Her Majesty the Queen v. James
[Indexed as: R. v. James]
Ontario Reports
Court of Appeal for Ontario
Pardu, Nordheimer and Harvison Young JJ.A.
April 10, 2019
145 O.R. (3d) 321 | 2019 ONCA 288
Case Summary
Charter of Rights and Freedoms — Search and seizure — Police obtaining warrant to search accused's vehicle for evidence of drug trafficking 23 days after target of their investigation claimed he bought cocaine from accused — Information to obtain ("ITO") also indicating that accused was possibly involved in drug transaction two months earlier — Trial judge not erring in finding that accused's rights under s. 8 of Charter were violated as information in ITO was stale-dated and ITO did not set out reasonable grounds to believe that evidence would still be found in accused's car — Trial judge reasonably finding that evidence in ITO did not establish pattern of drug dealing by accused — Trial judge not erring in excluding evidence under s. 24(2) of Charter — Crown appeal from acquittal dismissed — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused was charged with drug and firearms offences. The police were investigating MD for weapons offences. MD claimed to have bought cocaine from "Primo" on several occasions. There was a reasonable basis to conclude that the accused was "Primo". The police obtained a warrant on February 26, 2016 that authorized the search of a vehicle associated with the accused for cocaine, packaging materials, cellphones and other items. The information to obtain the warrant showed that the accused might have been involved in a drug transaction on December 18, 2015 and that there was a reasonable basis to believe that he had delivered drugs to MD on February 3, 2016. The trial judge found that the information in the ITO was stale-dated and that the ITO did not set out reasonable grounds to believe that evidence would be found in the accused's vehicle some 23 days after the day on which MD claimed to have bought cocaine from him. The trial judge concluded that the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms were violated and excluded the evidence under s. 24(2) of the Charter. The accused was acquitted. The Crown appealed.
Held, the appeal should be dismissed.
Per Pardu J.A. (Harvison Young J.A. concurring): The information in the ITO was insufficient to allow the issuing justice to find a pattern of drug dealing or to support the conclusion that there was sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that evidence of drugs or drug paraphernalia would be found in the accused's car at the time of the search on February 26, 2016. The police had taken no steps to update the information regarding the accused's alleged involvement with drug trafficking between February 3 and 25. The evidence set out in the ITO did not establish a pattern as it related to two isolated dates and was insufficient to support the inference that drugs or paraphernalia would be found in the accused's car on February 26. The trial judge did not err in finding that the accused's rights under s. 8 of the Charter were violated.
The trial judge's conclusion that the seriousness of the Charter-infringing state conduct and its impact on the accused strongly favoured exclusion of the evidence was well founded. The fact that the police applied for a warrant did not in itself signify good faith. The ITO stated that the accused was arrested in 2012 for drug offences, but did not disclose that those charges were stayed. The trial judge stopped short of finding that the omission was deliberate but noted that it was strange that the only fact helpful to the accused went unmentioned. That non-disclosure was significant because of the accused's dated record and the limited information provided by MD. Moreover, there was no evidence of investigative necessity supporting delay in applying for the warrant. The trial judge's conclusion that the "dynamic" arrest of the accused meant that he was forced to the ground and handcuffed in public was entirely within his purview as fact-finder. The judge correctly noted that the accused's reasonable expectation of privacy in a vehicle in which he was driving when arrested was lessened. The trial judge should not have criticized the police for quoting racist remarks attributed to MD verbatim in the ITO. However, that criticism was collateral to his s. 24(2) reasoning. It was open to the trial judge to find that society's interest in adjudication on the merits did not outweigh the seriousness of the breach and its substantial impact on the accused.
Per Nordheimer J.A. (dissenting): The trial judge erred in finding that the accused's rights under s. 8 of the Charter were violated because of the delay in obtaining and executing the search warrant. The trial judge erred in law in failing to consider whether there was evidence before the issuing justice of the peace upon which the justice could have granted the search warrant rather than examining the evidence afresh and deciding that he would not have issued the warrant. The trial judge also erred by framing the issue as whether there was an evidentiary foundation upon which to find that "contraband" would be found in the vehicle as opposed to the proper question which was whether evidence of an offence would be found when the warrant was executed. Finally, the judge erred by concluding that the evidence in the ITO was "stale-dated". The trial judge misunderstood the nature of the offences under investigation and the accused's alleged role in them. The investigation revealed that "Primo" was dealing in large quantities of cocaine, up to the kilogram level. The activities of large-scale drug dealers are not transitory. There was a sufficient pattern of drug dealing on the information gathered to establish reasonable and probable grounds to believe that drugs or drug paraphernalia would be found in the accused's car or residence. Moreover, it is common practice to address all of the people whose criminal activities come to light in the course of a large-scale police investigation when the broader investigation is completed, i.e., on the take-down day, in order to avoid undermining the broader investigation. Any suggestion that the police should move immediately against persons who commit serious but peripheral offences would require the police to assume an unacceptable risk.
Even if the accused's rights under s. 8 of the Charter were violated, the evidence ought not to have been excluded under s. 24(2). The violation was not serious, as the police had obtained a search warrant and had a very legitimate, indeed compelling, reason to delay executing the warrant, as not doing so could have jeopardized the broader, ongoing investigation. The trial judge also erred in finding based on his prior experience that the reference to the "dynamic" arrest of the accused meant that he was forced to the ground and handcuffed in public as there was no evidence as to how the accused's arrest was effected. While the violation had a significant impact on the accused's Charter-protected interests, the accused had a reduced expectation of privacy in a vehicle, especially since it was not clear that he was the registered owner of the vehicle. The offences were serious as the accused was alleged to be trafficking in substantial quantities of cocaine and firearms. The evidence was reliable and critical to the Crown's case. On balance, admission of the evidence would not bring the administration of justice into disrepute.
