Court of Appeal for Ontario

Date: December 11, 2019

Docket: C65499

Judges: Hourigan, Brown and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Adam Booth

Appellant

Counsel

Brian Snell, for the appellant

Jerry Brienza, for the respondent

Hearing

Heard: September 18, 2019

On appeal from: The conviction entered on November 13, 2015 and the sentence imposed on November 13, 2015 by Justice Dale Parayeski of the Superior Court of Justice, sitting with a jury.

Decision

Paciocco J.A.:

Overview

[1] On March 7, 2012, two masked men robbed the Pura Vida Salon at gunpoint. During the robbery, one of the robbers shot co-owner Muamar Alqebali in the abdomen. The bullet lodged in his hip. His wife, co-owner Mona Zallum, was struck in the face by the other robber. A female employee, Sandy Moniz-Camara, was forced to the floor and bound with zip-ties. Money and goods were taken.

[2] Based on a partial licence plate obtained by Ms. Zallum when the robbers fled, Adam Booth was identified as a suspect. Two search warrants were obtained, the first to search his home (the "residential search") and the second to search home security videos that were seized during the first search (the "digital video recorder search").

[3] These searches were conducted, and Mr. Booth and Adrian Rouleau were ultimately charged.

[4] The charges against the two men were severed during the jury trial. Mr. Booth's trial continued but Mr. Rouleau's trial was adjourned. The only contested issue at Mr. Booth's trial was his identity as the taller of the two robbers, the man who had possessed and fired the firearm.

[5] On May 28, 2015, Mr. Booth was convicted by the jury of nine offences arising from the robbery, including: use of a restricted and prohibited weapon in committing robbery, robbery simpliciter, use of an imitation firearm while committing robbery, possession of a loaded restricted or prohibited firearm without authorization, possession of a loaded restricted or prohibited firearm without a license, wounding with a firearm, aggravated assault, unlawful confinement, and assault. On November 13, 2015, he was sentenced to a global sentence of 12 years in prison, minus time served.

[6] Mr. Booth now appeals his conviction and sentence. In his conviction appeal, he contends that his conviction was unreasonable. He also argues that: the trial judge erred in finding that there were reasonable and probable grounds to issue the residential search warrant and the digital video recorder search warrant; the trial judge failed to exclude the evidence obtained; the trial judge erred in admitting Y-STR DNA evidence that the Crown relied upon to support the identity of Mr. Rouleau, who was no longer being tried with Mr. Booth; and the trial judge did not fairly answer a jury question.

[7] It is unnecessary to address most of these grounds of appeal because the appeal judge erred in upholding the validity of the residence search and the digital video recorder search. Both searches were conducted without reasonable and probable grounds, contrary to s. 8 of the Charter, and the evidence obtained – crucial digital video recording evidence – should have been excluded. Without that evidence, the convictions against Mr. Booth cannot stand.

[8] I would therefore allow the appeal, set aside his convictions, and substitute a verdict of acquittal.

Material Facts

A. The Robbery

[9] On March 7, 2012, two men entered the Pura Vida Salon at closing time, around 9:00 p.m., carrying what were obviously imitation handguns. There were three people inside at the time, co-owners Mr. Alqebali and Ms. Zallum, and their employee, Ms. Moniz-Camara. Much of what transpired was captured by security cameras.

[10] Both men wore dark hoodies, gloves, and had their faces covered with bandanas. The shorter robber was wearing a white t-shirt over his hoodie. At no time during the material events were their faces exposed.

[11] As a result, the occupants of the Pura Vida Salon could provide few details about the robbers. All the witnesses could confirm was that the men were white and estimated to be in their 20s or 30s, and that the taller robber had brown eyes and medium brown hair. Varying descriptions of the height of the men were offered, which will be recounted below.

[12] The security videotape offered further descriptive information. It furnished detail about the clothing the men wore and showed the shorter robber carrying a dark duffle bag.

[13] The robbers ordered Mr. Alqebali, Ms. Zallum, and Ms. Moniz-Camara to the ground. Ms. Moniz-Camara complied and was bound with zip ties. Mr. Alqebali refused to comply. The taller robber pulled a real gun from his waist band and shot Mr. Alqebali in the abdomen. Ms. Zallum struggled with the shorter robber and was struck in the face. During the struggle, she tore away a small piece of a plastic glove that the shorter robber was wearing.

[14] The robbers took cash from Mr. Alqebali as he lay on the floor, injured. They also took a diamond bracelet, two expensive watches, the cash register, and two gym bags belonging to Ms. Moniz-Camara.

[15] Ms. Zallum managed to call 9-1-1 and left the phone off the hook. Much of what was being said inside the salon was recorded. The men were clearly expecting to find "other money" in addition to the money found on the male co-owner and in the cash register. No other money was found, and the robbers fled.

B. The Getaway Vehicle and Mr. Booth

[16] Ms. Zallum followed the men outside. She told the 9-1-1 operator that they were in a "silver or light blue car". She was not certain of the exact colour but said "it was that kind". She made observations of the licence plate that she attempted to communicate to the 9-1-1 operator. Her words were recorded but one of the letters she pronounced when attempting to report the licence number was unclear. The operator believed Ms. Zallum said, "I think the plate was B- M -P-2", "B- M -P-T-0-2 something like that … I didn't get a clear look".

[17] Ms. Zallum also described the getaway vehicle's taillights, saying, "the lights on the back of their vehicle, the red light … it's all the way red across the, the back". She later drew a diagram of the lights in her written police statement.

[18] A male witness, Milos Dmitrovic, was parked across the street from the Pura Vida Salon near a Shoppers Drug Mart. He told police that he saw two to three men in a "shiny silver/grey Dodge, maybe a Charger 4-door" parked in the parking lot across from the Pura Vida Salon. One of the men appeared to be wearing a red shirt. He said he "saw the same car later at the business" but he did not see them drive over. He saw them leaving, the vehicle drove southbound and then turned around and drove northbound at a high rate of speed as if it was "running away from something".

[19] After the robbery, Ms. Zallum gave a police statement, which was written out by a police officer. In that statement, she described the vehicle as a "light blue or silver colour. It was clean, newer." She also described the taillights as being all across the trunk and then curved down the sides, and there were a bunch of little lights.

