Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 15, 2023 COURT FILE Nos.: Toronto 20-15005026 & 15005055

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— AND —

CARLYLE RICKETTS Applicant

Before Justice Patrice F. Band

Ruling on s. 8 Garofoli Application

Counsel: Mr. L. Price, counsel for the PPSC Mr. C. Angelini, counsel for the Applicant

BAND J.:

I. Introduction

1Following the execution of three CDSA search warrants in the summer of 2020, Mr. Ricketts was charged with possession of cocaine for the purpose of trafficking, possession of a firearm and other related offences. The search warrants relied a great deal on information that had been provided by two confidential sources (CS1 and CS2). Accordingly, the Informations to Obtain (“ITOs”) were heavily redacted.

2Mr. Ricketts challenged the admissibility of the evidence that resulted from the searches, alleging that the warrants were invalid and in breach of his s. 8 Charter rights against unreasonable search and seizure. From the outset, the Crown indicated that it would rely on “Step 6” of R. v. Garofoli, [1990] 2 S.C.R. 1421. Put another way, the Crown conceded that the warrants could not stand without the information provided by the CIs.

3We embarked on the Garofoli application as a pre-trial motion, to be followed by the trial on the merits if necessary. The Garofoli application began in August 2022 and unfolded in a series of steps including the production of judicial summaries of the ITOs, an application for leave to cross-examine Detective Constable Morel, which I granted, and the ensuing cross-examination. The cross-examination of DC Morel proved to be very illuminating.

4While there were interruptions and scheduling challenges, the production of judicial summaries proceeded smoothly and in typical fashion, with one exception (which I will return to below). Once in receipt of the final summaries, Mr. Angelini did not argue that any of them were insufficient. The Crown was permitted to rely on Step 6.

5The parties made their final submissions on the Garofoli application in February 2023. Mr. Angelini argued that the ITOs were so deliberately misleading as to render what remained after excision and amplification unreliable. For his part, Mr. Price acknowledged that the investigation and the ITOs were imperfect; however, after excision and amplification, careful review of that which was unaffected – the information provided by the CSs and the extent to which it was corroborated – was enough to support the issuance of the warrants. The matter went over to April 24 for judgment. After receiving answers to questions that asked the parties on that date, I advised them that the s. 8 application was granted and that the evidence would be excluded pursuant to s. 24(2) of the Charter. Acquittals were also entered on all charges.

6The reason for my decision is that the affiant deliberately or intentionally misled the issuing justice to such a point that, after excision and amplification, the balance of the ITOs was unreliable. In what follows, I explain how I came to that conclusion. The first two ITOs were largely identical, and the third built upon them. So, for simplicity’s sake, I refer to them in the singular in these reasons.

II. The Warrants and Searches

7Based on tips received from their confidential sources, Toronto Police officers began an investigation into Carlyle Ricketts and Jennifer Hodge in the summer of 2020. During the investigation, they came to believe that Ms. Hodge was a street-level drug dealer who obtained her supply from Mr. Ricketts who, according to them, was a large-scale drug dealer. To assist in their investigation, they sought and obtained three CDSA warrants: the first on August 9, the second on August 31 and the third on September 2.

8Police did not execute the August 9th warrant because of pandemic-related staffing shortages and the emergence of urgent matters. The second warrant, an updated version of the first, was granted on August 31 and executed on September 2. Both warrants authorized police to search the following locations:

• Unit 722, 1884 Davenport Road (the Davenport Unit/Building);
• Unit 211, 75 Dowling Avenue (the Dowling Unit/Building);
• A 2019 Land Rover (the Land Rover); and
• A 2012 Mercedes Benz C4 (the Mercedes).

9The Davenport Unit was believed to be Ms. Hodge’s apartment. The ITO described the Dowling Unit as Mr. Ricketts’s residence and the two vehicles as being connected to him.

10On September 2, police searched the Dowling Unit, where they received some information but found nothing incriminating. They also found Mr. Ricketts driving the Land Rover. They arrested him in “high-risk takedown” fashion and searched the Land Rover. They found cocaine and a firearm. They also found a set of keys and an access fob that they recognized as being associated with a third address: 2200 Lakeshore Blvd. W. Subsequent steps led them to learn that the keys and fob were connected to unit 710 (the Lakeshore Unit). On the strength of these discoveries, police obtained a third warrant to search the Lakeshore Unit. There, they found a large quantity of cocaine and proceeds of crime.

