Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Joseph Moreau
Before: Justice J. De Filippis
Heard on: August 22, 23 & September 6, 2016
Reasons for Ruling released on: September 15, 2016
Counsel:
Ms. K. Kennedy — counsel for the Crown
Ms. R. Abraham — counsel for the accused
De Filippis, J.:
Introduction
1Acting on information received from a confidential human source the police began surveillance on the defendant on December 8, 2015. He was arrested that day in a motor vehicle. The motor vehicle was searched and a small quantity of controlled substances was seized. Also found was a cell phone. The police searched the phone at the scene and discovered pictures of a handgun. Later, a search warrant was obtained for two residences. At one place, the police located more controlled substances and a firearm.
2The defendant is charged with these offences arising from his arrest on December 8:
- Possession of a Schedule I drug (Dilaudid)
- Possession of a Schedule I drug (cocaine)
3He is also charged with these offences arising from the execution of the search warrant on December 9:
- Careless Storage – Firearms Regulation
- Unauthorized possession of a Firearm
- Knowledge of Unauthorized Possession of a Firearm
- Prohibited or Restricted Firearm with ammunition
- Possession for the Purpose of Trafficking (Marihuana)
4At the commencement of this trial, the Defence moved to exclude the evidence yielded by the search of the cell phone and all evidence seized pursuant to the search warrant. The Defence also sought leave to cross-examine the affiant who applied for the search warrant. The latter motion was abandoned during the voir dire. The Crown conceded that the cell phone was improperly searched and does not rely on that information to uphold the search warrant. The Crown also conceded that the redacted Information to Obtain the search warrant (ITO), edited to omit certain references to CHS-1, cannot support the issuance of the Order. The Crown invoked "Step 6"; see R v Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. As a result, a Judicial Summary of the redacted material was given to the Defence. The preparation of that summary was conducted in ex parte, in camera, proceedings.
5The context within which the issues and procedure arise in this case was described by the Court of Appeal for Ontario, in R v Crevier 2015 ONCA 619 (CanLII), [2015] O.J. No. 5109, as follows:
When an accused challenges a search warrant that police obtained using information from confidential informers, tension arises among three important principles or interests: the interest of law enforcement, the common-law principle of informer privilege, and the accused's constitutionally-protected right to make full answer and defence. This appeal focuses on balancing those interests at the sixth and final step of the information-editing process set out by the Supreme Court of Canada in R. v. Garofoli …
6I would add these comments to those quoted above: The main issues I must decide in this case are (1) the adequacy of the Judicial Summary and (2) whether the ITO supports the issuance of the search warrant. In discharging my duty to give reasons for these decisions, I have been mindful not to reveal the confidential information that Step 6 is designed to protect. This is another "tension" inherent in the process.
Background and Allegations
7On December 8, 2015, members of the Durham Regional Police Guns and Gang Enforcement Unit commenced a firearms investigation regarding the defendant. D.C. Thomson received information from a confidential human source (hereinafter referred to as "CHS-1") that the defendant was in possession of a handgun. D.C. Thomson also provided the following information to D.C. Hilborn: (1) Joseph Moreau's date of birth is August 5, 1967 and he is also known as "Frenchy" and/or "Stephane"; (2) He resides at 16 Sylvia Court in Newcastle; and, (3) His vehicle is a 2006 Ford F-150 pick up truck, grey in colour with licence plate AM27 412. D.C. Hilborn confirmed the accuracy of that information through various checks of Versadex, CPIC and Ministry of Transportation records.
8On December 8, 2015, the police conducted surveillance on the defendant. He was followed in the motor vehicle associated to him to various locations, while apparently communicating with his cell phone. At about 9 PM, he picked up a female at a home in Courtice, Ontario. The vehicle was followed to the parking lot of the Freshco grocery store located at 1414 Highway #2 in Courtice. At 9:05 p.m., the defendant was observed circling the parking lot before parking in a space facing northbound.