[20] Ms. Zallum's written police statement recorded, "I tried to get a bit of the plate. I ran back to 9-1-1 and repeated it right away, BNPT02. I remember a 'B', 'N', maybe a 'P' and a 'T'. It ended like '002' I think." The "N" in the partial license plate number "B N PT02" had been written over twice, and Ms. Zallum had placed her initials above the change. During cross-examination, Ms. Zallum agreed that it was possible that the officer had originally written down "M" and she corrected it to "N".

[21] That evening, the police searched the series of license plates between BMPT 020 to BMPT 029 for possible matches for the getaway vehicle. No search was done for BNPT series numbers, nor 200 series numbers. The limited search conducted by the police uncovered the vehicle plated BMPT 020, a charcoal grey Dodge Charger that had been rented by Mr. Leslie Booth, Mr. Booth's father. The rental agreement described the vehicle as "black". The agreement also indicated that Mr. Booth was an authorized driver. This led the police to suspect Mr. Booth, who had a criminal record. He was known to live at 172 Park Row North, the address shown on the rental agreement. His home was placed under police surveillance by the early morning hours of March 8, 2012.

C. The Surveillance

[22] At approximately 2:30 a.m., Robin Cove, a tall man known to the police, was recognized by a surveillance officer leaving Mr. Booth's residence with a shorter white male, approximately 5'6" to 5'8". The shorter man was wearing a black baseball cap and a black jacket. Mr. Cove was carrying a black garbage bag, and the shorter man was carrying a black duffle bag. The two men entered Mr. Cove's nearby residence and were seen to exit again without the bags. Shortly after, they met with Mr. Booth and a female.

[23] At approximately 3:25 a.m., three people – Mr. Booth, the shorter man just described, and a female – were seen to exit a taxicab and enter Mr. Booth's residence. Fifteen minutes later, the trio re-entered the same taxicab and went to a McDonald's drive-through and obtained food before returning to Mr. Booth's residence, where Mr. Booth and the female exited.

[24] The taxicab left with the shorter man. The shorter man ultimately exited the taxicab, walking to a residence on Normanhurst Avenue in the City of Hamilton. Police later conducted a computer search of the addresses on Normanhurst Avenue for persons of interest. Mr. Adrian Rouleau, who has a criminal record, was identified as living on Normanhurst Avenue.

[25] Later that day, the police obtained photographs from the security camera in the taxicab that had transported Mr. Booth and the others to the McDonald's restaurant. The photographs depicted a man, believed to be Mr. Rouleau, wearing a watch. Det. Cst. Philip Hedgcock showed Mr. Alqebali the photo and asked him, "Do you recognize this watch?" Mr. Alqebali responded, "No not this one."

[26] During that same interview, Mr. Alqebali told Det. Cst. Hedgcock that suspect number one was "tall, a little bit shorter than you, 6'3"".

D. The Residence Search Warrant

[27] The police prepared a search warrant application to search Mr. Booth's residence.

[28] In the Information to Obtain affidavit (ITO) prepared in support of the application to search the residence, the affiant officer described the robbery in brief, including that the suspect with the gun had shot Mr. Alqebali, removed the cash from his pocket, and took "both of his watches."

(1) The ITO and the Getaway Vehicle

[29] The affiant officer then described observations made by Ms. Zallum relating to the getaway vehicle, swearing that:

ZALLUM followed the suspects out of the store into the parking lot and observed the suspects getting into a newer looking vehicle she described as silver or light blue in colour. ZALLUM observed the licence plate and tried to memorize it. ZALLUM provided the partial licence number BMPT02 to Hamilton Police dispatch. ZALLUM also described the tail lights of the vehicle as running across the entire back of the trunk and down at the end of each side like in an arc. She described the lights as a series of small lights. ZALLUM observed the vehicle drive south on Kilbourne. While speaking with Hamilton Police Dispatch, ZALLUM observed the same suspect vehicle driving north on Kilbourne, and then east on Highway #8, then north on Worsley.

[30] Later, when describing the 9-1-1 call recorded during the robbery, the affiant officer said:

When the victim Mona ZALLUM returns to the phone after following the suspects out of the salon she provides the partial licence plate of BMPT02 to Hamilton Police Dispatch. Mona ZALLUM also provided a description of the suspects and the vehicle that she saw them leaving in.

[31] The affiant officer also provided information relating to Mr. Dmitrovic's observations of a vehicle driving away at a high rate of speed. The affiant officer swore:

[The witness] stated that he saw a shiny silver, or grey 4 door, Dodge Charger in the parking lot with 2 or 3 white males in it. He stated that he later saw the same vehicle over at the Pura Vida Salon and watched the vehicle initially drive southbound and then turn around and drive northbound past the McDonald's at a high rate of speed as if it was "running away from something.

[32] The affiant officer recounted how the police "began running variations of the licence plate provided by ZALLUM" and learned that a vehicle bearing licence plate BMPT 020, a "2012 Grey 4 door, Dodge Charger", had been rented by "Leslie BOOTH of 172 Park Row Ave. N." from Enterprise Rent-a-Car.

[33] The affiant officer also relayed how Mr. Leslie Booth returned the "2012 Grey Dodge Charger" to Enterprise Rent-a-Car the day after the robbery.

(2) The ITO and the Robbers Described

[34] The ITO contained grainy black and white images, shot from the ceiling, showing the two robbers in the Pura Vida Salon.

[35] The affiant officer also recounted the descriptions of the robbers provided by the occupants of the Pura Vida Salon.

[36] He recounted that Ms. Zallum described both robbers as white males, around 20-25 years old. She described suspect number one as having "medium brown hair, wearing a medium grey hoodie, and a bandana covering his face". She said suspect number two was wearing "a dark coloured hoody" and "rubber gloves similar to dish washing gloves."

[37] The affiant officer said that the Pura Vida Salon employee, Ms. Moniz-Camara, described suspect number one as a white male, the "taller of the two suspects, tall and thin build, wearing a bandana over his face, and a black hoody". She described suspect number two as a white male, "taller than me, I'm 5'4", slim build, wearing black hoody, camouflage bandana covering his face."

