COURT FILE NO.: 14653/18 DATE: 20190108 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JABOUROU ABDOULKADER Defendant/Applicant
Counsel: J. Kim, for the Crown T. Rodocker, for the Defendant/Applicant
Heard: January 7 and 8, 2019
J. Speyer J.
A. Introduction
[1] On November 1, 2017, police officers searched Mr. Abdoulkader’s residence and vehicle. They had a search warrant that authorized them to do so. They seized things that the Crown seeks to introduce in evidence at Mr. Abdoulkader’s trial on charges related to an armed robbery and attempted robbery of two banks. The police also arrested Mr. Abdoulkader that day and seized evidence incidental to his arrest.
B. The positions of the parties
[2] Mr. Abdoulkader applies, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, for an order excluding all evidence seized during the execution of the search warrant, and incidental to his arrest. In a Notice of Application filed in advance of the trial, he asserted that the Information to Obtain the search warrant (ITO) contained material false and misleading statements. In his factum, filed at the beginning of the hearing of this application, he argued that the false and misleading statements should be excised, and that the remaining contents of the ITO do not provide a basis upon which the warrant could have issued.
[3] During oral argument, for the first time, counsel for Mr. Abdoulkader sought exclusion of the evidence seized incidental to Mr. Abdoulkader’s arrest, on the basis that the arrest was unlawful because it is an inevitable inference that the officer(s) who effected the arrest relied on the same false information as the officer who drafted the ITO.
[4] The Crown concedes that the ITO wrongly describes the outcome of, and inferences that may be drawn from, a previous investigation of the accused by the Peel Regional Police Service in 2011 and 2012 called “Project Earlybird”. The ITO refers to this investigation in three places, each acknowledged by the Crown to be incorrect or misleading:
(1) Paragraph 10: “Abdoulkader has history involving similar style robberies”.
(2) Paragraph 19: “On October 25, 2017 I was contacted by P/C Rodrigues regarding this incident. P/C Rodrigues advised me of a male, Jabourou Abdoulkader who had previously been investigated by Peel Regional Police during “Project Early Bird” which occurred in 2011/2012. Project Early Bird involved the investigation of a group of males who were targeting TD Canada Trust Banks during the early morning hours when they opened. The group that included Abdoulkader were ultimately arrested in 2013 while they were preparing to rob an armored car. P/C Rodrigues advised that Abdoulkader further matches the description provided by witnesses including his height, build, eyes, accent and further indicated that his previous experience would explain his knowledge of bank slang or terms. Abdoulkader was released from custody in April 2017 and is currently on parole.”
(3) Paragraph 42: “Abdoulkader is currently on parole for his involvement in similar robberies utilizing the same motive of robbing a bank during the early morning hours just prior to it’s opening”. And: Abdoulkader would be familiar with bank slang used by the robber “based on his previous involvement in bank robberies”.
[5] The Crown acknowledges that Mr. Abdoulkader was not convicted of any bank robberies that he was charged with as a result of the “Project Earlybird” investigation. Indeed, he was acquitted of the only bank robbery charge that proceeded to trial. The Crown acknowledges that the above-noted passages should be excised because they are incorrect and/or misleading.
[6] The Crown argues that the ITO, absent the offending passages, contains sufficient grounds for the issuance of the warrant.
[7] As to the late-breaking application to exclude the evidence obtained incidental to Mr. Abdoulkader’s arrest, of which the Crown had no prior notice, the Crown says that the evidentiary record does not permit this application to be properly considered. The officer who effected the arrest was not the officer who drafted the ITO, and there is no evidence as to what was in the mind of the arresting officer. The search incident to the arrest is grounded in the lawfulness of the arrest about which no evidence has been presented. Moreover, says the Crown, the s. 24(2) analysis may also involve analysis of facts different than those in play in relation to the evidence seized pursuant to the search warrant. All of this precludes proper consideration of the constitutionality of the search incident to the arrest.
