. 24(2) of the Charter. The accused appealed.

Held

The appeal should be allowed.

As the trial judge correctly held, there were not reasonable and probable grounds to arrest the accused and, given that the police did not believe that he had the gun with him when he arrested outside his residence, there was also no lawful basis for a search incident to arrest. Also, as the judge correctly held, the ITO provided insufficient information for the issuance of a search warrant of the accused's residence. However, the trial judge made several errors regarding the seriousness of the Charter breach and the application of the Grant factors used to determine whether evidence obtained following a Charter breach should be excluded from trial. As a result, the appellate court must conduct a fresh review.

The ITO had faulty sourcing in it failed to explain how, when or where the CI came to know that the accused was in possession of a firearm and ammunition. The police investigation into this untested CI was minimal and it did not confirm the CI's information. She erred in law by treating the affiant's negligent investigation of the CI's tip and negligent preparation of the ITO as demonstrating good faith, mitigating the seriousness of the police conduct. The trial judge also erred in equating a lack of bad faith on the affiant's part with good faith. To be a good faith error, it had to be reasonable. It was well-established law that the affiant's duty in an ITO to make full frank and fair disclosure included setting out the CI's full criminal record so the affiant's error about what was required was not reasonable. In addition, the trial judge erroneously gave the officer credit in assessing the seriousness of the beach that he had changed his practice since applying for this search warrant. The officer's statement that he would change his practice for future warrants should be seen as an admission that his prior practice was wrong, not as a sign of good faith minimizing the seriousness of the breach in this case. The violations fell at the more serious end of the spectrum, favouring exclusion of the evidence. All parties agreed that the second Grant factor, the impact of the Charter-infringing conduct on the accused, favoured exclusion because of the significant effect that arresting and searching him and searching his home had on his liberty and privacy interests. However, the trial judge did not give sufficient weight to the seriousness of the impact in assessing the second factor. The second factor strongly favoured exclusion of the evidence. The court has recognized that when the first and second factors provide strong factors favouring exclusion, the third factor, that the real evidence was reliable, will seldom tip the balance in favour of the admission of the evidence. As a result, a proper balancing of the Grant factors required exclusion of the evidence in order to uphold the repute of the administration of justice.

APPEAL

APPEAL by the accused from the convictions entered by Leitch J. of the Superior Court of Justice, sitting without a jury, on May 30, 2016.

Andrew Menchynski, for appellant.

Rick Visca, for respondent.

The judgment of the court was delivered by

Judgment

[1] K.N. FELDMAN J.A.

The appellant was charged with a number of drug-related offences after police executed a search warrant for his residence for the purpose of finding an unlicensed firearm and ammunition. There was neither a firearm nor ammunition, but the police found and seized illegal drugs, cash and a cellphone in the residence.

[2]

While the search of the home was proceeding, the police arrested the appellant outside his residence for possession of a firearm and ammunition, and conducted a search incident to arrest which yielded only another cellphone. They obtained a warrant to search both phones. A police expert was prepared to testify that some of the text messages related to drug trafficking.

[3]

The appellant applied for an order that the seized evidence was obtained in breach of his ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms and sought to exclude the evidence under s. 24(2) of the Charter.

[4]

The trial judge found that both the search of the residence and the arrest and search of the appellant were unlawful and contrary to ss. 8 and 9 of the Charter. First, she agreed with the appellant's submission that the information to obtain ("ITO") did not contain reliable evidence that could form the basis for issuing a warrant to search the appellant's residence. Second, she found that the arrest and search incident to arrest were both unlawful, as there were no reasonable and probable grounds to believe the appellant was carrying the gun, and no valid reason to execute the search incident to arrest.

[5]

However, the trial judge declined to exclude the evidence obtained from the search of the residence under s. 24(2). Applying the factors set out in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, she concluded that the police acted in good faith in obtaining and executing the search warrant. Therefore, the breaches were less serious, favouring admission of the evidence. She acknowledged that the impact on the appellant's strong liberty and privacy interests was serious, favouring exclusion. Last, the breaches resulted in evidence that, if excluded, would end the Crown's case, thereby favouring admission. She found that the balance of the three factors favoured admitting the evidence seized from the residence.