Authorities
Applied:
Other cases referred to:
R. v. Boyer (June 18, 1992), Toronto, File No. C6830 (Ont. C.A.)
R. v. Breton, [1994] O.J. No. 2097, 74 O.A.C. 99, 93 C.C.C. (3d) 171, 25 W.C.B. (2d) 33 (C.A.)
[R. v. Ebanks (2009), 97 O.R. (3d) 721, [2009] O.J. No. 5168, 2009 ONCA 851, 256 O.A.C. 222, 249 C.C.C. (3d) 29, 72 C.R. (6th) 120, 203 C.R.R. (2d) 170, 86 W.C.B. (2d) 48 [Leave to appeal to S.C.C. refused [2010] 1 S.C.R. ix, [2010] S.C.C.A. No. 84]](https://www.canlii.org/en/on/onca/doc/2009/2009onca851/2009onca851.html)
[R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, 321 O.A.C. 199, 313 C.C.C. (3d) 159, 317 C.R.R. (2d) 314, 114 W.C.B. (2d) 700 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 460]](https://www.canlii.org/en/on/onca/doc/2014/2014onca561/2014onca561.html)
R. v. Pasian, [2017] O.J. No. 2858, 2017 ONCA 451, 349 C.C.C. (3d) 144, 139 W.C.B. (2d) 129
Statutes referred to:
Parties and Counsel
APPEAL by the Crown from the acquittal entered by Rogin J. of the Superior Court of Justice on April 30, 2018.
Joseph Hanna, for appellant.
Scott Hutchison and Kelsey Flanagan, for respondent.
Reasons for Decision
MAJORITY OPINION
[1] PARDU J.A. (HARVISON YOUNG J.A. concurring):
The Crown appeals from the dismissal of drug and firearms charges against the respondent, which followed a decision by the trial judge that police violated the respondent's rights guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge found that the information to obtain ("ITO") did not set out reasonable grounds to believe that evidence would be found in the respondent's vehicle some 23 days after the day on which the target of the investigation, MD, said he was buying cocaine from the respondent. The trial judge excluded the evidence pursuant to s. 24(2) of the Charter.
The Information to Obtain
[2]
The police were investigating MD for weapons offences. They utilized a police agent who discussed purchasing cocaine from MD. MD described "Primo" as his source for cocaine on several occasions. The trial judge found that there was a sufficient link in the ITO to provide a reasonable basis to conclude that the respondent was "Primo". The respondent takes no issue with this conclusion on appeal.
[3]
The ITO described a discussion between the police agent and MD on December 18, 2015. MD owed the agent three ounces of cocaine, apologized for not having it and said "Primo" was not coming until the next day. During a recorded conversation MD said "My guy Primo is an idiot, bro . . . I told him . . . I cussed him this morning, I said listen fucking sometimes I'll buy fucking a nino off of him and there's like an ounce of fucking pure dust but the rest is bomb. I said listen bro I said I don't want no dust." MD said his supplier was going to be leaving from "L", "that place that's two hours from here [Windsor]". Police believed "Primo" was to leave from London, Ontario. There was no evidence that "Primo" did deliver cocaine to MD the next day.
[4]
Over the following weeks MD and the agent discuss supplying the agent with cocaine from other sources while MD is on vacation. They also discuss the purchase of guns. On January 19, 2016, MD delivers nine ounces of cocaine to the agent. There is no suggestion "Primo" was involved. MD and the agent continue to talk about guns and cocaine without mention of "Primo".
[5]
On February 2, 2016, MD told the agent in the early morning hours that he had to go see "Primo" "tomorrow or the following morning at the latest to pick up more cocaine", that he pays "Primo" $15,000 for the nine ounces and that he wanted to make a profit of $1,000. At 6:20 p.m. MD told the agent that his supplier was delayed because of health problems connected to having been shot in the past by police. It so happened that the respondent had been shot by police. At 10:49 p.m., MD told the police agent the supplier would be there the next day, before noon. The next day, police observed the respondent carrying a bag, driving a Lexus and taking the westbound exit ramp to the 401 highway.
[6]
On February 3, 2016, the agent met with MD and another drug trafficker for lunch. MD said "Primo" was halfway between Toronto and Windsor. The undercover agent thought "Primo" may have had a place in London. MD opened the trunk of his car and showed the agent $50,000. The police agent gave him $16,500 and told him to add it to the buy money. MD said he was buying a "key" from "Primo". MD said he was texting with "Primo" and complained about "Primo"'s behaviour. MD left with another trafficker, saying he was going to meet with "Primo" and later delivered cocaine to the police agent, continuing to complain, likely about "Primo".
[7]
The police agent continued to deal with MD regarding gun transactions but ultimately police decided to conclude the investigation. Data bank searches revealed that the respondent was not facing any current charges but that he had a criminal record for offences between May 2003 and February 2007, including drug offences of possession for the purpose of trafficking and possession. The ITO said the respondent had been arrested on April 2, 2012 for drug offences and that drugs and related trafficking paraphernalia were found at the time of arrest. Notably, however, the ITO did not reveal that those charges were stayed by the Crown very shortly after they were laid. He had a driver's licence showing his address as a street in Windsor.
[8]
In sum, the information in the ITO showed that the respondent might have been involved in a drug transaction on December 18, 2015, and that there was a reasonable basis to believe that he had delivered drugs to MD on February 3, 2016, despite the obvious concerns that MD might not be a reliable narrator about the source of the drugs he sold.
[9]
The search warrant that was issued on February 26, 2016 authorized the search of a Lexus associated with the respondent for "Cocaine; Packaging Materials; Cellular phone(s) associated to [a specified number]; Debt List(s) (Handwritten and or Electronic)."
