Her Majesty the Queen v. Rocha [Indexed as: R. v. Rocha]

112 O.R. (3d) 742

2012 ONCA 707

Court of Appeal for Ontario,

O'Connor A.C.J.O., Rosenberg and Juriansz JJ.A.

October 24, 2012

• Vous trouverez la traduction française à la p. 761, post.

Charter of Rights and Freedoms -- Search and seizure -- Confidential informer telling police that accused was dealing drugs from his restaurant and storing drugs at his residence -- Police obtaining search warrants for residence and restaurant based almost entirely on that tip -- Information about drug dealing in restaurant being detailed, compelling, based on first-hand observations by informant and police investigation providing some confirmation of informant's statements -- [page743] Despite some deficiencies regarding informant's background, information to obtain ("ITO") sufficient to justify warrant for restaurant -- Information about storage of drugs in residence conclusory, lacking in detail and not indicating source of informer's knowledge -- ITO insufficient to justify granting search warrant for residence -- Search of residence violating accused's rights under s. 8 of Charter -- Evidence seized from residence excluded under s. 24(2) of Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

A confidential informer told the police that the accused and his brother were selling cocaine from their restaurant and storing it at the accused's residence. The informer had allegedly observed ten to 15 drug transactions at the restaurant and described where drugs were stored in the restaurant, how it was packaged and other detailed information. The police investigation confirmed a number of aspects of the informant's assertions regarding the restaurant and the involvement of the accused's family with drugs. The informer described the outside of the accused's residence and asserted that drugs were also located there. The police obtained search warrants for the restaurant and the accused's residence. The information to obtain ("ITO") set out the information provided by the confidential informer and the extent to which the police investigation had confirmed aspects of the informant's statements. After the warrants were executed, the accused was charged with drug and weapons offences. He brought an application to exclude the evidence of the seized drugs and weapons under s. 24(2) of the Canadian Charter of Rights and Freedoms. The ITOs were edited to protect the identity of the informer, and their sufficiency stood or fell on the redacted versions. The trial judge held that the ITOs were insufficient and that the searches and seizures violated the accused's rights under s. 8 of the Charter. She excluded the evidence found in the residence under s. 24(2), but not the evidence found in the restaurant. The Crown elected to call no further evidence, and the accused was acquitted. The Crown appealed against the acquittal on the charges in relation to the search of the residence.

Held, the appeal should be dismissed.

Per Rosenberg J.A.: The trial judge erred in finding that the ITO supporting the warrant to search the restaurant was insufficient. The information in the informer's tip was detailed, was based on first-hand observations by the information, was compelling and did not amount to unsupported conclusory statements or mere rumour. Although there were some problems with the way in which parts of the ITO was worded, it was sufficient to justify the search of the restaurant. The trial judge did not err in finding that the ITO was insufficient to justify granting a warrant to search the residence. The informant's statements about the residence failed to indicate the source of the informant's knowledge, when the information allegedly knew that there were drugs present and were bald assertions that drugs were located in the residence. The ITO statements regarding the informant's past reliability were unclear and the statement that he had no convictions for perjury or public mischief failed to disclose that the informer had a criminal record. The totality of circumstances could not support granting the warrant on the residence. The search of the residence violated the accused's rights under s. 8 of the Charter.

In assessing the seriousness of the violation, the trial judge erred in finding that the breach was not technical or inadvertent, but rather that it was deliberate in the sense that it was planned in advance and obtained through the warrant authorization process. Applying for and obtaining a search warrant is the antithesis of wilful disregard of Charter rights. Unless the accused can show that the warrant was [page744] obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally tells in favour of admitting the evidence. However, there were problems with the wording of the ITO that were so significant as to situate the conduct in this case toward the serious end of the continuum. While there was no impropriety or bad faith, the apparent good faith of the police in resorting to the warrant process was undermined by the misleading and careless wording of the ITO. The sub-affiant's evidence indicated that he consistently included in his ITOs whether an informant had convictions for perjury or obstructing justice but he chose not to indicate any other convictions that the informant may have had. Other convictions could be relevant to the informant's credibility. The impact of the violation on the accused's Charter-protected interests was significant, particularly as it involved the search of residence in which a person has a high expectation of privacy. Notwithstanding the reliability of the physical evidence seized during the search of the residence, the admission of the evidence seized from the residence would bring the administration of justice into disrepute.