[6]

In a subsequent motion, the appellant challenged the warrant to search the two cellphones the police seized and the admission of the text messages obtained from them. The trial judge determined that the text messages could be admitted under s. 24(2), largely for the reasons articulated in her previous ruling.

[7]

After the trial judge dismissed his application and motion to have the evidence relating to the charges excluded, the appellant did not contest the charges and was convicted of two counts of possession of Schedule I substances (cocaine and oxycodone) for the purpose of trafficking and one count of possession of a Schedule III substance (MDMA) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[8]

The appellant appeals on the basis that the trial judge made two errors in not excluding the evidence under s. 24(2). First, he submits that the trial judge erred by mischaracterizing the police conduct as being in "good faith" and treating it as mitigating to the extent that it favoured admission of the evidence. Second, the appellant submits that the trial judge failed to consider a number of significant "aggravating factors" when determining the seriousness of the state's conduct. He submits that on a proper s. 24(2) analysis, the evidence ought to be excluded.

[9]

I agree that it was an error for the trial judge to find that the police acted in good faith in obtaining the search warrant and arresting the appellant. In my view, on a proper balancing of the Grant factors, the evidence should be excluded under s. 24(2) of the Charter. I would therefore allow the appeal.

Background Facts

[10]

On November 29, 2011, the police obtained a telewarrant to search the appellant's residence in London, Ontario for an unlicensed firearm and ammunition. A justice of the peace authorized the warrant to search the appellant's residence based on an ITO submitted by the police. The grounds set out in the ITO for the warrant were founded almost entirely on tips provided by two confidential informants ("CI").

[11]

The ITO described CI #1 as an unproven confidential informant, who was motivated by civic duty and immersed heavily in the drug subculture. The informant was currently providing information in relation to several drug investigations, which had been corroborated by other means but "not acted upon". The ITO did not disclose whether CI #1 had a criminal record, and only stated that "Source #1 has not been convicted of mislead police or perjury".

[12]

Officer Adam Steele, the affiant of the ITO, later testified at the appellant's trial that at the time the ITO was drafted, it was his systematic practice not to "blanketly disclose" to an issuing justice all the information pertaining to a CI's police record. He also testified that the problematic nature of this practice has since been brought to his attention, and although he no longer applies for search warrants, if he were to do so now, he would attach the informant's criminal record. Officer Steele confirmed that he conducted inquiries into the informant, including his police record, and not all of that information was included in the ITO.

[13]

The ITO described CI #2 as someone who was not involved in the drug subculture and who had provided information out of civic duty.

[14]

CI #1 provided the majority of the information; CI #2 provided very little. The information from CI #2 was referenced only in one paragraph of the ITO entitled "Background to the Investigation", and that information was redacted.

[15]

CI #1 provided information that the appellant was actively dealing cocaine and MDMA and was in possession of a "quantity of drugs". CI #1 was able to identify the appellant from a dated mug shot and described the appellant as approximately six feet tall with a muscular build. CI #1 also indicated that the appellant possessed a .22 caliber rifle that was 1.5 feet in length, made of wood, with a sawed-off barrel and stock. CI #1 believed that the appellant was not interested in selling the gun.

[16]

The ITO did not reveal how CI #1 knew this information, and the police made limited attempts to corroborate it. They reviewed lease documents to verify that the appellant lived at the address provided by CI #1. The police confirmed that neither the appellant nor the others who lived at the target address had a licence to possess firearms.

[17]

Despite conducting surveillance on the appellant, the police did not observe him carry or conceal anything that appeared to be a firearm, nor did the police otherwise observe the appellant doing anything illegal or suspicious.

[18]

Additionally, Officer Steele swore that the police opted to obtain a warrant for nighttime and extended entry because the appellant was unlikely to be carrying the firearm on his person outside his home:

At the time of this writing it is the intention of the London Police Service to execute this warrant once the subject of the warrant, George Szilagyi, has departed the residence. Police have no information that Szilagyi carries this firearm in the community and thus if arrested outside his residence, he will likely not have the firearm on his person. Once removed from the residence this will provide police with the safest possible time of execution as Szilagyi will already be in custody when Police enter to search for the firearm. Police are currently conducting surveillance of Szilagyi and intend on arresting him once he departs the residence, and the granting of the night time entry and extended period will allow for that should he depart during those hours.