The Trial Judge's Decision
[10]
The trial judge articulated the correct test for assessing the sufficiency of an ITO:
The onus is upon Mr. James. I remind myself that I am not to substitute my view of the situation for that of the issuing Justice. The issue is whether on the basis of the information provided whether the warrant could have been issued. See R. v. Morelli [2010] S.C.R. 253 and R. v. Sadikov 2014 ONCA 72, [2014] O.J. No. 376.
[11]
The trial judge was critical of the police failure to disclose that the charges laid against the respondent in 2012 had been stayed:
There is absolutely no excuse for this non-disclosure. Although I cannot conclude that the non-disclosure of that fact in the ITO was deliberate. It seems strange that the one fact helpful to Mr. James was not disclosed contrary to the duty of the affiant. The affiant had access to all of the police data bases and provided details of other convictions, occurrence reports, and myriad other pieces of information, all of which he relied upon to get his warrant.
It must be observed that none of this information was confirmed except by inference. While the police are not required to conduct a trial or give proof beyond reasonable doubt to the issuing Justice of the Peace, they were dealing with [MD], who by definition was an accused and had a motive to be disingenuous or to mislead.
[12]
The trial judge concluded that he was not satisfied that the information set out in the ITO was sufficient to ground a credibly based probability that evidence would be found in the Lexus when the warrant was sought:
Nevertheless I fail to see how there could be reasonable grounds to believe on February 25th and 26th, 2016 that he was carrying contraband when he was only mentioned in the ITO in respect of dates of December 18th, 2015 and February 3rd, 2016. To hold otherwise would allow the authorities to obtain warrants based on a person's reputation, in this case as a drug dealer, as opposed to credibly based evidence of probability.
The police made no attempt to update their information vis-à-vis Mr. James between February 3rd and February 25th. As was pointed out in argument, a drug dealer makes no profit in holding his inventory. He must sell it. Drugs are transitory and there was no pattern demonstrated in the ITO.
This was a 23 day delay. The Crown could not point me to any authority that said this was reasonable under the circumstances.
To the contrary all the authority points to the proposition that a warrant should be executed within a reasonable time of issuance so that the information would remain fresh and relevant.
Here, while the warrant was executed within a reasonable time there was no evidence before the Justice of the Peace that the information was current.
[13]
The trial judge went on to apply the factors enunciated in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32. He recognized that there was a reduced expectation of privacy in a vehicle but noted that the respondent was detained in public, and concluded that a "dynamic" detention meant the respondent was forced to the ground and handcuffed in the course of the arrest. He found the Charter violation was serious and that police deliberately sacrificed the respondent's rights to give priority to the weapons investigation targeting MD. He noted that reliance on stale information risked the grant of a search warrant based upon the personal reputation of an accused, rather than credibly based evidence. He noted the misleading nature of the police failure to disclose the stay of the 2012 charges against the respondent.
[14]
The trial judge was also critical of police for quoting verbatim racially pejorative language attributed to MD.
[15]
Thus, he concluded the first two factors, the seriousness of the breach and the impact of the breach upon the respondent, favoured exclusion.
[16]
Citing R. v. McGuffie (2016), 131 O.R. (3d) 643, [2016] O.J. No. 2504, 2016 ONCA 365, he noted that the third factor, society's interest in adjudication on the merits, usually militates in favour of admission of the evidence but will seldom result in the admission of the evidence where the first and second factors make a strong case for exclusion. He ultimately concluded that the balance of these factors favoured exclusion.
Arguments on Appeal
[17]
The Crown argues that the trial judge erred in several respects:
(1) He considered only whether the ITO reasonably permitted a conclusion that drugs or "contraband" would be located at the time of the search, rather than considering whether other kinds of evidence of drug dealing might be found in the car.
(2) He failed to consider specific evidence, failed to consider the cumulative effect of the evidence linking the respondent to the name "Primo" and impermissibly weighed evidence contained in the ITO in concluding that there was insufficient evidence of a pattern of drug dealing by the respondent.
(3) He erred in his application of Grant by finding that there was serious police misconduct. This finding is untenable since the police applied for a warrant. The trial judge also erred in his assessment of the impact upon the respondent by concluding that a "dynamic" stop meant that the respondent was forced to the ground and failing to consider that the respondent was not the registered owner of the car.
[18]
The respondent argues that the trial judge did not err on the following bases:
(1) Before the trial judge, the trial Crown argued only that it could be inferred that the respondent had cocaine in the car. The Crown should not be able to advance a new argument about other evidence of drug dealing for the first time, on appeal.
(2) In any event, the trial judge did not limit himself to the prospect that cocaine would be found in the car. In using the word "contraband" he did not exclude drug-related paraphernalia. Further, there was no evidence to support the suggestion that paraphernalia was any more likely to be found in the car than cocaine.
(3) The ITO does not establish reasonable grounds to believe that a pattern of drug dealing existed, justifying an open-ended inference that evidence would be found 23 days later. The Crown's position that any person believed to have been involved in one or two drug deals can be assumed to have drugs in a vehicle in the future is untenable. Such generic reputational evidence is not a proper case-specific basis to satisfy the statutory criteria for the issue of a warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA").
Analysis
[19]
I extract the following principles from Watt J.A.'s decision in R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 83-84 and 89:
(1) Warrant review begins from a premise of presumed validity. The onus of establishing invalidity falls on the person who asserts it.
(2) The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge.
(3) The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued?
(4) An appellate court owes deference to the findings of the reviewing judge in his or her assessment of the record. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge's decision.
[20]
I reiterate that the requirement that a justice have reasonable grounds to believe that any drug or evidence of an offence under the CDSA is in a place to be searched is a statutory requirement for the issue of a search warrant. Section 11(1) of the CDSA 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.