[38] The affiant officer reported that when he interviewed Mr. Alqebali, Mr. Alqebali described suspect number one as "tall, a little bit shorter than" the affiant officer, who is 6'4". He said that the other male was short, about 5'8".

[39] In support of the warrant application, the affiant officer examined the video surveillance of the robbery. He recorded his own observations:

I observed Suspect #1 to be a tall male, medium build wearing a black hooded sweatshirt, blue jeans tucked into the back of his socks, white Nike running shoes, black gloves"…. I observed Suspect #2 to be a white male, obviously shorter than suspect #1, medium build, wearing a black hooded sweatshirt with a white t-shirt overtop, a balaclava, black pants, dark coloured shoes, and light coloured gloves.

(3) The ITO and Mr. Booth and Mr. Rouleau

[40] The affiant officer reported that on February 16, 2012, a Hamilton Detective Constable spoke with Mr. Booth with respect to an unrelated investigation and recalled that, at the time, Mr. Booth was wearing Nike high top shoes and that he had his jeans tucked into the back of his socks. This officer viewed the surveillance video of the robbery and said he "recognized the shoes the suspect was wearing in the video as the same shoes that Adam BOOTH was wearing on February 16, 2012."

[41] Two photos of Mr. Booth, one seated, and one taken from behind from the neck down, were included in the ITO. Those photos, taken on March 9, 2012, when Mr. Booth attended the police station, featured him wearing white running shoes with his pants tucked into the back of his socks. They show him to be a young white male but disclose nothing about his height.

[42] The affiant officer provided information linking Mr. Booth to Mr. Rouleau. Specifically, he reported the movements of Mr. Cove, Mr. Booth, the female, and the shorter man believed to be Mr. Rouleau in the early morning hours of March 8, 2012, as described above. A photo presumably from the taxicab security camera, showing a side angle of the upper face of a young man wearing a ball cap, is included in the ITO. The affiant officer offered the opinion, based on a comparison of photos from the taxicab and Mr. Rouleau's mug shot, that the shorter male in the taxicab with Mr. Booth was likely Mr. Rouleau. He also reported that Mr. Rouleau had a criminal record.

(4) The ITO and the Watches

[43] The affiant officer reported that in the security photos from the taxicab, Mr. Booth and the man believed to be Mr. Rouleau were wearing watches. They appeared to be admiring the one worn by the man alleged to be Mr. Rouleau. He emphasized, "This was of particular interest due to the fact that two high end watches were taken from the victim Muamar ALQEBALI after he was shot." The affiant provided a photograph of one of the stolen watches or of the same model as one of the stolen watches.

[44] Four pages later in the ITO, after reporting Mr. Alqebali's description of the robbers, the affiant officer said, "While speaking with ALQEBALI I showed him a photo of the watch that ROULEAU was wearing (See Fig 5). ALQEBALI could not identify the watch as his."

(5) The ITO and the Evidence Sought in the Residential Search

[45] The affiant officer swore his belief that key pieces of evidence would be present inside the residence at 172 Park Row North, including: the handgun used in the robbery, clothing worn by Mr. Booth, the items taken, and the gym bags and contents belonging to the Pura Vida Salon employee. The search warrant was issued, but none of these items were discovered.

[46] However, the officers executing the residential search warrant seized a digital video recorder containing a hard drive capable of storing images. It was part of an operable security system and was expected to capture images of the front of 172 Park Row North.

E. The Digital Video Recorder Search Warrant

[47] On March 15, 2012, a second search warrant, the digital video recorder warrant, was sought to search the footage it recorded. In the ITO prepared to obtain the digital video recorder warrant, the affiant officer related that the digital video recorder was seized during the March 14, 2012 execution of a search warrant at 172 Park Row North. The ITO did not recount any of the grounds relied upon to obtain the first warrant, nor did it disclose that the March 14, 2012 search yielded no evidence. The affiant officer swore his belief that images on the video system would show robbery suspects Mr. Booth and Mr. Rouleau together on March 7, 2012, the day of the robbery, and that those images could depict the getaway vehicle, and accurate detail of the clothing worn by the men before and after the robbery. No basis for that belief is identified.

[48] The search warrant for the digital video recorder was issued on March 15, 2012 and executed. Images recorded from the days surrounding the robbery were recovered. Those videotaped images were ultimately relied upon at Mr. Booth's trial. Certified video analyst, Michael Plaxton, testified for the Crown. An expert report and supplementary expert report he prepared were admitted into evidence. His testimony featured similarities between the robbers and two of the men linked to 172 Park Row North, who the Crown contended were Mr. Booth and Mr. Rouleau. Although Mr. Plaxton did not identify anything distinctive that would permit him to offer the opinion that these men were the robbers, he identified a network of similarities that, along with after-the-fact conduct evidence relating to Mr. Booth, ultimately formed the heart of the prosecution.

Issues Relating to the Warrants

[49] Mr. Booth raises two issues relating to the warrants:

A. Did the trial judge err in finding that there were reasonable and probable grounds to issue the search warrants?

B. If so, did the trial judge err in not excluding the digital video recorder tapes from evidence?

A. Did the Trial Judge Err in Finding That There Were Reasonable and Probable Grounds to Issue the Search Warrants?

(1) Overview

[50] The trial judge erred in finding that the residence and digital video recorder warrants were properly issued, and in rejecting Mr. Booth's s. 8 Charter challenges.

[51] With respect to the residential search warrant, the trial judge did not recognize the extent to which the affiant officer had failed to make "full and frank disclosure" in the ITO as the law requires. Had he done so, and had he remedied the deficiencies properly, the only decision he could have come to is that the ITO could not enable an issuing justice to properly find that there were reasonable and probable grounds for issuing the warrant.

[52] There was also material non-disclosure relating to the ITO for the digital video recorder that the trial judge improperly dismissed. However, this non-disclosure and this error by the trial judge do not matter because there is a more profound problem. On its face, the ITO for the digital video recorder warrant failed to disclose any grounds for the search of the digital video recorder. The trial judge erred by not addressing this.