9At 9:08 p.m., Det. Taylor observed that both the defendant and his female passenger kept putting their heads down towards their lap or the centre console area of the vehicle. These were observations which, based on his experience, the officer believed to be indicative of drug use. He concluded that there were reasonable grounds to arrest both parties for possession of controlled substances.
10At 9:22 p.m., the defendant was arrested and provided an address of 16 Sylvia Court. A pat-down search of the defendant resulted in the seizure of four syringes. The passenger was identified as Ashley Smith. She was arrested and searched; several pills wrapped in tin foil, rubber bands and cotton balls were located concealed in her bra area.
11Officers observed obvious signs of drug use in plain view in the interior of the vehicle. A capsule containing three dime bags with white power was located in the centre console cup holder (subsequently confirmed to be cocaine). D.C. Capener seized a spoon with mixed substance and a digital scale which were located on top of the centre console. A full syringe with a clear fluid believed to be dilaudid was located on the floor near the passenger door, along with a blue rubber band.
12D.C. Barrette observed a Samsung cell phone in the footwell of the driver's seat, attached to the centre console by a charging cord. The officer conducted a search of the phone for evidence in relation to possession of a firearm. He did so as a result of his experience investigating individuals in possession of firearms and his knowledge that they often take "trophy pics" of the firearms to show to friends and associates. D.C. Barrette opened the picture folder of the cell phone and observed a thumbnail of a photo of a silver revolver. When he opened that photo, he observed a silver, large-barrelled revolver with a dark pistol grip. The next photo was of a female identified as Ashley Smith, whom he had arrested as the passenger in the vehicle. In the photo, Ms. Smith was blowing on the barrel of the same revolver. The third photo was of the same firearm laying across a person's buttocks. D.C. Barrette ceased the search of the phone, placed it into flight mode to prevent any transmissions of information and turned it over to D.C. Ashworth as an exhibit.
13After these events, D.C. Hilborn prepared an ITO, with respect to firearms, in relation to the residences of the defendant and Ms. Smith. He relied on information from the confidential human source, the arrest of the two persons with drugs, and the images off a hand gun on a cell phone seized as an incident of arrest. The warrant was approved shortly before 2:00 a.m.
14Det. Taylor, along with a team of officers, attended at the defendant's home to execute the search warrant. There were three individuals present at the residence: the defendant's spouse, their daughter, and a basement tenant. Officers observed marijuana in plain view throughout the residence.
15Det. Taylor conducted a search of a TV room located just off the kitchen inside the Sylvia Court residence. The officer located a black carry case beside the sofa in that room. Inside the bag, Det. Taylor observed a large Smith & Wesson .357 magnum revolver pistol. The bag had a lock attached to one side of it. The lock was opened with a key which had been seized from the defendant upon his arrest. In the same bag, officers located a small tin containing jewelry on top and three rounds of ammunition for the revolver underneath. The bag also contained sex toys, personal effects and drug paraphernalia.
16In addition, D.C. Barrette located four large plastic bags, each containing approx. 230 grams of marijuana, inside a garbage bag beside the same sofa where the firearm had been found. A further bag containing 17.5 grams of marijuana was found on the kitchen counter, along with a digital scale. The officer also located a small plastic baggie containing six grams of marijuana behind a picture on a cabinet in the dining room. Officers seized a vial of hash oil and a dime bag with 1.5 grams of marijuana from the coffee table in the same television room where the firearm had been located.
Framing the Issues
17The Defence asserts a violation of sections 8 and 9 of the Charter in relation to the search of the cell phone seized during the course of his arrest and also challenges the validity of the search warrant. Section 8 provides that "Everyone has the right to be secure against unreasonable search or seizure". Section 9 states that "Everyone has the right not to be arbitrarily detained or imprisoned"
18The Crown does not seek to rely on information in the ITO which pertains to the seized cell phone. The Crown concedes that the ITO as edited cannot support the issuance of the search warrant and relies on Step 6 in Garofoli. In this regard, the Crown asks that I rely upon the original ITO, only redacted with respect to the cell phone records.