[21]
Information in the ITO establishes that the respondent might have been involved in a drug transaction on December 18, 2015 and provides a reasonable basis to believe that he delivered drugs to MD on February 3, 2016. However, I agree with the trial judge that this information is insufficient to allow a justice to find a pattern of drug dealing or to support the conclusion that there was sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that evidence, drugs or paraphernalia would be found in the car at the time of the search on February 26, 2016. The trial judge's factual conclusion that the evidence was insufficient to lead to a conclusion that there was a pattern of drug dealing on the part of the respondent is owed deference.
[22]
Evidence of a propensity of a general type of offender is a thin basis to justify the issue of a search warrant. As noted in R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 79, "[t]o permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence". In Morelli, a computer technician thought he saw links to child pornography sites on the accused's computer. Some four months later, after the hard drive had been formatted, police sought a search warrant, claiming that persons who possessed child pornography were the type of persons likely to [at para. 70] "hoard and copy illegal images". Despite the bald assertions made by police officers, the court concluded that the ITO did not establish "either the veracity of the generalization about the alleged 'type of offender', nor that the accused is in fact the 'type' to which the generalization might have applied": at para. 71.
[23]
Implicit in the ITO here is an assertion that because the respondent had a dated record for drug offences, might have dealt in drugs on December 18, 2015, and could well have done so on February 3, 2016, he could be presumed to have drugs or evidence of drug dealing in a vehicle more than three weeks later, on February 25 or 26, 2016.
[24]
In R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707, for example, an informer said he witnessed ten to 15 drug transactions at a restaurant operated by the accused and gave specific information about where the drugs were located in the restaurant and how they were packaged and transported. The informer made a conclusory statement that drugs were stored in the accused's home without any indication of the basis for that statement. This court held that the ITO was sufficient to allow a search warrant to issue for the restaurant, but insufficient to allow a search of the house. Detailed evidence that the accused and his brother were concurrently involved in multiple drug transactions at the restaurant was insufficient to lead to the inference that evidence would be found at the home.
[25]
I agree with the trial judge's conclusion here that the ITO was insufficient to establish reasonable grounds to believe that drugs or evidence of drug dealing would be found in the respondent's vehicle on February 25 or 26, 2016. I am not persuaded that the trial judge confined his analysis to the probability that drugs, as opposed to other evidence of drug dealing, would be found, given his reference to the need under s. 11 of the CDSA to establish that "evidence" would be found. His use of the word "contraband" was a compendious fashion of referring to the argument made to him, which did not distinguish cocaine from other evidence of drug trafficking.
[26]
I am not persuaded that the trial judge made an error of law, misapprehended the evidence or failed to consider relevant evidence. He articulated the correct test to be applied by a reviewing judge. There is no basis to disturb his decision that the ITO was insufficient to support the grant of the warrant for the search of the car on February 25 or 26, 2016.
Should the Evidence be Admitted Despite the Breach of s. 8?
[27]
Section 24(2) of the Charter provides that where "evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
[28]
Grant mandates a balancing of the following factors in considering whether to exclude evidence connected to a Charter violation:
(i) the seriousness of the Charter-infringing state conduct;
(ii) the impact of the breach on the Charter-protected interests of the respondent; and
(iii) society's interest in the adjudication of the case on its merits.
[29]
The trial judge considered that the Charter-infringing police conduct was serious. He found that the police deliberately chose to seek a search warrant based on stale information in order to give priority to another investigation -- namely, so as not to tip off MD regarding the firearms investigation. He found that the ITO was misleading because police failed to mention that the 2012 charges were withdrawn within a month of being laid, although they had the correct information at hand. He indicated: "[t]here is absolutely no excuse for this non-disclosure. Although I cannot conclude that the non-disclosure of that fact in the ITO was deliberate. It seems strange that the one fact helpful to Mr. James was not disclosed contrary to the duty of the affiant."
[30]
He found that the impact of the Charter-infringing conduct upon the respondent was serious, although he acknowledged that there was a lessened expectation of privacy in the vehicle the respondent was driving. The respondent was detained in public. The trial judge interpreted the "dynamic" nature of the detention to mean that the respondent was forced to the ground and handcuffed during the arrest, in public.
[31]
The trial judge was critical of police for including in the ITO verbatim quotes containing racially pejorative descriptions of the respondent attributed to MD.
[32]
The trial judge cited McGuffie and found that society's interest in adjudication on the merits did not outweigh the first two Grant factors, although the charge was serious and the evidence was crucial to the Crown's case.
Arguments on Appeal (s. 24(2))
[33]
The Crown argues that the trial judge erred in many respects in his s. 24(2) analysis. It submits that the trial judge erred in his analysis of the seriousness of the Charter-infringing police conduct by failing to consider the application for a warrant as a signifier of good faith on the part of the police, by failing to consider that the failure of the police was a matter of timing only, and by interpreting a "dynamic" takedown as one involving the use of force in public.
[34]
The Crown alleges that the trial judge erred in his assessment of the impact of the breach on the respondent, again by interpreting "dynamic" as he did, by failing to consider that the respondent was not the registered owner of the vehicle in which he was detained, by not considering whether the respondent could have been arrested in any event at that time, by allowing the vehicle to be searched as an incident to a lawful arrest, and by considering the effect of racially pejorative quotes in the ITO.
[35]
The Crown finally alleges that the trial judge misconstrued McGuffie in considering the final Grant factor when he indicated that if the first two Grant factors strongly favour exclusion, then the third factor will no longer militate in favour of inclusion. The Crown submits that correctly interpreted, these decisions say that if the first two factors strongly point to exclusion then the third factor will rarely, if ever, be sufficient to warrant admission of the evidence. However, "if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence": McGuffie, at para. 63. The Crown argues that the first two factors do not strongly support exclusion in this case.
Analysis of s. 24(2)
[36]
I would not accept the Crown's arguments.