C. The application to exclude evidence seized incidental to the arrest
[8] Rule 31 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7) applies where exclusion of evidence alleged to have been obtained by constitutional infringement is sought under s. 24(2) of the Charter. Rule 31 requires that notice be given of any such application, and the notice must include a precise, case-specific statement of the basis and grounds upon which the evidence is said to be inadmissible. The Provincial Practice Direction Regarding Criminal Proceedings, effective May 1, 2017, s. 10, provides that unless otherwise ordered by a judge, factums are required for all applications to exclude evidence under Rule 31. The applicant’s factum must be served and filed not later than 30 days before the day first scheduled for the hearing of the pre-trial applications or the trial as the case may be.
[9] The reasons why the rules require timely and detailed notice and factums are obvious.
[10] In R. v. Gundy, 2008 ONCA 284, at para. 24, Rosenberg J.A approved the reasons of Hill J. in R. v. Tash, [2008] O.J. No. 200 (S.C.J.), describing them as an excellent review of the factors to be considered when an accused seeks the exclusion of evidence but has not complied with the rules of court. Hill, J. summarized those factors as follows:
(1) Just as counsel are expected to comply with time schedules set by the court (R. v. Oliver, [2005] O.J. No. 596 (C.A.) at para. 29), participants in the justice system act "within a court structure that must accommodate thousands of individual litigants" and that system can only function effectively when there are genuine efforts to comply with procedural rules - a trial judge bears responsibility "to ensure the ongoing effective operation of trial lists": Khimji v. Dhanani Estate, [2004] O.J. No. 320 (C.A.) at para. 35; R. v. Blom (2002), 167 C.C.C. (3d) 332 (Ont. C.A.) at 343 ("Trial courts are expected to run their courts efficiently and they are entitled to insist upon adherence to rules designed to ensure the proper administration of justice"); R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.) at 125 ("A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process"); R. v. Assoun (2006), 2006 NSCA 47, 207 C.C.C. (3d) 372 (N.S.C.A.) at 462 (leave to appeal refused [2006] S.C.C.A. No. 233) ("The rules of procedure ... and the trial judge's responsibility to apply them, promote trial fairness and encourage confidence in the administration of justice"). A trial judge is entitled to control the proceedings "and to intervene when counsel fail to follow the rules": R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.) at 327.
(2) "Rules of court do not exist simply for the sake of having rules": R. v. Djevdet, [1998] O.J. No. 3983 (S.C.J.) at para. 7. Rules of court, such as Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, facilitate the fair and expeditious determination of Charter issues and thereby enhance the quality of the administration of justice: Blom, at p. 341. Rules of court serve any number of purposes including avoidance of wasteful pre-trial preparation, contributing to reliable court scheduling, the securing of a minimally adequate record upon which to adjudicate, focus of pre-trial applications, etc. "In the adversarial trial system, the court, the accused, and the community are entitled to have two informed and prepared litigants conducting the case ... The Crown is entitled to be represented in name and substance": R. v. Kovac, [1998] O.J. No. 2347 (S.C.J.) at para. 42; R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 295. Put differently, the "interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of justice" (Oliver, at 31) and as noted in D.P.P. v. Hickey, [2007] IECCA 98 at p. 3 quoting The People (At the Suit of the Attorney General) v. Frank O'Brien, [1963] I.R. at 68 ("justice in criminal cases is not the exclusive preserve of defendants").
(3) Rules of procedure provide an essential framework for the fair and orderly conduct of criminal trials: R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) at 230 (leave to appeal refused 67 N.R. 159 n, [1986] 1 S.C.R. xiii). Rules of court are servants of these objectives (Blom, at 341) and some reasonable flexibility in their application is essential: Rules of the Ontario Court of Justice in Criminal Proceedings, Rule 2.02 ("The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time"). After all, "in all cases, justice must not only be done, but must be seen to be done": R. v. Loewen (1998), 122 C.C.C. (3d) 198 (Man. C.A.) at 207. That said, "[s]ome element of discipline must be introduced into the bringing of Charter motions": Kutynec, at 294.