(Emphasis added)

[19]

Although CI #1 had also asserted that the appellant was trafficking in illegal drugs, the police did not apply for a warrant for the purpose of finding drugs. Officer Steele testified that he did not apply for a search warrant for this purpose because the information that he was provided in relation to the drugs was not as detailed as the information that he was provided in relation to the firearm. Accordingly, the ITO did not provide any information regarding how CI #1 knew the appellant was trafficking drugs or whether the source had observed the appellant possessing or trafficking drugs, including in his home.

[20]

On December 1, 2011, two days after obtaining the telewarrant, the police observed the appellant leaving his residence. They followed him to a bus stop and arrested him for possession of a firearm. The appellant was handcuffed and searched incident to arrest. The police found a cellphone on his person, as well as a small plastic baggie containing a reddish substance, a wallet, a debt list and a set of keys.

[21]

As the appellant was being arrested, police executed the warrant to search his home. In the living room, the police found cash and a second cellphone. One of the appellant's housemates was also there. Inside a bedroom, the police located a passport in the appellant's name, as well as 287 grams of MDMA, 27 grams of cocaine, 103 80-milligram tablets of oxycodone, 1 gram of marijuana, Canadian currency totalling $2,310, two digital scales and a box of plastic bags.

Trial Judge's Reasons

[22]

The appellant applied for an order excluding all the evidence found in his home and on his person on the basis that the police violated his ss. 8 and 9 Charter rights by searching his home, and by detaining and arresting him. Specifically, he alleged that the ITO that formed the basis for the warrant to search his residence was insufficient, violating s. 8; the police did not have reasonable and probable grounds to detain and subsequently arrest him, violating ss. 8 and 9; and, as a result of these breaches, the evidence seized from his person and residence should be excluded under s. 24(2).

[23]

The appellant further submitted that by hiding the criminal record of CI #1 and stating that this informant had no convictions for perjury or lying to the police, the police drafted an intentionally confusing ITO, which gave the misleading impression that the CI was credible and had no criminal convictions. Similar wording in another ITO had led to the exclusion of evidence in R. v. Rocha (2012), 112 O.R. (3d) 742, 2012 ONCA 707.

[24]

Dealing first with the limited disclosure of CI #1's criminal record, the trial judge disagreed that it was a problematic element of the ITO because Officer Steele had acted in good faith in swearing the ITO and had changed his practice of not fully disclosing a CI's criminal record after learning that it was problematic. Additionally, the ITO in this case was more detailed than that provided in Rocha, because this ITO "stated the informant's motivation for providing information to the police".

[25]

Nevertheless, the trial judge agreed with the appellant that the ITO did not contain reliable evidence that could form the basis for issuing a warrant to search the appellant's residence. She found that there was "no information as to when and where and how the informant came to the conclusion that George was in possession of the rifle". Additionally, she noted that there was "no disclosure of the underlying circumstances for the informant's conclusion", nor of "the source or means of knowledge" to provide reasonable grounds for believing that the appellant had committed an offence relating to the possession of an unlicensed firearm.

[26]

The trial judge characterized CI #1 as an "untested and unproven informant", whose record for crimes of dishonesty and other offences was unknown. Therefore, the fact that this CI had provided reliable information previously did not enhance his/her credibility and reliability. Nor was CI #1's tip corroborated by police surveillance.

[27]

The trial judge also concluded that, as there was not enough evidence in the ITO to create reasonable and probable grounds, the appellant's arrest was unconstitutional. Similarly, the search incident to arrest was unconstitutional, as there was no evidence that the search was necessary for officer safety issues or because of exigent circumstances. Further, the trial judge found that the police believed that the appellant was not carrying the alleged firearm on his person at the time of the arrest and therefore had no valid reason to execute the search incident to arrest.