[37]
The standard of review for a trial judge's s. 24(2) analysis is deferential: "[w]here a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review": R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at para. 44; R. v. Cole, [2012] 3 S.C.R. 34, [2012] S.C.J. No. 53, 2012 SCC 53, at para. 82.
[38]
The trial judge properly considered each of the Grant factors. His conclusion that the seriousness of the Charter-infringing state conduct and its impact on the respondent strongly favoured exclusion was well-founded.
[39]
The fact that police applied for a warrant does not in itself signify good faith. While the trial judge did not find that the police deliberately misled the justice by omitting important information, i.e., act in bad faith, he also did not conclude that they acted in good faith. The missing information about the stay of the 2012 charge was readily available to police and they failed to include it, thereby bolstering an essentially reputational basis for the warrant. In this case, the error was significant because of the dated record, and the limited information provided by MD. There must have been good reason for the Crown to almost immediately withdraw the 2012 charges. It would be speculative to conclude from the arrest on those charges, that the respondent was then trafficking in drugs.
[40]
In addition, there was no evidence of investigative necessity supporting delay in applying for the warrant. In some large investigations, investigative necessity might mitigate the seriousness of police conduct amounting to a Charter breach, however investigative necessity is not a matter for judicial notice. There must be evidence. In oral argument the Crown conceded that there was no evidence of investigative necessity justifying the delay in applying for the warrant. MD was the target of the investigation. The respondent and several others came to the attention of police as a result of the investigation of MD. The respondent allegedly supplied drugs to MD on one or two occasions. MD had other sources of drugs. This court should not speculate about whether investigative necessity justified the delay.
[41]
Nor would I conclude that the Charter breach was merely a matter of timing. Rather, it was a failure to comply with a mandatory statutory requirement, to establish reasonable grounds that evidence would be found in the place sought to be searched.
[42]
The trial judge's interpretation of a "dynamic" arrest was entirely within his purview as fact-finder, and there is no basis to interfere with that factual conclusion. The possibility that the respondent could have been arrested instead and the car searched incident to arrest is speculative and does not address the staleness of the evidence. An officer would have to have both a subjective belief based on reasonable, probable grounds that the respondent had committed an offence and reason to believe that searching the car at that time would disclose evidence of that offence to justify a search incident to arrest: R. v. Caslake, [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 19.
[43]
I do agree that the trial judge should not have criticized police for their verbatim quotation of remarks attributed to MD. As offensive as those remarks were, it was better for police to produce the actual evidence to the justice, rather than rely on an interpretation which could have been misleading. This criticism by the trial judge was, however, collateral to his s. 24(2) reasoning.
[44]
I also agree that there is some ambiguity in the trial judge's summary of McGuffie; however reading his reasons as a whole, he essentially found that the conduct of the police amounted to a serious breach of the Charter, that the impact on the respondent was substantial, and that society's interest in adjudication on the merits did not outweigh these other factors.
[45]
I see no basis for appellate intervention and I would dismiss the appeal.
DISSENTING OPINION
[46]
NORDHEIMER J.A. (dissenting): -- I have read the reasons of my colleague. I do not agree with her disposition of this appeal. In my view, the trial judge erred in finding that the issuance of the search warrant breached the respondent's rights under s. 8 of the Canadian Charter of Rights and Freedoms. I would also find that, even if a s. 8 breach had been established, the trial judge erred in excluding the evidence under s. 24(2). I would allow the appeal, set aside the acquittal, and remit the matter to the Superior Court of Justice for a new trial.
Section 8 Analysis
[47]
It is important to remember the context in which this search warrant was issued. It was part of a much larger investigation into the smuggling and trafficking of firearms as well as the trafficking of cocaine. This larger police investigation was code-named "Project Kirby". Its principal target was Franco Marentette-Derose, who I will refer to hereafter as "MD" as my colleague has.
[48]
The police used a police agent, undercover officers, and had authorization to intercept private communications, among other judicial authorizations, as part of Project Kirby. From their investigation, the police developed a substantial body of evidence that MD was trafficking in both firearms and cocaine. Further, through the investigation, it became clear that a person by the street name of "Primo" supplied cocaine to MD. Whether Primo was the only supplier of cocaine to MD is not revealed by the evidence gathered by the police.
[49]
Before the trial judge, two challenges were made to the search warrant as it related to the respondent. One was that there was insufficient evidence to believe that the respondent was, in fact, Primo. The other was that the information regarding the drug activities, as they related to Primo, was stale-dated.
[50]
The trial judge concluded that the evidence was sufficient to establish a reasonable belief that the respondent was Primo -- although he did, subsequently, describe the connection as "weak". I do not agree with that depiction regarding the connection between the respondent and Primo. The evidence establishing the connection was substantial, and included the fact that MD said that Primo had, sometime earlier, been shot by the police. Police records showed that the respondent had been shot by the police. However, it does not matter whether the evidence establishing that the respondent was Primo was weak or not. What is important is that the information was sufficient for the purposes of the ITO for the search warrant.
[51]
Having decided that issue, however, the trial judge then found that the information in the ITO was stale-dated. He said:
Nevertheless I fail to see how there could be reasonable grounds to believe on February 25th and 26th, 2016 that he was carrying contraband when he was only mentioned in the ITO in respect of dates of December 18th, 2015 and February 3rd, 2016. To hold otherwise would allow the authorities to obtain warrants based on a person's reputation, in this case as a drug dealer, as opposed to credibly based evidence of probability.