III. Lost Evidence, Illegal Searches, Improper References, Excisions, Amplification & Failure to Maintain a Complete Investigative File

Lost surveillance videos

11The ITO refers to drug dealing activity that is caught by surveillance cameras on July 12 and 30, 2020. DC Morel swore that Mr. Ricketts can be seen in the July 12 footage driving a black four-door Mercedes sedan and engaging in a hand-to-hand drug transaction with Ms. Hodge behind the Davenport Building. He swore the same was visible in the July 30 footage, only this time Mr. Ricketts is behind the wheel of a Land Rover. At some point in the investigation, the police lost the files containing the seized surveillance videos. The ITO also contains still photos that were taken from the videos by the sub-affiant, PC Brykczynski.

12Mr. Ricketts argued that this loss of evidence violated his s. 7 Charter rights. The Crown conceded the breach and the parties agreed that the appropriate remedy was to excise from the ITO the descriptions of the events depicted in the videos.

13Mr. Ricketts also argued that DC Morel’s description of what can be seen on the videos was deliberately misleading and that his testimony concerning the videos was not credible.

Illegal ruse search

14Pretending to be lost, DC Morel knocked on the door of the Dowling Unit on August 9th. According to the ITO, he saw Mr. Ricketts inside the unit when the door was opened. The parties agreed that DC Morel’s ruse constituted an illegal search. References to Mr. Ricketts being inside the unit were excised from the ITO on consent.

Warrantless search of the mailbox at 2200 Lakeshore Blvd. W.

15On Sept. 2, with the keys and fob in hand, the police attended 2200 Lakeshore Blvd. W. to further the investigation. At the building, they received information that the fob was associated to Unit 710. One of them unlocked and searched the mailbox, where mail bearing Mr. Ricketts’ name was found. The parties agree that this warrantless search of the mailbox was illegal. References to the items found in the mailbox were excised on consent.

Improper references to withdrawn charges

16In the portions of the ITO dedicated to Mr. Ricketts’ criminal antecedents, DC Morel included a complete list of his past charges that had been withdrawn by the Crown. Again, the Crown conceded that this was improper, and those references were excised from the ITO on consent.

Additional excisions sought by Mr. Ricketts

17Before they lost the July 12 footage, the police were able to conduct a Ministry of Transportation (MTO) search regarding the Mercedes based on what they claim to have seen in the surveillance video. They learned that the car was registered to a Wendy Ricketts who they assert – without any supporting evidence – is Mr. Ricketts’ mother. They also obtained a mugshot, which they assert was identified by CS 1 as being of Mr. Ricketts.

18Mr. Angelini seeks excision of those alleged facts from the ITO because they could not have been discovered but for the lost footage. For the same reason, he also seeks excision of any reference to Mr. Ricketts having been seen operating the Mercedes.

19The Crown opposes this request, arguing that there is no basis in law to support it. The law in this area mandates a remedy to prevent the state from benefitting from illegal acts of police officers: see R. v. Grant, [1993] 3 S.C.R. 223 at pp. 251-252 and R. v. Bhogal, 2020 ONSC 7327 at paras. 106-110. Here, he argues, the MTO search – the benefit – did not flow from the illegal conduct – the loss of the videos. Same for the officers’ ability to see Mr. Ricketts behind the wheel (before the videos were lost).

Amplification

20After the cross-examination of DC Morel, with Mr. Price’s consent, the record was amplified with additional facts that DC Morel did not include in the ITOs with respect to 75 Dowling:

i. On August 7, and for a period of seven hours on August 8, when DC Morel was observing 75 Dowling, he did not see Mr. Ricketts; ii. Mr. Ricketts’ address “on file” was known by police to be a home in Scarborough; and, iii. DC Morel referred to having seen the Land Rover parked “out front of” 75 Dowling on August 9. What he failed to include, was that the property has reserved parking for guests and residents, and that the Land Rover was parked on the street.

Failure to maintain a complete investigative file

21Mr. Angelini argues that DC Morel failed in his responsibility, as the affiant, to maintain a complete investigative file. In particular, he did not print or otherwise save the results of several database searches that he performed during the investigation. Also, his notes regarding steps he took as an affiant were limited to one short passage on August 6, in which he refers to drafting the ITO. He did not make notes of when he received and/or viewed the lost surveillance video. His notes of conversations he had with his confidential sources on June 27, August 6 and August 30 (CS Notes 1-3) surfaced mid-way through the Garofoli application. This led to delays as the portions that had been redacted had to be summarized in accordance with the Step 6 process.