Per Juriansz J.A. (concurring)(O'Connor A.C.J.O. concurring): The warrant to search the restaurant was properly issued, but there was insufficient information in the ITO to support the warrant to search the residence.

The question of whether a warrant should have been issued is often decided on the basis of a redacted ITO. That process unfairly reflects on the work of the issuing justice and the police as it means that a reviewing judge and the appellate court is not considering the sufficiency of the ITO based on the entirety of the evidence before the issuing justice. The result is that an ITO may be found to have been insufficient to justify a search warrant when the examination of the unredacted information would have provided enough additional evidence to justify the issuance of a warrant. It is difficult to understand why the Crown does not more frequently ask the court to employ "step six" of Garofoli. That procedure permits the Crown to apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with a judicial summary of the excised material. Should the Crown be dissatisfied with the judicial summary, the Crown can decline to rely on the excised material to justify the warrant.

APPEAL by the Crown from the acquittal entered by B.A. Allen J., [2011] O.J. No. 1987, 2011 ONSC 2518 (S.C.J.).

Cases referred to R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, apld R. v. Blake, [2010] O.J. No. 48, 2010 ONCA 1, 204 C.R.R. (2d) 156, 251 C.C.C. (3d) 4, 257 O.A.C. 346, 71 C.R. (6th) 317, distd R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342, consd Other cases referred to R. v. Caissey, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66, 2008 SCC 65, 99 Alta. L.R. (4th) 199, 237 C.C.C. (3d) 289, 299 D.L.R. (4th) 432, 382 N.R. 198, [2009] 2 W.W.R. 1, 446 A.R. 397, affg [2007] A.J. No. 1342, 2007 ABCA 380, 227 C.C.C. (3d) 322, 299 D.L.R. (4th) 432, [2008] 4 W.W.R. 100, 84 Alta. L.R. (4th) 226, 422 A.R. 208, 76 W.C.B. (2d) 403; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 102 N.R. 161, J.E. 90-12, 37 O.A.C. 1, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129, 45 C.R.R. 49, 8 W.C.B. (2d) 803; [page745] R. v. Harrison, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, 309 D.L.R. (4th) 87, 245 C.C.C. (3d) 86, EYB 2009-161618, J.E. 2009-1377, 66 C.R. (6th) 105, 193 C.R.R. (2d) 74, 391 N.R. 147, 253 O.A.C. 358; R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816, 215 C.R.R. (2d) 9, 258 C.C.C. (3d) 68 (S.C.J.); R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 207 C.R.R. (2d) 153, 399 N.R. 200, EYB 2010-171050, 2010EXP-1068, J.E. 2010-576, 252 C.C.C. (3d) 273, 316 D.L.R. (4th) 1, [2010] 4 W.W.R. 193, 72 C.R. (6th) 208, 346 Sask. R. 1, 86 W.C.B. (2d) 949 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2)

Nicholas E. Devlin and Aaron Shachter, for appellant. P. Andras Schreck, for respondent.

Analysis

[1] ROSENBERG J.A.: -- The Crown appeals from the respondent's acquittal on drug and weapons charges following a ruling by Allen J. ordering the exclusion of evidence seized following execution of search warrants at the respondent's home. Search warrants were executed on October 1, 2008 at a restaurant operated by the respondent and his brother and at the residence where the respondent lived with his brother and his parents, the owners of the restaurant. The search of the restaurant led to the seizure of a small amount of cocaine. The search at the residence resulted in a much more substantial seizure of prohibited weapons, cash, cocaine, oxycodone pills and a shotgun.