[52]
In my view, the trial judge committed three errors of law in reaching his conclusion. First, and contrary to what he recited in his reasons as the basic principles applicable to his task, it is clear that the trial judge did not in fact employ the proper test for reviewing a judicial authorization. Rather than deciding whether or not the issuing justice of the peace could have granted the search warrant, the trial judge proceeded to review and weigh the evidence in the ITO afresh and then decided that he would not have issued the search warrant. That is not the proper test: R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at p. 1452 S.C.R.; R. v. Ebanks (2009), 97 O.R. (3d) 721, [2009] O.J. No. 5168, 2009 ONCA 851, at paras. 20-21, leave to appeal to S.C.C. dismissed [2010] 1 S.C.R. ix, [2010] S.C.C.A. 84. As MacPherson J.A. said in Ebanks, at para. 21:
The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli, at p. 1452.
[Emphasis in original]
At no point in his substantive analysis did the trial judge ask himself the proper question.
[53]
Second, the trial judge erred in narrowing his inquiry to whether the ITO established that there were reasonable grounds to believe that the respondent "was carrying contraband" on the date when the search warrant was executed. I believe it is apparent from a fair review of the trial judge's reasons that he was using the term "contraband" to refer to drugs. That was not the proper inquiry. The proper inquiry was whether there were reasonable grounds to believe that evidence of an offence would be found, either in the vehicle the respondent was driving, or in the residence to which he appeared to be connected. The search warrant covered both. That evidence could include actual drugs but it could also include other items relating to an offence, including identified cellular telephones, debt lists, packaging materials and other materials that could connect to the offences being investigated.
[54]
Third, and most importantly, the trial judge erred in concluding that the information in support of the search warrant was stale-dated. In reaching this conclusion, the trial judge said, in part:
As was pointed out in argument, a drug dealer makes no profit in holding his inventory. He must sell it. Drugs are transitory and there was no pattern demonstrated in the ITO.
[55]
There is no rule as to how recent information has to be in order to be relevant: R. v. Dionisi, [2012] A.J. No. 65, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view, the trial judge fundamentally misunderstood the nature of the offences being investigated and the respondent's possible involvement in them. The information from the investigation showed that Primo was not some low level drug dealer operating in small quantities that might be sold on a street corner or in a back alley. Rather, the information showed that Primo was dealing in much larger quantities of cocaine, up to the kilogram level. The activities of large-scale drug dealers are not transitory.
[56]
Further, contrary to the trial judge's conclusion, with which my colleague agrees, in my view there was a sufficient pattern of drug dealing on the information gathered to establish reasonable and probable grounds to believe that drugs or drug paraphernalia would be found in the respondent's car or residence. It was clear that Primo was MD's cocaine supplier, or at least one of them. MD identified Primo as supplying him with cocaine on December 18 and then again, about six weeks later, on February 3. MD consistently referenced Primo as the person who would supply him with the cocaine that the police agent, in turn, was trying to purchase from MD. In that context, there was every reason to believe that Primo would be in possession of evidence of his drug activities a scant three weeks later when the search warrant was executed. Primo was engaged in a continuing pattern of supplying MD with cocaine. As I have stated, the evidence establishing that the respondent was Primo was substantial.
[57]
Not only do these events support this conclusion, so too does the criminal record of the respondent. Prior criminal activity -- including prior involvement in the drug trade -- is a relevant factor in determining whether there are reasonable and probable grounds for a search: R. v. Pasian, [2017] O.J. No. 2858, 2017 ONCA 451, 349 C.C.C. (3d) 144, at para. 6.
[58]
On this point, the trial judge was highly critical of the police for their failure to include in the ITO, when mentioning that the respondent had been arrested on April 2, 2012 for drug offences (and that drugs and related trafficking paraphernalia were found at the time of arrest), that those charges were stayed by the Crown very shortly after they were laid.
[59]
I do not quarrel with the point that the affiant should have included that piece of information in his recitation of this event. But the trial judge's criticism of the police, on this point, assumed an importance in his analysis that is simply not warranted. I repeat that the charges were stayed. They were not dismissed. And we do not know the reason why the charges were stayed. In my view, it was still of some relevance that the respondent had been suspected of drug activity, at that time, especially when it is put into its proper perspective. The respondent has a criminal record which spans from May 2003 to February 2007 and includes convictions for possession of a Schedule I substance for the purpose of trafficking, failing to comply with a recognizance, possession of a Schedule II substance, possession of a loaded prohibited or restricted firearm, unauthorized possession of a prohibited or restricted weapon, possession of a weapon, dangerous operation of a motor vehicle, failing to stop at the scene of an accident, assault and obstructing a peace officer.
[60]
Against that background, and the contemporaneous evidence regarding the drug activity involving the respondent and MD, the affiant's failure to mention that the April 2012 charges were stayed is an entirely minor error that does not, in any way, detract from the overall picture presented to the authorizing justice. It certainly would not have unduly influenced the justice of the peace in terms of whether or not to issue the search warrant. And, on review, whether you excise the April 2012 charges, or amplify the record by including the stay of those charges, neither would result in a conclusion that the justice of the peace could not have issued the search warrant.
[61]
Returning to the issue of the currency of the information, the only authority to which the trial judge made reference on the issue of stale-dated information was R. v. Silveira (1995), 23 O.R. (3d) 256, [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38. It is not clear how that authority would assist on the issue here since that case dealt with a search in exigent circumstances. I do note, however, that Cory J., speaking for the majority, discussed the problem that the police had in terms of whether they could obtain a search warrant in the exigent circumstances that they were confronted with. He suggested that one solution to the problem would have been for the police to have obtained the search warrant based on information that they had from a week or so earlier. In making that suggestion, Cory J. made the following observation, at para. 154, which is particularly apt to the situation here:
In this case, evidence existed upon which a search warrant might have been obtained before the arrests were made. It may be that it would have been preferable for the police to have obtained a search warrant based on the earlier transactions prior to that made on the day of the arrests . . . At the time of trial, if the search warrant was attacked on the grounds that it was outdated, evidence could be adduced of the difficulty of providing up-to-date material in circumstances like these and that, in light of the necessity of protecting the evidence, the police found it necessary to obtain a warrant based on the earlier transactions and observations. In the absence of an unreasonable delay between the observations and the application, it would be difficult to imagine that the warrant could be successfully attacked on the grounds that it was stale-dated. That is the way the police should have proceeded.
