Court File and Parties

Court File No.: Regional Municipality of York 11-11074 Date: 2012-12-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrzej Zalewski

Before: Justice Peter N. Bourque

Ruling on Application to Exclude Evidence on December 4, 2012

Counsel: Ms. Mary Lou Armour, for the Crown Ms. Leora Shemesh, for the accused Andrzej Zalewski

Bourque J.

Overview

[1] The defendant is charged with several counts of break and enters and theft, with regard to a series of thefts of automobiles from the driveways and garages of peoples homes, in the G.T.A. In the course of the investigation of these robberies, the police sought and obtained several warrants, including a warrant to surreptitiously enter a rented storage locker of the defendant. Once inside they obtained further incriminating information (keys to automobiles etc.) and then obtained further warrants as a result.

[2] The theory of the police is that the defendants are involved in thefts of automobiles from person's driveways. The thieves obtain the keys in two different ways; 1) breaking into the home, taking the key; and, 2) by breaking into the storage yard near or at the CP rail yards, taking one of the keys and then locating the location of the (ultimate) of the vehicle by buying a Used Vehicle Information Package. The defendant Zalewski owns a storage unit and the police feel that stolen keys and UVIP packages will be located there.

[3] The affidavit to obtain the warrant was sworn by Detective Constable Valdy Krawczyk on September 1, 2011. There are actually two warrants under consideration. The first (which comprises the reasons which follow) was for a general warrant for covert entry under s. 487.01(1) C.C.C. The second follows the first and includes the results of the search from the first, and is issued under s. 487(1).

[4] The s. 487.01(1) C.C.C. warrant seeks to obtain "information concerning the offence" and the s. 487(1) warrant seeks "evidence with respect to the commission of an offence".

[5] For the purpose of this application, I will apply the same legal test for review even though the s. 487.01(1) warrant results in a less intrusive entry.

[6] The defence has brought a "Garofoli" application which seeks to have the results of the warrant to search excluded from evidence on the basis that the information presented to the justice issuing the warrant was not sufficient (after redactions or amplifications) to allow the issue of the warrant. The test is not whether I as the trial judge would have refused to issue the warrant but whether the presiding justice had any basis to issue the warrant. As stated in R. v. Pires, 2005 SCC 66, "The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed…There is thus only a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory preconditions…In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization." (Para. 30).

[7] In a previous ruling, I allowed the defendant to cross examine the affiant upon the information contained in several paragraphs of the affidavit, which was put before a justice to obtain the General Search Warrant. Cross examination was undertaken (and re-examination undertaken) on paragraphs 128, 129, 130, 131, 132, 147, 151, 153 and 200. I granted further leave to cross-examine on the issues in paragraphs 114, 115, 116, 136, 46, and 49.

The Information to Obtain

The Opening Paragraphs

[8] The affiant sets out his experience and reviews some general investigative tools. He makes many statements about how the car theft "industry" operates and more importantly, he makes many many assumptions about the actions and motives of the defendant Zalewski. He appears to have taken some (4) several weeks course in cargo and vehicle thefts.

[9] He provides information that a used vehicle information package lists owners of a vehicle in Ontario, notes any liens, and can be purchased by anyone. He believes that motor vehicle thefts are quite often involves two or more persons and other associates.

[10] The bulk of the affidavit is some 200 further paragraphs and comprises over some fifty pages of typed text. It has two appendices of a further 8 pages. It proceeds in chronological fashion and covers a multitude of observations and interviews and investigative procedures. It is not an easy document to digest.

[11] It describes ten separate thefts of motor vehicles in the period January 17, 2011 through to August 16, 2011. Of those 10 separate thefts of motor vehicles, 5 of them involved a break into a home before the theft (where keys were stolen). It describes 2 break and enters, where nothing was taken, and 1 break and enter where a wallet was stolen.

[12] There is also an allegation of a break-in at a C.P.R. rail yard (I will discuss this further in the ruling).