Step 6 Procedure
19Step 6 is a response to the rule with respect to confidential informants. While the Court may review and rely upon a copy of the sealed, unedited ITO, it must ensure that nothing is disclosed or discussed that violates the informer privilege. Once found, the court is duty-bound to protect it. There exists no discretion to overcome the privilege unless the innocence of the accused is at stake: Crevier, paragraph 50.
20In Garofoli, the Supreme Court of Canada set out six steps in dealing with a challenge to a warrant or authorization (at paragraph 79):
Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
After the determination has been made in (3), the packet material should be provided to the accused.
If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
21As pointed out in Crevier (paragraphs 42, 83-88), Step 6 allows the Crown to rely on the unredacted ITO in defending the warrant's validity, provided adequate steps are taken to preserve the accused's right to make full answer and defence. It provides the Crown with another option where it would otherwise have to concede a Charter breach because the ITO, after redactions are made to protect a confidential informer's identity, no longer discloses reasonable and probable grounds. In considering a Judicial Summary of the redacted information, the reviewing judge must be satisfied that it includes as much information as possible to allow the accused to mount both a facial and sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained. This also means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips.
22Having regard to the need to be vigilant in protecting the informer's privilege when drafting the Judicial Summary, the Crown argued that the proceedings regarding the content of the privileged information be made either in camera on an ex parte basis or, in the alternative, via written submission in sealed envelopes.
23The Defence agreed with, and I approved of, ex parte and in camera proceedings; that is, all members of the public, as well as the defendant and his counsel were excluded from the courtroom. I issued an order sealing the relevant court record.
24I examined both the edited and unedited versions of the ITO in conjunction with the draft Judicial Summary prepared by the Crown. I proposed changes to the summary and it was provided to Defence counsel. The latter asked for clarification about several points. Eventually a revised Judicial Summary was prepared and provided to the Defence. In addition, on consent, the Affiant filed a written statement in response to a Defence question and counsel abandoned her application to cross-examine him. All relevant records and documents were filed and some sealed.
The Judicial Summary
25The ITO contains 41 paragraphs and several appendices. There are two deletions to the 41 paragraphs. Both concern dates. There are 19 deletions to Appendix D. This document is one page in length and is heavily edited. All that Defence counsel knows about this appendix is that CHS-1 has provided information to police in a formal capacity in the past, has been proven reliable, provided certain information about the defendant, and did so for monetary gain. A Judicial Summary was prepared for all 21 instances of redacted material.
26For reference purposes, the redacted information is numbered in the edited ITO provided to both parties and me. Moreover, these reference numbers are also noted on a copy of the original unedited ITO available to Crown counsel and me. As a result, Defence counsel can link the Judicial Summary to the 21 redactions. I and Crown counsel can do the same, but also know the content of relevant excised material in each case.
27The Judicial Summary for the edited information in the paragraphs of the ITO is as follows (in quotation marks):
Redaction number 1 - Paragraph 7: "Information regarding the month when D.C. Thomson received information from CHS-1, which was in late 2015."
Redaction number 2 - Paragraph 12: "The date when D.C. Thomson provided information to the affiant, which was in late 2015."
28The Judicial Summary (in quotation marks) with respect to Appendix D is as follows:
Redaction number 3: "The means by which CHS-1 is familiar with the drug subculture".
Redaction number 4: "CHS-1 has provided police information in a formal capacity for several years. The month and year when CHS-1 began providing information is set out."
Redaction number 5: "CHS has proven reliable on 6 occasions."
Redaction number 6:" Information provided has resulted in multiple seizures of narcotics and 11 arrests."
Redaction number 7: "Those arrests were for 25 criminal offences."
Redaction number 8: "Those investigations spanned the past several years."
Redaction number 9: "Information regarding whether or not CHS-1 has a criminal record, the full nature and extent of any criminal record and specifically whether or not CHS-1 has any convictions for offences against the administration of justice."
Redaction number 10: "Information regarding the date when CHS-1 provided information, which was in late 2015."
