R. v. Prathipan Vigneswaralingam

2017 ONCJ 640

Court Information

Court: Ontario Court of Justice

Date: September 26, 2017

Oral Decision: September 20, 2017

Judge: M.S. Felix

Between:

Her Majesty the Queen

— And —

Prathipan Vigneswaralingam

Ruling: Charter Application

Heard: June 28, 29, 30, 2017; August 5, 2017; September 5, 2017

Counsel

Federal Prosecutor: J. Frost

Counsel for the Applicant: D. Midanik

Table of Contents

I. Introduction

II. The Charter Application – s. 8

III. The Review

IV. Section 24(2) of the Charter

I. Introduction

1Search warrants are an important tool used by the police in criminal law.

2Confidential human sources [CHS] are often relied upon by the police when seeking prior judicial authorization for a search warrant.

3Search warrant litigation often provokes a tension between competing considerations such as enforcement of criminal law, informant privilege, and full answer and defence.

4In this case, the police obtained prior judicial authorization to search the residence of the applicant. Illegal drugs and instruments associated with drug trafficking were seized.

5The affiant relied on CHS information to establish reasonable grounds. It is common today for most properly trained police affiants to prepare warrant applications with a "tear away" appendix (or appendices) detailing fulsome information concerning CHS. In this manner the CHS information is comprehensively addressed in an attached appendix in furtherance of the affiant's duty to provide full frank and fair disclosure to the issuing justice. Given the affiant has a positive duty to ensure that nothing that might serve to identify the CHS is revealed, it is often stipulated that disclosing the appendix would serve to identify the CHS. The affiant typically requests that the CHS appendix be sealed by court order for the purpose of preserving informant privilege.

6In preparation for trial, a prosecutor, in consultation with the police, will often seek an order unsealing the search warrant materials for the purposes of determining what – if any – information can be disclosed without violating CHS privilege. The search warrant materials including the ITO are typically provided as disclosure by the prosecutor subject to redactions in furtherance of the prosecutor's obligation to safeguard informant privilege.

7Where the ITO, standing on its own, is insufficient to support reasonable grounds, "Step Six" of Garofoli is available to permit the reviewing court to examine the entire record placed before the issuing justice by the affiant. Under this approach, the reviewing court is made aware of the entirety of the information provided by the affiant to the issuing justice. The reviewing court must balance the defendant's right to full answer and defence against informant privilege. Properly addressed, the "Step Six" process produces disclosure by way of a judicial summary. The judicial summary ensures that the defendant is sufficiently aware of the nature of the information provided to the issuing justice and permits a challenge to the warrant.

8Where "Step Six" is not invoked, the reviewing court is restricted to the "four corners" of the redacted search warrant application material including the redacted ITO. This means that the reviewing court does not have access to the entire record placed before the issuing justice including any appendices containing CHS information.

9The decision in this case turns on the interplay between "Step Six" and the review conducted by a court dealing with a Charter complainant.

10In this case "Step Six" was not invoked. This turned out to be a significant procedural decision.

11The affiant's assertion of reasonable grounds conveyed to the issuing justice was founded upon two significant components – police surveillance and CHS information. As "Step Six" was not utilized, the fulsome CHS information could not be evaluated on review.

12Without the CHS information, the affiant's grounds did not sufficiently address the statutory pre-conditions for issuance. The affiant's assertion of reasonable grounds was left without the support of the CHS information. Compounding this circumstance, was the finding that the affiant materially misrepresented certain facts and materially omitted other facts.

13Given the record presented, the warrant could not be sustained.

14It is an unwelcome and unsatisfactory circumstance to review an incomplete record. An independent issuing justice authorized the search in this case based on all of the information provided by the affiant. The warrant is presumptively lawful. This court, on review was required to examine the conduct of the affiant without access to the full record presented to the issuing justice.

15The applicant has established a breach of s. 8 of the Charter.

16Given the record presented, the redacted ITO did not establish the statutory prerequisites for issuance. I find that the affiant's recital in the redacted ITO did not establish reasonable grounds to believe that the asserted offences were occurring nor did it establish reasonable grounds that the items sought would be found within the applicant's residence.

17The applicant has established the requested remedy of exclusion of evidence pursuant to s. 24(2) of the Charter.

18Given the deficiencies identified in the ITO the long term repute of the criminal justice system was better served by the exclusion of evidence.

19The items seized pursuant to the search warrant are excluded.

II. The Charter Application – s. 8

A. Introduction

20In the early hours of April 15, 2016 members of the Durham Regional Police Service executed a search warrant on the applicant's residence at 1 Winterton Way in Ajax and seized illegal drugs and instruments associated with drug trafficking.

21The search warrant relied on CHS information and police surveillance of the applicant involved in several short meetings with suspected drug purchasers. The matter proceeded by "Garofoli application" in aid of an asserted breach of s.8 of the Charter of Rights and Freedoms: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No 115 (QL) (S.C.C.). In separate reasons the court granted leave to cross-examine the affiant subject to certain conditions and restrictions.

22The core assertion made by the applicant was that the affiant did not demonstrate the requisite reasonable grounds in support of a s.11 Controlled Drugs and Substances Act warrant. The applicant argued that the affiant lacked reasonable grounds to believe that he was involved in drug trafficking or that the items to be searched would be found within his residence. The applicant also argued that the affiant did not establish that he possessed sufficient background and experience to opine on drug-related investigatory observations in support of alleged drug trafficking. The applicant asserted that material misrepresentations and omissions marred the Information to Obtain (ITO). Finally, with respect to the execution of the warrant, the applicant alleged that he had been assaulted by police officers executing the warrant.

B. Procedural Considerations

23Both counsel to the applicant and the federal prosecutor agreed that the court's determination on the Charter application would drive the result in this case. If the evidence was excluded the prosecution was at an end. If the evidence was admitted there would be an agreed statement of facts and limited litigation concerning the quantity of illegal drugs seized.

24It was implicitly agreed that the applicant had standing. Leave to cross-examine the affiant was granted in a separate ruling. The central focus on the leave application around protection of informant privilege was attenuated by the applicant's stipulated focus on the affiant's reasonable grounds and the absence of reliance on "Step Six": R. v. Pires; Lising, 2005 SCC 66, at para. 3; and Garofoli, at para. 149.

25Counsel for the applicant scrupulously followed the court's ruling on leave and on occasion sought guidance or further leave from the court as the cross-examination evolved. At times the court granted leave to permit further cross-examination because the areas of expanded cross-examination presented no apparent risk to the CHS nor was the cross-examination prolix.

C. Applicant's Position

26The applicant asserted that the redacted ITO presented to the court was facially invalid and did not objectively support reasonable grounds.

27The applicant also launched a sub-facial attack submitting that once the court excised material misrepresentations and considered material omissions, the only conclusion available was that the affiant failed in his duty to provide fulsome disclosure to the issuing justice.

28The applicant particularized these deficiencies (and one issue concerning the manner in which the search was conducted) by developing the following arguments in written and oral submissions in support of the s.8 Charter complaint:

1. The affiant did not set out any specialized or particularized relevant drug investigation expertise in the ITO and as such where he concluded that surveillance depicted conduct consistent with drug trafficking these conclusions were not adequately supported by his generalized experience as a police officer;

2. There was no objective evidence of drug trafficking associated to the applicant in that there was no objective evidence of any hand-to-hand exchange or other behaviour from which it might be inferred that a drug transaction or transactions had occurred;

3. The affiant materially misrepresented the facts and materially omitted certain facts concerning the arrest of two persons leaving the applicant's residence after a suspected drug transaction (the "traffic stop");

4. The CHS information in the redacted ITO was deficient;

5. The affiant materially misrepresented the fact that there was no drug-related criminal record associated to the applicant; and,

6. During the execution of the search warrant the applicant was assaulted by the police officers and a dynamic entry was not warranted.

D. Respondent's Position

29The respondent contested the assertions with the following arguments:

1. The affiant possessed sufficient police experience to support the drug trafficking inferences;

2. The observations and conclusions asserted by the affiant were properly supportive of an inference that the applicant was engaged in drug trafficking;

3. The observations and conclusions asserted by the affiant concerning the "traffic stop" were supportable and reasonable;

4. The affiant did not misrepresent the applicant's criminal antecedents; and,

5. The applicant was not assaulted during the execution of the search warrant and the circumstances of the dynamic entry did not breach s.8 of the Charter.

