Court File and Parties
COURT FILE NO.: CR-22-90000454-0000 DATE: 20230508
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – MATTHEW BLAKE Applicant
Counsel: Christie Black Orlando for the Crown Thomas E. Evangelista for the Applicant
HEARD: February 21, 22 and 23, 2023
Reasons for Decision
Ducharme J.
I. Introduction
1Mr. Blake is charged with two counts of possession of cocaine for the purpose of trafficking and one count of possession of proceeds of crime under $5000. In late 2020 and into 2021, Toronto Police Service (“TPS”) officers received confidential source information from two confidential sources (CS1 and CS2) identifying Mr. Blake as someone who is involved in the trafficking of crack and powder cocaine. After further investigation, including surveillance, Controlled Drugs and Substances Act (“CDSA”) search warrants (the “Warrants”) were obtained for the Applicant’s residence, 1181 Ellesmere Road, Unit 409 (the Residence) and his motor vehicle, a black Acura TL with Ontario licence plate 45RA88 (the “Vehicle”). Upon execution of the Warrants on 1 February 2021, officers located quantities of powder cocaine, crack cocaine, Canadian and Jamaican currency, and drug paraphernalia, including digital scales and cutting agent, in the Residence. Nothing of evidentiary value was located in the Vehicle.
2Mr. Blake has brought an application apply to have all the evidence excluded, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that their rights protected by s. 8 of the Charter have been violated. The Applicants argue that: (1) the information provided by C1 and C2 is not credible compelling or corroborated; and (2) the ITO does not contain sufficient grounds to conclude that evidence of the offences alleged would be found in the Applicant’s car or residence.
3The Applicant also requested: (1) disclosure of the investigative file in this matter and, in particular, the notes of the CI handler; and (2) leave to cross-examine the affiant and sub-affiants. For oral reasons given at the time I denied these requests.
4As the ITO contains information that could identify the confidential informants the Crown relied on Step 6 of the procedure outlined in Garofoli, [1990] 2 SCR 1421. The Crown seeks to support the warrants by having me consider the complete unredacted ITO. I approved judicial summaries of the information redacted from the ITO that I was satisfied would permit the Applicant to challenge the excised materials (thereby the basis for the warrant) by argument or evidence and to make submissions as to the adequacy of the ITO. I then considered the adequacy of the ITO considering the parties’ submissions.
5I will consider these arguments in turn. In considering these arguments I am alive to the fact that the defence is handicapped by the fact that they have not had access to the entire ITO. Hence their submissions are more general than they would be otherwise.
II. The Standard for the Review of a Search Warrant
6The standard for reviewing a search warrant was articulated by the Supreme Court of Canada in Garofoli at para 56:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
7In R. v. Araujo, 2000 SCC 65, [2000] SCJ No. 65 the Supreme Court set out the test on review as follows at para 51:
The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge …
As I noted as a judge at the Quebec Court of Appeal in Hiscock, [citation omitted], even a basis that is schematic in nature may suffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, [citation omitted] the requirement was described as "sufficient reliable information to support an authorization". The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. [Emphasis added]
8As set out in R. v. Pires and Lising, 2005 SCC 66, [2005] S.C.J. No. 67 at para. 30, the review of a warrant is not intended to test the merits of the Crown’s allegations; that is the function of the trial. Instead “[t]he reviewing judge…only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed.”
9Section 11 of the CDSA requires “reasonable grounds to believe” that, inter alia, a controlled substance, a receptacle in which that substance is contained or concealed, offence-related property, or “anything that will afford evidence” is in a place in order to issue a warrant to search that place.