[28]

The trial judge then turned to the issue of whether the unconstitutionally obtained evidence should be excluded under s. 24(2), and concluded that a balancing of the three factors from Grant favoured admission of the evidence.

[29]

Focusing first on the seriousness of the police conduct, the trial judge concluded that the police were mindful of the appellant's privacy interests as they had sought warrants to search the appellant's residence and the two seized cellphones, and conducted a minimally invasive search incident to arrest.

[30]

Regarding the contents of the ITO, she found that, unlike the ITO at issue in the Supreme Court of Canada's decision in R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, this ITO did not contain any "misleading passages" or "false statements" that contravened the duty to make full and frank disclosure of all material information. Instead, she was "satisfied that Officer Steele acted in good faith in accordance with a practice that had not yet been negatively commented upon . . . as it eventually was in Rocha". She again gave credit to Officer Steele for changing his practice after learning of its problematic nature.

[31]

Although the trial judge acknowledged that the ITO in the present case was like the one in Rocha because it contained an "oddly worded statement" that did not fully disclose the CI's criminal record, the ITO at issue in Rocha was deficient for two other reasons: it contained several additional paragraphs that were misleading and it was unsworn. She noted that these other issues contributed to the conclusion in Rocha that the manner in which the ITO was drafted situated the police conduct toward the serious end of the spectrum, and that the "circumstances here are much different from those before the court in Rocha".

[32]

The trial judge then analogized the circumstances before her to those in R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816 and concluded that the first Grant factor favoured admission:

I reach a similar conclusion [as Code J. did in R. v. Learning]. I agree with the Crown's submission that the impugned state conduct falls on the lower end of the continuum. I am satisfied that the officers all acted in good faith. They had detailed information from a human source and they obtained a warrant to search the Target Residence before conducting the search. They obtained a warrant before the cellphone was searched. They acted in good faith notwithstanding my conclusion respecting the sufficiency of the ITO.

[33]

Turning to the second Grant factor, the impact of the breaches on the rights of the appellant, the trial judge observed that this factor favoured exclusion of the evidence. This conclusion was based on the Crown's concession that the interests engaged -- the appellant's liberty and privacy -- were both "strong" interests.

[34]

Finally, in relation to the third Grant factor, society's interest in the adjudication of the case on its merits, the trial judge observed that excluding the evidence of the drugs and cash would bring the Crown's case to an end.

[35]

On balance, the trial judge concluded that the evidence should be admitted because "excluding the evidence would have a greater negative impact on the repute of the administration of justice than admitting the evidence".

[36]

In a subsequent motion, the appellant challenged the warrant to search the two cellphones the police seized following the search of his residence and the search of his person incident to arrest, and the admission of the text messages obtained from them. The Crown conceded that the warrant to search the cellphones was invalid once the unconstitutionally obtained evidence was excised from the ITO.

[37]

The trial judge found that the warrant to search the cellphones was invalid because the ITO relied on to obtain the search warrant for the appellant's residence was insufficient to create reasonable and probable grounds for his arrest.

[38]

However, after applying the three factors from Grant, the trial judge determined that the text messages should be admitted under s. 24(2). She concluded that, for the reasons articulated in her previous ruling, the Charter-infringing state conduct was not serious. She found that the unconstitutionally obtained evidence was not obtained through police misconduct: the police had not disregarded the appellant's rights in obtaining or executing the warrant to search his residence or in arresting him and searching him incident to arrest. She again highlighted her finding that the police had acted in good faith. And although the breach of the appellant's right to informational privacy was serious, the extracted text messages were reliable real evidence, which weighed in favour of admission.

[39]

On May 30, 2016, after failing to have the evidence at issue excluded, the appellant did not further contest the Crown's case against him, and convictions were entered.

Issues

[40]

The appellant raises the following issues on appeal:

(1) The appellant submits that in her consideration of the first branch of the Grant analysis to determine admissibility under s. 24(2) of the Charter, the seriousness of the police conduct giving rise to the breach, the trial judge made two errors in principle:

(a) the trial judge erred when she found that the police acted in "good faith" and that this favoured admission of the evidence; and

(b) the trial judge erred by failing to consider three significant "aggravating factors" when determining the seriousness of the state's conduct in breaching the appellant's ss. 8 and 9 rights.

