Court of Appeal for Ontario
Date: November 21, 2018
Docket: C63316
Judges: Pepall, Lauwers and Fairburn JJ.A.
Between
Her Majesty the Queen Respondent
and
Benjamin Herta Appellant
Counsel
Philip Campbell, for the appellant
Sarah Egan, for the respondent
Heard
September 21, 2018
On Appeal
On appeal from the conviction entered by Justice Lloyd C. Dean of the Ontario Court of Justice on November 16, 2016.
Fairburn J.A.:
I. OVERVIEW
[1] This is an appeal from conviction for various drug related offences and breach of recognizance. The trial proceeded largely on the basis of a pre-trial motion challenging the admissibility of evidence seized during the execution of a search warrant at the appellant's home. After the s. 8 Canadian Charter of Rights and Freedoms motion was dismissed, an agreed statement of facts was filed and convictions were entered. The appellant received an 18-month sentence.
[2] This appeal focuses on whether the trial judge erred in dismissing the s. 8 motion and, if so, whether the evidence seized from the appellant's home should be excluded under s. 24(2) of the Charter. The appellant claims that the trial judge erred in the following ways:
(a) failing to properly assess the reliability of the confidential informant ("CI") information contained in the information to obtain ("ITO")
(b) failing to properly consider the reasonably available inferences arising from the ITO and
(c) failing to consider the effect of misleading information in the ITO that the target of the search lived at the location searched.
[3] The viability of the search warrant in this case turns entirely on the strength of the CI information. For the reasons that follow, I find that the trial judge erred in concluding that the redacted ITO contained sufficient grounds to support the search warrant, and that a s. 8 breach resulted. I would exclude the evidence under s. 24(2).
II. BACKGROUND INFORMATION
[4] On December 1, 2015, a search warrant issued and was executed at the appellant's home at 1670 Clover Avenue, Windsor.
[5] The appellant attacked the facial validity of the search warrant, alleging that the ITO contained insufficient grounds to support its issuance. The ITO was redacted for information that could serve to identify the CI. (I will have more to say about those redactions shortly.) There was no request to cross-examine the affiant at trial and no effort by either party to amplify the record. Accordingly, the redacted ITO contains the only grounds in support of the search warrant.
[6] In summarizing those grounds, I start with the central observation that the appellant was not the subject of the search warrant executed at his home. Indeed, there is nothing to suggest that the appellant was even known to the police before the search warrant was executed. Nor is there anything to suggest that, at the time of the search, the police knew who lived at or owned the appellant's home.
[7] The search arose strictly from the fact that a man by the name of Derek Callahan was seen arriving at that location. Callahan was wanted for robbery. He was alleged to have placed the victim in a headlock, stealing his earphones and gold chain. There is no indication that a weapon was used during the commission of the robbery. A warrant was issued for Callahan's arrest.
[8] A few weeks before the search, but while the arrest warrant for Callahan remained outstanding, a CI provided the affiant with information about Callahan. He or she gave the affiant Callahan's cell number and said that Callahan:
(a) was wanted for robbery
(b) had a desire to avoid the police and was staying at different places in order to do so
(c) would not stop for the police if he was in a car
(d) was driving two different vehicles (one of which was a green Pontiac G6) owned by Callahan's girlfriend and
(e) was staying in a specific geographical area.
[9] As the trial judge correctly noted, most of that information was confirmed through the use of police records, surveillance and a tracking warrant.
[10] The CI provided additional information on the day before the search warrant issued. The CI said that within the previous 24 hours he or she had seen Callahan in the east end of Windsor. The CI told the affiant three things that are critical to the grounds for the search warrant:
(a) he or she saw Callahan carrying a gun
(b) Callahan had the gun for "protection" because he was in a "dispute" and
(c) the CI "knew" that Callahan would "not be anywhere without the gun."
[11] There is nothing in the redacted ITO that explains the nature of the dispute or why the CI believed that Callahan would not be without the gun. The covering page of the ITO makes specific reference to the gun as a 303 rifle. The trial judge found that the CI must have provided the police with that information.