10The onus of establishing that the search authority was improvidently granted rests upon the Applicant: R. v. Paryniuk, 2017 ONCA 87 at para. 43. A warrant is presumptively valid. The reviewing justice must not set aside the authorization unless they are satisfied on the whole of the material presented that there was no basis for it. As explained by the Supreme Court in R. v. Morelli 2010 SCC 8 at para 40:
The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
11The precondition for the issuance of a warrant is reasonable and probable grounds. This is a standard of credibly based probability – a lower standard than a “balance of probabilities.” As Rosenberg, J.A. held in R. v. Jacobson, [2006] OJ No 1527 (Ont. CA) at para 22, “If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.”
12The reviewing justice must view the reasonableness of the search warrant, taking into account the totality of the circumstances. The reviewing justice must carefully examine all of the information in the ITO and in a practical, non-technical and common-sense way and not focus on isolated passages. In addition, the authorizing justice may draw reasonable inferences from the evidence in the ITO and the informant need not underline the obvious.
III. Is the information provided by C1 and C2 sufficiently reliable as is it compelling, credible or corroborated?
13In R. v. Debot, [1989] SCJ No 118, the Supreme Court articulated three criteria to assist in reviewing and assessing the reliability of the information. The Court explained as follows at para 53:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the totality of the circumstances must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
14In considering these three criteria, Sopinka, J. stated as follows in Garofoli:
There is no formulaic test as to what this entails. Rather, the Court must look to a variety of factors including:
a. The degree of detail of the “tip”; b. The informer’s source of knowledge; and, c. Indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
15CS1 provided some very detailed information. There is no issue with respect to the contemporaneity of the information to the search. This included a detailed description of the Applicant as well as his cell phone number. CS1 had observed Blake in possession of and dealing cocaine and provided specific information about his drug dealing operation including information about prices and amounts. A significant amount of this information was based on personal observations of CS1. The detailed nature of this information made it more compelling.
16Some of the information provided by CS1 was corroborated by police investigation. CS1 had not previously provided information to TPS, but the corroboration of some of the information provided enhanced CS1’s reliability and credibility. While the specifics of the corroborated information are redacted to protect the identity of CS1, the full information was before the issuing justice.
17Furthermore, in terms of CS1’s credibility the issuing Justice was made aware of CS1’s criminal record, if any, as well as his/her motivation for providing the information. As well, CS1 was advised by police that he/she would face criminal charges for making false reports if he/she provided false information.
18CS2 provided less detailed information about the Applicant. Here too, there is no issue with respect to the contemporaneity of the information to the search. CS2 provided a detailed description of the Applicant and his first and last name. CS2 provided the make and colour of the Applicant’s car as well as the general area in which he resided. CS2 had observed Blake in possession of and dealing cocaine and provided specific information about his drug dealing operation including information about prices and amounts. A significant amount of this information was based on personal observations of CS2.
19Some of the information provided by CS2 was corroborated by police investigation. While the specifics of the corroborated information are redacted to protect the identity of CS2, the full information was before the issuing justice. CS2 had previously provided reliable information to TPS, which also enhanced CS2’s reliability and credibility.
20Finally, in terms of CS2’s credibility the issuing Justice was made aware of CS2’s criminal record, if any, as well as his/her motivation for providing the information. As well, CS2 was advised by police that he/she would face criminal charges for making false reports if he/she provided false information.
21In conclusion, I have no reservations about the credibility and reliability of either of the confidential informants and the Applicant’s submissions on this ground must fail.
IV. Does the ITO contain sufficient grounds to conclude that evidence of the offences alleged would be found in the Applicant’s residence, 1181 Ellesmere Road, Unit 409?
A) The Need for Location Specific Grounds for a Search
22There is no issue that the information provided by both C1 and C2 provides reasonable grounds to believe that Mr. Blake is a trafficker of cocaine. In other words, there are reasonable grounds to believe that a crime has been committed and that Mr. Blake committed it. However, neither CI provided any information as to why evidence of this crime would be found at his residence. Indeed, CS1 provided no information about the Applicant’s residence at all. CS2 did provide information about the general area where the Applicant resided saying that he “currently lives in Scarborough, in an apartment in the area of Scarborough Town Centre”. But CS2 also provided no information that directly suggested that evidence of the Applicant’s crime would be found in his residence.