(2) The appellant submits that as a result of these two errors, the trial judge came to an unreasonable determination in applying Grant, and that conducting the Grant analysis anew leads to the conclusion that the evidence must be excluded.

Analysis

Standard of Review

[41]

The trial judge's decision on whether to exclude evidence under s. 24(2) of the Charter is a discretionary decision to be accorded significant deference on appeal. However, appellate intervention is warranted where the trial judge erred in law in her application of the legal test or principles, failed to consider relevant factors or circumstances that could affect whether admitting the evidence would bring the administration of justice into disrepute, or made an unreasonable determination: R. v. McGuffie (2016), 131 O.R. (3d) 643, 2016 ONCA 365, at para. 64; Grant, at paras. 86, 127; R. v. Côté, [2011] 3 S.C.R. 215, 2011 SCC 46, at para. 44; R. v. Cole, [2012] 3 S.C.R. 34, 2012 SCC 53, at para. 82; R. v. Jones (2011), 107 O.R. (3d) 241, 2011 ONCA 632, at para. 79; R. v. Ansari, [2015] O.J. No. 4355, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72. In such a case, the appellate court is entitled to conduct a fresh analysis of the Grant factors: Jones, at para. 79.

(1) Error in Considering the Seriousness of the Breach

(a) Good Faith

[42]

In Grant, the Supreme Court identified the three factors that a trial judge is to examine and weigh in deciding whether to admit evidence that was obtained by police conduct that breached the appellant's Charter rights: (1) the seriousness of the Charter-infringing state conduct that breached the appellant's Charter right; (2) the impact of the breach on the Charter-protected interests of the appellant; and (3) society's interest in an adjudication of the charge on its merits.

[43]

In this case, the ss. 8 and 9 Charter breaches were based on the trial judge's finding that the warrant the police obtained to search the appellant's home was founded on information that did not meet the test in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168 S.C.R.: the information was not compelling, the source was not credible and the police did not corroborate the information from the source.

[44]

Three conclusions flowed from this finding: (1) "[T]here was not reliable evidence that might reasonably be believed on the basis of which the warrant could have issued to search the Target Residence". (2) There was not enough evidence in the ITO to create reasonable and probable grounds to arrest the appellant. (3) The search of the appellant incident to arrest was neither necessary for officer safety nor for the discovery of offence-related evidence.

[45]

The effect of these findings was that the police searched the appellant's home based on an invalid warrant, they arrested the appellant without reasonable and probable grounds, and they searched the appellant incident to arrest without a basis in law.

[46]

In reaching the conclusion that the ITO did not pass muster as the basis for a search warrant nor give reasonable and probable grounds for the appellant's arrest and search incident to arrest, the trial judge noted a number of deficiencies in the information from the confidential informant that the police included in the ITO.

[47]

First, although the confidential informant gave a detailed description of the gun that was supposed to belong to the appellant and to be found in his home, there was no information about how the informant knew about the gun, who it belonged to or where it was. The trial judge equated this deficiency to that noted by Rosenberg J.A. in R. v. Rocha: because the ITO in that case did not contain information about the informer's source of knowledge regarding the drugs and their location in the house, there was nothing in the information to compel a belief that the drugs would be in the house when the search was conducted.

[48]

This was a serious and significant deficiency in the ITO. The trial judge paraphrased Martin J.A. in R. v. Debot, [1986] O.J. No. 994, 30 C.C.C. (3d) 207 (C.A.), affd , [1989] 2 S.C.R. 1140, in finding:

[H]ere there was no disclosure of the underlying circumstances for the informant's conclusion and the source or means of knowledge to allow the justice of the peace to satisfy himself that there were reasonable grounds for believing what was alleged.

[49]

On the issue of the informant's credibility and reliability, the trial judge rejected the Crown's submission that CI #1 should be viewed as credible because he/she was motivated by civic duty, had no prior convictions for perjury or mislead police, and had provided information in other cases that was corroborated through other means.