IV. Legal Principles Regarding Warrant Review

Generally

22The governing principles set out by the Court of Appeal in R. v. Crevier, 2015 ONCA 619 at paras. 62-90, include the following.

• A search warrant is presumptively valid, and the challenging party bears the onus of demonstrating, on a balance of probabilities, that it should not have issued.
• A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.
• Where, as here, the grounds for the warrant originate from information provided by a CI, the reliability of the informer and the information must be assessed by reference to the “three Cs” discussed in R. v. Debot, [1989] 2 S.C.R. 1140: the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.

23These Debot criteria were usefully explained in R. v. Greaves-Bissesarsingh, 2014 ONSC 4509 at para. 35 (S.C.J.), where Justice Code wrote:

It appears from Wilson J.’s reasons in Debot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to supporting information uncovered by the police investigation.

24The test that I must apply was reiterated by Justice Watt in R. v. Sadikov, 2014 ONCA 72, at para. 84:

The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.

25The standard, also defined as “credibly-based probability,” exceeds suspicion but falls short of balance of probabilities: ibid, at para. 81. It requires more than an experience-based "hunch" or reasonable suspicion. If the issuing justice “could” have issued the warrant, the application must be dismissed. I must take into account the fact that authorizing justices, like triers of fact at trial, are entitled to draw reasonable inferences from the contents of the ITO: see Sadikov, supra, at paras. 81-82, citing R. v. Vu, 2013 SCC 60 at para. 16, among others.

26I must take a common-sense and holistic approach to this task: see R. v. Herta, 2018 ONCA 927, [2018] O.J. No. 6429 at para. 21 (C.A.). The analysis should be on "the whole of the document, not a limited focus upon an isolated passage or paragraph” or “a line-by-line, word-by-word dissection": see R. v. Cunsolo, 2008 ONCA 609, at para. 135 (2).

27As Hill J. explained in R. v. Sanchez (1994), 93 C.C.C. (3d) 357 at p. 370 (S.C.J.), “it is common knowledge from our experience with warrants to search that evidence relating to the offence may be discovered at premises under the control of one suspected to be complicit in the crime,” including vehicles and homes; see also R. v. Balouch, 2016 ONSC 2210 (S.C.J.).

The Affiant’s duty of candour

28Search warrants are sought ex parte. For this reason, affiants have a duty to present the facts in a full, fair and frank manner. They should never attempt to trick the issuing justice: R. v. Araujo, 2000 SCC 65, at para. 47. In R. v. Booth, 2019 ONCA 970, at paras. 54-55, Paciocco J.A. explained why:

…an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspective of both sides. Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not “pick and choose” among the relevant facts in order to achieve a desired outcome. (Internal citations omitted.)

The duty to maintain an investigative file

29Affiants of ITOs must ensure that all material that was collected, created and relied upon is kept in a complete investigative file to allow for the defence to make full answer and defence and to challenge search warrants: R. v. McKenzie, 2016 ONSC 293, at paras. 31-32.¹ The importance of this obligation is clearly demonstrated when ITOs rely heavily on CSs and the Crown might need to resort to Step 6.

The case of deliberately or recklessly misleading ITOs

30The parties agree that a warrant can be set aside when the affiant deliberately or recklessly misled the issuing justice and those misrepresentations render the balance of the ITO unreliable. This body of law is distinct from the residual remedy described in R. v. Paryniuk, 2017 ONCA 87.² I agree with the helpful explanation that Madam Justice Forestell provided in R. v. Debartolo, 2018 ONSC 916:

37 In Paryniuk, before explaining the residual discretion to set aside a warrant, Watt J.A. discussed the reliability component necessary to ground a valid warrant, writing at paragraph 67:

67 Counsel for the respondent is on firm ground when he says Garofoli recognizes no such discretion. But Garofoli is not the last word on the subject. In Araujo, the court followed Garofoli but emphasized a reliability component in the information provided to the issuing judge or justice. When the dust settles after excision and amplification, the Araujo court said, there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.

38 Paryniuk does not change the requirement that there must be sufficient reliable evidence after excision and amplification to provide grounds for the issuance of the warrant. Where there are deliberate misrepresentations and omissions in the ITO these defects may impact on the assessment of the reliability of the balance of the ITO even if deliberate misrepresentation and material omission has not been proven with respect to the details contained in the balance of the ITO after excision.