Identification Evidence

[13] With regard to all of these offences, there is no direct evidence given by any civilian witnesses implicating the defendant(s) in any of these crimes. There is, for some of the offences, a generalized description of persons in black clothing on driveways. There is a statement that two days previous to one of the vehicle thefts, he saw two persons in a black Volkswagen of "East European" descent, possibly "Polish or Russian". In my opinion, looking at the totality of these general descriptions, including pictures from civilian surveillance cameras (paragraphs, 21, 23, 24, 31, 42, 49, 50, 71, 73, 78), the descriptions are very general, and could include the defendants. In paragraph 166 there are surveillance pictures at an ESSO station showing the defendant's on August 16, 2011. This gas station was in Brampton which some considerable distance from the vehicle thefts in Burlington and Hamilton. I will deal with the surveillance information and especially the information to be gleaned from the tracking warrant in another section of the ruling.

[14] In paragraph 135 there is a reference to a neighbour near a vehicle theft location on August 19, 2011, seeing a vehicle on her surveillance video as "hatchback type car".

[15] There is in paragraph 20 a reference to an "older model Volkswagen hatchback type vehicle (no colour is given) seen in surveillance video driving past the home of one of the thefts (43Cooperage Road, Vaughan). The complainant from 43 Cooperage Road, Vaughan, was shown a picture of a 1998 Volkswagen GTI and she confirmed that it was identical to the vehicle that she had seen during one or more of her "runs" in the morning. The officer indicates in paragraph 26 that the defendant Zalewski is the registered owner of a 1998 Volkswagen GTI, licence #BLBB 988. This is the only direct connection of the defendant Zalewski to this vehicle theft.

Address of Defendant

[16] The affidavit contains information which sets out two possible addresses of the defendant. In paragraph 57, he tells a police officer, at a traffic stop, that his "home" was 3 Rountree Road, Apartment #2012, Toronto. None of the surveillance, or tracking information, puts him at this address but a paragraph 33 there is evidence that his mother lives there and he attends quite often, and in paragraph 39, there is information that he "resides with his mother".

[17] There are several items of information which put his residence at 1276 Islington Ave., Toronto, including:

• Domestic occurrences involving his girlfriend (para. 65);
• The G.P.S. tracking device was placed on his car at this address; and,
• There is a plethora of G.P.S. tracking data (appendix E) showing his vehicle starting from this address.

[18] The affiant believes that his address is the Islington Avenue address. He goes so far as to state it as a fact. I believe he was on good ground to assert it as a fact.

Character Evidence of the Defendant

[19] The affidavit makes several statements of opinion as to the previous activities of the defendant Zalewski.

[20] On the first page under the heading "Executive Overview" the officer states: ...Zalewski is a very well known individual involved in the world of high end vehicle thefts, specifically when left unattended to "warm up". It also states; "analysis of Andrzej Zalewski's activities has resulted in the confirmation that he has in fact been in the world of "high end" motor vehicle thefts".

[21] Paragraph 26 states: "…Zalewski is a male party well known across the Greater Toronto Area police services as being heavily involved in the world of "high-end" motor vehicle thefts, often specifically targeting those vehicles that are left unattended and warming up".

[22] Paragraph 33 quotes a building superintendant where the defendant had lived who states, "…he has members of various police services over the years attend the property and make inquiries pertaining to Zalewski".

[23] In paragraph 64, the officer states, "…Zalewski resides at 1276 Islington Avenue, Toronto…This has been confirmed as there have been previous domestic occurrences at his apartment involving himself and his girlfriend".

[24] In paragraph 39, the officer describes a sort of connection to another well known car thief by saying that two vehicles that the officer wants tracked are owned by a woman who lives in the building occupied by Zalewski's mother and thus as Zalewski was known to reside with his mother, "it seemed logical to believe that Zalewski was working along with this other thief in the "warm up thefts".

[25] In paragraphs 40, 41, 42 and 43, on the basis of a description of an individual who was white, 6' 2" tall and wearing "all dark clothing", then "…it is believed that either Zalewski or (the other thief) were the driver of a F150 pickup truck involved in a hit and run collision on March 27, 2011. This description does not in the end prove to be very useful.

[26] In paragraph 143, there is a reference to the defendant meeting two persons on August 15, 2011 and one of those persons had a record for a finding of guilt for the offence of "personation with intent". No other reference is made to this person in the affidavit.

[27] In paragraph 188, the affiant describes the defendant as having an "extensive criminal history that dates back to the year 2000. The vast majority of his convictions being for the following offences: break, enter and commit; possession of property obtained by crime over 5,000 dollars and theft over 5,000 dollars".