[50]

The trial judge focused instead on the fact that the informant was untested and unproven, that his/her record for all crimes of dishonesty and other offences relevant to credibility (not limited to perjury and mislead police) was unknown, and concluded that the informant's credibility and reliability were not enhanced by having previously provided reliable information. Further, no surveillance confirmed his/her information. The only confirmation the police obtained was that the appellant was one of three people who were parties to a lease for the target residence, and they observed him leave the building where the leased apartment was located.

[51]

The trial judge referred to a statement by the Supreme Court in Debot (SCC), at pp. 1170 and 1171 S.C.R., that "the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source".

[52]

To summarize, the police prepared and submitted an ITO that contained serious and significant deficiencies with insufficient indicia of the credibility and reliability of the main confidential informant, and failed to seek any meaningful corroboration of the informant's tip.

[53]

Nevertheless, the trial judge found that the police acted in good faith, as in R. v. Learning. She relied on several factors: (1) The police sought and obtained a warrant. (2) Since there were no misleading statements in the ITO, as there were in R. v. Morelli, the police did not contravene the obligation to make full and frank disclosure. (3) The search predated this court's decision in Rocha, where an ITO with similar problems, notably the failure to include an informant's full criminal record, was found to be conduct at the serious end of the spectrum. (4) The affiant officer had since changed his practice of omitting informants' full criminal records.

[54]

In Rocha, Rosenberg J.A. confirmed, at para. 28, that "[a]pplying for and obtaining a search warrant from an independent judicial officer is the antithesis of willful disregard of Charter rights". However, where the ITO that formed the basis for the issuance of the warrant is found to be insufficient to support it, the proper approach to determine the seriousness of the Charter breach is to first consider whether the ITO was misleading. If it was, the seriousness will depend on whether the use of false or misleading information was intentional or inadvertent.

[55]

In this case, the trial judge concluded that the police officer was acting in good faith. A conclusion as to good faith cannot be grounded on a lack of bad faith. The trial judge was incorrect to equate a lack of bad faith on the officer's part to good faith conduct.

[56]

In R. v. Grant, the Supreme Court discussed the proper approach to examining police Charter-breaching conduct in relation to the s. 24(2) analysis. At para. 75 of Grant, the court stated:

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

(Emphasis added)

[57]

The Supreme Court reaffirmed and clarified these principles in R. v. Paterson, [2017] 1 S.C.R. 202, 2017 SCC 15. Brown J. stated that for errors to be considered to have been made in good faith, they must be reasonable. Further, the Charter-infringing conduct in question need not be deliberate, nor result from systemic or institutional abuse to result in exclusion of evidence that was obtained as a result of a clear violation of well-established rules [Paterson, at para. 44]:

My colleague Moldaver J. recalls the trial judge's finding that the police were acting in good faith (para. 66; trial reasons, at para. 79). While "a 'good faith' on the part of the police will . . . reduce the need for the court to disassociate itself from the police conduct" (Grant 2009, at para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25).

[58]

In Paterson, Moldaver J. in dissent disagreed with the majority on whether the law that the police did not follow was well-established. In this case, the trial judge appeared to view the Rocha decision as setting out a new principle: that full and fair disclosure of all information regarding an informant's credibility and reliability is required in an ITO. Because the police drafted the ITO before Rocha was released, the trial judge found that they acted in good faith despite their failure to disclose the informant's criminal record.

[59]

This constituted an error of law. Truthful disclosure in an ITO is axiomatic: R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 46. The police do not get credit for doing what is expected.

[60]

In Rocha, Rosenberg J.A. focused on the "oddly worded language" used to describe the criminal record of the informant. In this case, the trial judge identified and properly criticized similar language (regarding no record for perjury or mislead police). Rosenberg J.A. also focused on the fact that the officer deliberately used that language to leave the impression that the informant was honest, again similar to this case. Finally, like Officer Steele in this case, the officer in Rocha had a practice of not disclosing the informant's full criminal record.