23Section 11(1) of the Controlled Drugs and Substances Act provides as follows:
11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed, (c) offence-related property, or (d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. [Emphasis added]
24The Supreme Court of Canada in R. v. Morelli, 2010 SCC 8 at para 39 made it clear that this requirement is also of constitutional significance:
Under the Charter, before a search can be conducted, 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] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168). [Emphasis added.]
25The Applicant submits that there is no basis to say that there are reasonable grounds to believe that evidence of trafficking of cocaine could be found in the Applicant’s residence, 1181 Ellesmere Road, Apartment 409.
(B) The Items to be Searched For
26In assessing this submission, I would first note that the ITO in Appendix A lists the following items under the heading Items to be Searched for/Seized:
Contraband and Evidence of Contraband
- Illicit Narcotics – Schedule I Substances (e.g., Crack and Powder Cocaine) Any associated derivatives of the above-mentioned narcotics
- Any Packaging, Scales and Paraphernalia consistent with the Sale of Illegal Narcotics
- Currency
- Debt lists
Evidence Revealing Possession and/or Control of Contraband
- Documents and items in relation to recent ownership, occupation, possession and association with both the search location and the property found within the search location
Electronic/Communication Devices
- Evidence in relation to all of the above categories that is stored in electronic/communication devices found within the search location.
27These then are the items for which one must have reasonable grounds to believe that they are present at the place to be searched 1181 Ellesmere Road, Apartment 409.
(C) Information with Respect to 1181 Ellesmere Road, Apartment 409
28With respect to this address, as already mentioned, neither confidential informant provided any information. There is police surveillance of the Applicant driving to and from the building at 1181 Ellesmere Road but no surveillance of him entering apartment 409. There is also no surveillance suggesting that Mr. Blake was transporting cocaine to or from 1181 Ellesmere Road. Indeed, the only information in the ITO relating to this specific address is the result of a check of the Ministry of Transportation Ontario database which reveals that the Applicant’s address is 409-1181 Ellesmere Road, Scarborough, ON M1P 2X6.
(D) The Affiant’s Explanation of His Reasonable Grounds to Believe that the Items to be Searched For would be Found at 1181 Ellesmere Road, Apartment 409
29P.C. Raveendran, the affiant, in Appendix C of the ITO explains his reasonable ground for believing such evidence will be found at 409-1181 Ellesmere Road under the following headings:
Belief That the Items to be Seized Are at the Locations to be Searched
Based on my training and experience as a police officer, I believe the types of items which have been listed to search for in Appendix ‘A’, are routinely found in locations such as Matthew BLAKE’s residence and vehicle.
With specific reference to this investigation, the address and vehicle belong to Matthew Blake. It is my belief that this apartment unit and vehicle would be places that Mathew BLAKE would feel safe and comfortable to store the types of items listed in Appendix ‘A’. The familial residence would offer Mathew BLAKE comfort in the ability to control and store any of the items to be searched for. The vehicle is his primary mode of transportation to deliver the illegal narcotics as described in Appendix ‘C’.
GROUNDS TO BELIEVE THAT THINGS TO BE SEIZED WILL AFFORD EVIDENCE OF THE OFFENCE
I believe on reasonable grounds that the items to be seized, as listed in Appendix ‘A’ of this affidavit, will afford evidence to the offence listed in Appendix ‘B’ of this affidavit. My grounds for this belief have been listed in Appendices ‘C’, ‘D’ and ‘E’, are supported in the above paragraphs and can be summarized as follows: a. Mathew BLAKE is in possession of cocaine as well as paraphernalia consistent with the trafficking of said illicit narcotic. The mere possession of any of this narcotic listed in schedule I of the C.D.S.A. – in and of itself – is a criminal offence.