[53] Both warrants were therefore issued without reasonable and probable grounds. The trial judge should have found that the searches conducted pursuant to those warrants contravened s. 8 of the Charter.

(2) The Relevant Law

[54] Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.

[55] Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not "pick and choose" among the relevant facts in order to achieve a desired outcome: Araujo, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite inferences that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed: Morelli, at para. 58.

[56] What, then, is the frame of material information that should be included to make full and frank disclosure? To answer that question, consider what is required to issue a "reasonable and probable grounds" search warrant. For such a search warrant to issue, the grounds for the warrant must be adjudged not only to be probable, but reasonable to rely upon. The ITO affidavit has to disclose what Dickson J. described in Hunter et al. v. Southam Inc. as a "credibly-based probability [that] replaces suspicion":, [1984] 2 S.C.R 145, at p. 167; see also R. v. Floyd, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at para. 9. As a result, the frame of material information required to achieve full and frank disclosure includes all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.

[57] Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. "What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded": R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.

[58] Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be "excised" in this way: Morelli, at para. 45.

[59] Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by "amplification" so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a "minor, technical error"; and (2) made in "good faith": Araujo, at para. 59; Morelli, at para. 41.

[60] Whether the omission satisfies the first of these two amplification prerequisites – the "minor technical error" requirement – depends on the significance and nature of the error.

[61] Errors that have been corrected by amplification include: mistakenly attributing observations to the wrong observer (Araujo, at para. 61; R. v. Lewis, 2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 75; Lewis, at para. 15); and erroneous but unimportant errors in the description of the source of information (R. v. Plant, [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para. 39; R. v. Van Diep, 2015 BCCA 264, 373 B.C.A.C. 230, at para. 5.)

[62] In contrast, amplification was not available for errors that are too significant to qualify as "minor, technical" errors, including: the failure to identify properly the target unit in a plaza (R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 71); the failure to include information supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting the provenance and reliability of a document of disputed authenticity (R. v. Voong, 2013 BCCA 527, 304 C.C.C. (3d) 546, at para. 52.)

[63] Where the erroneous information cannot be corrected because the error is not a "minor, technical" one, it is obvious that it must be excised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, thereby providing an inaccurate boost to the case for reasonable and probable grounds.

[64] The same is true where an officer has not acted in good faith when failing to make full and frank disclosure – the second amplification prerequisite. Given that amplification is confined to "good faith" error correction, it follows that by acting in bad faith, an affiant officer squanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. The misleading information cannot remain.

[65] In some cases, bad faith on the part of an affiant officer can have an even more profound effect. Where an affiant officer's failure to make full and frank disclosure is egregious enough to "[subvert] the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like", a court has the "residual discretion" to set aside the search warrant, even if there would have been reasonable and probable grounds, had there been full and frank presentation of the information: Paryniuk, at para. 69.

[66] To emphasize, "amplification" is to be used to correct "minor, technical" errors caused by a good faith failure to make full and frank disclosure. It is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so: Morelli, at para. 42. To permit this would turn the authorization process into a sham: Araujo, at para. 59.

(3) The Residential Warrant ITO

(a) Full and Frank Disclosure and the Residential Warrant ITO

[67] Full and frank disclosure did not occur in this case. Mr. Booth raised six areas of concern in his Charter application, but I will describe only the problems relied upon by defence counsel that matter, beginning with the warrant to search Mr. Booth's residence.

[68] First, the information included in the warrant relating to the watch worn by the man believed to be Mr. Rouleau was presented in a way that could mislead the issuing justice.

[69] The residential warrant ITO actively invited the inference that the photos from the taxicab were incriminating, as they depicted Mr. Booth and the man believed to be Mr. Rouleau admiring a watch after the robbery. The affiant officer swore, after reciting this event, "This was of particular interest due to the fact that two high end watches were taken from the victim Muamar ALQEBALI after he was shot."

[70] Yet this event was not of particular interest. It was immaterial because, by the time the ITO affidavit was sworn, Mr. Alqebali had made clear that the watch Mr. Booth was admiring in the taxicab could not fairly be linked to the robbery. When asked whether he recognized the watch, Mr. Alqebali said, "No not this one".

[71] The Crown's position before the reviewing judge during the s. 8 Charter voir dire was that the ITO disclosed this omitted fact four pages later. This is not sufficient to comply with the obligation to make full and frank disclosure, for several reasons:

i. First, the watch information, even if clarified, remained irrelevant and prejudicial. Absent evidence tying the watch to the robbery, it should not have been included and there could be no legitimate purpose for including a large photograph of the watch in the ITO.

ii. Second, the information disclosed four pages later could itself mislead the issuing justice into thinking that the watch could be Mr. Alqebali's. It reported that "ALQEBALI could not identify the watch as his." Yet, a fair reading of Mr. Alqebali's comment, "No not this one", when asked if he recognized the watch, was that he was making it known that the watch did not belong to him.

iii. Moreover, the manner of presenting the information that was disclosed was unfair. The comment highlighting the importance of the watches is isolated from the qualifying information, which appears four pages later tagged onto the end of a paragraph about Mr. Alqebali's descriptions of the robbers. The Morelli majority, at para. 56, raised a similar concern about ordering information in an ITO in a way that could mislead the issuing justice. In that case, the description of a webcam trained at a child's play area was "juxtaposed immediately alongside" descriptions of suspicious child pornography hyperlinks. This painted a more villainous picture than what would have emerged had the affiant officer disclosed all the material information. The fact that the affiant officer disclosed later in the ITO that the webcam was plugged into a VCR and not the computer did not remove the problem.

[72] The trial judge, when reviewing the search warrant, agreed with Mr. Booth that full and frank disclosure had not been made relating to the watches. He therefore appropriately excised any references from his assessment.

[73] Second, full and frank disclosure was not made in the residential warrant ITO with respect to the reliability of Ms. Zallum's license plate evidence, which was used to link the getaway vehicle to the Booth rental vehicle.

[74] Most significantly, the ITO did not disclose the difficulties Ms. Zallum had in securing and reporting an accurate licence plate number. When speaking to the 9-1-1 dispatcher, Ms. Zallum initially reported four digits, then six, qualifying the licence plate she offered by saying "something like that". She then said, "I didn't get a clear look". The 9-1-1 dispatcher believed that Ms. Zallum said "B-M-P-2", then "B-M-P-T-0-2".