39 The assessment of the impact of intentional misrepresentations by the affiant on the overall reliability of the ITO is of particular significance where the Crown invokes the Garofoli 'Step 6' procedure. In such cases significant portions of the ITO will be redacted and unavailable to be specifically challenged. Where there is a finding made that the affiant deliberately misled the issuing justice with respect to those parts of the ITO that were not redacted or those parts where the judicial summary permitted a specific challenge, the reviewing justice should consider whether the intentionally misleading conduct of the affiant impacts the reliability of the balance of the ITO.

40 Therefore, the appropriate approach to be taken in a Step 6 case that involves an allegation that the affiant has deliberately misled the issuing justice is for excision and amplification to be followed by an assessment of whether the conduct of the affiant taints the reliability of the balance of the ITO.

41 If the balance of the ITO is not found to be tainted by the deliberately misleading conduct of the affiant and the balance supports the issuance of the warrant, the warrant should be found to be valid subject only to a Paryniuk analysis. If the misleading conduct of the affiant renders the balance of the ITO unreliable, the ITO should be found to be invalid and the court need not consider the residual discretion in Paryniuk.

42 In determining whether the balance of the ITO is tainted by the deliberate misrepresentations, relevant considerations will be the respective sources of information, the degree of corroboration and the nature and extent of the misleading portions of the ITO.

V. Analysis

31A brief summary of the ITOs is important to put the omissions, misrepresentations and testimony of DC Morel in context. The ITO relied heavily on the information of the two confidential sources, CS1 and CS2. The extent to which their information was credible, compelling and corroborated was therefore central to the strength of the warrants.

32CS1 told DC Morel about drug-related activities of persons believed to be Mr. Ricketts and Ms. Hodge that took place at her residence (the Davenport Unit/Building) and elsewhere. CS2’s information was limited to Ms. Hodge’s activities. Officers made direct observations of the Davenport Building, where they saw evidence of drug use and trafficking. Neither CS said anything about the Dowling Unit/Building.

33In the ITO, DC Morel stated that Mr. Ricketts could be seen in the lost security footage driving a black Mercedes and engaging in a hand-to-hand drug transaction with Ms. Hodge near the Davenport Building on July 12 and again on July 30; the second time, Mr. Ricketts was driving a gray Land Rover.

34DC Morel also stated that he saw Mr. Ricketts driving the same Land Rover on August 7 and that a search of the plate on that date revealed that a Latifa Douglas was the registered lessee. While the Land Rover was registered to an address in Oshawa, Ms. Douglas was listed by the Toronto Community Housing Corporation as the sole tenant of the Dowling Unit. That day, the Land Rover was issued a traffic ticket while being operated by Mr. Ricketts. On August 9, DC Morel saw it “parked at the front of 75 Dowling Ave.” An MTO check on August 31 showed that, on August 10, the ownership of the Land Rover had been transferred to Wendy Ricketts, whom DC Morell testified is Mr. Ricketts’ mother.

The Dowling Unit

35In the ITO, DC Morel describes the Dowling Building and the Parkdale neighbourhood in which it is located as havens of drug activity: ITO, p. 19. He defines the Dowling Building and the Davenport Building as “premises”: ibid. He repeatedly asserts that Mr. Ricketts lives in the Dowling Unit by using the terms “resides”, “residence”, “home” and, by extension, “premises”: ITO, pp. 18, 19, 34 and 35. He also stated that the CSs provided “credible information about what is occurring inside” that and the Davenport Unit: ITO, p. 21. He further adds that that information was “corroborated” by police and that Mr. Ricketts had been “confirmed as residing” at the Dowling Unit: ITO, pp. 21, 34. In the passage entitled “Prior Request Brought Forward,” which he added to the ITO in support of the second warrant, he wrote that he had “since returned to the premises and can confirm that drug activity can still be consistently observed on site”: ITO, p. 15. At p. 37, in the request for “Night Grounds” DC Morel affirmed that drugs were “currently being sold in the premises…”.

36Those claims were false or gross exaggerations. Other than a connection to Ms. Douglas, through the MTO checks, and DC Morel’s illegal ruse during which he saw Mr. Ricketts at the Dowling Unit, the ITO contains no evidence that Mr. Ricketts lived at the Dowling Unit. Neither of the CSs told police anything about the Dowling Unit/Building, and there was never any evidence of drugs being sold from the unit. Nothing of the sort was “confirmed” or “corroborated.” Nor was there any evidence that Mr. Ricketts had “returned” to the unit.

37In cross-examination, DC Morel acknowledged that the term “drug activity” occurring in the unit created a false impression. To do it over, he would have asserted his belief that drugs were being stored there. This, in turn, was based on little more than a belief that he held without foundation; in other words, a hunch.