[2] The trial judge held that informations to obtain the warrants (the "ITOs") were insufficient and that, accordingly, the respondent's right to protection against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms was violated. She held that admission of the evidence found at the residence would bring the administration of justice into disrepute and, accordingly, the evidence must be excluded pursuant to s. 24(2) of the Charter. She would have admitted the evidence in relation to the search of the restaurant. Following the trial judge's ruling, the Crown elected to offer no further evidence and the respondent was acquitted of all charges. The Crown appeals only against the acquittal on the charges in relation to the search of the respondent's residence.

[3] For the following reasons, I would dismiss the appeal. I agree with the trial judge that the ITOs relating to the seizures at the respondent's residence were insufficient. While I do not agree that the ITO for the warrant to search the restaurant [page746] was insufficient, in my view, the trial judge's error in relation to the restaurant ITO did not taint her ruling under s. 24(2) in relation to the contraband seized from the residence. It is my view that the trial judge erred in her application of the s. 24(2) test, especially in the manner in which she characterized the police conduct in obtaining the warrants. However, when the test from R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32 is properly applied, the evidence should nevertheless be excluded.

The Facts

The informations to obtain

[4] The ITOs were identical. The grounds set out in the ITOs turned almost exclusively on information provided by a confidential informer. The ITOs were edited to protect the identity of the informer. The record before the trial judge consisted of the preliminary inquiry evidence of the affiant of the ITOs, Detective Constable Zamparo, and the sub-affiant, Detective Constable Naidoo. It was D.C. Naidoo who dealt with the informer. Detective Reid's preliminary inquiry evidence was filed and he testified before the trial judge. Detective Reid did some surveillance of the house, which was referred to in the ITOs. The Crown elected not to disclose the entire unredacted ITOs to the trial judge and thus the respondent was not provided with a judicial summary of the redacted material. Accordingly, the sufficiency of the ITOs stood or fell on the redacted versions. The information provided by the informer, as disclosed in the redacted ITOs, may be summarized as follows:

-- Two brothers, the respondent and his brother Robin, were selling cocaine from their restaurant, the Os Dragoes Sports Bar and Grill located at 703 College Street on the second floor.

-- The cocaine was normally kept behind the bar, in the kitchen and inside the restaurant's walls.

-- The cocaine was packaged in small, white plastic baggies.

-- The customers would use the cocaine in the restaurant washroom.

-- The informer had observed ten to 15 drug transactions at the restaurant.

-- The informer had seen the respondent's brother obtain the drug from near the espresso machine in the service area. [page747]

-- The informer had also seen the respondent's brother go to the kitchen area to obtain some "packages".

-- Most of the cocaine was kept at the brothers' home at [address omitted]; the informer described the outside of the house.

-- The informer also described the two vehicles that the brothers used to transport the drugs.

[5] The informations to obtain also disclosed the independent investigation conducted by the police, the results of which may be summarized as follows:

-- The brothers were connected to the restaurant and the vehicles.

-- The exterior of the house was consistent with the description provided by the informer.

-- On the afternoon of October 1, 2008, police officers saw the respondent's brother leave the restaurant, go to the house, leave the house with an unknown male, return to the restaurant and then briefly leave the restaurant to retrieve something from his vehicle.

-- The respondent's mother had been charged with possession of cocaine for the purpose of trafficking in 2002.

-- The respondent's brother was charged with simple possession of cocaine in February 2007.

-- A Crime Stopper's tip was received in 2006 to the effect that the respondent and his brother were involved in drug dealing and were selling drugs out of their restaurant.