[12] A tracking warrant was obtained for Callahan's cell phone on the same day that the CI provided the gun information. That phone was tracked the following morning to a neighbourhood in Windsor. There is nothing in the redacted ITO to suggest that Callahan had any connection to that neighbourhood or that it was even located in the same general area of Windsor as where the CI had seen Callahan the day before.
[13] The affiant started looking for Callahan's car in the general residential neighbourhood to which his phone had been tracked. Although Callahan's car was not in the driveway of 1670 Clover Avenue when the affiant first drove by that location, Callahan's Pontiac G6 was there when the affiant drove by a second time at around 6:13 a.m. It was clear that Callahan had just arrived. The affiant saw him walking toward the front door of the residence.
[14] The affiant then prepared an ITO for a warrant to search 1670 Clover Avenue. As of 8:55 a.m., Callahan's car was still in the driveway and as of 10:00 a.m., when the application for the warrant was made, Callahan's phone was still registering in that same residential neighbourhood. The warrant issued at 10:20 a.m., authorizing the search for a firearm and ammunition at "[t]he residence of Derek Callahan … at 1670 Clover Avenue, Windsor, Ontario".
[15] The circumstances surrounding the search arise from an agreed statement of facts. Ultimately, the Emergency Services Unit had to enter the residence and everyone was removed without incident. A K-9 unit was sent in to clear the home, after which officers went in to take pictures of the appellant's home. The K-9 unit then entered again to assist in locating evidence. The actual search is described in the agreed upon facts as follows:
At 12:50 pm, the police K-9 unit entered the residence again and upon completion of another search, advised officers … of specific places to search based on indications from [the dog]. The subsequent search by … officers led to the plain view discovery of suspected illicit substances and drug paraphernalia and a more intrusive search based in part on indications by [the dog], led to the discovery of further suspected illicit substances secreted throughout the residence including inside floor vents. No weapons were found.
III. ANALYSIS
(a) Overview
[16] It is important to remain focused on what is in issue in this appeal. The police were well positioned to arrest Callahan for robbery. Indeed, given that there was an outstanding warrant for Callahan's arrest and Callahan was believed to be present in 1670 Clover Avenue, the police could have applied for a s. 529 Criminal Code warrant to enter that location in order to effect the arrest: R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Adams (2001), 157 C.C.C. (3d) 220 (Ont. C.A.), at para. 6. If that Feeney warrant had issued, Callahan would have been arrestable inside of the appellant's home and liable to a search incident to arrest.
[17] Instead of pursuing a Feeney warrant, though, the police obtained an authorization to search the entire residence for the firearm that the CI said he or she had seen Callahan carrying the day before. The warrant to search was granted without any knowledge of who owned the house, who lived there or whether Callahan had any association with that location. In other words, there was nothing about the house that connected it to a gun. It was the CI's connection of Callahan to a gun and then Callahan's arrival at that location that led to the extensive search of the appellant's entire house for the gun that was never found.
[18] Accordingly, the real question on this appeal is the following: could the CI information support the search for the gun at any location that Callahan went?
[19] In analysing that question, I will start by briefly discussing the inherent limitations arising from situations where the standard of review is applied to redacted ITOs. I will then address whether there were errors in how the CI information was approached on review. In particular, I will focus on the trial judge's application of the R. v. Debot, [1989] 2 S.C.R. 1140 criteria and the potential impact of the affiant's suggestion that Callahan was "of" 1670 Clover Avenue. Because I conclude that the appellant's s. 8 rights were breached, I will complete my legal analysis with an application of the relevant considerations under s. 24(2) of the Charter.
(b) The Standard of Review and Implications of Proceeding on a Redacted ITO
[20] The question for a reviewing court is not whether the court would have issued the warrant or authorization, but whether it was open to the issuing justice to have done so. In a case like this, involving a s. 487 warrant, the question is whether there are reasonable grounds to believe – constitutionally defined as credibly-based probability – that there is evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 167-8. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.