38In the Introduction of the Affiant in Appendix “C” to the ITO, DC Morel described himself this way:

I am a police officer employed by the Toronto Police Service and have been so employed since December 16th, 2010. I currently hold the rank of Detective Constable and am assigned to 11 Division Major Crime Unit where I perform my duties in a plainclothes capacity. I conduct investigations involving, but not limited to; possession and trafficking of controlled substances.

I have been involved in numerous drug investigations involving such controlled substances as powder cocaine, crack cocaine, heroin, fentanyl, hashish and marihuana. Some of my duties as an investigator have included being the author of several search warrants, confidential source handler, surveillance, case manager, lead investigator and exhibit processor.

39That description would lead any reasonable reader to infer that DC Morel is an experienced drug officer. Yet, in cross-examination, he disagreed with that characterization:

No, I’m saying I’ve been involved in several investigations. It doesn’t mean I have experience. My time on the stand is very limited, this may be my first time testifying to a search warrant. That wouldn’t qualify me as an experienced drug officer, or even a rounded officer in that sense, right?

He continued as follows:

This is something I had done before, but […] I won’t call myself experienced….. at no point do you see me having written that I’m an experienced officer.

40Either DC Morel’s self-description in the ITO was recklessly misleading, or his answers in cross-examination were disingenuous. Both conclusions weigh against his credibility and the reliability of the ITO.

41Regardless, with his experience, DC Morel would have understood the weight that the courts place on the words he chose. He would have known that evidence that a suspect is the resident of a home can imply knowledge and control as to its contents.³ He would have known that confirmation or corroboration are critically important aspects of ITOs that rely on information from confidential sources.

42Given that, and what follows in these reasons, I find that these misrepresentations were made deliberately or recklessly to create a false impression that evidence could be found at the Dowling Unit.

43DC Morel stated that he saw the Land Rover “at the front of” the Dowling Building on August 9. However, he did not see fit to include the fact that the building has visitor and tenant parking, and that the Land Rover was parked on the street. Similarly, he did not include in the ITO that Mr. Ricketts’ address on file with police was in Scarborough. I agree with Mr. Angelini that these were material omissions and that their absence could only have contributed to the false impression regarding the Dowling Unit.

Decision to include Mr. Ricketts’ stayed or withdrawn charges

44In the ITO, DC Morel gave an account of Mr. Ricketts’ and Ms. Hodge’s criminal records. He accurately wrote that Mr. Ricketts “has a single conviction, on September 9th 2011 for the possession of a firearm knowing its possession is unauthorized.” Then, in a paragraph that begins “The following are the prior charges listed for RICKETTS (87.10.06),” he included 13 counts that had been stayed or withdrawn as against Mr. Ricketts. These included five for possession of Schedule I and II substances for the purpose of trafficking dated September 11, 2016. In his prior description of Mr. Ricketts’ criminal antecedents, he wrote that Mr. Ricketts “has a long history of incidents requiring police involvement,” and that he “has also had several charges laid against him as a result of his active, ongoing involvement in the drug trade” (my emphasis).

45Ms. Hodge “has a total of nineteen convictions, including two counts of trafficking in a Schedule I substance.” The Crown fairly agreed that, given her record, Ms. Hodge undoubtedly also had withdrawn or stayed charges that would have been listed “below the line.” DC Morel did not include any. In cross-examination he agreed that this is because, based on her three-page criminal record “the issuing Justice can get a pretty clear picture that this is someone who’s leading a life of crime.”

46In cross-examination, DC Morel said that it was his usual practice to include stayed and withdrawn charges at the time, based on what he had been taught. The idea being to “paint a clear picture by showing everything.” He testified that he has since learned that it is wrong to do so. He ultimately conceded that it “may mislead the judge or may paint a picture of someone who – or may paint an inaccurate picture of someone in a judge’s eyes.”

47The Crown argued that DC Morel made a clear distinction between Mr. Ricketts’ “single conviction” and “prior charges listed” and that an issuing justice would know what could properly be relied on. If this were the only misleading aspect of the ITO, I might be inclined to agree. But that is not all that DC Morel wrote. Moreover, this issue must be considered in the context of the entire ITO and DC Morel’s testimony.

48DC Morel agreed that the set of CDSA charges that were withdrawn in 2016 were likely “one prior charge for possession of a Schedule I drug” and that it was not fair to describe Mr. Ricketts as having “active, ongoing involvement in the drug trade.” He also agreed that what he had been trying to do was to “paint the picture for the judge that this is an active, large-scale drug dealer.”