[6] There is some odd wording in the ITOs. For example, they describe the informer as having no convictions for perjury or public mischief. The ITOs do not set out whether the informer otherwise has a criminal record. They indicate that the informer has previously provided information to the police that led to persons being "arrested/charged" and illegal narcotics and stolen property seized. The ITOs do not clearly indicate that any person was convicted as a result of the information provided by the informer. [page748]

The Trial Judge's Reasons

[7] The trial judge dealt first with the sufficiency of the information to obtain the warrant to search the house. She pointed out that this ITO contained no information about the informer's source of knowledge of the existence of drugs in the house. She considered the evidence relating to the house to be "scant"; there was "no information as to when the informant received the information, no information placing a time on when the drugs were being stored at the house". In short, there was [at para. 38] "nothing in the information that compels the belief that the drugs would be located at the house at the time of the search".

[8] The ITO did not indicate whether the informer had a criminal record for crimes of dishonesty besides perjury and public mischief and did not state the informer's motivation for providing the information to the police.

[9] Finally, the investigation in relation to the house was not sufficient to corroborate the information provided by the informant. In particular, it was simply speculation that the observations of the respondent's brother going and coming from the restaurant and house on October 1 had anything to do with drug trafficking.

[10] Accordingly, the ITO in relation to the house was insufficient to satisfy the test set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, and the search was unreasonable and a violation of s. 8. As to s. 24(2), the trial judge conducted the inquiries as mandated by R. v. Grant. As to the first inquiry, the seriousness of the Charter-infringing conduct, she held, in part, as follows [at para. 67]:

The police did an intensive search throughout the rooms of the house based on very little information. I have no problem finding that the police search of the accused's house was a serious violation of his s. 8 Charter rights and that there is a need for the court to dissociate itself from that conduct. The conduct cannot be said to be a technical or inadvertent breach as it was deliberate in the sense it was planned in advance and obtained through the warrant authorization process.

[11] The trial judge referred to the scant information in the ITO and that there were no extenuating circumstances since there was no urgency. The police should have taken time to conduct a better investigation. The circumstances [at para. 68] "point away from good faith error on the part of the police officers who committed the breach".

[12] As to the second inquiry, the impact on the accused's Charter-protected interests, the trial judge found that the breach was at the "profoundly intrusive end of the spectrum" because it involved a search of a private residence where there is a high [page749] expectation of privacy. A violation of the accused's right to be secure in his home would have a serious impact on his protected right to privacy which in this case was [at para. 73] "compounded by the fact the police had little information going in [to the house]".

[13] As to the third inquiry, the societal interest in a trial on the merits, the trial judge found that the contraband and weapons were highly reliable evidence and critical evidence that could be conclusive proof of the accused's knowledge and possession. The trial judge also considered the seriousness of the offences but noted that the seriousness of the offence was not to be given disproportionate weight. In relation to the items found at the house, she held as follows [at para. 79]:

Looking at the police conduct in relation to the search of the house, I conclude the police misconduct was sufficiently serious and deliberate as to outweigh the seriousness of the offence. The invasion of a person's private abode based on a negligible amount of information in circumstances that were not urgent must certainly be frowned upon and discouraged. The balance in relation to the drugs and other items seized at the house against the seriousness of the violation I find weighs in favour of exclusion. If the court appeared to condone Charter violations that represent such a significant invasion of protected rights, rather than enhancing the long- term repute of the administration of justice, would undermine it.

[14] The trial judge reached a somewhat different conclusion in relation to the seizure at the restaurant. The deficiencies in the ITO in relation to the restaurant were not as serious. Thus, more information was provided about drug dealing at the restaurant so that the informer's tip in relation to the restaurant might appear to be somewhat more compelling than for the house. Nevertheless, the trial judge concluded that there was not much in the ITO [at para. 57] "that would compel a reasonable expectation that drugs or drug transactions involving the accused would be found at the restaurant at the time the warrant was executed". The same problems identified in relation to the house about the credibility of the informer and the independent investigation existed in relation to the restaurant. The trial judge concluded [at para. 60] in relation to the restaurant that the failure of the police to establish the reliability of the information from the informer and to corroborate it through their investigation "blurred the line between trustworthy information and information that could be based in rumour or gossip". Accordingly, the respondent's s. 8 rights in relation to the restaurant were also violated.