[21] In reviewing the ITO for sufficiency, the trial judge was required to take a common-sense and holistic approach. The ultimate question was whether the issuing justice could have found that the content of the ITO in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly-based probability that Callahan had taken a gun into 1670 Clover Avenue: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 65, at para. 51; Sadikov, at para. 37. The answer to that question was squarely rooted in the strength of the CI information.
[22] The trial Crown was duty bound to protect the CI's identity. Accordingly, the Crown was obliged to redact anything that might have served to identify the CI. There is no dispute in this case over the extent of the redactions made.
[23] Garofoli sets out a six-step process for reviewing redacted wiretap affidavits, but those steps apply with equal force to search warrants. Where redactions have been made to the grounds for belief, step five of this process allows the Crown to attempt to support the search warrant on the basis of the material as redacted. If successful, the authorization or search warrant will be confirmed. Where the redactions are so broad that the remaining information cannot support the search warrant, then step six allows the Crown to request the reviewing judge to consider "so much of the excised material as is necessary to support the authorization": Garofoli, at pp. 1460-1461.
[24] As the defence cannot see the redacted information, to the extent possible, a judicial summary (typically first drafted by the Crown) will be provided to the accused so that he or she can be made aware of the "nature of the excised material": Garofoli, at p. 1461; R. v. Rocha, 2012 ONCA 707, 292 C.C.C. (3d) 325, at paras. 55-57; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 41-47, 83, 97.
[25] Undoubtedly, invoking step six can be both complex and time-consuming. Efficiency and economy demand that careful thought be given in each case to whether it is necessary to proceed on that basis. Where CI information is peripheral or superfluous to the grounds for belief, it will often be unnecessary to resort to step six. Where, though, the CI information is central to the grounds for belief, step six may have to be invoked in order to answer whether the warrant could have issued.
[26] This may well have been one of those cases. Not only was the CI information central to the grounds for belief, but the redactions were heavy. In particular, I note that the contents of an appendix to the ITO were entirely redacted. That appendix was said by the affiant to contain information allowing the issuing justice to "make an informed decision on the reliability of the [CI] information provided."
[27] Given that the trial Crown chose to go no further than step five, the trial judge was placed at a distinct disadvantage. He was called upon in a CI dependent case to determine, on the basis of a reduced record, whether the search warrant could have issued.
(c) Section 8 Analysis: Did the Redacted ITO Contain Sufficient Grounds to Support the Search Warrant for the Appellant's Home?
[28] The trial judge was alive to the fact that the search warrant in this case rose or fell on the strength of the CI information. In considering that issue, he correctly turned his attention to the three Debot criteria: whether the CI was credible, and whether the CI information was corroborated and compelling.
(i) Whether the CI was credible
[29] I agree with the trial judge's expressed "concern" over the CI's credibility. He specifically noted that it was "not at the highest end of strength". In particular, the trial judge considered the fact that if the CI had a criminal record, it had been redacted. So too had the information about any motivation that the CI may have had to provide information to the police. Despite his reservations, the trial judge found that there was enough information to satisfy him that the CI was "sufficiently credible".
[30] The appellant submits that the trial judge erred by failing to grapple with the fact that two of the typical criteria for considering a CI's credibility, his or her criminal record and the motivation offered in return for information, were not available for consideration. He contends that the absence of that information placed the CI in a deep credibility hole, from which it was difficult to emerge.
[31] The respondent maintains that despite the redactions, there remained some limited, non-specific information supporting the CI's credibility. For instance, there remained information about the fact that the CI and affiant had been in a prior informant/handler relationship, that the CI had provided information in the past and that the information had led to the execution of warrants resulting in arrests and the seizure of drugs named in those warrants.
[32] Although the respondent is correct to note that the ITO contained at least some information from which credibility could be assessed, that information was scant. As mentioned, I agree with the trial judge's articulation of "concern" over the CI's credibility, but would add the following to his list of concerns:
(a) Although the CI and affiant had been in an informant/handler relationship, redactions made it impossible to know the duration of that relationship: "less than [redacted] years".