It is my experience that evidence relating to drug trafficking is frequently found on electronic/communication devices held by those who traffic narcotics – such as text messages, phone calls, debt lists and photographs. Furthermore, individuals involved in the trafficking of narcotics often maintain debt lists and exchange physical currency with their customers.
Based on the above paragraphs, I believe on reasonable grounds that there are illegal narcotics, paraphernalia, currency, debt lists, identification documents, and electronic/communication devices located within the address of 1181 Ellesmere Road, Unit 409 in the City of Toronto and the 2015 four-door Black Acura motor vehicle bearing Ontario licence plates ‘45RA88’. I further believe that these items will afford evidence to the offences listed in Appendix ‘B’ of this affidavit.
GROUNDS TO BELIEVE THAT THINGS TO BE SEIZED WILL BE AT THE PLACE TO BE SEARCHED
- I believe on reasonable grounds that the items to be seized, as listed in Appendix ‘A’, will be located in the places to be searched. My grounds for this belief have been listed in Appendices ‘C’, ‘D’ and ‘E’ and are supported by the above paragraphs. Based on the above paragraphs, I believe on reasonable grounds that there are illegal narcotics, paraphernalia, currency, debt lists, identification documents, and electronic/communication devices located within the address of 1181 Ellesmere Road, Units (sic) 409, in the City of Toronto and the 2015 four-door Black Acura motor vehicle bearing Ontario license plates ‘45RA88’.
(E) Analysis of the Affiant’s Reasonable Grounds to Believe that the Items to be Searched For would be Found at 1181 Ellesmere Road, Apartment 409
30In analyzing the foregoing paragraphs of the ITO, I note again that to constitute reasonable grounds requires that the contents of the ITO taken as a whole support a credibly based probability that there is evidence respecting the commission of an offence in the location to be searched. This standard exceeds suspicion but falls short of a balance of probabilities. As nothing was found in the vehicle, I will only discuss 1181 Ellesmere Road, Unit 409, the Applicant’s residence.
31The first paragraph is an assertion based on the affiant’s “training and experience as a police officer” that the items listed in Appendix ‘A’ are routinely found in locations such as Mathew Blake’s residence and vehicle. Clearly, the affiant is asserting here the general proposition that items of evidentiary value are often found in the residence or vehicle of a drug trafficker.
32The second paragraph, which purports to refer to the specific investigation, asserts that Mr. Blake’s apartment unit and vehicle would be places that he would feel safe and comfortable in storing the types of items listed in Appendix ‘A’. He explains this is because the familial residence would offer Mathew Blake comfort in the ability to control and store any of the items to be searched for. While purporting to be specific to this investigation this is really an explanation about why items of evidentiary value might be found in the residence of a drug trafficker.
33Paragraph 11 only speaks to the evidentiary value of the items to be seized and provides no connection to the Applicant’s residence.
34Paragraph 12 asserts, based on the affiant’s experience, that items of evidentiary significance is often found on the electronic/communication devices of drug traffickers. Similarly, it asserts that drug traffickers often maintain debt lists and exchange physical currency with their customers. Here again there is no like to the affiant’s residence although one might infer that he would have his electronic/communication device on his person.
35Paragraph 14 is simply a reassertion that the affiant believes on reasonable grounds that there are illegal narcotics, paraphernalia, currency, debt lists, identification documents, and electronic/communication devices located within the address of 1181 Ellesmere Road, Unit 409 in the City of Toronto. This adds nothing substantive in terms of reasonable grounds.
36Paragraph 15 is again simply a reassertion that the affiant believes on reasonable grounds that the items to be searched for set out in Appendix “A” will be located in the places to be searched. It adds nothing to the reasonable grounds for this belief. Indeed, this paragraph is somewhat misleading, as it suggests that Appendix D and E support this conclusion. Both Appendix D and E, which outline the information received from the confidential informants, support the conclusion that the Applicant is involved in drug trafficking, but they provide no support for the conclusion that items of evidentiary value will be found at the Applicant’s residence.