[15] However, the trial judge held that the evidence found at the restaurant should not be excluded. As to the first inquiry, the violation was substantially less intrusive and on the lower end of the spectrum of seriousness. While the search of the restaurant [page750] was [at para. 69] "no doubt deliberate and planned and hence not the result of technical error or inadvertence . . . [it] was also conducted based on a greater level of information than is true of the house". There was therefore not as great a need for the court to dissociate itself from the violation. As to the second inquiry, the search of the restaurant was not profoundly intrusive as it was a public place with a limited expectation of privacy. As to the third inquiry, the trial judge noted the reliability of the evidence, its importance to the Crown's case and the seriousness of the offence. Balancing the three inquiries, especially that the violation was on the less serious end of the spectrum as was the impact on the respondent's privacy, the evidence found at the restaurant should not be excluded.

Analysis

The sufficiency of the ITOs

[16] The test for sufficiency of an ITO that is based on an informer's tip is, as the trial judge recognized, dependent upon whether the tip is compelling, whether the informer is credible and whether the tip has been confirmed by independent police investigation: R. v. Debot, at p. 1168 S.C.R. Weaknesses in one area may be compensated by strengths in the other two areas.

[17] The trial judge found weaknesses in all three areas in respect of the ITO for the restaurant and the one for the house. Thus, considering the totality of circumstances, both ITOs were insufficient to support granting search warrants. In my view, the trial judge erred in her assessment of the sufficiency of the ITO supporting the warrant to search the restaurant.

[18] Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed ten to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent's brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip: R. v. Debot, at pp. 1168-69 S.C.R.

[19] I agree with the trial judge, that the information concerning the credibility of the informer was weak. I say this primarily because of the awkward wording of the ITO. The critical paragraph in the ITO is this:

The SOURCE in this matter is a registered human asset of the Toronto Police Service for over two years. The information they provided is of such detail, timing and geographic specifics that it goes beyond mere chance [page751] and/or coincidence. In some cases the information has been corroborated, by Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has no convictions for Perjury or Public Mischief. The SOURCE previously provided information to police that has led to persons arrested/ charged in addition to the seizure of illegal narcotics and stolen property. The SOURCE acknowledges that they will face criminal charges for making false reports to police regarding information on past, present and future investigations. The SOURCE understands that there [sic] assistance is only "eyes and ears" and they are not to participate in any criminal activity whatsoever as a Confidential Source.

[20] It seems that the affiant is attempting to convey the idea that information from the informer has led to the finding of contraband but this assertion is confused with the assertion that the informer's information has merely led to the laying of charges. Also, the phrase "In some cases the information has been corroborated, by Handlers or Investigators forming Reasonable Grounds to Believe" is confusing. The fact that police officers have formed reasonable grounds is not the kind of corroboration required to confirm the reliability of a confidential informer. That said, there is some indication of credibility of the informer.

[21] I disagree with the trial judge about the independent confirmation of the information in the informer's tip. The error in the trial judge's approach is found in this statement [at para. 58]:

As I noted earlier, Officer Naidoo conceded at the preliminary inquiry that he had not corroborated the information provided in paragraph 19 about the layout of the restaurant or about drug use and drug transactions at the restaurant. Nor is there evidence any other officer corroborated the information about drug transactions at the restaurant, although the ITO states the restaurant was under surveillance before the warrant was executed.

[22] The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66, the Supreme Court of Canada said the following [at para. 2]:

The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.

[23] In the Alberta Court of Appeal, the majority described the independent confirmation as "the police independently confirmed a number of details, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle": R. v. Caissey, [2007] A.J. No. 1342, 2007 ABCA 380, at para. 25. In that case, the informer claimed to have seen a large [page752] quantity of drugs in the appellant's apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.