Redaction number 11: "Information setting out that accused is known to CHS-1."
Redaction numbers 12-15: "These paragraphs address the source of the informant's knowledge, whether that knowledge is based on hearsay information, and details, including time and place, about the accused being in possession of a handgun and whether or not there is a known location where the handgun is stored."
Redaction number 16: "Information regarding the date when CHS-1 provided information, which was in late 2015."
Redaction numbers 17-21: "These paragraphs address the source of the informant's knowledge, whether that knowledge is based on hearsay information and details, including time and place, about the accused being in possession of a handgun."
29The written statement by the Affiant is as follows:
The Affiant was provided with background information of CHS-1 in regards to all prior occasions when police acted on information provided by CHS-1 and the result of those investigations, whether or not they led to seizures or arrests. Both positive and negative results form part of that background and are noted by the Affiant when drafting the ITO. In this case, if there were occasions in addition to the six specifically noted in Appendix D, where information provided by CHS-1 had not led to any successful arrests or charges, or was otherwise proven to be bogus or unreliable, that would have been specifically noted by the Affiant for the benefit of the issuing justice. In this case, there were no such occasions known to the Affiant where he CI had proven unreliable.
30The Court in Crevier (at paragraph 83) directed that the reviewing judge,
…. must be satisfied that the summary includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained. This means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot. The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege.
31I have compared the Judicial Summary with the copy of the unedited ITO. I am satisfied that it is a fair account of the redacted portions. I am also confident that the summary, along with the written statement by the Affiant, provides the Defence with a meaningful opportunity to advance the Charter challenge to the search warrant. In coming to this conclusion, I note that Crevier clarified that the Defence must be aware of the nature of the redacted material, not the details and I have considered the factors set out in paragraph 84 of that decision. They provide important guidance in assessing the sufficiency of a Judicial Summary.
Assessing the Validity of a Search Warrant Based on Confidential Information
32Defence counsel identified the additional portions of the ITO that must be deleted because the Crown does not seek to rely upon the information obtained from the search of the cell phone seized by police after the defendant's arrest. Counsel asserted that the redacted ITO with these additional deletions cannot support the issuance of the search warrant, even with the Judicial Summary. As such, it mounts to a "fishing expedition".
33The validity of the search warrant is grounded upon the information from CHS-1. The Defence submitted that when the source of information is an informant, the following principles apply: the reliability of the information is to be assessed in the totality of the circumstances, including; the degree of detail in the information, the source of the informer's knowledge, and indicia of reliability such as the past performance of the informer or confirmation of his information. Counsel also pointed out that the evidence obtained cannot be used to prove ex post facto that the information was reliable. I accept this as an accurate statement of the law.
34The classic statement of the applicable law is set out in R v Debot 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140. There are three factors that must be addressed in determining whether a search based upon confidential information meets minimum constitutional standards: First, was the information predicting the commission of a criminal offence compelling? Second, was the source credible? Finally, was the information corroborated by police investigation? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
35In submitting that CHS-1 is not reliable, the Defence noted that the police were not aware of the location of the handgun and required two search warrants in hopes of locating it. I do not come to that conclusion. The request to search two residences is linked to the impugned information police found on the cell phone records; that is, while the police had specific information from CHS-1 about the defendant, the cell phone search also revealed photographs of a gun in the possession of his female companion. The fact that the Crown cannot rely on that information to support the ITO does not mean I must ignore it in addressing an argument raised by counsel.
36The Defence did not strongly argue that the information in question is not compelling. However, counsel submitted that it is not corroborated and noted that it is not clear from the Judicial Summary if the information provided by CHS-1 is first hand or hearsay. Counsel fairly conceded that if it was first hand this would bolster the reasonable and probable grounds and argued that if it is hearsay, it undermines those grounds.
37The Crown submitted that the confidential information received by the police meets the criteria in Debot: It is compelling in that it includes specific information about the defendant's possession of a firearm that warranted police intervention. It is credible because it was reported to police by a person of proven reliability. It was corroborated by the police to the extent that the Affiant confirmed the address and vehicle associated with the defendant. Counsel added that it is not necessary that the police confirm confidential information about the illegal activity in question.