37In sum, the basis for the affiant’s reasonable grounds is his belief, based on his non-particularized “training and experience”, that a drug trafficker would likely keep items of evidentiary significance in his residence because he would feel safe and comfortable storing such things there. There is nothing in the ITO that is any more specific about the Applicant or his residence.
38In R. v. Prosser, 2016 ONCA 467, [2016] O.J. No. 3139 the Court of Appeal stated at para 18:
the issuing justice and reviewing judge were both entitled to rely upon the opinion of the author of the ITO about the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia. That these opinions, if proffered at trial, would fall foul of the prohibition against anecdotal evidence adumbrated in R. v. Sekhon, 2014 SCC 15, at para. 50, is beside the point. The contents of an ITO need not be compliant with the rules of evidence applicable at trial. After all, neither issuance of a search warrant nor a Garofoli review hearing is intended to test the merits of any of the Crown's allegations in respect of the offence. That is done at the trial: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30.
39However, in this case the opinion offered by the affiant appears to be nothing more than a generalized observation about all drug traffickers, i.e., if a person is a drug trafficker there may be evidence relating to drug trafficking at his house. Indeed, one might argue that this is nothing more than a common-sense proposition. Certainly, there is no case-specific information supporting this proposition in the ITO that might apply to all persons involved in criminal activity. At its highest, this proposition at best supports a suspicion that items of evidentiary value might be found at the Applicant’s residence. As noted above, suspicion does not meet the requisite level of credibly based probability.
40It is also problematic to simply accept broad generalizations about an entire class of offenders as was pointed out by Fish J. in R. v. Morelli, supra., at paras 73, 76 to 79 and 81. No doubt some drug traffickers will keep narcotics and other related items of evidentiary significance in their residence. But others may proceed differently and keep evidence of their criminality away from their residence. One simply cannot collapse them all and assume that they all will act in the way explained by the affiant in this case.
41I would also note that in R. v. Le, 2014 BCCA 166 the Court noted at para. 42 that, “The Crown acknowledges that reliable information that an individual is trafficking in drugs is not, without more, sufficient to justify a search of his or her home.” The B.C. Court of Appeal had no difficulty accepting that proposition and stated at para. 43:
Thus, the question here is whether the "totality of the circumstances demonstrate reasonable grounds for the belief "that the appellants were storing drugs at their home". Is there a credibly based probability that drugs were being stored at McKay Avenue or was it merely a suspicion?
The B.C. Court of Appeal concluded that the ITO did not disclose a basis on which the issuing justice could conclude that there was a reasonable probability drugs were being stored at the appellants’ residence.
42However, in terms of the constitutional limits on the state’s power of search and seizure, there is another more important reason to reject the approach taken in this ITO. In essence, the proposition contained in the ITO is that if a person is a drug trafficker there may be evidence relating to drug trafficking at his house. If that proposition was accepted as reasonable grounds, then, in order to search a residence, it would not be necessary to prove anything beyond the fact that a drug trafficker resided there. This would eliminate the second of the two “distinct and cumulative requirements [that] together form part of the ‘minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure’”: R. v. Morelli, supra., at para 39 [insert added]. Thus, if there were reasonable grounds to believe that a person was a drug trafficker there would be, without more, reasonable grounds to search their residence.
43In R. v. Herta, 2018 ONCA 927 Justice Fairburn considered the sufficiency of an ITO for a residence entered by a person, Callahan, who had previously been seen to be in possession of a rifle. There were numerous problems with the ITO and, as she observed at para 17, “There was nothing about the house that connected it to the gun.” Fairburn J.A. considered the broader implications of accepting the ITO asking at para 189: “could the CI information support the search for the gun at any location that Callahan went?” She rejected this proposition saying at para 51, “This would have turned Callahan into walking, ready-made grounds for belief. That is a sweeping proposition …” She agreed at para 54 that if the place searched “had in fact been Callahan's residence, it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place.” [Emphasis added.] But I would note that she used the word “might” and declined to suggest that if there were reasonable grounds to believe that a person has been in possession of a firearm that automatically would provide grounds to search their residence.