[62]
A more pertinent authority on this subject is this court's decision in R. v. Breton, [1994] O.J. No. 2097, 74 O.A.C. 99, 93 C.C.C. (3d) 171 (C.A.). In that case, there had been drug transactions in an apartment on September 16 and October 8. A search warrant was executed on October 15. One of the challenges to the warrant was that there was no information to believe that drugs would be found in the apartment on October 15. While that argument found favour with the trial judge, it did not find favour with this court. This court concluded that it was open to the issuing justice to infer from the earlier transactions that there was a probability that drugs would be found in the apartment on the later date. In so concluding, this court made reference to an earlier decision where a search warrant was issued on July 12 based on a drug transaction from May 3. This court noted that, in that earlier case, "[n]otwithstanding the time lapse this court held that the information was sufficient": Breton, at para. 48.
[63]
Another example is found in R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, leave to appeal to S.C.C. dismissed [2014] S.C.C.A. No. 460. In that case, there was a challenge to the ITO relied upon to obtain an authorization to intercept private communications. The target, Lucas, was believed to be trafficking in firearms. Lucas challenged the information in the ITO on the basis that it was stale because it referred to activities that had taken place some three years earlier. This court rejected that challenge. This court said, at para. 140:
[W]e agree with the trial judge that in this case, the fact that guns had allegedly been supplied to Lucas some years before the investigation into the offences referred to in the ITO did not undermine the grounds for issuing the authorization to intercept his communications. The ITO provided reasonable grounds to believe that Lucas had not disposed of all the guns delivered to him by Cooke, that he had supplied guns to the Doomstown Crips in the past, and the surveillance evidence from January 2006 indicated that Lucas may have been transporting firearms. The ITO thus provided reasonable grounds to believe that Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons.
(Emphasis added)
[64]
The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, [2011] B.C.J. No. 838, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:
Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.
[65]
As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:
[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.
(Emphasis added)
[66]
The suggestion, implicit in the respondent's position, that three weeks after the respondent was observed driving from London to Windsor in order to deliver a significant quantity of cocaine to MD, he became disassociated from, and unconnected with, drug trafficking finds no common sense foundation.
[67]
In support of his position, the respondent relies on the decision in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, where a warrant to search for evidence of possession of child pornography based on four-month-old information was held to have been improperly issued. In my view, the decision in Morelli does not assist the respondent. The decision in that case is very much fact driven. A particularly salient fact is that the links on the accused's computer to two possible child-pornography websites, that a technician had noticed, were gone when the technician returned to view the computer the next day. As Fish J. said, at para. 95:
At best, this may be a ground for suspicion, but surely the deleted links afford no reasonable and probable grounds to believe that the appellant was in possession of child pornography, and still less that evidence of that crime would be found upon a search of his computer.
[68]
The decision in Morelli does not preclude reliance on a pattern of behaviour as part of the evidentiary foundation for the issuance of a search warrant. It merely requires that there be sufficient facts to provide that foundation. In Morelli, the court found that there were not sufficient facts. Here, as I have already explained, there is a pattern of conduct by the respondent based on the information that the police had gained from their investigation and the criminal record of the respondent. Put simply, there was offence specific information establishing a pattern of drug dealing involving the respondent.
[69]
My colleague draws support for the trial judge's conclusion from R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707. However, that case also does not assist. Rocha involved the sufficiency of an ITO based on an informer's tip, and whether that tip was sufficiently credible and corroborated to tie drugs to a particular residence. The decision does not turn on whether the information was "dated", nor does it turn on any pattern of conduct.
[70]
The trial judge also rejected the Crown's explanation for the delay in obtaining the warrant based on the fact that, had the police moved on the respondent's involvement earlier, it would have curtailed the broader ongoing police investigation. In response to this point, the trial judge said:
If they were after the bigger fish with respect to the firearms they should have left [the respondent] alone until they could achieve their purpose and go after him on the evidence that they had at the time.
[71]
It is unclear to me what the trial judge meant by "on the evidence that they had at the time". The evidence that the police had was the evidence they put in the ITO. If the trial judge meant that, if the police had nothing further regarding the respondent when they moved on the broader investigation, they ought to have left the respondent alone, then that view reflects a fundamental misunderstanding of large-scale police investigations, and an extremely problematic one at that.
[72]
As numerous large-scale police investigations have demonstrated, such investigations take time. During the course of those investigations, different individuals committing different offences may be identified at different times. It is common practice to address all such individuals, and all such offences, at the time that the broader investigation is completed -- the so-called "take-down day". This is done as a practical matter to avoid undermining the broader investigation. This necessary approach does not, of course, remove the need for the police to have the requisite grounds for the authorization at the time that they obtain it.
[73]
If the thrust of the trial judge's decision here is, as I fear, that the police must either move immediately, when each of those offenders and offences is identified, or otherwise walk away from the prosecution of such persons, the result will seriously undermine the effectiveness, indeed the viability, of these types of investigations. The police will be left with the insolvable dilemma of either moving on the more peripheral but still serious offences immediately, and thus risk disrupting the larger investigation that often reflects more widespread and ongoing offences, or complete their investigation and walk away from the earlier offences revealed. Neither of those results is palatable in terms of public safety or proper law enforcement. With respect, no evidence is required to take into account such common sense real-world considerations.
[74]
Further, any suggestion that the police should act on such offences and just hope that doing so will not jeopardize the larger investigation, imposes on the police a requirement to assume an unacceptable risk. It also potentially involves placing any police agents and undercover officers who might be involved in the investigation, as was the case here, at risk for their safety. No proper interpretation of s. 8 Charter rights compels such intolerable choices.