[75] Subsequently, Ms. Zallum's provided a written statement with the partial plate number "B N PT02", with the "N" drawn over twice and initialled by her, indicating that she had made a change to that letter. In the end, her signed statement said in material part, "I tried to get a bit of the plate. I ran back to 911 and repeated it right away, BNPT02. I remember a "B", "N", maybe a "P" and a "T". It ended like "002". I think."

[76] Yet the ITO gave no hint that she was insecure about the licence number she identified, or that she believed she saw a plate that included an "N" rather than an "M" as the second letter. Instead it suggests that she made an accurate observation and dependably reported only one partial licence number, BMPT02:

ZALLUM observed the licence plate and tried to memorize it. ZALLUM provided the partial licence plate number BMPT02 to the Hamilton Police.

Later, the ITO says:

When the victim Mona ZALLUM returns to the phone after following the suspects out of the salon she provides the partial licence plate of BMPT02 to Hamilton Police Dispatch.

[77] Third, there is the colour of the rental vehicle. Ms. Zallum said the getaway vehicle was "silver or light blue, it was that kind" in both her call to 9-1-1 and in her written statement. Yet, the rental vehicle that the ITO presents as the likely getaway vehicle was known by the police to be charcoal grey. The police also had access to the rental agreement, which describes the vehicle as black. Neither of these dark shades accorded with Ms. Zallum's observation that the getaway vehicle was "silver or light blue". Further, the ITO described the rental vehicle only as "grey" instead of "charcoal grey".

[78] Fourth, the ITO did not disclose that Mr. Dmitrovic believed that one of the males observed with the suspicious Dodge vehicle was wearing a red shirt, which was a point of distinction from the clothing worn by the robbers.

[79] Fifth, the ITO also asserted that Mr. Dmitrovic saw a Dodge Charger when Mr. Dmitrovic in fact said, "I saw a shiny silver or gray Dodge, maybe a Charger " (emphasis added).

[80] The trial judge found that full and frank disclosure had nonetheless been made relating to the observations of the getaway vehicle. He reasoned that it would have been plain to an issuing justice that the licence plate Ms. Zallum obtained was inaccurate or incomplete. He reasoned that this would have been apparent from the fact that the ITO discloses that no vehicle was found bearing the licence number BMPT 02. He also considered the red shirt omission to be unimportant, as was Mr. Dmitrovic's qualified description of the model of the vehicle.

[81] With respect, I disagree. The trial judge misapprehended the significance of the omissions from the ITO. The omitted evidence relating to Ms. Zallum's observations showed much more than that the licence number reported was inaccurate because it was an incomplete or partial number. That omitted evidence raised real questions about the accuracy and reliability of the incomplete licence plate number as a whole.

[82] The omitted evidence relating to the charcoal grey colour of the rental vehicle, and Mr. Dmitrovic's uncertainty about the model of the vehicle were also material in assessing the probability that the getaway vehicle and the rental vehicle were one and the same. This information should have been disclosed.

(b) Preparing the Residential Warrant ITO for Review: Excision and Amplification

[83] There are therefore five areas where an issuing justice could be misled, as the result of the affiant officer's failure to make full and frank disclosure. Specifically, those areas relate to: (1) the watches; (2) Ms. Zallum's observations of the licence plate of the getaway vehicle; (3) the failure to report that the rental vehicle was charcoal grey; (4) Mr. Dmitrovic's observation of the red shirt; and (5) Mr. Dmitrovic's uncertainty about the model of the getaway vehicle.

[84] Notwithstanding the extent of the failure to make full and frank disclosure in the residential warrant ITO, there is no need to consider the discretion to set aside the warrant because of a dishonest subversion of the warrant process. The trial judge found that the affiant officer acted in good faith, as opposed to bad faith.

[85] Although it may well be appropriate for me to revisit the "good faith" finding given that the trial judge did not appreciate the extent of the affiant officer's failure to make full and frank disclosure when he made this determination, I will not do so. The trial judge was aware of the omitted information. His mistake was in misjudging its materiality. Moreover, he had the considerable advantage of watching the affiant officer testify. I am therefore prepared to accept the trial judge's finding and proceed for the purposes of evaluating the warrant review on the assumption that the affiant officer's full and frank disclosure errors were made in good faith.

[86] Since it would not be proper in the face of this "good faith" finding to remedy the ITO deficiencies by setting aside the warrant, the issue is how the five areas I have identified should be corrected before the sufficiency review is undertaken.

[87] First, I would excise all information pertaining to the watches, as the trial judge did. That information should not have been included in the residential warrant ITO because it was irrelevant in the absence of a link between the watch worn by the man believed to be Mr. Rouleau and the robbery.

[88] Second, I would excise all the information in the ITO relating to Ms. Zallum's observations of the getaway vehicle's licence plate. Amplification would not be proper because the failure to disclose the qualifying information relating to the license plate did not arise from "minor, technical" errors. The omission of this material went to the heart of the circumstantial case the affiant officer was relying upon, such that its omission cannot fairly be considered minor.

[89] Had full and frank disclosure been made regarding the license plate number, the ITO would have reported that although Ms. Zallum did not get a clear look when she followed the robbers as they fled in the getaway vehicle, she tried to get "a bit of the plate". It would have disclosed that she believed the partial plate that she observed was "BNPT02", but she thought it may have ended in "002", and that she gave several variations of the possible licence plate numbering and sequencing following the robbery. Although it would have been appropriate for the affiant officer to record in the ITO the 9-1-1 operator's opinion that Ms. Zallum said the licence plate was "B-M-P-2 or "B-M-P-T-0-2 something like that", full and frank disclosure would have also required the affiant officer to mention that Ms. Zallum signed a written statement later that day, which recorded the first part of the licence number as B N PT.

[90] Given what should have been included, offering an ITO that only discloses that Ms. Zallum observed the licence plate, tried to memorize it, and "provided the partial licence number BMPT02" is not a "minor, technical" error.