49Those admissions, as well as the way in which the “below the line” charges were included in the ITO, make it clear that DC Morel’s decision was a deliberate one. What is more, his explanation – that it was his standard practice, based on training, to provide a full picture for the issuing justice – was not credible. It was belied by the fact that he failed to include such entries regarding Ms. Hodge and, more telling, both CSs who, given their records, must have had “below the line” entries. The difference between them and Ms. Hodge, of course, is that their credibility was fundamental to the ITO. It is important to note that Mr. Ricketts and his counsel did not have the ability to know about this additional drafting decision.

50Seen in context, the inclusion of Mr. Ricketts’ numerous “below the line entries” and the unfair description of his involvement in the drug trade were deliberately misleading.

The lost videos

51The videos were summarized in reports created by PC Brykczynski, which included still photos taken from the videos. DC Morel testified that he viewed the videos and could identify Mr. Ricketts in them.

52In the ITO, the videos are said to depict hand-to-hand drug transactions between Mr. Ricketts and Ms. Hodge on July 12th and 30th. On the 12th, a black Mercedes sedan can be seen arriving; Ms. Hodge then has a brief interaction at the driver’s side window. On the 30th, the vehicle is a gray Land Rover. The driver never gets out on either date. The action occurs on the side of the vehicle that is away from the camera. Hands cannot be seen. The stills included in the ITO do not permit one to see the driver’s face in detail.

53DC Morel wrote that Mr. Ricketts “can be observed” on the surveillance engaging in hand-to-hand drug transactions with Ms. Hodge. Later, in a part entitled “GROUNDS TO BELIEVE OFFENCE HAS BEEN COMMITTED,” DC Morel summarizes the July 30 video and specifies that it depicts Mr. Ricketts “selling a schedule I substance from his grey 2019 Land Rover…” (my emphasis).

54Mr. Angelini argued that based on the evidence, Mr. Ricketts’ face was never visible on the videos. What is more, DC Morel lied; he never watched the videos. He pointed to the following:

• DC Morel has no notes indicating that he received them;
• DC Morel does not know when he received them;
• Outside of the ITO, DC Morel has no notes indicating that he reviewed them;
• DC Morel claims to have been unable to obtain better stills showing Mr. Ricketts’ face.

55I do not accept DC Morel’s testimony that he reviewed the videos. He has no notes bearing on this important issue. What he wrote in the ITO regarding the July 30 footage is “August 9, 2020, the affiant receives still photos from PC Brykczynski taken from videos surveillance…” (my emphasis). As he repeated during his cross-examination, the investigation took place years ago. His testimony that he did not think they “would be basing [their] entire investigation, or our entire identification of the operator of the vehicle on this specific image” was problematic given the important corroborative force such videos appeared to have. Also, his testimony was inconsistent on the point. On one hand, he testified that he had been unable to “get a better paused image.” Later, he agreed that he “didn’t even try to find better still images” and “just went with what Brykczynski had because [he] knew that was the best that [he] would be able to do.”

56Further, I do not accept that Mr. Ricketts’ face was visible on video at all, much less a schedule I substance he is alleged to have trafficked to Ms. Hodge.

57Those assertions were deliberate and gave the misleading impression that Mr. Ricketts could be seen on video handing a specific type of drug – the most serious kind – to Ms. Hodge.

58I note that DC Morel testified that this had been his belief. At times, it is clear that he used that term to mean little more than suspicion or a hunch (e.g. concerning the Dowling Unit). Had he worded the passages concerning the videos differently, as he testified he ought to have, it would have been difficult to take the term “belief” at face value.

Additional concerns relating to DC Morel’s credibility and the ITO’s reliability

i. Exaggeration/“Painting a picture”

59In addition to what I have described above, other areas in which DC Morel exaggerated bear mentioning. In the ITO, he wrote that “various sources” or “several sources” observed Mr. Ricketts selling drugs: e.g. pp. 29 and 34. There were two CSs in this investigation, and only one had anything to say about Mr. Ricketts. At p. 28 of the ITO, DC Morel wrote that Mr. Ricketts “has been observed by police” at 75 Dowling “[a]t the time of this application.” This was simply not true. The Land Rover had been seen near the building on August 9.