(b) Although the ITO suggests that the CI had provided information leading to the execution of warrants in the past and parties named by the CI being "arrested", redactions made it impossible to know the number of occasions that had occurred.
(c) Although the affiant suggested that the CI had "provided information which led to" something in the past, that something had been redacted.
(d) Although the CI may have had a criminal record, if he or she had one, it was to be "outlined in an appendix to the ITO", yet the entire appendix was redacted.
(e) Although the affiant acknowledged that the CI had a motive to provide information, whatever served as that "motivation" was redacted. How great the CI's incentive to provide information remains entirely elusive.
[33] The redactions make it difficult to meaningfully assess the CI's credibility. Based upon the very limited information available in the redacted ITO, the credibility criteria does not advance the Debot analysis far. This was not about whether the CI was "sufficiently credible", but whether there were objective facts supporting the CI's credibility, such that it enhanced the confidence that could be placed in the CI's information. The redacted ITO was lacking in that regard.
[34] Even so, it is the totality of circumstances that informs the strength of the CI information. Accordingly, weakness in one of the Debot criteria can be compensated for by strengths in the other areas. I will now consider those areas.
(ii) Whether the CI information was corroborated
[35] The trial judge noted that there was no need for every detail provided by a CI to be confirmed. Without referring to anything in specific, the trial judge concluded that the CI information had been "corroborated by police investigation" prior to the search and that there was "sufficient corroborative evidence to warrant the belief that Callahan was in possession of a firearm at the Clover residence or in his vehicle."
[36] The appellant does not dispute that there was some evidence corroborating the CI's information. This included information about Callahan's car, where he was hanging out, his phone number, and that he was wanted for robbery and would not stop for the police. The appellant emphasizes, though, that the confirmed information could have been known to anyone who knew Callahan.
[37] The respondent counters with the argument that the confirmed facts were not banal and would have only been known by close associates to Callahan. Moreover, the respondent emphasizes that there is no need to confirm each detail in a CI's tip or the information about criminality.
[38] I agree with the respondent's legal observations. There is no rule that says that the information relating to criminality itself has to be confirmed. Indeed, it is often impossible for the police to obtain such confirmatory information about the "very criminality" of what the CI has witnessed or knows: R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 22. See also: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, aff'g 2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25; Debot, at p. 1172; R. v. Green, 2015 ONCA 579, 22 C.R. (7th) 60, at paras. 27-29. As noted in Rocha, at para. 22, the police do not have to confirm a tip to the "extent of having observed commission of the offence" as that level of confirmation is rarely possible.
[39] Despite that fact, the purpose of considering the Debot criteria is to determine the overall reliability of what the CI has said. Given the weakness in the credibility assessment in this case, there was a heightened need for good corroboration.
[40] I do not agree with the trial judge's statement that there was "sufficient corroborative evidence to warrant the belief that Callahan was in possession of a firearm at the Clover residence". Other than Callahan's criminal record, which included two undated convictions for assault with a weapon and possession of a firearm, the confirmatory information had nothing to do with Callahan and guns. The corroborative facts related to information that many people would know, such as Callahan's telephone number, the type of car he was driving and where he was hanging out. In the context of this case, those facts demonstrated that the CI knew or knew of Callahan. Although the CI's confirmed knowledge of Callahan was one step toward reliability, in the circumstances of this case, particularly given the deficit in the credibility criteria, a larger step would have been beneficial.
[41] This meant that in assessing the totality of the circumstances, the third Debot criteria, whether the information was compelling, had some heavy lifting to do.
(iii) Whether the CI information was compelling
[42] The most significant concern lies with whether the CI information was compelling. As noted by Martin J.A. in R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219, and later adopted by Wilson J. on appeal, "[h]ighly relevant to whether information supplied by an informer constitutes reasonable grounds" are considerations involving whether "the informer's 'tip' contains sufficient detail to ensure it is based on more than mere rumour or gossip" and "whether the informer discloses his or her source or means of knowledge". Bald conclusory statements cannot support the veracity of CI information: Debot, at p. 1168-9; Rocha, at para. 26.