[91] Third, I would amplify the residential warrant ITO to correct the remaining errors, namely, (3) the failure to report that the rental vehicle was charcoal grey, (4) Mr. Dmitrovic's observation of the red shirt; and (5) Mr. Dmitrovic's uncertainty about the model of the getaway vehicle. Unlike the incomplete and erroneous information relating to Ms. Zallum's observation of the getaway vehicle's licence plate, these errors can be characterized as "minor". The errors are material, but not central. They represent a failure to include information that should, in fairness, have been put before the issuing justice for consideration. Given the trial judge's "good faith" finding, amplification is appropriate.

[92] For the sake of completeness, I will address one other amplification question relating to information presented by the affiant officer during re-examination by Crown counsel. During that re-examination, the Crown asked the affiant officer about information he could have included in the residential search warrant ITO but did not. The affiant officer responded with Mr. Booth's height; age; lengthy criminal history; the fact that he was named as an authorized driver of the rental vehicle; that the rental vehicle had dotted lights around the tail consistent with the drawing Ms. Zallum prepared; and that only one other Dodge Charger was found in the licence plate series that was searched.

[93] It is not evident that the trial judge considered this information in evaluating whether there were reasonable and probable grounds. It would have been an error had he done so, since the warrant review is of the ITO, and it would not have been proper for the trial judge to have included this information by way of amplification. Retroactively adding this information to bolster the ITO would make the prior authorization process a sham. It would not be error correction – the function of amplification – but improper after-the-fact enhancement.

[94] Having said this, it was not improper for the Crown to question the affiant officer about the omission of information helpful to the Crown. This information may be relevant to the good faith of the officer, suggesting that the affiant officer was generally inattentive or careless in drafting the ITO, rather than malicious.

[95] Since it is not evident that the trial judge considered this information during his warrant review, I will say no more about it.

[96] In summary, before reviewing the residential warrant, the trial judge should have excised from the ITO not only the references to the watch, but also Ms. Zallum's references to the licence plate. He should have amplified the remaining information with the charcoal grey colour of the rental vehicle, the red shirt observation by Mr. Dmitrovic, and corrected the inaccurate suggestion that Mr. Dmitrovic saw a Charger model vehicle.

[97] With these corrections made, and bearing in mind that the additional information secured by the Crown during the re-examination of the affiant officer is to be ignored, does the residential warrant ITO disclose reasonable and probable grounds?

(c) Reasonable and Probable Grounds and the Residential Warrant ITO

[98] The lynchpin of the residential warrant ITO was the purported link between the getaway vehicle and the vehicle rented by Mr. Leslie Booth. This is because the description of the robbers was hampered by their disguises and generic clothing. According to the ITO, all that could be determined was an estimate of race, height, and age for each man, their non-distinctive clothing, and the medium brown hair colour of the taller robber.

[99] Significantly, the residential warrant ITO failed to offer a physical description of Mr. Booth for comparison to the robbers. While his general age could be gleaned from the photos included of him in the ITO, his height could not.

[100] The sum total of useful comparative information available in the ITO to physically link Mr. Booth to the taller suspect was that: (1) he wore Nike high top running shoes with Velcro fasteners and the taller robber appeared to be wearing similar shoes; (2) Mr. Booth has been observed tucking his pants into the back of his socks, like the robber did; and (3) in the hours after the robbery, he was seen with Mr. Rouleau, a shorter man approximately the size of the other robber. Mr. Rouleau also wore non-distinctive clothing similar to the other robber and may be the person seen at the residence with a duffle bag, not unlike the duffle bag that one of the robbers carried.

[101] The modest link between Mr. Booth and the taller robber suggested by this evidence does no more than raise a suspicion that Mr. Booth could have been the taller robber. However, after excising Ms. Zallum's description of the license plate of the getaway vehicle, the residential warrant ITO does not rise above speculation and falls far short of reasonable and probable grounds. After the required excision, no issuing justice could reasonably have issued the residential search warrant.

[102] Indeed, even if amplification relating to Ms. Zallum's observations of the licence plate of the getaway vehicle had been appropriate instead of excising all those references, the residential warrant ITO would not have furnished reasonable and probable grounds.

[103] Under this approach, an amplified ITO would have reflected: the insecure observation made by Ms. Zallum of the range of possible licence plates for the "silver or light blue" getaway vehicle; that this range of possible plates could have included the licence plate number on the Booth rental vehicle; the detail added by Mr. Dmitrovic that the vehicle that appeared to be "running away from something" was a Dodge, maybe a Charger; and that he saw a man wearing a red shirt near this vehicle. The getaway vehicle description was anything but secure, and the colour of the getaway vehicle identified by these witnesses was not a comfortable match for the charcoal grey colour of the rental vehicle.

[104] There is yet a further weakness. The investigating officers conducted only a selective licence plate search for suspect vehicles. Specifically, they searched only the series of plates from BMPT 020 to BMPT 029. No effort was made to search BNPT series plates or 200 series plates, which were equally suggested by Ms. Zallum's observations of the getaway vehicle. When Mr. Booth was identified as a suspect during the search of license plates within the series BMPT 020 to BMPT 029, the search simply stopped.

[105] The residential warrant ITO does disclose that "the Hamilton police service began running variations of the licence plate" (emphasis added). There is, therefore, no suggestion made in the ITO that a complete search was conducted, but full and frank disclosure should have included more precise information about the limited search that was done.

[106] I have not addressed this as a full and frank disclosure issue because it was not raised by Mr. Booth as a material non-disclosure. The immediate point is simply that the ITO relied not only on weak vehicle identification evidence, but on an incomplete licence plate search, further undercutting any serious pretence to reasonable and probable grounds.

[107] Even combining this vehicle information with the generic and incomplete information describing the robbers and Mr. Booth, the search warrant could not reasonably have issued since the ITO would fall decisively short of showing a credibly-based probability that evidence of the crime would be found at 172 Park Row North.

[108] The trial judge erred in finding that there were reasonable and probable grounds for the residential search warrant.

(4) The Digital Video Recorder Warrant ITO

(a) Full and Frank Disclosure and the Digital Video Recorder Warrant ITO

[109] The ITO affidavit sworn in support of the digital video recorder warrant did not disclose that the search conducted at the residence the day before failed to produce any of the things listed to be searched for, including guns, stolen items, or clothing related to the robbery.