[75]
In my view, the ITO established reasonable and probable grounds to believe that a search of the respondent's vehicle would reveal evidence of drug offences as set out in the search warrant. There was therefore a sufficient basis for the justice of the peace to conclude that the search warrant could issue. There was no breach of the respondent's s. 8 Charter rights arising from the issuance and execution of the search warrant and the trial judge erred in concluding otherwise.
Section 24(2) Analysis
[76]
Even if I had been prepared to accept that there was a s. 8 breach of the respondent's Charter rights, I would find that the evidence ought not to have been excluded under s. 24(2). The three factors to be considered in that analysis are well known. They are set out in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, and are
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact on the Charter-protected interests of the accused; and
(3) society's interest in an adjudication on the merits.
[77]
The trial judge found that the breach of the respondent's rights was serious. I disagree. First, this was not a warrantless search. The police had obtained a warrant from a justice of the peace and proceeded properly in doing so.
[78]
Second, as I have already discussed, the police had a very legitimate, indeed compelling, reason to delay in executing the search with respect to the respondent. They could not risk jeopardizing the broader, ongoing investigation into serious firearm and drug-related offences.
[79]
Third, the trial judge took issue with the nature of the search and the fact that it involved a "dynamic" intervention by the police. The trial judge assumed, based on his own experience, that this involved the respondent being forced to the ground and handcuffed in public. There was no evidence before the trial judge as to how the arrest of the respondent had occurred. The trial judge ought not to have speculated on the specifics of that arrest without direct evidence. He certainly ought not to have done so based on his "experience" -- a subject of which the parties would presumably have no knowledge. And he should not have done so for the purpose of elevating his view of the seriousness of the breach of the respondent's rights.
[80]
Fourth, the trial judge found that the respondent's s. 8 rights had been "sacrificed" by the police for what "the police felt was a greater cause" -- namely, the firearms investigation. There is no basis for a finding that the police "sacrificed" the respondent's rights. And, as I have pointed out above, there was a legitimate broader picture to be considered in the particular circumstances of this case.
[81]
In my view, assuming a breach of the respondent's s. 8 rights, on the facts of this case, it fell much closer to the less serious end of the spectrum. The search was done in good faith by the police and it was based on a search warrant issued by a justice of the peace. The prevailing error in the search warrant arose from the dated nature of the information in the ITO. The police cannot be faulted for believing that information that was only three weeks old would not be considered stale for the purpose of the ITO. The first factor therefore did not favour exclusion of the evidence.
[82]
In terms of the second factor, I accept that almost any time that there is a search by police, where it is subsequently determined that the search was not a valid one, it involves a serious impact on the Charter-protected interests of the accused person. It means that the police have availed themselves of access to items belonging to an accused person that they had no legal right to access. As is always the case, though, the impact of that access, on the individual, will vary. In this case, for example, and as the trial judge acknowledged, there is less of a privacy interest in a person's vehicle, especially where, as was the case here, it is not clear that the respondent was the registered owner of the vehicle.
[83]
I pause at this juncture to address an issue that the trial judge raised in the context of this factor under his s. 24(2) analysis. The trial judge embarked, apparently of his own motion, on a discussion of racism and the impact racism has on persons generally in our society. It appears that the trial judge engaged on this subject because one of the intercepted communications, excerpted in the ITO, included offensive language as it relates to black people, specifically, certain inflammatory words used to describe them.
[84]
I do not understand why the trial judge felt it necessary to engage on this topic. It had nothing to do with the issues that were before him. A lot of intercepted communications contain offensive language but, if they are relevant, they must be referred to in any ITO being used to obtain judicial authorization to undertake intrusions into an individual's privacy. There is no authority for the police to sanitize such material for the purpose of protecting a reader's sensibilities. Indeed, if the police did so that would, by itself, provide a foundation to challenge the accuracy and completeness of the ITO. The fact remains that this entire discussion had no place in the trial judge's reasons or in his analysis. The fact that it did raises a concern about the objectivity of the trial judge's analysis of the evidence.
[85]
That issue aside, on a proper analysis, I would nevertheless find that the impact on the respondent's rights arising from the invalid search was serious. The second factor would thus favour excluding the evidence.
[86]
The issue then becomes, as is so often the case, on which side the third factor falls. I note, on this point, that the trial judge found that this third factor did not favour admission of the evidence, while at the same time observing that he did "not know how exclusion of the evidence impacts the Crown's case". I do not see how the trial judge drew the former conclusion based on the latter statement. In any event, as I shall explain, it seems to me that the impact on the Crown's case is obvious.
[87]
These were serious offences. They involved not only drug offences but firearms offences. The respondent was alleged to be dealing in significant quantities of cocaine. Again, I repeat, the respondent was not a low-level neighbourhood drug dealer.
[88]
The evidence here was reliable evidence. It was also crucial to the Crown's case. As the court noted in Grant, at para. 83:
[T]he exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[89]
In my view, the third factor strongly favours the admission of the evidence. Indeed, the pull of the third factor towards admissibility is "particularly strong where the evidence is reliable and critical to the Crown's case": R. v. McGuffie (2016), 131 O.R. (3d) 643, [2016] O.J. No. 2504, 2016 ONCA 365, at para. 62.
[90]
On an overall analysis of the three factors set out in Grant, it is clear to me that the evidence ought not to have been excluded.
Conclusion
[91]
I would allow the appeal, set aside the respondent's acquittal and remit the matter to the Superior Court of Justice for a new trial.
Disposition
Appeal dismissed.
Notes
1 R. v. Boyer (June 18, 1992), Toronto, C6830 (Ont. C.A.).
End of Document