[24] In this case, the police had confirmed the address and layout of the interior of the restaurant and the involvement of the respondent and his brother in the restaurant. While not as compelling as the independent confirmation in Caissey, this information could not be disregarded.

[25] Considering the totality of circumstances and particularly the compelling nature of the informer's tip, the ITO concerning the restaurant was sufficient.

[26] I do, however, agree with the trial judge that the ITO was not sufficient to justify granting a warrant to search the respondent's home. Unlike the restaurant, the information in the informer's tip was not compelling. It was a mere conclusory statement that drugs were stored at the house. While it was apparent that the informer had personally observed drug transactions in the restaurant, the source of the informer's information about the house is completely unknown. Given the weaknesses in the credibility of the informer and independent confirmation, the totality of circumstances could not support granting the warrant.

Application of s. 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

The seriousness of the Charter-infringing conduct

[27] The key finding by the trial judge on the first Grant inquiry was that the breach was not technical or inadvertent [at para. 67] "as it was deliberate in the sense it was planned in advance and obtained through the warrant authorization process". In my view, this was not the correct approach. The touchstone of analysis of this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct": R. v. Grant, at para. 72. Police conduct that shows "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": R. v. Grant, at para. 74.

[28] Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. [page753] Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. In this case, the police submitted the fruits of their investigation to a justice of the peace who granted the warrants. I have held that the warrant was properly granted in relation to the restaurant. The warrant should not have been granted in relation to the house, but it must be remembered that an independent judicial officer did authorize the search.

[29] I should not be taken as holding that whenever a search warrant has been granted, the first Grant inquiry favours admission of the evidence. But the approach is not, as held by the trial judge, to hold in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end. Fish J. made this point in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, at paras. 99-103:

First, the Charter-infringing state conduct in this case was the search of the accused's home and the seizure of his personal computer, his wife's laptop computer, several videotapes, and other items. The search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed they were acting under lawful authority. The executing officers did not wilfully or even negligently breach the Charter. These considerations favour admission of the evidence. To that extent, the search and seizure cannot be characterized as particularly egregious.

The opposite is true on considering the ITO upon which the warrant was obtained. The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and carelessly drafted. Not only did the ITO fail to specify the correct offence (accessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds. While the trial judge found no deliberate attempt to mislead, no attesting officer, acting reasonably, could have failed to appreciate that repeated references to "'Lolita Porn' on the screen" and to the deletion of "all the child porn off the computer" would cause most readers -- and, more particularly, the issuing justice -- to believe there was evidence that child pornography was actually viewed on-screen by the witness Hounjet.

Similarly, the officer should have known -- if he in fact did not -- that the immediate juxtaposition of these misleading statements and the incomplete description of the "web-cam pointing towards toys" would be unjustifiably inflammatory.

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search [page754] warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers. (Emphasis added; underlining in original)

[30] Given the trial judge's erroneous approach to the seriousness of the violation inquiry, it falls to this court to properly apply the Grant inquiries, bearing in mind the trial judge's findings of fact and those other aspects of her analysis that are not tainted by any legal errors. As to the trial judge's error in finding that the ITO in relation to the restaurant was insufficient, she dealt with the admissibility of the evidence from the house and the restaurant separately. I am not convinced that the trial judge's erroneous conclusion on the sufficiency of the restaurant ITO tainted her factual findings in relation to the house.

[31] I begin then with correctly situating the police conduct in this case on the continuum as explained in Morelli and by Doherty J.A. in R. v. Blake, [2010] O.J. No. 48, 2010 ONCA 1, at paras. 24-25:

The trial judge found that the police acted in "good faith" in their attempt to acquire legal authorization for the search. I accept that finding. The police were clearly aware of the need to obtain a warrant and proceeded accordingly. They cannot be said to have acted negligently or in ignorance of any of the applicable Charter requirements. A finding of "good faith" obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the Charter infringement, and supports the admissibility of the challenged evidence.