44In R. v. Coluccio, 2019 ONSC 4559 Di Luca J. considered the sufficiency of an ITO in which a CI told police that they had seen the Applicant in possession of a handgun, that the Applicant was crazy and liked to show off the gun and that they had seen a number of firearms in possession of the Applicant. There was no evidence that a firearm had been seen in the residence of the Applicant. As in this case, the affiant based on his “experience as an investigator involved in firearm investigations” opined that it was not unusual for people to transfer the firearm from their car to their residence and there could be related paraphernalia in the residence as well. In ruling that the ITO was not sufficient Di Luca J. said at para 61:
When this portion of the ITO is placed in its proper context, there is little to no case specific support for the affiant's assertion that people who possess firearms may take them from their car into their home so that the weapon is at the ready in case of an attack. As such, the officer's assertion that some people do that is simply an unsubstantiated assertion about how some people act in certain circumstances. On the facts of this case, the officer's assertion in this regard adds little to the reasonable grounds analysis; see R. v. Morelli, 2010 SCC 8 at paras. 70-73 and R. v. Aboukhamis, 2015 ONSC 2860 at paras. 35-38.
45Justice Di Luca also considered the judgment of the Court of Appeal in Herta and concluded, at para. 79:
I am not prepared to find that because grounds exist demonstrating that an accused drives around in a car with a handgun, a warrant could also issue for a search of the accused's home. This comes perilously close to the "roving grounds to believe" scenario discussed in Herta.
46The Crown relies on the more recent decision of the Court of Appeal in Her Majesty the Queen v. Kalonji; Her Majesty the Queen v. Donaldson, 2022 ONCA 415. In that case, the Court of Appeal overturned the decision of the reviewing Judge who had found that the ITO did not contain information sufficient to establish a connection between the firearm and the apartment searched. The Court of Appeal concluded that the reviewing Judge had only relied on direct evidence and had failed to consider what reasonable inferences could have been drawn. Justice George wrote at para 27 and 30:
[27] Given that the ITO set out sufficient grounds to establish that the appellant had committed an offence, and that Brunel Court was one of his residences, there were reasonable and probable grounds to believe that a search of that residence would afford evidence of the offence, namely the firearms: Herta, at para. 54; see also R. v. Meecham, [2018] O.J. No. 6949, 2018 ONSC 7033 (S.C.J.), at paras. 29-30. [page294]
[30] The ITO showed that Donaldson possessed several firearms, and that he resided at the Brunel Court residence. That being the case, and unlike in the authorities cited and relied upon by the respondents, Donaldson himself is the link between the guns observed by the complainant and the target residence: see R. v. Sanchez (1994), 20 O.R. (3d) 468, [1994] O.J. No. 2260 (Gen. Div.), at p. 482 O.R.; R. v. Smith, [2011] O.J. No. 4757, 2011 ONSC 6560, 247 C.R.R. (2d) 150 (S.C.J.), at paras. 25-29. This gives rise to a common sense inference that one or more firearms would be found at his home. [Emphasis added]
47With the greatest respect, I would suggest that Kalonji is per incuriam insofar as it seems to suggest that Herta supports this conclusion that reasonable grounds that a person has committed an offence means there are reasonable grounds to search the person’s residence. As I noted above, Herta only said at para 54 that such a reasonable inference “might” be available. Kalonji also did not consider whether the inferences that could be properly drawn from the information in the ITO provided reasonable grounds or merely a suspicion. Most importantly, I am also troubled by the fact that George J.A. did not address the broader issue that Fairburn J.A. had identified in Herta and that has been central to my decision in this case, i.e., the implications of a ruling that a person’s status as having committed a criminal offence can, without more, justify a search of their residence. Should this decision be appealed, I would hope that the Court of Appeal would deal directly with the need to establish reasonable grounds that items of evidentiary value will be found in the place to be searched.