E. Organization of this Judgment

30Prior to addressing the merits of the Charter application I will address the following issues:

1. The statutory pre-conditions of the warrant and affiant obligations;

2. The legal parameters of the Garofoli review; and,

3. The relevance of "Step Six" in considering the Charter application.

31After addressing these issues I will move on to address each of the arguments and my findings.

32Finally, I will address s. 24(2) of the Charter.

III. The Review

A. The Review: Statutory Pre-Conditions and Affiant Obligations

33The affiant, via tele-warrant, sought and received prior judicial authorization to search the residence associated to the applicant located at 1 Winterton Way in Ajax under the authority of s.11 of the Controlled Drugs and Substances Act.

34The affiant asserted that he possessed the requisite reasonable grounds to believe that the applicant had committed two CDSA offences: possession of a controlled substance and possession of a controlled substance for the purpose of trafficking. The affiant also asserted that he had reasonable grounds to believe that instruments associated with drug trafficking would be found within the residence. The objective was to search and seize a variety of drug trafficking instruments and in particular – cocaine and marijuana.

35The review implicitly requires consideration of the statutory preconditions for issuance. The affiant was required to satisfy the issuing justice that there were "reasonable grounds" (credibly based probability) that the applicant possessed illegal drugs and that he was engaged in drug trafficking: R. v. Amare, 2014 ONSC 4119 aff'd 2015 ONCA 673; R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.). The affiant was also required to demonstrate reasonable grounds to believe that evidence in relation to the offences would be found within the premises for which a search warrant was sought: R. v. Sadikov, 2014 ONCA 72.

36A reviewing court must be satisfied that the affiant honestly believed that: (1) the applicant was implicated in the offences; (2) what was sought constituted evidence of the offences; and (3) evidence would be found within the premises for which a search warrant was sought. The reviewing court must also be satisfied that the stated belief of the affiant is supported by information such that the subjectively held honest belief is objectively sustainable: R v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R 241 (S.C.C.).

37In evaluating reasonable grounds, the affiant's training and experience as a police officer must be considered. As a result, the analysis requires the reviewing court to consider whether a reasonable person, standing in the affiant's shoes and imbued with the affiant's training and experience would have come to the same conclusion: R. v. Mackenzie, 2013 SCC 50, at paras. 62-63.

38Finally, given the ex parte nature of the application, it is axiomatic that the affiant had an obligation to fully, frankly, and fairly outline material information in the ITO presented to the issuing justice.

B. The Review: Legal Parameters

39The parameters of the review were succinctly outlined by the Supreme Court of Canada in R. v. Campbell, 2011 SCC 32, at para. 14:

The relevant legal principles are not at issue in this appeal. Juriansz J.A. correctly followed the approach to reviewing the sufficiency of a warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is "not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize the warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131).

40Mr. Justice Casey Hill of the Ontario Superior Court of Justice comprehensively summarized the relevant legal guidance on the core review function in R. v. Persaud, 2016 ONSC 8110, at paragraph 64:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Hafizi, 2016 ONCA 933 (Ont. C.A.), at para. 43; R. v. Campbell, 2010 ONCA 588 (Ont. C.A.), at para. 45 (aff'd 2011 SCC 32 (S.C.C.)); R. v. Crevier, 2015 ONCA 619 (Ont. C.A.), at paras. 66, 74.

(2) The review takes a practical, common sense approach to all the circumstances (R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253 (S.C.C.), at para. 129), considering the narrative of the ITO contextually without piecemeal dissection: Hafizi, at paras. 49-50, 56; R. v. Sadikov, 2014 ONCA 72 (Ont. C.A.), at para. 87.

(3) "[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application": R. v. Nguyen, 2011 ONCA 465 (Ont. C.A.), at para. 57.

(4) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (Ont. S.C.J.), at para. 135 (aff'd 2014 ONCA 364 (Ont. C.A.)):

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant, 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543; R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.

(5) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Lubell v. R., 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Green, 2015 ONCA 579 (Ont. C.A.), at para. 18; R. v. Durling, 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S. C.A.), at para. 19; R. v. Sanchez, 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at p. 364; Chapman v. R., 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(6) That said, as observed by Fish J. in Morelli, at para. 167, police officers "should draft ITOs as precisely and clearly as possible".

(7) It will not be surprising that an ITO will have some flaws — "[f]ew applications are perfect": Nguyen, at para. 58. The question remains whether, following any amplification and/or excision, the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(8) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief — the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": Société Radio-Canada c. Nouveau-Brunswick (Procureur général), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo, 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling, 2009 BCCA 70 (CanLII), 241 C.C.C. (3d) 409 (B.C. C.A.), at para. 43.

1. The Review: Excision

41As stipulated in Garofoli: "... the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant ... their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.": Garofoli, at para. 56; See also Procureur général c. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097 (S.C.C.).

42Where the review court determines that information provided by the affiant to the issuing justice in the ITO was false, misleading, erroneous, unsupportable, or obtained by virtue of constitutionally violative conduct, the only remedy is excision. There is no authority to excise true or correct information: R. v. Araujo, 2000 SCC 65, at paras. 54-58; R. v. Ebanks, 2009 ONCA 851, at para. 28; and Morris.

43Excision does not result in the automatic vitiation of the search warrant. That the court engages in excision does not mean that the statutory preconditions for issuance were absent: Pires; Lising, at para. 30. After excision and amplification the reviewing court must still go on to determine whether the issuing justice could have issued the warrant.

2. The Review: Amplification

44The sole function of amplification is to cure minor or technical, errors made by the affiant in the ITO placed upon a bedrock finding of good faith. Amplification is not means by which a reviewing court retroactively authorizes a search. As explained by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, at paras. 41-43:

41 ....Furthermore, the reviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

42 It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59).

43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith made" such errors (para 59). In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59).

45Further, in Araujo, at para. 59 Justice Lebel said:

59 When using amplification courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension ... The danger in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization requirement is fundamental to the protection of everyone's privacy interest amplification can go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand to refuse amplification would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in drafting their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds at the time of the application ... in considering the jurisprudence on amplification.

46Finally, amplification is not available to augment the review record by providing evidence not known to the police at the time the ITO was sworn nor can it be used to rebut or cure serious flaws in the ITO: Morelli, at paras. 43, 74; Quebec (Attorney General) v. Laroche, 2002 SCC 72, at para. 68; R. v. Ting, 2016 ONCA 57, at paras. 63-73; and Persaud, para. 106.

3. "Step Six" in Garofoli

47This application was litigated based on a photocopy of the redacted ITO.

48The applicant did not seek judicial summaries of material redacted by the prosecutor pursuant to "Step Two" of Garofoli. Significantly, the prosecution did not seek to invoke "Step Six" of Garofoli.

49The fact that "Step Six" was not invoked placed this reviewing court in a challenging position. As explained by R.G. Juriansz J.A. in concurring reasons in R. v. Rocha, 2012 ONCA 707, at paragraphs 48–58:

48 This case is not unique. It is not at all uncommon that the question of whether the warrant should have been issued is decided on the basis of a redacted ITO. Deciding whether the warrant should have been issued on the basis of a redacted ITO has several disadvantages.

49 Reviewing a judicial decision without the complete record that was before the decision maker seems inimical to the appellate process. That the court reviews an issuing justice's decision to authorize a search without looking at all the information before the justice may make the process of review appear somewhat artificial to the ordinary citizen. The ordinary citizen might think there are two standards for assessing a search warrant: one for deciding whether a search warrant should be issued, and another for deciding, after the fact, whether the search warrant should have been issued.

50 The process unfairly reflects on the work of the issuing justice and the police. The police may include sufficient credible and reliable information in the ITO and the issuing justice may authorize the warrant on the basis of that information, only to have the reviewing court decide, on the basis of an incomplete ITO, the warrant should not have been issued. Without the redactions for context, the reviewing court may even find some of the statements made by the drafting police officer in the ITO to be groundless or even misleading.

51 There is reason to believe that, in many cases, the information excised from the ITO may well be the most pertinent. An informant who can be easily identified by the accused is more likely to be able to provide detailed and reliable information about the accused's activities.