(4) As a general rule, evidence subject to a defence application to exclude on account of an alleged Charter breach is presumptively admissible until the accused persuades the trial court to the contrary. In other words, the defence, as in the case of a submitted violation of s. 10(b), bears the burden of production and persuasion on the issue of unconstitutionality and exclusion. The defence is expected to state with "reasonable particularity the ground upon which the application is made" and the court and prosecution are entitled to know the legal and factual basis including potential evidence to be called: Kutynec, at 297, 301-2. The court always requires "focused submissions": R. v. Osmar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 (Ont. C.A.) at 252. Given the placement of the burden to establish inadmissibility due to constitutional infringement, the obligation on the defence to provide such information does not derogate from the presumption of innocence or the defence right to refrain from assisting the prosecution: Kutynec, at 301. A particularized notice, and if necessary supporting material, is the first step toward a proffer of proof as the court determines whether the application has sufficient merit to advance: R. v. Pires; R. v. Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) at 463, 466-7 (no need to embark on evidentiary hearing when counsel "unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court"); R. v. Felderhof (2004), 180 C.C.C. (3d) 498 (Ont. C.A.) at 516, 526, 537 (court may "require an offer of proof before embarking on a lengthy voir dire"); The Report of the Chief Justice's Advisory Committee on Criminal Trials in the Superior Court of Justice (Ontario), May 2006, at para. 320-1 (inappropriate for counsel to use oral submissions to "fill in the gaps" in written record required to be filed under rules of court). As it "brings the Charter and the administration of justice into disrepute when ... it is used to "remedy" baseless and frivolous claims" (R. v. Elliott (2004), 181 C.C.C. (3d) 118 (Ont. C.A.) at 153), a proffer may not lead to a fully presented application.
(5) Notices of application and any related filings raising Charter matters are expected to provide real and meaningful notice of the alleged nature of the constitutional breach as well as the evidence to be presented in support (see, for example Rule 30.03(c)(d)(e)). Notices which are boilerplate, general, generic, skeletal, vague or misleading are contrary to the letter and spirit of the procedural rules: R. v. Francey (2002), 6 C.R. (6th) 386 (Ont. Ct. J.) at para. 6 (aff'd (2003), 42 M.V.R. (4th) 33 (Ont. S.C.J.) at 42-4). Charter litigation by ambush unfairly diminishes the necessary standard of equilibrium in the adversary system: R. v. Darrach (2000), 2000 SCC 46, 148 C.C.C. (3d) 97 (S.C.C.) at 125 ("The right to make full answer and defence does not include the right to defend by ambush"). An affidavit in support of a notice will only be necessary (Rule 30.05(1)(c), (2)) where other filed material does not describe with particularity the fact of a possible Charter breach: see Duncan J.'s suggested guidelines in Francey (OCJ), at para. 16-7; and R. v. Bosnjak, [2003] O.J. No. 6003 (Ct. J.) at para. 9.
(6) A trial judge's decision whether to dismiss an application for want of compliance with rules of court or to make some other remedial order amounts to an exercise of judicial discretion: R. v. Dumont (2000), 149 C.C.C. (3d) 568 (Ont. C.A.) at 570-1. Such an exercise of discretion is ordinarily deserving of deference on review and subject to reversal "only if exercised on an erroneous principle or if it resulted in a miscarriage of justice": Oliver, at para. 28; Blom, at 341, 343.
(7) While non-compliance with procedural requirements may lead to an entirely proper exercise of discretion to dismiss a Charter application, (Loveman at 125; Kutynec, at 296; Loewen, at 207), in arriving at such a result the trial court is obliged to consider all relevant circumstances including, in particular, prejudice to the prosecution as noted in Blom at 342:
... where a procedural rule such as Rule 30 is invoked to foreclose consideration of a Charter issue, non-compliance with the rule is not necessarily fatal to the Charter application. Rather, the trial judge is required to consider and weigh a variety of factors to determine what course of action is required by the purpose of the rule.
Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application.