The Test on Review
38In Crevier the Court of Appeal noted (at paragraph 66) that:
The party challenging the validity of a warrant bears the onus of demonstrating it was not validly issued. Therefore, the issue on a Garofoli hearing is whether the minimum standard required for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search….
39The application of this standard means that "the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion". Thus, although the standard of reasonable and probable grounds is not as high as proof beyond a reasonable doubt, "[m]ere suspicion, conjecture, hypothesis or 'fishing expeditions' fall short of the minimally acceptable standard. R v. Sanchez (1994) 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), paragraph 31. However, "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued." R. v. Jacobson 2006 CanLII 12292 (ON CA), [2006] O.J. NO. 1527 (Ont. C.A.), paragraph 22.
40I am the reviewing justice for the search warrant in question. My role is different from that of the authorizing justice. The reviewing justice must examine the material that was before the issuing justice, as amplified on review, to determine whether there was any legitimate basis for the order: R v Arujo [2000] 2 S.C.R. No. 992
41My role as the reviewing judge is an important one. I must determine whether minimal constitutional standards have been met, including the Affiant's duty to make full, fair, and frank disclosure to the authorizing justice. This does not mean I second guess the opinion of that justice. This is made clear by the Court of Appeal for Ontario in R v Manders [2007] O.J. No. 757 at paragraph 11:
The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge's opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked.
42In fulfilling my role, I am restricted in my ability to consider the unredacted information. In Crevier it was held (at paragraphs 87 and 88) that:
The reviewing judge exercises a gatekeeping function and must ensure the judicial summary strikes the appropriate balance. To the extent that the summary makes the accused sufficiently aware of the nature of only some of the redacted information so as to be able challenge it in argument or by evidence, the judge should, when assessing the validity of the warrant, disregard those redacted portions the nature of which could not be summarized and provided to the accused.
Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant's issuance. The judge will consider the extent to which the accused's inability to directly challenge the redacted portions should affect the weight to be given to those portions…..in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.
Analysis of the ITO
43There can be no doubt that the original ITO justified the issuance of the search warrant in question. That is, the report by CHS-1, along with the cell phone pictures of a gun, establish the necessary reasonable and probable grounds to believe the defendant had committed the offences in question.
44The ITO, without reference to the cell phone records amounts to this: The police received information about the defendant from CHS-1. They confirmed the address and motor vehicle associated to him and also learned that he has a lengthy criminal record. The police conducted surveillance and found the defendant in the company of a woman. It is obvious that the sufficiency of the ITO depends on the information provided by CHS-1 and, in particular, how that is measured by the criteria enunciated in Debot and the related guidelines as set out in Crevier. In this regard, I note that there is no suggestion of a failure, by the Affiant, to make full, fair and frank disclosure.
45As already noted, I am of the view that the Judicial Summary in this case provides the Defence with the opportunity to meaningfully challenge the search warrant. Accordingly, I am comfortable relying on the unredacted ITO in determining the issues before me. I have considered Defence challenge and carefully reviewed the ITO, as amplified on the review, by the written statement of the Affiant.
46I find that there is reliable evidence that might reasonably be believed on the basis of which the issuing justice could have granted the warrant. This finding primarily rests on my conclusion that the information provided to police by CHS-1 is compelling and credible.
47CHS-1 provided is a specific account of serious criminal activity by the defendant. This account does not take the form of bald conclusory statements. The police and the issuing justice are entitled to treat the report as compelling.
48The ITO reveals a factual basis upon which the issuing justice could assess credibility of CHS-1, both in terms of a proven track record and also in terms of current motivation for providing the report. Over the course of several years, this person has provided information on six occasions leading to the arrests of 11 individuals for 25 offences and the seizure of contraband. Moreover, a confidential informant who seeks a consideration agreement with the police is less likely to make a false report than an anonymous tipster. The agreement and the resulting consequences if the information were to be found unreliable, constitute further indicia of credibility and reliability. See: R. v. Nascimento, 2014 ONSC 2379 (CanLII), [2014] O.J. No. 2470 (S.C.J.) at para 33. The conclusion that CHS-1 is credible rests on a solid foundation.