52 Finally, there is a great waste of resources. The work of the police in gathering information to support a search, drafting a compelling ITO and then executing the search is wasted when the warrant is set aside on the basis of a redacted ITO. In some cases, a preliminary inquiry or even a jury trial may have taken place before the warrant is set aside on the basis of a redacted ITO.

53 On the other hand, allowing a reviewing court to make a decision to uphold a warrant on the basis of information not made available to the accused in a criminal proceeding is an anathema to the principles governing the criminal justice process. Hence this is a dilemma.

54 Code J., in thoughtful reasons in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 107, remarked that it is unfortunate that the procedure in "step six" in Garofoli is the only legal mechanism available to resolve the dilemma created by the competing demands of the Crown's obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants. Yet, he observed, the mechanism "is simply not being tried or tested."

55 The procedure based on "step six" in Garofoli permits the Crown to apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with "a judicial summary of the excised material" to attempt to ensure "the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence": Garofoli, at p. 1461.

56 It is difficult to understand why the Crown does not request the court to employ "step six" of Garofoli more frequently. There may be many cases in which the Crown considers the redacted information to be inconsequential, but there must be cases in which the information is significant. In such cases, there can be no advantage to the Crown in defending the issuance of a warrant on less than all the information that supports it. It may be that the Crown believes that any summary of the redacted information whatsoever will risk betraying the confidential informant's identity. Judges too may be reluctant to prepare judicial summaries of the excised material lest they unwittingly betray the identity of the informant.

57 Perhaps because of such concerns, the Supreme Court of Canada crafted the last element of the "step six" procedure. Where the Crown is dissatisfied with the judicial summary the judge proposes to provide to the accused, it can decline to rely on the excised information to support the search warrant.

58 The Crown in this case did not request the trial judge to consider the excised information. And this court has found there was insufficient information in the ITO to support the issuance of the warrant to search the respondent's home, without considering all the information upon which the warrant was issued in the first place. [Emphasis added]

50The delicate balancing associated with "Step Six" was further explained by the Ontario Court of Appeal in R. v. Crevier, 2015 ONCA 619, at paragraphs 41–47:

(1) The Garofoli step six procedure

41 In Garofoli, in the context of a challenge to a wiretap authorization, Sopinka J. set out a non-exclusive and non-exhaustive procedure to be followed when editing the materials in the sealed packet containing the affidavits on which the authorization was granted. This procedure has been determined to also apply to search warrants: see e.g. R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346, at para. 15; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742. Although the six steps were set out earlier in these reasons, I will repeat steps five and six here for convenience. They are as follows:

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. 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.

42 When applying the sixth step, the objective is a balancing of conflicting interests. On the one hand are the interests of law enforcement and the protection of informers, and on the other is the accused's right to make full answer and defence: see Garofoli, at p. 1458. Step six 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. Step six provides the Crown with another option where it would otherwise have to concede a s. 8 breach because the warrant's ITO, after redactions are made to protect a confidential informer's identity, does not disclose reasonable and probable grounds.

44 Society has a strong interest in effective crime detection, gathering of evidence, and apprehension and conviction of criminals. Search warrants help accomplish these goals. They are tools of efficient and effective law enforcement, and thus enhance public protection. They are "weapon[s] in society's never-ending fight against crime": see Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at pp. 180, 184. Therefore, it is important that where the information on which warrants are obtained is sufficient to support them, these properly-issued warrants survive later review by courts. Where proper procedure was followed, and the statutory requirements for issuing a warrant were met, courts should not later interfere.

45 The Garofoli hearing is a process that assists in this respect. Step six of the process allows the court to meaningfully assess the ITO as it was prepared by the affiant and presented to the authorizing judicial officer, without redaction, in order to determine the accused's claim that it did not meet the statutory requirement of reasonable and probable grounds for the issuance of a warrant.

46 When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though it very well could have issued based on the complete picture that was before the issuing justice. The affiant police officer may have carefully prepared a detailed and thorough ITO that met the statutory requirements, setting out reasonable and probable grounds for the search and addressing the three Debot criteria for assessing the reliability of informer tips. But the search will nonetheless be found to have violated the accused's Charter rights because the reviewing court is prevented from relying on the redacted portions of the ITO. Similarly, the issuing justice may have carefully assessed the sufficiency of the ITO before authorizing the issuance of the warrant and correctly concluded that the ITO was adequate, but will nonetheless be found to have erred because the reviewing court cannot rely on the redacted portions of the ITO. See Rocha, at paras. 49-50.

47 Provided the accused's right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, be found inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many search warrants and the interest of law enforcement. [Emphasis added]

51The "Step Six" issue had a significant impact on the ultimate finding in this case. The observations made by the Ontario Court of Appeal in Rocha and Crevier set out above need not be repeated. The ultimate decision in this application was driven by the approach to the application record placed before this reviewing court.

52It would appear that the relevant jurisprudence places the "Step Six" tool solely in the hands of the prosecution: Garofoli, para. 79; R. v. Learning, 2010 ONSC 3816, at para. 96; and Rocha, at paras. 55–58. As the "Step Six" procedure was not used, the record is strictly limited to the evidence on the application and the redacted ITO without resort to the appendix (or appendices) containing further information about the CHS.

53I recognize that this approach does not do justice to the affiant on this case. He presented an ITO that included an additional appendix or appendices to the issuing justice. The affiant is required to protect informant privilege. It appears that he took reasonable and proper steps to ensure that information that might serve to identify the CHS was identified and protected from disclosure.

54I recognize that this approach also does not do justice to the issuing justice in this case. The issuing justice presumably acted judicially in permitting a search based on the ITO and any additional appendix or appendices. As the reviewing court, I do not have the same record that was placed before the issuing justice.

55I wish to emphasize that I have no doubt that the experienced and well-prepared federal prosecutor had reasons for not relying on "Step Six". It is not this court's function to inquire into the prosecutor's approach, question the approach, or attempt to rationalize the approach. Given the prosecutor's obligation to preserve informant privilege one can speculatively contemplate several scenarios that would cause the prosecutor to refrain from invoking "Step Six". As such, where there is a reference to the "Step Six" procedure in this judgment in no way should those references be interpreted as direct criticism of the prosecutor in this case. I have an obligation to clearly explain the decision in this case. That duty requires examination of the fallout associated with the decision not to invoke "Step Six".

56As I will outline further in this judgment, the absence of reliance upon "Step Six" had a two significant and inescapable impacts. First, the redacted ITO did not establish the statutory preconditions for issuance. This observation is reliant on a speculative value attributed to the CHS. But, if the issuing justice was satisfied by the combination of the affiant's evidence in the ITO and the CHS it is a least possible that a reviewing court would be satisfied as well. Second, CHS information was not available to augment the evidence of the affiant both contained within the redacted ITO and viva voce on the application.

57It is for these reasons that the findings in this case are strictly limited to the particular record and circumstances produced on this application.

C. The s. 8 Charter Arguments

58Counsel for the applicant argued that the redacted ITO was deficient on its face. Counsel also submitted that when the evidence on the application was considered, the conclusion was even clearer. This was articulated by way of several sub-facial defects arising from the affiant's material omissions and material misrepresentations including: (1) the affiant lacked relevant drug investigation experience; (2) there was no objective evidence of drug trafficking; and (3) the CHS information was deficient.

1. Did the affiant possess relevant drug investigation experience as foundational support for inferences urged upon the issuing justice?

59The applicant argues that the affiant did not set out any relevant expertise in drug investigations. It is submitted that his experience as a police officer was an insufficient foundation in support of the various inferences he urged upon the issuing justice in the ITO.

60The affiant outlined the following information in paragraph 1 of the ITO:

• That he was presently employed by Durham Regional Police Service
• That he was a police constable.
• That he was assigned to the West division Target team.
• That during his tenure as a police officer he has been involved in numerous drug investigations.
• As a result of those investigations he is familiar with the appearance, odour, packaging, and the sale of illegal drugs.
• That he was an involved investigating police officer in this case.

61At certain points in the ITO, the affiant asserted inferences of drug trafficking based on his experience. The applicant argues that this was insufficient foundation for those inferences.

a) Inferences in support of identity

62The inferences relied upon by the affiant to establish the identity of "TPAN" were not challenged. Those inferences are reasonable and objectively sustainable upon review and do not depend on any drug trafficking investigative experience.