60I can only conclude that these assertions, and others like them, were part of DC Morel’s deliberate efforts to paint a picture of Mr. Ricketts as an active, large-scale drug dealer (see p. 38). To the extent that painting a picture is a creative process, it is the wrong metaphor for an affiant to use as a guide.

ii. Discrepancies between the ITO and CS Notes

61In the ITO, DC Morel attributed a number of assertions to the CSs that did not figure in his CS Notes. In the “Prior Request Foreword,” at p. 15, DC Morel wrote that CS1 advised that Ms. Hodge and Mr. Ricketts “are still involved in the daily habit of trafficking cocaine.” This frequency is nowhere to be found in the CS Notes. [4], [5]

62At p. 16, DC Morel wrote that CS1 had observed Mr. Ricketts supplying drugs to Ms. Hodge “from both a black four door Mercedes and a dark grey range rover” [sic]. In CS Notes 2 (20/08/06), neither car’s colour is noted, nor is there reference to how many doors the Mercedes has. This is concerning on its face. It is made more problematic by the fact that DC Morel later asserts, at p. 34, that the descriptions of the vehicles – and their colours – have been “confirmed.”

iii. Asserting privilege and failure to maintain a proper investigative file

63In cross-examination, DC Morel testified that he knew that Mr. Ricketts did not live at the Scarborough address discussed above based on “privileged information.” He must have been raising concerns about CS information. That information, if it was received, ought to have been noted somewhere. It is not in CS Notes 1-3. Such assertions are by their nature difficult to verify. They vividly illustrate the concerns that arise in Step 6 proceedings where the defence is, by definition, hamstrung in its ability to participate.

64DC Morel took no notes between August 9 and September 1 regarding his role as affiant. The problem is compounded by the fact that he was also a CS handler in the investigation. At times, he used the ITO as the sole repository of certain notes: see Transcript at pp. 34-35. He also testified that his notes are “not just for me, but they’re primarily for me, to jog my memory”: ibid, at p. 106. Also, as I stated above, CS Notes 1-3 surfaced, for the first time, during the hearing, causing the parties to have to readjust.

65DC Morel failed to maintain a proper investigative file. Whether that constitutes a separate s. 7 breach in this case is largely academic. Aside from its effect on the reliability of the ITO, it had a clear impact on Mr. Ricketts’ right and ability to make full answer and defence.

VI. Conclusion Regarding the Warrants

66Viewed cumulatively and in the context of his testimony, the misrepresentations and omissions in the ITO reflect deliberate conduct on the part of DC Morel. They involved matters of central importance, including corroboration. Information was said to have been confirmed or corroborated when it was not. That, combined with the discrepancies regarding what was attributable to CS 1, make it unsafe to rely on the source information and futile to engage in an analysis of the extent to which it measures up to the Debot criteria.

67The Crown conceded that, to the extent that the Lakeshore Unit ITO depended on evidence illegally gained from the Land Rover and the Dowling Unit, references to it must be excised accordingly. The balance of the ITO, much of which was redacted, is unreliable and cannot sustain the warrants.

68The warrants are therefore invalid.

69In light of these findings, it is unnecessary for me to decide whether to make the additional excisions sought by Mr. Angelini regarding the information that was derived from the lost videos.

VII. Exclusion of the Evidence Pursuant to Section 24(2)

70There was no argument but that the evidence was obtained in a manner that violated Mr. Ricketts’ rights. The issue was whether the evidence ought to be excluded as a result. The Crown correctly pointed out that Mr. Ricketts did not enjoy the same reasonable expectation of privacy in the three locations that were searched: the apartment where his child lived the child’s mother, the Land Rover and the Lakeshore unit.

71Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, at paras. 68-70, the Supreme Court explained this concept.

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

72I must consider three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused's Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits (ibid, at para. 71). The focus must be on the long-term and prospective effect of a remedy or lack of remedy. Given the issues presented in this case, the Supreme Court of Canada’s decision in R. v. Le, 2019 SCC 34 provides important guidance. At para. 141, the majority provided the following explanation of the interplay between the Grant factors:

While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 36, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

Seriousness of the breaches

73This stage is focused on whether the Court must dissociate itself from the police conduct in order to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73). To determine this, I must locate the police conduct on a spectrum of seriousness.

74The Charter-infringing conduct – deliberately misleading a justice to authorize warrants to search locations including dwellings – was extremely serious and strongly favours exclusion.

75The loss of evidence – the videos – and the failure to maintain a proper investigative file reflected police negligence. This cannot be equated with good faith. It also favours exclusion of evidence, but less strongly.