49It is not necessary for the police to corroborate each detail in the confidential information received or to confirm that actual criminal activity in question: See R v Caiseey [2008] 3 S.C.R. 481. The corroboration in this case is limited to an address and motor vehicle associated with the defendant. Confidence in the reliability of CHS-1 requires more than this. However, the fact that the defendant has a lengthy criminal record, including for drug trafficking and violence is of some significance in assessing what CHS-1 reported to the police and is a relevant factor at the investigatory stage to the issue of a reasonable search. The need for corroboration will be higher with respect to an informant whose credibility cannot be assessed or where fewer details are provided by that person. In this case, the limited confirmatory evidence is sufficient given the quality of the information received from CHS-1 and the reliability of that person.
50The present ITO discloses a legitimate basis upon which the search warrant could have been granted. Accordingly, I find that the defendant's Charter rights were not breached.
Charter of Rights and Freedoms, Section 24(2)
51In the event that I am wrong in finding that the ITO, without the cell phone information, is sufficient to support the issuance of the search warrant, I would have excluded the relevant evidence.
52Section 24(2) provides that,
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
53In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are obviously fact specific. The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. This may not be the case in a case where the admission of evidence is gathered through a violation committed in good faith. The second stage focuses on the impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. In this regard the spectrum includes intrusions that are fleeting or technical to those that profoundly affect bodily integrity and human dignity. The third inquiry considers the value of a trial on the merits. In this regard, the reliability of the evidence is important. R v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34 (CanLII), [2009] 2 S.C.R. 494.
54In dealing with the first branch of the test, I repeat that there is no suggestion of falsehood or negligence on the part of the Affiant. As such, I am also mindful that the very act of applying for a search warrant "is the antithesis of wilfull disregard of Charter rights": See R v Rocha 2012 ONCA 707 (CanLII), 112 O.R. (3d) 742. However, the police must be faulted for searching the cell phone in this case. I reject the Crown's suggestion that the law about cell phone searches was "murky". The phone was searched in December 2015. One year earlier, in December 2014, the Supreme Court of Canada issued its decision in R v Fearon 2014 SCC 77. At paragraph 83, the majority noted as follows:
To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
55The defendant, and a female companion, were arrested on charges of possession of controlled substances. They were not arrested with respect to gun or drug trafficking offences. In these circumstances there was no justification for searching the cell phone pursuant to the modified search incident to arrest powers set out by the Supreme Court. This, I assume, is why the Crown conceded the search to be unlawful. This is why the evidence yielded by the cell phone cannot be relied upon in assessing the present ITO. Much of what remains is the information from a confidential informant. If I am wrong in concluding that that information is sufficient to uphold the search warrant, this has special significance given that it applied to a dwelling house. This favours exclusion of the evidence.
56The defendant had a high expectation of privacy in his own residence. That privacy was compromised by an intrusive police search. The powerfully negative impact on the core of his privacy interests creates the risk that the admission of the fruits of the search could bring the administration of justice into disrepute. Accordingly, the second branch of the analysis favours exclusion of the evidence.
57Society's interest in the adjudication of a criminal trial on its merits would be seriously prejudiced if highly reliable and critical evidence, such as the firearm, ammunition and drugs, were excluded. Thus, the third branch of the analysis favours admission of the evidence. This, however, does not outweigh my findings with respect to the seriousness of the Charter infringing conduct and its impact on the defendant.
Result
58I find that the defendant's rights pursuant to sections 8 and 9 of the Charter were not infringed. If I am wrong in this conclusion, I would have excluded the evidence pursuant to section 24(2) of the Charter.
Released: September 15, 2016
Signed: "Justice J. De Filippis"