See also: Loveman, at 127-8 (trial judge to consider prejudice to the Crown, specific nature of Charter argument, and impact the application would have in course of trial; here "trial judge did not properly balance the various interests. His ruling sacrificed entirely the appellant's right to advance a Charter-based argument"); R. v. Marzocchi, [2006] O.J. No. 1648 (C.A.) at para. 7 (judicial exercises of discretion require the court to take into account "other aspects of the due administration of justice"); Kutynec, at 296 (summary dismissal only where court has "taken into account all relevant circumstances"); Francey (S.C.J.), at para. 36 (weigh prejudice to Crown); R. v. Beacon, [2005] O.J. No. 4664 (S.C.J.) at para. 2, 8 (no evidence the trial judge considered issue of "prejudice to the Crown, the merits of the Charter application or other options available before deciding" to dismiss); R. v. Ball, [2003] O.J. No. 286 (S.C.J.) at para. 12, 15-6 (trial judge failed to consider issue of prejudice to the Crown); R. v. Oslowski, 2006 ONCJ 488, [2006] O.J. No. 5036 (Ct. J.) at para. 25 (whether prejudice to fair and expeditious trial process).
(8) A trial judge should generally be reluctant to foreclose inquiry into an alleged Charter violation: Loveman, at 125. Less drastic options than summary dismissal, such as an adjournment or reorganization of a previously planned trial schedule, may do justice in the circumstances: Loewen, at 210; Loveman, at 127; R. v. Spiering, [2002] O.J. No. 4278 (S.C.J.) at para. 32-3 (have counsel precisely state nature of challenge before adjourning for Crown to consider its response); Blom at 343:
If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.
[11] The instant case is not a case of inadequate notice. It is a case of no notice at all.
[12] I must consider the issue of prejudice: does the failure to provide notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? I also consider the issue of prejudice to the court’s ability to correctly determine both whether the Charter breach alleged occurred, and if it did, whether the evidence should be excluded.
[13] The manner in which the defence has raised the constitutionality of the search incident to arrest, with no notice and no factum, on the first day of the trial, has deprived the Crown of the ability to call evidence on this issue, and to make meaningful submissions to the Court. The manner in which the defence has raised this issue has deprived the Court of an adequate evidentiary record on which to base a decision, and of helpful submissions from counsel.
[14] Therefore, I decline to hear the application challenging the constitutionality of the search incident to arrest at this time.
[15] That is not the end of the matter. As Justice Hill noted, a trial judge should generally be reluctant to foreclose inquiry into an alleged Charter violation when less drastic options than summary dismissal, such as an adjournment or reorganization of a previously planned trial schedule, may do justice in the circumstances.
[16] This is a judge alone trial that is amenable to reorganization more readily than would be the case in a trial with a jury. The Crown has conceded that material misrepresentations were made by the officer who drafted the ITO. Whether the arresting officer relied on those misrepresentations, or not, is presently unknown to the court. Counsel for the accused has told me that he intended to seek exclusion of the evidence obtained incidental to the accused’s arrest, and that his failure to include that in his Notice of Application was an oversight. That does not, of course, address his non-compliance with the rules relating to the requirement that a factum be filed in advance of the trial date, and the fact that his factum also did not address the search incidental to arrest.
[17] On balance, fairness requires that the accused be permitted to challenge the admissibility of the evidence seized incidental to his arrest. But fairness also requires that he provide proper notice and a factum to the Crown and to the court. I will entertain submissions from counsel as to how this may be achieved.
D. The application to exclude evidence seized during the execution of the search warrant
[18] The Crown and defence agree that the offending portions of the ITO set out previously should be excised. I agree.
[19] The Crown and defence agree that the issue is whether, absent the excised passages, there remains sufficient evidence upon which the justice could have issued the warrant.
[20] The legal principles that govern the determination of this issue are not in dispute. They were summarized by the Ontario Court of Appeal in R. v. Nguyen, 2011 ONCA 465, at paragraphs 23 and 25, as follows:
23 The ultimate test is whether -- after excising any offending portions of the ITO -- there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO -- depending on the nature and severity of these faults -- may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.
25 In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:
Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]
See also: R. v. Garofoli, [1990] 2 S.C.R.1421, at p. 1452.
[21] When deciding whether sufficient information remains for the issuance of the search warrant, I must not conduct a rehearing of the application for the search warrant, or substitute my views for those of the justice of the peace. The task at hand is to determine whether, based on the record that was before the authorizing justice of the peace, excised of false or misleading information, and as amplified on review, the justice of the peace could have granted the search warrant. See: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51 and 53.