63That the CHS information pointed to the applicant in this case was not significantly litigated or challenged in the application. After paragraph 11 and 12 where he sets out the CHS information and what inferences he drew from corroborative police checks the affiant attested to the following:

Affiant Note: I believe the drug trafficker identified by the CHS as "TPAN" is in fact Prathipan VIGNESWARALINGHAM, with a date of birth 1991 October 20. This believe is supported by the fact that Prathipan can be abbreviated to sound like "TPAN" and the information provided in 9(b) corroborates with the information provided by the CHS that "TPAN'S" phone number was (416) 844-9333.

64The reference to paragraph 9(b) is evidently a reference to the phone number in paragraph 11(b). To the degree I must use amplification, I would correct this minor error notwithstanding the objection submitted by counsel for the applicant. Even if amplification was not utilized, I am satisfied that the issuing justice could have connected to the correct paragraph as easily as this reviewing court did as the information is otherwise sourced in the ITO.

65My finding that inferences related to identity need not rely on the prosecution's written submission that the CHS "directed" the police to the applicant's residence. This conclusion is not reasonably apparent from paragraph 12(a) of the redacted ITO. It was not apparent from the viva voce evidence on the application. In effect, the prosecution submission disclosed a piece of CHS information that was previously redacted.

b) Surveillance: March 4, 2016

66On March 4, 2016 police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 17 of the ITO):

• At 1900 HRS a vehicle was observed idling in the driveway.
• At 1901 HRS an unknown male got out of the front passenger seat of the vehicle and entered 1 Winterton way.
• At 1903 HRS the unknown male returned to the vehicle and the vehicle left.

67On March 4, 2016 the affiant was part of a team of officers observing 1 Winterton Way. He testified that there was no observation of the applicant, no information that he was present at the address, nor any suggestion of any drug trafficking on that day.

68During cross-examination the affiant explained that the applicant was in fact present this day and left the residence shortly after 1903HRS. He testified that he had a police note concerning this point but conceded it was not within the ITO and provided no explanation for its absence.

69I will not amplify the record to include this fact. First of all, in response to the Garofoli application question on this exact point (whether the applicant was present on March 4, 2016) the prosecution contested leave and submitted that the review record concerning observations on March 4, 2016 was limited to the redacted ITO. Second, this was a fact available to the affiant prior to preparing the ITO. Third, there was no proffered explanation for the failure to include this piece of information to provide a reviewing court with foundational jurisdiction to consider amplification. As such the only piece of information received concerning this apparent oversight was that it was information personally known by the affiant at the time he prepared the ITO. In these circumstances, amplification is not available.

c) Surveillance: April 1, 2016

70On April 1, 2016 police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 18 of the ITO):

• At 1630 HRS a truck was parked in the driveway
• At 1632 HRS the applicant came out of 1 Winterton Way and leaned in to the front passenger door of the truck hunched over the passenger seat
• At 1633 HRS the applicant closed the front passenger door
• At 1634 HRS the truck left the premises

71The affiant noted at this point that the registered owner of the truck was a person ". . . on file as an accused for numerous drug related offences, including a criminal history for unauthorized possession of a firearm . . . ."

d) Surveillance: April 2, 2016

72On April 2, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 19 of the ITO):

• At 1530 HRS a Honda Civic vehicle parked in the driveway.
• At 1531 HRS an unknown male got out of the vehicle holding a cellphone to his ear and entered the residence.
• At 1534 HRS the unknown male returned to his vehicle.
• At 15:35 HRS the vehicle left the driveway.
• At 1710 HRS the applicant came out of his residence and walked northbound.
• The view of the applicant was obstructed however he was observed leaning forward consistent with bending over into a car window.
• At 1712 HRS the applicant walked back to his residence.
• At 1712 HRS a Toyota Yaris vehicle left the area with two occupants.

73After describing these observations in paragraph 19 of the ITO the affiant attested to the following:

Affiant Note: Based on my experience as a drug investigator, the types of behaviour exhibited in paragraph 19(a) through 19(j) are indicative of drug trafficking. Customers will meet with their drug dealers for short periods of time, limiting their interaction with another.

e) Surveillance: April 8, 2016

74On April 8, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 20 of the ITO):

• At 1538HRS a male walked up and let himself into 1 Winterton Way through the front door.
• At 1548 HRS the same male left the residence with his hands in his pocket.

75The affiant then attested to the following:

Affiant Note: I recognize the behavior exhibited in paragraphs 20(a) and 20(b) to be indicative of drug trafficking. A drug dealer who has frequent pedestrian and vehicular traffic at their residence will meet customers within their homes to conduct brief transactions out of the public eye.

76The police then made further observations on this date described in paragraph 20(c) to 20(f) of the ITO:

• At 1710 HRS a white sedan arrived and parked in the driveway of 1 Winterton Way.
• A male got out of the passenger seat with a black bag and let himself into the front door of the residence.
• The sedan drove away.
• At 1718 HRS the applicant came out of his residence and walked up the street in the same direction the white sedan went.
• At 1719 HRS the applicant came back to his residence.
• At 1720 the same white sedan drove way.

77The affiant then attested to the following:

Affiant Note: Based on my experience as a drug investigator, I recognize the type of behaviour listed in paragraph 20(d) and 20(e) as a drug transaction. I am familiar with this type of behaviour as it is common and consistent with drug dealers who wish to draw attention away from their residence from visiting customers.

78At 1805 HRS the applicant and the same male who arrived at 1710 HRS came out on the porch. Each male smoked their own cigarette. They also passed a marijuana joint between each other.

79The affiant concluded based on this observation that the applicant had access to illegal marijuana as the affiant checked with Health Canada and did not find him registered with a valid medical exception.

f) Surveillance: April 13, 2016

80On April 13, 2016 the police conducted surveillance at 1 Winterton Way and made the following observations (see paragraph 21 of the ITO):

• At 1515 HRS a white Chevrolet parked in the driveway.
• The same male who attended on April 8 (paragraph 20(c) of the ITO) knocked on the front door and was let into the residence.
• 1534 HRS the male and the applicant went onto the porch of the residence.
• The male visitor lit a marijuana joint and smoked it with the applicant.
• At 1601 HRS the two individuals left in a vehicle that arrived to pick them up.

g) Surveillance: April 14, 2016

81After describing the circumstances surrounding a traffic stop and arrest of the occupants of a vehicle that left the applicant's residence in paragraph 22 of the ITO the affiant attested to the following:

Affiant Note: Based on my experience as a drug investigator, powdered cocaine can readily and quickly be disposed of. Although cocaine was not located, marihuana and remaining empty drug packaging were located by investigators. When investigators initiated the traffic stop with a police vehicle outfitted with emergency lights, the tinted BMW continued to drive southbound on Ravenscroft Road for approximately 500 meters. This delay in pulling over is recognized as a tactic to afford time for the occupants to dispose of drugs.

h) Conclusion: Inferences of drug trafficking drawn by the affiant

82The entirety of affiant's expertise or experience is outlined in paragraph 1 of the ITO. I am satisfied that he possessed relevant experience as a police officer to provide evidence concerning the appearance, odour, and packaging of illegal drugs. What was unclear from the ITO is his relevant experience in investigating drug trafficking and the habits of drug traffickers.

83The affiant did not provide a detailed outline of his relevant experience as a police officer. He did not outline relevant courses or training in the area of drug investigations. He did not say how long he had been a police officer. He did not set out any generalized exposure to drug investigations. He did not mention how long he has worked in a specialized area of drug investigation. He did not explain what the "West Division Target Team" was or if it is indeed a specialized unit.

84In my respectful view, the issuing justice could have equally rejected or accepted the asserted inferences suggestive of the applicant's drug trafficking. To be clear – the affiant was not required to establish status as an expert opinion witness on the subject. But mere conclusory statements as to relevant experience may or may not satisfy an issuing justice: See for example R. v. Ward, 2012 ONCA 660, at paras. 114-116.

85The narrow question for a reviewing court is whether the issuing justice could have accepted the inferences drawn by the affiant. I am satisfied that it was at least open to the issuing justice to accept the affiant's conclusory statements asserting relevant drug investigation experience without explicit foundational support. The issuing justice was entitled to consider the experience, training, and asserted inferences asserted by the affiant: R. v. Ngo, 2011 ONSC 6766, at para. 35; R. v. Andrade, 2014 ONSC 2955.