[61]

Although the ITO in Rocha featured additional deficiencies (it was not sworn, for example), the problems with the disclosure regarding the informant's criminal antecedents were the main reason Rosenberg J.A. concluded that the conduct by the officers fell at the serious end of the continuum for the purposes of the first branch of the s. 24(2) analysis. The seriousness of police conduct favoured exclusion of the evidence.

[62]

Nor was Rocha a case of first impression. Because the law was not unclear when it was decided, the police conduct was deliberate and serious, causing the court to set aside the trial judge's analysis and ultimately, to exclude the evidence.

[63]

I also note that the trial judge in this case gave credit to the officer in the form of enhancing his good faith for "now changing his practice". I make two observations about this approach.

[64]

First, this amounts to an after-the-fact acknowledgment of wrongdoing by the officer, when the law on the requirement of full disclosure was clear before Rocha. As Benotto J.A. observed in R. v. Strauss, [2017] O.J. No. 4084, 2017 ONCA 628, 353 C.C.C. (3d) 304, at para. 50, to use after-the-fact acknowledgment as a basis for minimizing the seriousness of the breach and admitting the impugned evidence "would . . . render the Charter's protection meaningless".

[65]

Second, I believe the trial judge overstated the officer's evidence on this issue. When asked if it was still his practice not to disclose an informant's full criminal record, he stated that he was "currently not in the business of writing search warrants", but that he had had conversations with Crown attorneys indicating that his practice had been an issue with prior search warrants. If he were now to write a search warrant, he would attach the informant's record to an ITO.

[66]

The trial judge also erred by equating the circumstances in this case with those in R. v. Learning. The issue in that case was whether the police officer had reasonable and probable grounds to arrest the accused for possession of a gun, based on information from a confidential informant. The ITO containing the grounds for the search warrant and the arrest of the accused had to be significantly redacted on the voir dire in order to protect the identity of the confidential informant. Because of this redaction, the court found that the remaining information was not sufficiently detailed to give the officer reasonable and probable grounds to arrest the accused and therefore his arrest and detention violated s. 9 of the Charter.

[67]

However, Code J. was able to review and summarize the unredacted ITO. He found that the officer had abundant reasonable and probable grounds, had scrupulously set out the information in the ITO, and had also included any circumstances that might undermine the grounds. Therefore, for the purposes of the first Grant factor in the s. 24(2) analysis, Code J. found no police misconduct at all in preparing the ITO and in arresting the accused; the Charter violation arose only as a matter of law from the Crown's inability to disclose enough of the information in the ITO to demonstrate at the trial the reasonable and probable grounds that did exist.

[68]

There is no similarity between the Learning case and this one. The trial judge's findings that the information given by CI #1 was insufficient and that the police officer's disclosure of that information was incomplete were based on the essentially unredacted ITO. There is no basis on which to equate the good faith conduct of the police officer who prepared the ITO and authorized the arrest in Learning to the conduct of the police officer in this case.

[69]

Finally, the Crown now submits that the ITO was not misleading because by disclosing that the informant was involved in the drug trade, the issuing justice would have known that he/she had criminal involvement that could undermine his/her credibility.

[70]

I would reject this submission. It was not referred to by the trial judge nor should it have been. The purpose and effect of disclosing an informant's police involvement is to give the issuing justice a full picture of the credibility and reliability of the informant, particularly when the entire warrant is based on that person's information. It is not to say one thing but expect the justice to infer another.

[71]

To conclude on this point, in my view, the trial judge erred in law by treating the officer's negligent investigation of the informant's tip and negligent preparation of the ITO as demonstrating good faith, mitigating the seriousness of the police conduct.

(b) Failure to Consider Three Aggravating Factors

[72]

The appellant submits that the trial judge also erred in principle by failing to consider three material aggravating factors in assessing the seriousness of the state conduct:

(1) When the trial judge came to the s. 24(2) analysis, she effectively recast her findings that the informant's information was conclusory, that it lacked any basis for his/her knowledge about the appellant, and that the only detail included was the description of the gun. Instead, she described the information provided by the informant as "detailed" information that the police relied on in good faith.