[110] The trial judge concluded that this did not amount to a failure to make material disclosure. I disagree. I will explain below that the digital video recorder warrant failed entirely to include any grounds for believing that there would be evidence relating to the robbery found at the residence, as it did not reprise or incorporate by reference the pertinent information from the residence warrant. Even had it done so, the case for reasonable and probable grounds was thin, at best. It would certainly be material in evaluating the sufficiency of that circumstantial case to consider the additional fact that a search of the residence the day before yielded nothing linking the residence to the robbery. This would bear directly on the probability that the video recordings might furnish evidence linked to the robbery.

(b) Preparing the Digital Video Recorder Warrant ITO for Review: Excision and Amplification

[111] The digital video recorder ITO was incomplete because it failed to include important information that would weaken the claim to reasonable and probable grounds. Fairness would require that the digital video recorder ITO be amplified by adding this information. As I am about to explain, however, this remedy is moot, as the ITO does not provide reasonable and probable grounds, in any event.

(c) Reasonable and Probable Grounds and the Digital Video Recorder Warrant ITO

[112] The trial judge recognized that in the digital video recorder ITO, the "grounds to believe the things to be seized … will provide evidence of the offence are perfunctory". With respect, such grounds were not simply perfunctory. They were non-existent. All the digital video recorder warrant ITO contained were bald statements that the residence at 172 Park Row North had been searched under warrant on March 14, 2012, and a working video surveillance system that recorded activity in the front of the house, including the porch and the front door entrance, had been observed and seized. The ITO did not recount any specific information purporting to link the offence to 172 Park Row North, nor was the residential warrant ITO filed in support of the digital video recorder warrant. Mr. Booth raised the lack of reasonable and probable grounds for the digital video recorder warrant, but this fatal shortcoming was not dealt with by the trial judge. It should have been. As affirmed by this court, "Each information and subsequent warrant should be viewed as a whole… Each case must stand upon its own facts": R. v. Church of Scientology of Toronto (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 256.

[113] Even if the residential warrant ITO had been appended to the digital video recorder warrant ITO in an effort to provide reasonable and probable grounds linking the place to be searched to the crime, reasonable and probable grounds would still be lacking for the reasons identified above. This is particularly so if the improperly omitted fact had been added that no evidence tying Mr. Booth to the robbery was found during the residential search the day before.

[114] The trial judge erred in finding that the digital video recorder warrant was properly issued.

B. Did the Trial Judge Err in Not Excluding the Digital Video Recorder Tapes from Evidence?

[115] The only evidence discovered during the two searches was the video recording of the front of the house on the days surrounding the robbery. This evidence was presented at trial. In his Charter ruling, the trial judge had considered whether this evidence would have been excluded under s. 24(2) had the alleged Charter violations occurred. He ruled that even had those violations occurred, the evidence was nonetheless admissible. In doing so, the trial judge considered each of the three criteria from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 for determining whether the admission of evidence would bring the administration of justice into disrepute.

[116] The trial judge did not find that the alleged breaches would have been serious, had they occurred. He said that any such breaches would not be "egregious", but "[a]t their highest they were unintentional".

[117] He judged that the impact of the breaches on the Charter protected rights of Mr. Booth through the search of his home and the video recorder to be "relatively serious".

[118] And he found society's interest in adjudication on the merits to be high. He accepted the trial Crown's submission that "its case is utterly dependent upon the video device recording", and that the charges were serious.

[119] He therefore concluded, "On balance, the 24(2) factors would militate for inclusion rather than exclusion".

[120] Of course, the trial judge's decision about the effect of admission or exclusion on the administration of justice does not warrant deference, given that he failed to identify the breaches that occurred. Nor, in this case, does his evaluation of the components of s. 24(2) warrant deference.

[121] First, his finding that the s. 8 breaches would not be egregious and at their highest were unintentional does not reflect a complete evaluation of the seriousness of the Charter violation. The required inquiry is more nuanced, requiring a closer examination of where the violation falls on a "fault line". It is true that when it comes to evaluating whether a failure to make full and frank disclosure violates the Charter, the law employs a simple, binary "good faith or bad faith" analysis relating to whether amplification will be available or whether the residual discretion to set aside a warrant is triggered. However, the law of s. 24(2) is different. To properly judge the seriousness of the violation, police conduct must be placed on this "fault line" or "spectrum" between good faith and bad faith: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at paras. 41, 45; Grant, at para. 75. Wilful blindness, negligence, and "ignorance of Charter standards" can all underpin a finding that a breach is serious: Kitaitchik, at para. 41; Grant, at para. 75.

[122] In cases such as this, where a search warrant has been obtained, the proper starting point is recognition that an attempt to obtain a search warrant is ordinarily the antithesis of wilful disregard for Charter rights: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 28; Morelli, at para. 99. However, that does not end the inquiry. The ITO must be considered. As Doherty J.A. said in Rocha, at para. 29:

The approach … should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.

[123] In R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, where innocent errors occurred because of sloppy work, the case fell in the middle of the good faith to bad faith spectrum: at paras. 64, 74. In Rocha, there was no bad faith, but there was blameworthy "inattention to constitutional standards": at para. 43. Similarly, in Morelli, the breach was serious notwithstanding that a warrant had been obtained by officers believing they were acting under lawful authority. Fish J. remarked for the majority, at paras. 100, 102:

The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and carelessly drafted. Not only did the ITO fail to specify the correct offence (accessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds.