86There is no evidence that the affiant misled the issuing justice concerning his relevant experience. The evidence on the application makes it clear that in fact the affiant had relevant experience in drug trafficking investigations. That the affiant's background was not detailed in the ITO, even in a summary way, is not a minor oversight or error for which amplification is available to cure.

87That the issuing justice could rely on the affiant's assertions concerning drug trafficking is only part of the analysis. The affiant's asserted inferences must still stand up as supportive of reasonable grounds to believe the applicant was engaged drug trafficking and that evidence would be found in his residence.

2. Was there objective evidence of drug trafficking?

88The applicant argues that even if the court finds that the affiant honestly held a subjective belief that the applicant was engaged in drug trafficking, those subjective beliefs are not sustainable upon (objective) review by this court.

89I agree. I will analyze the following three issues to explain my reasoning:

1. Whether the affiant's opinion that the short meetings were consistent with drug trafficking is objectively sustainable in support of reasonable grounds;

2. Whether traffic stop associated with the arrest of two purported purchasers of illegal drugs from the applicant is probative of drug trafficking; and,

3. Whether the CHS information documented in the redacted ITO is compelling, credible, and corroborated per R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.J. No 118 (Q.L.)(S.C.C.).

a) Short meetings consistent with drug trafficking

90I find that the affiant subjectively believed that the circumstances he detailed in the ITO concerning short meetings constituted evidence of trafficking. Some of the subjective views of the affiant are vulnerable upon objective review. There are several reasons for this finding.

(1) The Surveillance Record

91First, the surveillance record in this case is limited to a degree. At times in these sorts of drug investigations police surveillance documents several short meetings during observed time-frames. The surveillance evidence in this case documented 6 periods of observations circumstances over approximately 6 weeks where the affiant believed drug transactions occurred. The police observations totaled approximately 10 hours overall. This amounted to direct observations of the applicant approximately nine times during five of the six period of observations (March 4, 2016 the applicant was not seen during the timeframe of the short meetings but at some time later that was not specified in the ITO or during testimony). This surveillance record is placed in the context of a few other meetings where the police were able to conclude that the meets were not drug transactions.

92I am satisfied that the affiant did not attempt to mislead the issuing justice by leaving out so-called "innocent" meetings as submitted by the applicant. The crux of this area of submissions from the applicant was that the affiant displayed tunnel vision by providing a narrow set of meetings at the applicant's residence that coincided with his subjective view that the applicant was a drug trafficker. The affiant did not include or reference a body of innocent attendances. The applicant argues this was for the purpose of presenting a biased view to the issuing justice.

93I do not accept the applicant's argument that the affiant materially omitted certain "innocent meetings" and thereby failed to provide necessary context to the issuing justice. I accept the affiant's explanation provided during his testimony that his guiding measure was relevance.

(2) There were no observed drug transactions

94In my view, the fact that no actual hand-to-hand drug transactions were observed by any police officers is a relevant factor when assessing the overall strength of the reasonable grounds presented.

95While I acknowledge that the police need not actually observe the commission of the crime (See Rocha, at para. 22.), it is still significant that the police never observed any hand-to-hand transactions.

96The affiant acknowledged this fact yet still maintained that he possessed a basis for believing that drugs would be found within the residence given his generalized experience (i.e. not specific to the applicant) that drug dealers maintain their drugs at an accessible nearby location.

(3) The police did not observe the applicant in possession of illegal drugs

97The police did not observe the applicant in possession of illegal drugs such that it was reasonable to suggest that marijuana would be found within his residence. I acknowledge that police observed the applicant share a marijuana cigarette on his porch on one occasion. It is also true that the police observed another person share a marijuana cigarette with the applicant on a second occasion. The source of the marijuana is not apparent from the redacted ITO.

98I reject the prosecution submission that simple possession of an admittedly illegal marijuana joint provides grounds to search a residence in the circumstances of this case. I concede that there might be a factual circumstance where this fact could convey grounds or augment other grounds. But, strictly considering the record on this application, I find it objectively unreasonable to conclude that because someone smokes a marijuana joint on their front porch (with no information as to sourcing of the marijuana) there are reasonable grounds to believe that they are in possession of further quantities of marijuana within their residence or that they are trafficking in marijuana.

99It might very well be that the affiant's conclusion in this regard was augmented by CHS information placed before the issuing justice. I am required to make my finding on the record placed before me. I do not believe that an issuing justice, acting judicially, could have found this expressed basis sufficient to sustain reasonable grounds to believe that marijuana was inside the residence.

b) The traffic stop and "takedown" on April 14, 2016

100A significant part of the ITO concerns the circumstances of the arrest of two persons who left the applicant's residence (See paragraph 22 of the ITO). On April 14, 2016 the police observed the attendance of a vehicle to 1 Winterton Way with a male driver and female passenger. The applicant admitted the male driver to the residence. The male driver then exited the residence and appeared to have something in his coat pocket. He appeared to retrieve something from the vehicle and return to the residence. Minutes later the male returned to the driver's seat of the vehicle. The police (reasonably in my view) thought that this could be a short meet consistent with a drug-related transition. A few minutes later the vehicle was stopped and the occupants arrested for possession of a controlled substance.

101The affiant informed the issuing justice that search incidental to arrest revealed "two marijuana roaches" in the vehicle and the female passenger had 6 empty "baggies" commonly used in the sale of powdered cocaine. The affiant asserted, based on his experience as a drug investigator, that powdered cocaine was can be quickly disposed of and that the vehicle when engaged by the police continued to drive for 500 meters before stopping. This was described as a tactic to permit the occupants to dispose of drugs.

102As the reviewing court I am obliged to form conclusions based strictly on the record before me, but I am not required to ignore context or my relevant experience as a trial judge addressing criminal cases in Durham on a daily basis or my experience as an issuing justice reviewing similar applications.

103Put into context, in these warrant applications it is often the case that the police will arrest a potential purchaser leaving the premises of an alleged drug trafficker. This is sensible. If the persons in fact purchased drugs from the target of the investigation or from the target address this is excellent potential corroboration of other reasonable grounds gleaned from the investigation. Frankly, the simple fact that a potential purchaser was found in possession of drugs shortly after leaving the target residence is at times probative on its own. Other times the police obtain a statement from the confirmed purchaser. In such situations reasonable grounds are augmented by this occurrence.

104In this case, the affiant conveyed to the issuing justice his belief that the occupants of the vehicle had completed a drug transaction with the applicant just prior to the traffic stop. He also conveyed his opinion that the empty plastic baggies and marijuana roaches were connected to the applicant's drug trafficking. This was important information and I am convinced that an issuing justice would have relied significantly on this area of the ITO.

105I find that some important information was omitted from the ITO. I also find that other material information was presented in a misleading fashion.

106The affiant was one of the officers involved in the traffic stop of this vehicle. He was privy to material information that he did not include in the ITO including the following:

• The affiant did not note in his police notes or independently recall an odour of marijuana emanating from the vehicle or anyone after the traffic stop.
• The marijuana "roaches" were in the ashtray.
• The affiant did not see any behaviour associated with the consumption of marijuana or cocaine during the short time frame between leaving 1 Winterton Way and the traffic stop.
• The affiant did not see any behaviour associated with the disposal of marijuana or cocaine during the short time-frame between leaving 1 Winterton Way and the traffic stop.
• The affiant was aware that the operator of the vehicle was a prohibited driver for life and, significantly, his personal experience as a police officer supported that fact as a possible or available explanation for the delay in the vehicle coming to a stop.
• There were no admissions gleaned from the occupants of the vehicle that they had purchased drugs from the applicant or at the applicant's residence.
• The "six empty powdered cocaine baggies" [paragraph 45 of the ITO] were located in the bra of the female passenger of the vehicle.
• The six empty plastic baggies did not even contain residue or whitish powder associated with the affiant's belief that they had previously contained powdered cocaine.

107An affiant is not required to relate every detail in an ITO. A reviewing court must temper the benefit of hindsight and refrain from focusing on the minutiae. But these omissions were important.

108A reviewing court must emphasize and underline the responsibility of the affiant on an ex parte application. The affiant must include all material facts and is not permitted to assemble only certain selected facts in order to present a selective view.

109The affiant testified on the application that it was possible that the marijuana roaches were referable to the applicant and his residence as it was possible that they were purchased from the applicant. Further, it was likely that the roaches emanated from the applicant because of the CHS information received that he was trafficking in drugs and that this trafficking was not just limited to cocaine: Even accepting that the affiant believed this, the record before me does not reasonably or objectively support that belief.