[43] The trial judge found that the CI information "did not take the form of bald conclusory statements or mere rumour or gossip" and was "sufficiently specific to warrant police attention". He pointed to two factors in support of that proposition: (a) the CI said that he had seen the gun within the previous 24 hours; and (b) the first page of the ITO made reference to a specific type of gun (a 303 rifle), making it more likely that the CI had actually seen a gun.
[44] Although the trial judge was clearly alive to the need to consider whether the CI information was compelling, respectfully, I disagree with how that consideration was resolved. The trial judge focussed only on whether the information about the CI seeing Callahan with a gun the day before the search was compelling. Even if it was compelling, that information did not resolve the real question for resolution – whether the issuing justice could find that there was a credibly-based probability that Callahan took the purported 303 rifle into 1670 Clover Avenue the next day. The CI information supporting that proposition comes largely from the suggestion that Callahan was in a dispute and would "not be anywhere without the gun."
[45] The appellant argues that the CI information about Callahan being in a dispute and carrying the gun with him at all times was conclusory in nature. He maintains that we should ignore that information.
[46] The respondent submits that the information about the dispute and Callahan carrying the gun was not conclusory. Even if it was conclusory, though, the respondent relies upon R. v. Delchev, 2011 ONSC 1994, for the proposition that the CI's personal observation of Callahan with a gun the day before the search made the information sufficiently compelling that the issuing justice could satisfy herself that Callahan would take the gun into 1670 Clover Avenue the next day.
[47] I agree that the CI information about the dispute and Callahan not being anywhere without his gun is somewhat conclusory in nature. There is no basis upon which to assess the veracity of those claims because, as Martin J.A. put it in Debot, no "details" were provided and the CI did not disclose his or her "source or means of knowledge". Was the information about the dispute mere gossip, or did Callahan tell the CI that he was in a dispute? Did someone else tell the CI that fact? Was the information about Callahan carrying the purported gun at all times gossip or conjecture on the part of the CI? Although the details supporting those claims may have been in the appendix to the ITO, the contents of the appendix were redacted. Thus, while I would not discount the claims about the dispute and Callahan carrying a gun altogether, I would not characterize them as "compelling".
[48] Relying upon Delchev, the respondent emphasizes that the fact that the CI said that he saw Callahan with the gun was enough, standing on its own, to pass the compelling threshold in Debot and justify the search. I agree with the sentiment expressed in Delchev, at paras. 73-75, that an inference can be drawn that "criminals who are illegally in possession of guns" may have them for long periods of time. I do not read Delchev as saying, though, that the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future. To the contrary, the CI in Delchev actually saw the firearms at the locations that were ultimately searched. That is quite unlike this case.
[49] In this case, although the CI said that he saw Callahan with a firearm, the CI did not connect the firearm to 1670 Clover Avenue. The redacted ITO does not enlighten the reader as to where the CI saw the gun, e.g. in a house, a car, a place of business, a park or any other location. The redacted ITO merely says that Callahan and the gun were seen in the east end of Windsor. The redacted ITO does not even address whether the appellant's home rests in that part of Windsor.
[50] Furthermore, other than the affiant seeing Callahan walk toward the front door of 1670 Clover Avenue a few hours before the warrant issued, there is nothing in the redacted ITO that draws a connection between Callahan and that residence. There is no information about who owned, lived at or frequented that home. Nor is there any information about whether a firearm had ever been associated with that location, or whether the police had ever investigated anyone living there or attended at that place in the execution of their duties. Moreover, there is no suggestion that the affiant saw anything in Callahan's hands as he walked toward the residence.
[51] Accordingly, the only information that could support the reasonable grounds to believe that Callahan took a rifle into 1670 Clover Avenue rested on the CI's statement that Callahan was in a dispute and would not go anywhere without the gun. If those statements were compelling enough to give rise to a credibly-based probability that Callahan took a rifle into the location searched, then they would be compelling enough for a search warrant for any location that Callahan attended. This would have turned Callahan into walking, ready-made grounds for belief. That is a sweeping proposition, particularly in light of the weak and conclusory nature of those statements in the ITO, the minimal information about credibility and the weak nature of the corroboration.