[22] An issue has arisen in this case as to whether the record that was before the authorizing justice of the peace can be amplified. The search warrant in this case was obtained pursuant to Section 487.1 of the Criminal Code, which authorizes search warrants to be applied for and issued without the need for an in-person attendance by a police officer before a justice of the peace, but rather by telephone or other means of telecommunication. In this case, the ITO was faxed to the justice of peace.
[23] An examination of the ITO that was faxed to the justice of the peace, the original of which has been filed on this application as Exhibit A, reveals that the many colour photographs contained in the original copy of the ITO transmitted in black and white and are of very poor quality. The officer re-faxed the portion of the ITO containing the grounds for his application to the justice of the peace after lightening the images to facilitate their transmission by the fax facility. This effort produced better quality images.
[24] The Crown has filed, as part of the record on this application, a colour copy of the portion of the ITO that contained the grounds for the application. The quality of the colour images affords the viewer a much better opportunity to assess their probative value.
[25] The Crown submits that while there is no precedent for employing the amplification doctrine in a situation like this, the principles that animate the amplification doctrine support resort to it in this case. Amplification of the grounds in an ITO is permitted when erroneous information is provided by the police as a result of simple, minor, or technical errors, provided that it is not part of a deliberate attempt to mislead the justice of the peace. See: Araujo, at paras. 56-59; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43. The danger inherent in permitting amplification is that it might become a means of circumventing the requirement that intrusions on privacy be the subject of prior authorization. That danger is not present in this case.
[26] The defence agrees that, in principle, amplification should be permitted in this case. The defence notes that the colour photographs were in the possession of the police at the time that the warrant was sought, and that the officer intended to present the colour photographs to the justice of the peace.
[27] To refuse amplification in this case, where the complete grounds to obtain the search warrant were contained in the colour copy, but an inferior quality black and white copy was received by the justice of the peace, would put form above substance. Amplification in this case would not allow the police to do an end run around the prior authorization requirement at all. Rather, it would permit the court, on review of the sufficiency of the grounds for the issuance of the warrant, to base its decision on information that was in possession of the police and contained in the ITO at the time the warrant application was made, that the police were unable to transmit to the justice of the peace by reason of technological limitations. Consideration of the colour copy best permits me to decide whether the ITO contained sufficient grounds upon which the warrant could have issued.
[28] I now turn to whether the portions of the ITO that remain after excision of the offending statements provide a sufficient basis upon which the justice of the peace could have issued the search warrant.
[29] It is worth noting the pre-requisites to the issuance of a search warrant in this case. On a sub-facial review of a warrant, taking into account any excision and amplification that may have occurred, the question is whether the issuing justice could have concluded that reasonable grounds exist to believe that there is in a building, receptacle or place, anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence. Reasonable grounds, in this context, has been described in various ways: “credibly-based probability”, “based on the operation of reason and not on mere suspicion”, and “a reasonable inference from the facts”. See: R. v. Campbell, 2010 ONCA 588, at paras. 50-54; R. v. Jacobson (2006), 209 O.A.C. 162, 207 C.C.C. (3d) 270, at para. 22.
[30] In this case, the ITO provided ample grounds to believe that the robbery in Ajax and the attempted robbery in Mississauga were committed by the same person. The two events were separated by only four days. Both targeted a TD Bank. Both occurred early in the morning, as staff arrived. Both were committed by a male with black skin, between 6’ and 6’2” tall, and slim. Both suspects wore a black face covering, black gloves, a hoodie under a ¾ length jacket that was either beige or green in colour. Both suspects carried a black shoulder bag. Both suspects used a U-Haul van parked on a side street near the bank, to get away.
[31] The grounds to believe that evidence with respect to the commission of these offences would be found at the places to be searched are based on the grounds to believe that the accused committed the offences. The grounds in support of this conclusion must be viewed cumulatively, not in isolation. In summary form, they are:
(1) The accused is a man with black skin, about 6’4” tall and slim. The image captured of the robber without his face and head covering that is included in the ITO, and compared with a known photograph of the accused, does not permit any conclusion to be drawn other than the accused could be the robber in that his appearance is not obviously different than the appearance of the robber.