(2) The trial judge failed to consider the seriousness of the search incident to arrest. The police did not have reasonable and probable grounds to arrest based on the ITO; they did not believe the appellant was carrying his firearm when they arrested him, yet they searched him on the basis of ensuring officer safety and finding evidence relating to the search warrant; and they seized his cell-phone, from which they obtained access to his private digital information.

(3) The trial judge failed to consider the use of unclear language in the ITO, which aggravated the s. 8 breach by having the effect of possibly misleading the issuing justice about the informant's credibility, and thereby undermining the administration of justice.

[73]

Although the appellant identifies these three issues as separate errors by the trial judge amounting to "aggravating factors", in my view, issues (1) and (3) form part of the matrix of factors that undermine the trial judge's finding of good faith that I have discussed above.

[74]

I agree that the trial judge appeared to reassess her view of the deficiencies in the presentation of the informant's tip when she came to the s. 24(2) analysis. I also agree that the unclear language describing the informant's criminal record, similar to that in Rocha, had the potential to mislead the issuing justice regarding the informant's credibility and reliability, and thereby undermine the administration of justice: R. v. Hosie, [1996] O.J. No. 2175, 107 C.C.C. (3d) 385 (C.A.), at p. 400 C.C.C.

[75]

Since, as discussed below, I find that this court is entitled to reweigh the Grant factors, issue (2) is more appropriately addressed when considering the second Grant factor in the s. 24(2) analysis.

(2) Analysis of the s. 24(2) Factors

[76]

Based on the trial judge's error in principle in treating the police conduct as good faith conduct that favoured admission of the evidence under the first Grant factor, this court is entitled to conduct a fresh analysis.

[77]

Dealing with the first Grant factor, the police conduct falls at the more serious end of the spectrum, favouring exclusion of the evidence. Although the police applied for and obtained a warrant, the ITO was seriously deficient: it did not provide the type of information from the informant that Debot (S.C.C.) and Araujo require, it used misleading language regarding the informant's criminal record, and the police failed to corroborate any information beyond the fact that the accused signed a lease for the target residence and none of the three lessees had a firearms licence. Although the Rocha decision post-dated the police's application to obtain a search warrant for the appellant's home, the law relied on in Rocha to ground a similar analysis and exclude the impugned evidence in that case was not new. It was an error by the trial judge to mitigate the seriousness of the police conduct by characterizing it as good faith, even if the police did not have the specific intent to mislead.

[78]

All parties agreed that the second Grant factor, the impact of the Charter-infringing conduct on the accused, favoured exclusion of the evidence because of the significant effect that arresting the appellant, searching his person and searching his home had on his liberty and privacy interests. However, the trial judge did not give sufficient weight to the seriousness of the impact in assessing this second factor.

[79]

A useful comparison can be made with the approach taken by Code J. in Learning. There, the first Grant factor favoured admission of the evidence. Because the informant in that case had provided detailed information that gave the officer reasonable and probable grounds to arrest, there was no bad faith on the part of the police officer in obtaining the warrant or arresting the accused. However, Code J. explained that the officer's good faith did not mitigate the significant impact of the arrest and search on the accused's Charter rights. He stated, at para. 118:

[T]he second line of inquiry militates strongly in favour of excluding the evidence as the accused was completely deprived of his core liberty interest on the basis of a mere conclusory tip.

[80]

In my view, the second factor strongly favours exclusion of the evidence.

[81]

While the third factor favours admission, at least of the drugs and cash, this court has now recognized that "[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112": McGuffie, at para. 63.

Conclusion

[82]

While the evidence that was seized is real evidence that is reliable, a proper balancing of the Grant factors requires exclusion of the evidence in order to uphold the repute of the administration of justice.

[83]

I would allow the appeal, set aside the conviction and enter an acquittal.

Appeal allowed.

Notes

1The Crown submits that the record is not clear as to whether the informant did in fact have a more extensive criminal record. I agree that the officer did not state that explicitly. He stated that the informant had a "police record" that was not fully disclosed in the ITO. However, it is reasonable to infer, as the trial judge did, that the officer would have said the informant had no criminal record had that been the case, rather than saying no record for mislead police or perjury.

End of Document