(d) The effect of the potentially misleading information about Callahan's residence
[52] There is a further difficulty in this case. As has been discussed, the ITO was silent on the critical point of connecting a gun to the location searched. The only information that could have filled that gap was erroneous in nature. In particular, the ITO contained a misleading suggestion that the "involved person" was "Derek Callahan … of 1670 Clover Avenue" (emphasis added). The ITO's covering page also suggests that the residence was the "Dwelling House & Place of Derek CALLAHAN". These statements had the potential to leave the issuing justice with the impression that Callahan lived at 1670 Clover Avenue.
[53] The search warrant suggests that the issuing justice may well have been misled on that point. I say this because she authorized a search of the "residence of Derek Callahan" (emphasis added). Although the respondent acknowledges that 1670 Clover Avenue was not Callahan's "residence", the respondent argues that the wording on the face of the warrant is simply the product of standard wording on a standard form. I do not agree.
[54] 1670 Clover Avenue was not the "residence of Derek Callahan". It was the residence of Benjamin Herta. The correct wording could have been easily placed on the face of the warrant. This is not just about technicalities. If 1670 Clover Avenue 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. That inference falls away when the true state of facts is known.
[55] The respondent maintains that when the ITO is considered in context, it would have been clear to the issuing justice that Callahan did not live at the location searched. I disagree. Although there is mention of the fact that the police were looking for where Callahan was staying in the weeks following the robbery, and the CI had told the police that Callahan was "staying at numerous different residences" to evade the police, that is not inconsistent with Callahan's "residence" being at 1670 Clover Avenue. The reference in the ITO to that home as Callahan's "residence" left the potential erroneous impression that, at least as of the day of the search, the police had satisfied themselves that it was actually Callahan's home.
[56] The respondent also argues that there is no error because there only needs to be an adequate description of the place to be searched on the face of a warrant: R. v. Ting, 2016 ONCA 57, at paras. 47-48. The address on the warrant was correct and everything else was superfluous. I agree with that general legal proposition, but it does not address the argument raised.
[57] The question is not whether there was an adequate description of the place to be searched. The question is whether the issuing justice might have been misled into thinking that Callahan lived there. She may have been and may have drawn the wrong inference that Callahan would keep his firearm at his own residence. That error may have contributed to the search warrant issuing in circumstances where it could not.
(e) Conclusion Regarding Section 8 Analysis
[58] Properly considered, the CI information was of insufficient strength to support the search warrant for the appellant's residence. As the trial judge observed, the CI's credibility was of "concern". Although some information was corroborated, it did not compensate for the void left by the credibility assessment. The CI's tip was not compelling in relation to whether a firearm – a 303 rifle – would be found in 1670 Clover Avenue. The totality of circumstances could not support the search warrant. I conclude that the appellant's s. 8 rights were breached.
[59] This leads me to consider the question of admissibility.
(f) Application of Section 24(2) of the Charter
[60] Given his conclusion on s. 8, the trial judge did not conduct a s. 24(2) analysis. The parties agree that, if a s. 8 breach is found, the record from trial is sufficient to permit this court to do one. I agree.
[61] The first prong of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 74, requires consideration of the seriousness of the Charter-infringing conduct.
[62] On one hand, there is nothing in this case that suggests intentional police misconduct. The police appear to have had bona fide concerns about public safety. They had been having difficulty locating Callahan for some time and, accordingly, obtained a tracking warrant. They cannot be criticized for taking active, judicially authorized steps to locate him.
[63] Once located, they applied for and received a warrant to search the residence that Callahan had been seen walking toward. The fact that the redacted ITO fell short on reasonable grounds for belief does not suggest intentional wrongdoing. Rather, it demonstrates that either the application was premature (and the justice of the peace failed to identify that fact) or that the Crown miscalculated the strength of the redacted ITO. Either way, falling short of reasonable grounds does not, in and of itself, suggest any intentional police wrongdoing.