110First of all, there is little chance that the two occupants of the vehicle consumed two marijuana cigarettes during the minutes prior to the traffic stop such that they were dormant roaches by the time of police interdiction. If the police believed that the roaches were referable to the applicant, their actions after execution of the search warrant does not support this because they never seized the roaches and sent them to Health Canada for analysis. Second, I was not assisted by the testimony of the affiant concerning the presence or absence of an odour of marijuana associated with the vehicle or its occupants when it was stopped. The affiant did not have an independent recollection. He consulted his notes for many minutes. He did not concede that had they been an odour he would have noted that important circumstance. Finally, it seems more probable than not that there would be an odour of marijuana present during the traffic stop if the occupants of the vehicle were truly consuming marijuana so shortly after having purchased marijuana from the applicant as the affiant asserted. In this area of questioning the affiant was somewhat evasive and would not acknowledge that it was unlikely that the occupants consumed marijuana roaches during the short duration of the drive.

111The affiant conveyed to the issuing justice that there were "6 empty powdered cocaine baggies" found in the vehicle and that these (and the marijuana roaches) were the product of a drug transaction with the applicant at his residence. Even if the affiant believed this, this conclusion is not reasonably or objectively supportable. The important detail is that the empty baggies were found in the passenger's bra. It is unlikely that the passenger would have emptied 6 bags of powdered cocaine contents and then secured the pristinely empty bags in her bra within a few minutes of leaving the residence. In the 500 meters it took to stop upon police interdiction there was no evidence of the occupants disposing of these drugs. There was no cocaine residue in the car. It also seems unlikely that the passenger disposed of a large volume of cocaine by eating the product. If the passenger was interested in disposing of drugs one would have expected her to throw the whole bags out the window rather than meticulously dispose of the contents and preserve the baggies securing them in her bra. The affiant reasonably agreed with all of these suggestions and more during cross-examination. He nevertheless maintained confidence in these grounds.

112Neither party in the traffic stop gave a statement or made any admissions related to the applicant.

113I find that when I consider this fuller context with the additional facts, the asserted significance of the traffic stop is significantly weakened: Morelli, at para. 60; Araujo, at para 57. As such, the affiant's conclusion that "[a]lthough cocaine was not located, marihuana and remaining drug packaging were located . . . ." in the affiant note after paragraph 22(i) of the ITO is materially misleading.

114Furthermore, in paragraph 45 of the ITO the affiant concluded that:

Investigators have arrested a male and female after an illegal drug transaction with VIGNESWARALINGAM. They were found to be in possession of marihuana roaches and six empty powdered cocaine baggies.

115This subjectively held view is misleading and not objectively sustainable.

116The stark conclusion is that the police sought to arrest a potential purchaser of drugs upon his egress from the applicant's residence. This is understandable because a seizure of drugs or an admission from an occupant in the vehicle could support grounds for a search warrant on the residence. Specifically this could support an assertion that there were illegal drugs currently in the residence.

117I make this finding keenly aware that the officer properly resisted providing the details of CHS information during his viva voce evidence but at times cited the CHS generally as the sourcing of important conclusions. Again, I must emphasize that whatever potential connection drawn by the affiant between the CHS information and the applicant's drug trafficking is not available to me as the reviewing court.

118The simple fact is no drugs were seized from the occupants of the vehicle. There were no admissions made by the occupants of the vehicle. There were no statements taken. It was unreasonable to conclude that 6 small plastic bags and two marijuana roaches implicated the applicant in drug trafficking.

119Frankly, whether I excise the misleading information contained in paragraph 22 or merely reconsider the matter on the record that should have been provided to the issuing justice, the traffic stop amounted to (at best) another suspicious short meet. In fact, this short meet is worth less than some of the other short meets because in stopping the purported purchasers it was reasonably clear that they had not recently purchased illegal drugs from the applicant.

3. Was the Confidential Human Source information compelling, credible, and corroborated?

120The Ontario Court of Appeal recently restated the proper approach to the analysis of CHS information in R. v. Shivrattan, 2017 ONCA 23, at paras. 27-28:

27 The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of the circumstances as set out in the ITO and as amplified by any additional material placed before him or her. When, as in this case, the information to support the warrant comes almost entirely from a CI, the totality of the circumstances inquiry focuses on three questions. Does the material before the reviewing judge demonstrate that the CI's information was compelling? Does the material demonstrate that the CI was credible? And does the material demonstrate that the CI's information was corroborated by a reliable independent source? See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168; Hosie, at para. 12; and R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 16-18.

28 The first question addresses the quality of the CI's information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI's credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI's credibility: see Crevier, at paras. 107-108.

121In Crevier, at paragraph 86, the Ontario Court of Appeal also set out an illustrative list of information relevant to the Debot analysis.

122The redacted ITO in this case contains a single paragraph (#12) concerning the CHS. While I imagine that further information might have been provided by the affiant in one or more appendices I do not have that information as part of the record before me and I may not speculate as to what sort of information might be contained in the appendix or appendices.

123The redacted ITO plainly fails to address the traditional Debot inquiry concerning whether the CHS information was compelling, whether the CHS is credible, and whether the CHS was corroborated. I find that it is impossible to conduct the Debot analysis without access to the redacted CHS record: (See R. v. Tsapoitis, 2017 ONCJ 70 where Justice P. West also reached this conclusion at paragraphs 29–31, 48).

124The police made efforts to corroborate the information provided by the CHS by confirming the identity of the applicant, his address, and his phone number. The police also conducted surveillance with a view to corroborating the information that the applicant was trafficking in illegal drugs. Given the lack of information in the redacted ITO I find that the CHS information in this case must be viewed as akin to an untested anonymous tipster. That the CHS provided a nickname, the address, and the phone number associated to the applicant does not meaningfully demonstrate the applicant's involvement in criminal activities. This was information available to a large subset of individuals. Anyone reasonably familiar with the applicant would know this information. While there is no need to confirm the very criminal conduct described by the CHS, corroboration of commonplace information is not sufficient: R. v. Dhillon, 2016 ONCA 308 at para. 41; R. v. Lewis, 1998 CanLII 7116 (ON CA), 38 O.R. (3d) 540 (C.A.).

125The weak CHS record in the redacted ITO was not corroborated by the police surveillance sufficient to address the Debot criteria.

4. Was the recital of the applicant's criminal antecedents misleading?

126The affiant deposed the following in paragraph 14 of the ITO:

I conducted a criminal background check on VIGNESWARALINGHAM. VIGESWARALINGHAM was on file with a criminal history including, but not limited to drug trafficking and drug possession offences.

127The affiant testified on the application that the phrase "criminal history" meant that the applicant had involvement with the police as well as possibly charges that the applicant had faced. He testified that had there been a criminal conviction it would have been specified. The affiant did not define the term "criminal history" in the ITO.

128The truth of the matter is that the applicant does not have a criminal record for drug trafficking and drug possession offences. He has one entry for a minor administration of justice offence.

129The affiant testified that he ran a police CPIC check on the applicant prior to preparing his ITO. The applicant had been investigated for drug-related matters but not convicted. It is clear that the affiant did not have a good understanding of these allegations. He did not know the year of the charges, did not consult with the responsible police service to gain any further background (e.g. to determine if the applicant's practices and procedures were similar), or clarify why the applicant was not convicted. The affiant testified that he did not include the applicant's actual CPIC record or the police occurrences relevant to the "criminal history" as an appendix because it was not his normal practice nor was he trained in this fashion.

130I find that the use of the phrase "criminal history" was vague and misleading. It conflated the concept of being charged with a criminal offence with being convicted of a criminal offence. The distinctions relied upon by the affiant during his testimony were meaningless. The affiant was aware of the difference between a "CPIC record", "local record" (i.e. local record of the Durham Regional Police Service), and the CPIC record capture of outstanding charges. He understood the distinction between convictions and withdrawn matters. He did not distinguish between "criminal history" and "criminal convictions". Because of his failure to be specific it is objectively reasonable to conclude that the issuing justice would have been misled into thinking that the applicant had a relevant criminal history.