(F) Conclusion
48For the foregoing reasons, I have concluded that the ITO did not contain information that could support reasonable grounds to believe that the evidence sought would be found at the named address. I find that there was a violation of the Applicants' rights under s. 8 of the Charter.
IV. Should the Products of the Search Be Excluded Pursuant to Section 24(2) of the Charter?
49According to the governing three-part analysis set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.
(1) Seriousness of the State Conduct
50In R. v. Grant the Supreme Court of Canada said the following about the first branch of the test at paras 72 to 75:
72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
75 Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends [page396] to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
51Canadians rightly expect the police to recognize the significant privacy interests in their homes. A valid search warrant is required to authorize such a search. In the present case, I find that the police sought and obtained prior judicial authorization for the search and that, but for some minor overstatement in paragraph 15 of the ITO, the police did not intentionally mislead the issuing justice. However, the reasons for the affiant's belief that the items sought would be in the residence were based on generalized assumptions about the behaviour of drug traffickers like those rejected in Le. The requirement for case specific grounds to believe that evidence will be found in a place to be searched is not new. The principle, enunciated in Morelli, that "broad generalizations about loosely defined classes of people" will not reach the constitutionally required threshold of reasonable and probable grounds to believe, is not new. I find that the first line of inquiry weighs in favour of exclusion.
(2) The Impact of the Charter Violation
52As to the impact of the Charter violation, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. Section 8 recognizes and constitutionally protects every person's right to live his or her life free of government intrusion except to the extent that the intrusion is reasonable. Personal privacy includes control over one's body and bodily substances (physical privacy), control over certain places such as one's residence (territorial privacy), and control over information about the person and/or his activities (informational privacy). The more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value. The courts are expected to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.
53There are few, if any, settings in which a person has a greater expectation of privacy than the sanctity of his or her own home. Accordingly, the police intrusion of this important personal space in the present case is a grave invasion of the personal privacy of the Applicant. Indeed, residential searches strike at the very core of an accused's right to privacy. Thus, the second factor in the governing s. 24(2) analysis strongly favours the exclusion of the evidence seized from the Applicant’s residence.
(3) The Truth-Finding Function of the Trial
54As to the third prong of the Grant analysis, the Supreme Court of Canada said the following at paras 79 to 83:
79 Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
80 The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
81 This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, [page398] this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
82 The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": Mann, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.
83 The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
55In the present case, the charges that the Applicant faces are serious and involve the possession of crack and powder cocaine for the purpose of trafficking. However, while serious, the amounts of the narcotics found during the search are at the lower end of the scale. Nonetheless, the seriousness of these narcotics is well documented, as is the significant negative impact that drug trafficking has on society, both in terms of the destructive impact on end users and their families and in terms of the crime that invariably goes together with it. There is no question that the evidence seized by the police is inherently reliable and objective and that it is critical to proving the case. If this evidence is excluded, the Crown's case must fail. If the evidence is admitted, however, the Crown would appear to be able to establish that the accused is guilty of the offences charged. Society's interest in the adjudication of a criminal trial on its merits would be seriously undercut if highly reliable and critical evidence, such as this evidence was excluded. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of this evidence.
(4) Conclusion re s. 24(2)
56The final balancing of the Grant lines of inquiry is difficult in this case, where there was prior judicial authorization and there was no material omission or significant misleading of the issuing justice. The first line of inquiry weighs in favour of exclusion, while the second weighs clearly in favour of exclusion and the third weighs clearly in favour of admission. This is a very close call. However, I have concluded that the evidence must be excluded. As Fish J. wrote in Morelli, at para. 111"The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term."
57I have concluded that the admission of the evidence in this case would bring the administration of justice into disrepute.
58The Application is therefore allowed, and the evidence is excluded.
Ducharme J.
Released: May 8, 2023