[64] At the same time, this case involves some sloppy work, specifically around the language that mistakenly suggested that Callahan lived at 1670 Clover Avenue. Although I find that there was no intention to mislead the issuing justice, it could have had that effect: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 99-101. At most, the wording was somewhat careless. It is not so serious, though, that it rises to the level of something from which the court must dissociate itself. There is a human element in what we all do and people can make innocent mistakes. Not everything is deserving of a label.
[65] Accordingly, I conclude that the first Grant factor is neutral in the admissibility analysis.
[66] The second prong of Grant examines the impact of the breach on the Charter-protected interests of the accused. It can range from something "fleeting and technical to profoundly intrusive": Grant, at paras. 76, 78. Unlike the first prong, I find that this factor points strongly toward exclusion.
[67] This was the appellant's home, a place over which he held a strong expectation of privacy. People sometimes invite others into their homes. They should be able to expect that, as interested as law enforcement may be in those invitees, unless there are sufficient grounds to believe that an invitee has brought something into their residence that is evidence respecting the commission of an offence, the police will stay at bay. We have a situation here where the appellant appears to have been minding his own business, free from state scrutiny, when all of a sudden he allowed someone into his home and that someone acted like a beacon for the police.
[68] The search was clearly extensive and highly invasive. Indeed, the trial Crown agreed to a set of facts that described the search as "intrusive".
[69] First, everyone inside of the home was escorted out by the police.
[70] After all of the people were out, a sniffer dog was sent in along with the Emergency Services Unit. Then, other officers were sent in to take photos of the appellant's home, after which a sniffer dog was sent in again. The search led to both the plain view discovery of drugs as well as drugs found only with the assistance of a sniffer dog. Indeed, so extensive was the search that some of the illicit substances were found secreted in floor vents. There is simply no denying that it was a very intrusive home search.
[71] Although I am mindful of the fact that a Feeney warrant could have been obtained, allowing the police to lawfully enter the home to arrest Callahan, the Feeney warrant's ambit would have been confined to arresting Callahan. Significantly, it would not have allowed the extensive search of the appellant's entire home. I conclude that this was a highly invasive search – the breaching of the door, multiple police officers, sniffer dogs, Emergency Services Unit, photographs, searching in floor vents, and all. It had a heavy impact on the appellant's s. 8 Charter-protected interests.
[72] In considering the third prong of Grant, society's interest in an adjudication on the merits, it must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, "thus bringing the administration of justice into disrepute": Grant, at para. 81. The exclusion of the evidence in this case will undoubtedly gut the prosecution and lead to acquittals on drug offences that resulted in an 18-month sentence. The evidence involves various drugs, including a gram of fentanyl, 2.1 grams of crystal methamphetamine, 3.4 grams of crack cocaine, marihuana and codeine pills. The third prong points toward inclusion.
[73] The balancing of the various s. 24(2) factors requires a "qualitative" assessment, one that is ill-suited to "mathematical precision": Grant, at para. 140. Where does the balance in this case lie?
[74] I conclude that the evidence should be excluded. Although I would place the seriousness of the state conduct at the middle of the spectrum, the impact of the breach on the Charter-protected interests of the appellant clearly outweighs it, existing at the apex of seriousness. Society's interest in having an adjudication of this case on the merits is important, but so is society's interest in ensuring that extensive searches of private residences, those involving multiple police officers, photos, dogs and more, are justified. There is no precise equation that can be applied but, in this case, the fact that the appellant's privacy was seriously invaded for reasons that had nothing to do with him decisively tips the scales in favour of exclusion.
IV. Conclusion
[75] The appeal is allowed, the evidence is excluded and acquittals are entered on all counts.
Released: November 21, 2018
"Fairburn J.A." "I agree. S.E. Pepall J.A." "I agree. P. Lauwers J.A."
[1] Given the ss. 8 and 24(2) conclusions, there is no need to consider the appellant's final ground of appeal pertaining to the sufficiency of reasons.