Not only do I agree with the trial judge's finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police [page755] conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74.

[32] Giving full weight to the fact that the police made use of the warrant procedure so that the conduct, as in R. v. Morelli, cannot be described as egregious, there are problems with the wording of the ITOs that are so significant as to situate the conduct here toward the serious end of the continuum.

[33] First is the failure to disclose the criminal record of the informer. The entire record was not placed before the justice of the peace; rather, there was the oddly worded statement that the informer did not have a record for perjury and public mischief. This paragraph was drafted by D.C. Naidoo and was obviously intended to leave the impression of honesty on the part of the informer. But, perjury and public mischief are not the only types of offences that would fairly bear on the honesty and hence credibility of a confidential informer. The preliminary inquiry evidence of D.C. Naidoo shows that this was a deliberate decision. It was also a decision rooted in a systemic practice on the part of D.C. Naidoo, at least where he was the sub-affiant. As the respondent points out, D.C. Naidoo gave conflicting and inconsistent explanations for why the record was not placed before the justice of the peace. But, the officer made it clear that it was his practice not to disclose the informer's full criminal record to the justice of the peace.

[34] More troubling is the wording of paras. 19 and 20 of the ITOs:

At [redacted] Detective Constable NAIDOO advised me of the following: a. There are two males who are selling powder cocaine from their bar. b. The bar is located at 703 College Street on the 2nd floor. c. The bar (Os Dragoes Sports Bar and Grill) is located on the south-west corner of Montrose Ave. and College St. above the Pizza restaurant. d. The front door is the first door to the west of the Pizza restaurant and has a set of yellow stairs which lead directly to the bar. e. The back door of the bar is located at the top a fire escape, which is located at the rear of the building. f. [redacted] g. Robin and Jason allow their customers to do lines of cocaine in the bathroom of the bar. h. Robin and Jason will also deliver drugs to their customers. i. Robin and Jason operate the following vehicles when delivering drugs to the customers: [plate number omitted] -- a older dark coloured Mercedes, [plate number omitted] -- a silver Nissan and [plate number omitted] -- a grey truck/van. [page756] j. Robin and Jason live with there parents at [address omitted]. k. The residence is located north of Queen Street and is on the west side of Crawford Street. l. The residence is surrounded by a blue metal fence. m. [redacted]

At [redacted] Detective Constable NAIDOO had already corroborated the information from the confidential source.

[35] These paragraphs are misleading. Perhaps they are a product of D.C. Zamparo's inexperience. But the fact remains that they would leave the impression that D.C. Naidoo had independently confirmed the information from the informer. That was not the case, as pointed out by the trial judge in her reasons, at paras. 43-45 and 58. I accept her findings on this aspect of the ITO. I agree with her that while the statement was not intentionally misleading [at para. 45], "such an unclear statement should [not] be put before a court with the responsibility of determining the reliability of the information when a clearer statement could have easily been drafted". This was a serious matter because having the potential to mislead the justice of the peace effectively deprives the judicial officer of the ability to independently assess the sufficiency of the ITO.

[36] Third, as the trial judge pointed out, D.C. Zamparo never swore to the basis of his belief on reasonable and probable grounds that drugs would be found at the house, only that they would be found at the restaurant. No doubt this is a product of carelessness on the part of the officer and the unfortunate decision to use identical ITOs for the warrants for the restaurant and the house. But, this error is also symptomatic of the lack of care that is demonstrated by the wording of important parts of the ITOs.

[37] In my view, the ITO in this case in relation to the house is of such a quality as to put this case towards the serious end of the continuum in considering the first Grant inquiry. It suffers from similar problems identified by Fish J. in R. v. Morelli.