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

[124] In this case, the affiant officer fell far short of that standard. Although I accept the trial judge's assessment that the affiant officer did not intentionally violate the Charter, he was clearly negligent. He testified that he was aware of his obligation to make full and frank disclosure, but he was patently inattentive to that obligation. It is not unfair to characterize the ITO as an exercise in advocacy, rather than disclosure. Information about the watch worn by the man that appeared to be Mr. Rouleau was unfairly spun as having significance, when it was immaterial. And the ITO reported the most incriminating version of Ms. Zallum's licence plate observation as more certain that it was, notwithstanding that the affiant officer was well aware that Ms. Zallum was insecure about her observations, and actually believed the licence number to be different than the one recorded in the ITO. At the very least, the information relating to the shade of the Booth rental vehicle was presented carelessly, suppressing a possible disparity between the getaway vehicle and the rental vehicle. Moreover, Mr. Dmitrovic's red shirt observation was omitted, while his confidence in the identification of the model of the vehicle was exaggerated. Consistent with this pattern, the digital video recorder warrant ITO represented a probability that material evidence would be found in the footage without disclosing that no evidence had been found linking the residence to the robbery during the residential search. There is no possible conclusion other than that the affiant officer's failure to make full and frank disclosure, while not intentionally in violation of the Charter, approaches the more serious end of the spectrum.

[125] The trial judge also understated the seriousness of the impact of the breach on the constitutionally protected interests at stake. He called the "search of [Mr. Booth's] home and of a video recording device of what transpired at that home … relatively serious " (emphasis added). I agree with respect to the video recording. That recording was of activity that occurred in the front porch area of the house, visible from the road, significantly mitigating any privacy interest in the images shown. However, the digital video recorder was seized during a full-scale search of Mr. Booth's residence. In Morelli, at para. 104, the majority made clear that a search of a home is not simply a "relatively serious" breach as the trial judge described, but a "serious breach" of s. 8 rights. The trial judge's s. 24(2) decision fails to give this central and important consideration adequate recognition.

[126] The trial judge was correct in his assessment of society's interest in the adjudication of this case on its merits, and the impact that exclusion would have on this interest. I agree with the trial judge's conclusion that the exclusion of the digital video recorder evidence would gut the Crown's case, a point I will return to below. Although there were reliability issues arising from the poor quality of the videotape, which impaired an ability to make confident conclusions about clothing details, the cost to society of excluding crucial evidence in the prosecution of serious offences, such as those faced by Mr. Booth, should not be underestimated.

[127] The inquiry, however, is not solely or even mainly about the impact that excluding the evidence would have on Mr. Booth's prosecution. In balancing the Grant factors, reviewing courts must bear in mind the impact of exclusion or admission on the long-term interests of the administration of justice: Morelli, at para. 108. The long-term interests of the administration of justice would be significantly undermined if courts condoned the degree of inattention to the critically important obligation to make full and frank disclosure that occurred here. This is particularly so where the outcome is the search of a dwelling house without reasonable and probable grounds, which occurs as a result of the misleading presentation of material information in a sworn ITO. This was a serious abuse of the privilege of an ex parte court application.

[128] The trial judge therefore erred by not excluding the digital video recorder evidence.

The Remedy

[129] Although the usual outcome where a trial judge has erred by not excluding unconstitutionally obtained evidence is to order a new trial, an acquittal is required in this case. The trial judge's finding, which accorded with the Crown's submission during the s. 24(2) voir dire, is that the case is utterly dependent upon the digital video recording. This finding is correct. Without the excluded evidence, the Crown case is gutted, and it is not in the interests of justice to order a new trial.

[130] The Crown's case was circumstantial. At the trial, the robbery victims offered no significant new information beyond what is described above. Ms. Zallum could not recall whether the getaway vehicle was silver or blue, she was only certain that it was "light coloured". Mr. Dmitrovic's evidence also weakened, testifying that he did not know the model of the getaway vehicle and he confirmed that it was a "lighter colour". He could not remember seeing the Dodge in the strip plaza where Pura Vida salon was located.

[131] Ultimately, the Crown's case that Mr. Booth was the taller robber depended upon three additional sources of information, which were not available at the time the warrants were obtained.

[132] First, the Crown presented the results of DNA testing on the torn glove fingertip. Conventional DNA results, with their probabilities of a coincidental match in the millions if not trillions, could not be obtained. However, Y-STR DNA results were produced, showing that Mr. Rouleau shared the familial male DNA profile found on the glove fingertip. So, too, would one out of every 29 Caucasian males. The Crown theory was that the stronger the link between Mr. Rouleau and the robbery, the stronger its case against Mr. Booth, as they were together before and after the robbery. The Crown argued that the Y-STR DNA evidence strengthened the circumstantial case that Mr. Booth was one of the robbers.

[133] Second, the Crown relied upon Mr. Leslie Booth's testimony to argue that Mr. Booth's after-the-fact conduct was indicative of his guilt. Specifically, Mr. Booth returned the rental vehicle to Mr. Leslie Booth on the evening of the robbery, instead of the next day as expected. He also engaged in a conversation with Mr. Leslie Booth that the Crown argued was a refusal by Mr. Booth to tell his father why the police were interested in the vehicle.

[134] Third, there were the digital video recordings of the front porch area of 172 Park Row North, showing the movement and dress of the males exiting and entering the residence before and after the robbery, coupled with the related testimony of certified video analyst, Mr. Plaxton.

[135] Of the additional evidence presented at trial, the DNA evidence contributed little in proving that Mr. Rouleau was one of the robbers, let alone Mr. Booth. Indeed, the inference that Mr. Booth was one of the robbers based on Mr. Rouleau's status as a robber depended, in part, on the video evidence required to put the men together before and after the robbery. With that video evidence excluded, evidence linking Mr. Rouleau to the robbery loses much of its force as incriminating evidence against Mr. Booth.

[136] Second, the after-the-fact conduct evidence was equivocal and far from decisive.

[137] Ultimately, the success of the Crown's case depended upon persuading a jury that Mr. Booth was enmeshed in an incriminating web of facts that could not be attributed to coincidence. That supposed web of incriminating facts was based upon similarities between the getaway vehicle and the Booth rental vehicle, and similarities between the clothing and physiology of the robbers and Mr. Booth and the shorter man believed to be Mr. Rouleau, as observed in the digital video recorder evidence. With the exclusion of the digital video recorder evidence, the incriminating web of facts theory is undercut. No reasonable jury could convict based on what remains.

Conclusion

[138] I would therefore allow Mr. Booth's appeal, set aside all of the convictions, and order verdicts of acquittal.

Released: December 11, 2019

"David M. Paciocco J.A."

"I agree. C.W. Hourigan J.A."

"I agree. David Brown J.A."