131If there is a circumstance where a target's "criminal history" as defined by the affiant is probative to reasonable grounds, the relevance should be clearly articulated for the issuing justice. For example, if some method or practice used by the applicant in a prior investigation is relevant to reasonable grounds this should be explicitly set out for the issuing justice.

132The confusion inherent in the use of loose language such as "criminal history" was not saved by the affiant's testimony that had there been relevant criminal convictions he would have explicitly said so. While it is not strictly necessary to file the actual CPIC documents or other related documents in an ITO, the failure to do so in this case is compounded by the use of the vague phrase "criminal history". Whether or not the documentation is attached to the ITO as an appendix, the affiant is required to be clear and accurate.

133The comments of the Ontario Court of Appeal in R. v. Paryniuk, 2017 ONCA 87, at paragraph 78, appropriately address this failure:

78 The affiant's failure to plainly say that Paryniuk had never been convicted of a criminal offence is a serious deficiency. That said, the descriptives "Involved" and "CHARGED" were clearly displayed, as well the obvious lack of reference to "CONVICTED" or "convictions" could scarcely have gone unnoticed.

134An ex parte application requires a more fulsome commitment to inclusion and specificity. In Paryniuk, part of the analysis revealed that certain E-COPS documents had in fact been included in the ITO so any lack of clarity on the part of the affiant was addressed by the inclusion of such information.

135This misleading information is excised on review.

136I am also excising other areas of the ITO where this vague terminology was used in the affiant notes after paragraphs 18 and 22.

5. Execution of the Search Warrant

137The applicant testified that he was assaulted during the execution of the search warrant. He was told to place himself against a wall and an unknown police officer pressed his head such that his cheek was placed against the window shutters. The applicant also complains that the executing police officers used a dynamic entry and were dressed in balaclava such that their identity was concealed. Finally, he testified that the police were not readily identifiable as such in that there were no markings on them suggestive of police.

138On these issues the applicant, two tactical police officers, and the officer in charge of the case (affiant) testified. The police witnesses are not entitled to any presumption of credibility in evaluating these allegations.

139The applicant has failed to establish these allegations on a balance of probabilities.

a) Allegation of Assault

140The tactical officers were relatively detached witnesses unconnected to the drug trafficking investigation with no prior involvement concerning the applicant.

141They were detailed for a tactical entry and they conducted their task.

142Two tactical officers testified that the applicant was detained and secured by arrest on his bed in his bedroom. Neither officer endorsed a construction of the facts that included the applicant being placed anywhere near the window blinds. Neither officer testified that the applicant's cheek was pressed up against a window blind. There is no independent corroboration of the applicant's assertion (e.g. a photograph of a resulting bruise). There were no other witnesses to the events in his bedroom.

143In considering the factual dispute between the officers and the applicant there is no clear explanation. I prefer the evidence of the tactical officers as it was more detailed and augmented by the availability of police notes. I accept the evidence of the single detaining tactical officer that the applicant was secured on the bed and that he was not braced against a wall or pressed up against a wall. The officers were able to provide some detail concerning the location and movements of the applicant under their control. That their respective versions were not identical is of no concern in this case.

144Even if I were to accept the evidence of the applicant, no significant assault occurred. The applicant did not provide details concerning his positioning on his bed or the positioning of a computer. He did not have as much detail as the two police officers. I did not accept the applicant's evidence that he had no idea who was in his room and that he questioned the intruders because there was no discernable clue as to who they were. I find that the police officers were readily identifiable as tactical police officers. I viewed their uniform in court and the police vests that they wore on the night in question. There were police patches on the arms and even badge numbers on the front of their vests.

145The applicant has not established on a balance of probabilities that an assault occurred during the execution of the search warrant.

b) Dynamic Entry

146I accept the evidence of the tactical officers that they were dressed in tactical police uniforms and they were wearing police vests that clearly indicated that they were police officers. I accept the evidence of the tactical officers that they had their faces obscured by balaclavas for their safety during execution of the warrant (e.g. safety from splintering doors and other potentially available techniques depending upon the dynamic circumstances).

147One tactical officer witness testified that dynamic entry and tactics were based on perceived risk from perhaps three occupants and information received concerning the possibility of a firearm inside the residence. I do not find it significant that one tactical officer said that he pulled down his mask to a degree after entry. I do not find it important that one or another officer dealt with the other occupants of the residence. My evaluation of this issue does not turn on whether or not the applicant asked the intruders to his room who they were.

148The tactical officers breached the front door and the locked door to the applicant's bedroom (where he was located). I am satisfied based on the record produced that the officers had reasonable grounds to be concerned about a firearm, the presence of three occupants, and the destruction of evidence. This reasonable concern was placed upon a bedrock of information that the applicant was a drug trafficker.

149The evidence on the application supports some deference to the assessment of police officers who risk their lives in this dangerous work: R. v. Cornell, 2010 SCC 31, at paras. 22-24; R. v. Rutledge, 2017 ONCA 635, at paras. 25-26.

D. Finding: The search warrant

150I am satisfied that the search of the applicant's residence was pursuant to a judicially authorized search warrant.

151Based on the contents of the ITO and the testimony of the affiant I am satisfied that he subjectively believed that he possessed reasonable grounds for the search.

152I agree with the applicant's submission that even before consideration of the conduct of the affiant, the redacted ITO was insufficient to establish the requisite reasonable grounds. The failure of the redacted ITO is largely due to the fact that it is impossible to assess the weight of the CHS information on the redacted record. The redacted ITO in this case does not (and could not) satisfy the Debot criteria.

153Further, even when corrected and amplified on review, I find the redacted ITO was insufficient to permit an issuing justice, acting reasonably, to find adequate grounds for the search.

154I conclude that there is no basis upon which the issuing justice could have been satisfied that the statutory preconditions for issuance – namely reasonable grounds – existed: R. v. Pires; Lising, 2005 SCC 66 at para. 30.

IV. Section 24(2) of the Charter

A. Introduction

155The applicant has demonstrated a nexus between the Charter offending conduct and the evidence seized in this case.

156The applicant must also demonstrate on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389 at para. 36.

157The resolution of this issue requires consideration of the well-known approach identified by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.

B. The Affiant

158Central to the analysis under s.24(2) Charter is the conduct of the police affiant in this case.

159Overall I found the affiant to be respectful, thoughtful, and responsive to questions asked. He is evidently a well-trained, intelligent, police officer. On the other hand, I have detailed several areas of concern with his approach to his duties in the ITO.

160The affiant's assessment of reasonable grounds was heavily dependent on CHS information that is not available to this court on review.

161Counsel for the applicant conducted a cross-examination designed to show the officer's negligent attitude towards his disclosure obligations in a criminal case. Regarding first-party disclosure of other criminal occurrences I can concede some room for disagreement on the issue of relevance. In any event this issue did not turn out to be significant in my view. Regarding the cross-examination on disclosure of other surveillance notes, I found the evidence to be more concerning. In an era of electronic disclosure assembly there are certain advantages. The Durham Regional Police Service uses an electronic management system to produce disclosure. This system no doubt produces advantages. Apparent erosion of the officer-in-charge's personal responsibility for collection of disclosure is not one of them in my view. The prosecution must be in a position to fix the officer in charge of the case with responsibility to ensure that relevant disclosure has been provided. In this case a disclosure issue caused delays that need not have occurred. It was difficult to accept evidence from the officer in charge of the case that it was possible he was not aware of other relevant police activities (e.g. surveillance) that occurred on a day or days he was not working or involved and that disclosure depended on those officers independently submitting their notes.

162Notwithstanding the concerns expressed, in the end, I characterized the disclosure issues as largely collateral to the core task of a Garofoli review. Based on the limited record it appeared that the affiant, as the officer in charge of the case, as following general police procedures for disclosure. Apparent gaps or deficiencies in that process did not translate into a finding that the officer had a patent disregard for his disclosure obligations.

163Counsel for the applicant described the affiant as subject to tunnel vision with a myopic belief that the applicant was a drug trafficker. Counsel to the applicant submitted that while the affiant did not dishonestly mislead the issuing justice he was negligent and careless with detail in the ITO.

164Absent the comprehensive record presented by the affiant to the issuing justice, and based on the record on this application, I agree with this characterization.

165Full, frank, and fair disclosure on an ex parte application does not require the affiant to include every single detail of the investigation. But it does require the affiant to provide a complete and balanced view of the material facts to the issuing justice.