(2) U-Haul confirmed that the accused rented a U-Haul van in the two months before the robberies, though at the time the warrant was applied for, further details about that were unknown to the police. An eye-witness told police that about two weeks prior to October 31, 2017, she saw a U-Haul van parked at a location close to, but at some remove from the accused’s residence where he parked a vehicle as the police watched. The offences were committed on October 16 and October 20, 2017.
(3) During surveillance of the accused in late October, 2017, police saw him carrying a bag that looked the same as the bag carried by the robber. The images contained in the ITO of the robber, and of the accused, show them both to be carrying a black, leather-like shoulder bag. The bags appear to be of the same size and shape. The accused and the Ajax robber wore the bag in a cross-body fashion, with the strap on the right shoulder, and the bag slung to the left side. The length of the strap appears to be quite long, such that the bottom of the bag came to the left knee of both the robber and the accused. Both bags had a pad attached to the strap. The strap was attached to the bag at both ends with two pieces of silver, rectangular shaped hardware. No material differences between the bags carried by the robber and by the accused can be discerned.
(4) The footwear worn by the Ajax and Mississauga robbers was similar to footwear that the accused wore when attending at TD Bank branches in September, 2017 to conduct personal banking. The footwear worn by the Ajax robber has a white and black sole, stripes on the side, black uppers and black laces that is indistinguishable in the photographs from the shoes worn by the accused when he attended a TD Bank on September 20, 2017.
[32] The foregoing grounds, viewed as a whole, provide a sufficient basis upon which the justice of the peace could have issued the search warrant. It may reasonably be inferred from these grounds that the accused committed the offences alleged, and to conclude as a result that the evidence sought would be found at his residence and in his car. Such a conclusion could follow an assessment of the grounds based on reason, and amounts to much more than mere suspicion.
[33] The search warrant was valid, and the search conducted pursuant to its authority did not infringe s. 8 of the Charter.
E. In the alternative, should the evidence be excluded under Section 24(2)?
[34] In the event that I am in error in upholding the validity of the search warrant, I make the following observations.
[35] The first factor to be addressed under the three-part test developed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, is the seriousness of the Charter-infringing conduct.
[36] This is not a case where the police searched without prior authorization. The police were clearly aware of the need for a warrant, conducted an investigation that materially confirmed the information provided to them by the Peel police that the accused could be considered a suspect, and obtained significant information that supported the conclusion that he committed the Ajax robbery and the Mississauga attempted robbery.
[37] The Charter-infringing conduct in this case is the alleged inadequacy of the grounds to obtain the warrant. Any inadequacy that arises from the difficulties encountered in transmitting images to the justice of the peace does not give rise to serious Charter-infringing conduct. That inadequacy would reflect no deficiency in the grounds formed by the officer who applied for the warrant. If the grounds did not support the issuance of the warrant, they missed the mark by very little.
[38] The defence fairly characterizes the conduct of the officer who included the “Project Earlybird” allegations in the ITO, without checking the disposition of those charges, as not willful or intentionally misleading, but rather as negligent, bordering on recklessness. There is no doubt that the officer was wrong to rely on the allegations. That said, the accused was convicted as a result of that investigation of conspiracy to commit robbery and firearms offences, which information was included in the ITO. The officer’s error has been addressed by excising the flawed information from the ITO, and the validity of the warrant has been assessed without regard to that information. In the circumstances of this case, I do not consider it necessary for the court to disassociate itself from the officer’s conduct to maintain confidence in the administration of justice, as that has, to some extent, already occurred.
[39] The second Grant factor, the impact of any breach on the Charter-protected interests of the accused, is acknowledged by the Crown to be serious. The search in this case included the search of a residence, and a significant intrusion on the accused’s privacy interests.
[40] The third Grant factor, society’s interest in an adjudication of the charges against the accused on their merits militates strongly in favour of the admissibility of the evidence. The charges are very serious, involving a well-planned gunpoint robbery of a bank for significant financial gain. The evidence obtained as a result of the search and seizure is very reliable and relevant to material issues in the trial.
[41] Balancing the three Grant factors, I conclude that admitting the evidence seized pursuant to the search warrant would not bring the administration of justice into disrepute.
The Honourable Justice J. Speyer