Impact of the breach on Mr. Ricketts’ Charter-protected interests

76In R. v. Tim, 2022 SCC 12, at para. 90, the Supreme Court of Canada wrote that this line of inquiry considers the impact of the breach(es) on the accused's Charter-protected interests and asks whether the breach “actually undermined the interests protected by the right infringed.” I must identify “the interests protected by the relevant Charter rights” and evaluate “how seriously the breaches affected those interests.” As with the first line of inquiry, I must then “situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” As the Court explained,

[t]he greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”

i. The Dowling Unit

77The Dowling Unit was inhabited by Mr. Ricketts’ child and the child’s mother. It contained a limited amount of property that appeared to belong to him. It is reasonable to conclude that he was an occasional guest there, albeit as a parent to the child.

78The right at issue was his expectation of privacy in that location, which was on the low end. The impact of the intrusion on his rights, therefore, was also on the low end. It favours exclusion of the evidence, but not strongly.

ii. The Land Rover

79Generally speaking, people have a reduced expectation of privacy in motor vehicles. In this case, it is relevant that the Mr. Ricketts was not the registered owner of the Land Rover. The impact of the search of the Land Rover on his Charter-protected privacy interest was therefore correspondingly reduced. This factor favours exclusion of the evidence, but not strongly.

iii. The Lakeshore Unit

80Mr. Ricketts enjoyed a very high expectation of privacy in his home. The search of that unit was profoundly intrusive. This factor strongly favours exclusion of the evidence.

iv. Other Charter-protected interests

81Taken together, the lost evidence and DC Morel’s failure to maintain a proper investigative file had a significant impact on Mr. Ricketts’ right to make full answer and defence.

82Also, Mr. Ricketts was arrested at gunpoint in a “high-risk takedown.” The police did not obtain an arrest warrant and, as I have explained, the search warrants were invalid. Mr. Ricketts had a high degree of interest in his personal security and freedom. The arrest in these circumstances was profoundly intrusive.

Society's interest in adjudication on the merits

83This line of inquiry is concerned with the reliability of the evidence and its importance to the Crown’s case. The question is “whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79). Reliable and critical evidence generally pulls toward inclusion. That said, this factor cuts both ways and ought not be permitted to overwhelm the analysis (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34; Grant, at para. 84; and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 55). As the Court stated in Grant, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious … it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high” (ibid).

84Here, the evidence includes a large quantity of dangerous illegal narcotics and firearm. It is highly reliable evidence without which the Crown’s case is gutted. The charges and the potential consequences of a conviction are very serious.

85This factor clearly favours admission of the evidence.

Balancing

86The balancing exercise does not lend itself to mathematical precision. The question is whether, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. I am mindful of the Canadian public’s interest in seeing cases involving firearms and illegal drugs prosecuted on their merits and punished. Firearms and narcotics offences have been described as an epidemic in urban centres like Toronto. Excluding such evidence from a trial is not to be done lightly. Nonetheless, I find that the admission of the evidence in this case would have a profound and lasting impact on the repute of, and the public’s confidence in, the administration of justice.

87The deliberate Charter-infringing conduct in this case was most serious. A fully informed member of the public would also be aware of the ruse visit to the Dowling unit, the illegal search of the mailbox at the Lakeshore Building and DC Morel’s testimony. The Court must dissociate itself from it. Justice Doherty’s words at para. 84 of McGuffie, are apposite:

[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. This unpalatable result is the direct product of the manner in which the police chose to conduct themselves.”

88Even though some components of the second line of inquiry do not pull strongly in favour of exclusion, I find that, on balance, the sum of the first and second factors clearly outweighs society's interest in the truth-seeking function of a trial on the merits.

89For these reasons, I have excluded the evidence obtained pursuant to the warrants in this case.

Released: August 15, 2023 Justice Patrice F. Band

Footnotes

[4] [Redacted] [5] Footnote 4 was redacted to protect the identity of CS1. Its contents are visible in Reasons for Judgment in the Court file under seal.

Footnotes

1. 1See also: R. v. Lao, 2016 ONCJ 500, unrep’d, September 26, 2016 (OCJ), R. v. Forster, 2005 SKCA 107, [2005] S.J. No. 529 paras 23-32 and R. v. Mulvenna, 2020 ONSC 1242.
2. 2Leave to appeal refused, R. v. Paryniuk, 2017 S.C.C.A. 81.
3. 3This point was also made by Madam Justice Garton in R. v. Jackson, 2011 ONSC 7046 at para. 63.