C. Seriousness of the Charter-Infringing State Conduct

166This line of inquiry requires a court to determine whether the admission of the evidence would bring the administration of justice into disrepute.

167The inquiry turns on whether the court needs to disassociate itself from the impugned conduct. There is a sliding scale to this assessment. The more egregious the state conduct, the greater the need to disassociate the criminal justice system from that conduct so that the public perception of the rule of law and police officer's and their adherence to the rule of law are preserved: Grant, para. 72.

168On the facts in this case, this line of inquiry must focus on the conduct of affiant and his approach to his duties.

1. Blake, "Step Six", and Onus on s. 24(2)

169The applicant has the onus to establish the 24(2) Charter remedy.

170Defence counsel had to make a decision as to whether the relevant s. 24(2) Charter record could be established without resort to the redacted material or judicial summaries of the redacted material. In this case the prosecution stipulated at the outset of the application that the prosecutor would not seek to rely on "Step Six". Defence counsel was entitled to accept this stipulation particularly when it was evident to him that the redacted ITO was vulnerable.

171There is perhaps an obvious risk to pursuing the issue on the part of defence counsel – the material "under the black" may negatively impact the applicant's position.

172The absence of "Step Six" remains relevant when considering the onus on the application and the record presented by the applicant.

173In R. v. Blake, 2010 ONCA 1, D.H. Doherty J. A. provided crucial guidance in similar circumstances to this case. Justice Doherty found it significant that defence counsel did not:

a. establish a basis for the innocence at stake exception to informant privilege;

b. challenge the legitimacy of the claim of informant privilege;

c. suggest that redactions executed by the Crown were unnecessary or improper; or,

d. ask the trial judge to examine the un-redacted information or review the editing process for the purposes of further disclosure or judicial summaries (See Blake para. 14-16).

174It was in this context -- the absence of any challenge to the ITO or the redactions -- that Justice Doherty endorsed the trial judge's finding that the affiant exhibited "good faith" in the following terms at paragraphs 25 and 33 of Blake:

25 Not only do I agree with the trial judge's finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74. [Emphasis added]

33 Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.

175Where the s. 24(2) remedy is dependent on the affiant's conduct, defence counsel, representing the applicant, has to consider the police conduct record required to establish the s. 24(2) remedy and the onus.

176I do not take Justice Doherty's guidance in Blake as mandating an approach that requires access to redacted material whether byway of "Step Two" or "Step Six". "Step Six" applications are a relatively rare animal (particularly outside of Ontario). As explained above, the weight of the legal authority fixes the "Step Six" tool in the hands of the prosecution. I have never heard of a defence-initiated application. I do not read Blake as requiring resort to "Step Six" on the part of defence counsel. It was not suggested by the prosecution in this case that the failure to access the redacted material negatively impacted the applicant's position.

177I read Justice Doherty's guidance in Blake as subject to two considerations: a finding of "good faith"; and no "... taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion.": Blake, para. 33.

178There are circumstances where the approach taken by the applicant in this case will be vulnerable to the observation made by Justice Doherty that "[a]bsent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules.": Blake, para. 33.

179This is not one of those cases.

2. Factors not attributable to the conduct of the affiant

180There are several things that are not attributable to the conduct of the affiant. First of all, the core failure of the redacted ITO is largely due to the deficient Debot record concerning the CHS. The redacted ITO in this case is similar to the redacted ITO in Rocha. The failure to invoke "Step Six" in Rocha meant that the trial court's assessment of the remaining information in the redacted ITO was that the CHS was insufficient and the movements of the accused's brother was speculation: See Rocha paras. 7-10. In this case, the police surveillance record, unhinged from the CHS information, is of limited assistance. This affiant cannot be faulted for this circumstance. The affiant did not determine the record to be placed before this court on review.

181Second, the deficient CHS information guts the reasonable grounds assertion of the affiant. The affiant's honest subjective view, based on the entire ITO including not the redacted ITO, was that the applicant was a drug trafficker. All that I have done as a reviewing court is consider part of the record placed before the issuing justice by the affiant. This is the impact of procedural approach in this case but this is not attributable to the conduct of the affiant.

182Third, the affiant has no role in determining the procedure on the application including any decision to rely on "Step Six".

3. Factors attributable to the conduct of the affiant

183While the fact that the affiant successfully obtained a search warrant generally supports the admission of the evidence under this area of inquiry this finding is not automatic: Rocha, paras. 28-29)

184If the applicant can establish deficiencies in the approach of the affiant that may be enough to favour exclusion of the evidence.

185In Blake, at paragraph 33, I believe Justice Doherty endorsed this approach:

33 Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant . . . If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion . . .

186Carelessness, "taint of impropriety", negligence, or inattention to constitutional standards can tip the scales in favour of exclusion even when the affiant's conduct is not intentional: Blake, para. 33; Rocha, para. 43.

187In Morelli at paragraph 59 the Supreme Court of Canada said:

The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen's Bench, the judge who had the benefit of observing the Crown's witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer's selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time. [emphasis added]

188So the remaining question involves properly characterizing the identified deficiencies in the affiant's approach to the ITO on a spectrum of seriousness.

189At its core, the affiant's recital of the circumstances of the traffic stop is not sustainable. The material omissions and misstatements accorded the traffic stop an inordinate and unjustified weight. The affiant's approach to the "criminal history" issue is also concerning from an experienced officer. I am satisfied that the affiant was not deliberately trying to mislead the issuing justice. I fix the affiant's conduct on a spectrum of behaviour closer to negligence, or carelessness in the preparation of the ITO.

190The public perception of the criminal justice system and the long-term repute of the justice system would be negatively impacted by the circumstances in this case.

191Informed members of the public might find it troubling and unsatisfying that the affiant satisfied an independent judicial officer to issue the warrant and now, a reviewing court, has found that process to be flawed on an incomplete record. The process seems unfair to the affiant and the issuing justice.

192But, those informed members of the public would understand that there is a fair and constitutional process called "Step Six" available to ensure that the reviewing court has access to the complete record presented by the affiant to the issuing justice: R. v. Reid, 2016 ONCA 524, at para. 35. With respect to the public perception of the criminal justice system I think that informed members of the public would support the rule of law and the legal finding that judgments must be strictly reliant on the record produced at the proceeding. To that end, informed members of the public would know that this decision is heavily dependent on the record produced in this particular proceeding and not of indicative of general application or radical change in the law. Finally, those informed members of the public would know that either side had the opportunity to call additional evidence on the s. 24(2) proceeding.

193This area of inquiry favours exclusion of the evidence.

D. Impact of the breach on the Charter-protected rights of the accused

194The applicant's residence was searched in violation of s. 8 of the Charter.

195In paragraph 29 of Blake Justice Doherty explained that the seriousness of the impact of the breach is not mitigated by the police having obtained a warrant:

29 The seriousness of the impact of the breach on the appellant is not mitigated by the fact that the police may have had reasonable and probable grounds when they obtained the warrant, but were unable to demonstrate those grounds at trial because of the confidential-informant privilege. The Crown chose to proceed on the redacted information. The assessments of whether there was a breach and of the impact of that breach on the appellant must be measured against the substance of that redacted information. Assessed from that perspective, this was an extensive, unjustified search of the appellant's home.

196The search of the applicant's residence was an intrusive search accompanied by 14 tactical officers and various other police officers.

197This area of inquiry favours exclusion of the evidence.

E. Society's interest in an Adjudication of the Case on its Merits

198The applicant was found in possession of a large amount of illegal drugs and instruments used for trafficking. The police investigation involved many police resources.

199The applicant was allegedly trafficking in a residential neighbourhood. The public interest in detecting and prosecuting such individuals is high.

200The evidence is highly reliable real evidence and essential to the prosecution's case.

201This area of inquiry strongly supports admission of the evidence.

F. Balancing

202The first and second inquires pull strongly in favour of exclusion. The third inquiry does not tip the balance in favour of admission: R. v. McGuffie, 2016 ONCA 365, at paras 62-64.

203The evidence is excluded.

Released: September 26, 2017

Signed: "Justice M.S. Felix"

Footnotes

1As I have not had access to the sealed appendix or appendices in this case I will use CHS generically to refer to confidential human source information without regard for gender or the number of sources.

2Again I must re-iterate that the affiant deposed concerning CHS information that I do not possess so perhaps in the context of the CHS his belief was reasonable.