The impact of the breach on Charter-protected interests of the accused

[38] I agree with the trial judge that the impact of the breach on the Charter-protected interests of the respondent favoured exclusion of evidence. This was a serious intrusion into a place where there is a high expectation of privacy. See R. v. Grant, at para. 78. [page757]

Society's interest in adjudication of the case on its merits

[39] In considering the third line of inquiry, the principal factor is the reliability of the evidence. As the majority said in R. v. Grant, at para. 81: "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". The court will also consider the importance of the evidence: R. v. Grant, at para. 83. The trial judge properly recognized that the importance of the evidence, especially as regards the contraband found at the house, favoured admission of the evidence.

[40] It remains then to balance the three inquiries in accordance with the test laid down in R. v. Grant and R. v. Harrison, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34. In particular, see para. 36 of Harrison:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth- seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[41] In my view, both the seriousness of the violation and impact on the Charter-protected interests favour exclusion. As to the latter, this was a serious intrusion into a domain that carries a very high expectation of privacy. As to the former, the apparent good faith of the police in resorting to the warrant process is undermined by the misleading and careless wording of the ITO.

[42] In R. v. Blake, the court found that the evidence should be admitted, although because of the editing of the ITO there was not sufficient information to sustain the granting the warrant. In doing so, the court noted the following, at para. 33:

Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant. [page758]

[43] This case is different. There was at least negligence in the obtaining of the search warrant. Counsel for the respondent did attempt to go behind the redacted information by cross- examining both the affiant and sub-affiant. The Crown was unable to provide a summary of the unedited ITO that could serve as a judicial summary. While there was no impropriety or bad faith, there was a sufficient inattention to constitutional standards to tip the scales in favour of exclusion given the deleterious effect on the respondent's privacy interests. Notwithstanding the significant public interest in a trial on the merits, I would uphold the trial judge's decision to exclude the evidence, despite her error in approach to the first Grant inquiry.

Disposition

[44] Accordingly, I would dismiss the appeal.

[45] JURIANSZ J.A. (concurring) (O'Connor A.C.J.O. concurring): -- I agree with the reasons of Rosenberg J.A. deciding that the warrant to search the respondent's restaurant was properly issued, but there was insufficient information in the information to obtain ("ITO") to support the warrant to search the respondent's home. The defect in the ITO is that it fails to indicate the basis for the confidential informant's allegation that drugs would be found at the respondent's home.

[46] However, I wish to expand on an observation Rosenberg J.A. made about a feature of this case. He points out early in his reasons that the version of the ITO considered by the trial judge, and in the record before this court, was redacted by the Crown to protect the identity of the confidential informant. Rosenberg J.A. points out that the Crown did not propose that a judicial summary of the redacted information be provided to the defence.

[47] There are several redactions in the ITO. One redaction is located where one would expect to see set out the basis of the informant's allegation that the drugs sold at the respondent's restaurant were kept in his home.

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

[49] Reviewing a judicial decision without the complete record that was before the decision-maker seems inimical to the [page759] appellate process. That the court reviews an issuing justice's decision to authorize a search without looking at all the information before the justice may make the process of review appear somewhat artificial to the ordinary citizen. The ordinary citizen might think there are two standards for assessing a search warrant: one for deciding whether a search warrant should be issued and another for deciding, after the fact, whether the search warrant should have been issued.

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

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

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

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

[54] Code J., in thoughtful reasons in R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (S.C.J.), at para. 107, remarked that it is unfortunate that the procedure in "step six" in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 is the only legal mechanism available to resolve the dilemma created by the competing demands of the Crown's obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants. Yet, he observed, the mechanism "is simply not being tried or tested". [page760]

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

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

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

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

[59] I have added these concurring reasons to highlight the dilemma raised in such cases and to encourage attention being paid to it in future cases. I appreciate there may be practical questions about the procedure to be followed in applying step six of Garofoli and about the content of the judicial summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve those questions.

Appeal dismissed.