[28] The most relevant information is the criminal record of the defendant but it is not completely set out. Many of the statements are pure conjecture (the hit and run and the association with the other thief) and the reference to the person with the impersonation record is inconclusive. Put together it forms a picture of a very unsavoury character, but does not tie him to the thefts described in the affidavit. For the purpose of my review, other than the criminal record, I would give it no weight. Defence counsel urges upon me that it would have misled the issuing Justice. I do not think it would have misled the issuing Justice.

GPS Information Placing the Defendant Motor Vehicle Near Addresses Where Vehicle Thefts Have Taken Place

[29] A tracking device was placed upon the vehicle of the defendant on July 28, 2011. It places the vehicle very close to two auto thefts.

1. 2455 Meadowridge Drive, Oakville – wallet stolen overnight, August 12/11, 2011.
2. GPS pings and locates vehicle in front of 2480 Meadowridge Drive, Oakville. (Appendix E and paragraph 119);
3. 8 Gracehill Drive, Stoney Creek – theft of 2011 Mercedes Benz ML350 – August 15/16, 2011; and,
4. Vehicle on Gracehill Drive, August 15, 2011 at 23:10 (Appendix E and paragraph 128).

[30] This theft of the Mercedes Benz (noted above) also has a possible tie in to the potential theft of keys from CP rail yards as the owner of the stolen vehicle learns after the fact that only one key was with the vehicle upon arrival at the dealership and they cut a new key without telling her (paragraph 135). In addition it was for this vehicle that a used vehicle identification package was purchased on August 15, in the Cloverdale Mall, Toronto (paragraph 136). The Volkswagen GTI of the defendant was placed at the Cloverdale Mall on August 15 (paragraph 137). Upon close examination of paragraphs 136 and 137, the times for attendance at the mall by the vehicle and the stated time of the purchase of the UVIP have an 8 minute discrepancy. Also, the GPS material in Exhibit "E" only includes tracking data starting later in the afternoon. As to these issues, they were not explored in cross-examination. Even if there is no error by the affiant, I believe that the proximity is close enough to raise an inference favourable to the Crown.

[31] For the thefts in Oakville on August 12, 2011, and Burlington, the GPS information discloses that in the hours before those thefts, the subject vehicle attended at the storage unit.

[32] In addition another recently delivered Mercedes Benz vehicle had one of its keys stolen and there was a UVIP package purchased for this vehicle as well, although there is no tracking information placing the defendant's vehicle where the package was bought (paragraph 139).

[33] In addition, for the thefts of all of these cars, there is no indication that entry was forced, all of the thefts were by persons who had keys to the vehicles.

Surveillance by York Regional Police

[34] Paragraphs 141 through 147 deals with various surveillance of the defendant. He is seen with other people and most of the information is not compelling in this investigation. There is a picture of him handing over a black wallet with money on top of it to another person. The connection of this observation to the previous theft of a wallet is quite tenuous, however, it is some information which could be used in this investigation and is at least mildly probative to the decision that the issuing Justice had to make. The observation contained in Paragraph 118 is however quite relevant as it places the defendant (not just his car) at Meadowridge Drive, Oakville, at 1:15 a.m. on August 12th.

CP Railyard Connection

[35] It is a central contention of the affiant that the defendant broke into the C.P. rail yard in order to steal keys, which he would then use to start and drive away in the person's car. Coupled with and forming an integral part of this contention, is the allegation that the defendant attended a Service Ontario outlet and purchased one or more used vehicle information packages.

[36] The information about the CPR break-in is contained in paragraphs 114, 115, 116. After perusal of all of the information in these paragraphs, it appears that:

1. CPR did not report any break-in during this time period. A CPR employee has stated that keys have gone missing from vehicles on previous occasions, and it is the drivers who are held accountable if it is not noted that keys are missing. There is no information that any keys have gone missing during any relevant periods of time.

2. The belief that a break-in has occurred derives from a cut in the barbed wire of the fence (discovered by a police officer tasked with walking the entire perimeter of the fence). A CPR employee states that tree cutters damaged the fence two weeks before in an area some 30 feet from this damage and he would have seen this damage if it was then present.

[37] In further support of his theory that the defendant has broken into the CPR rail yard to steal keys he stated in paragraph 103 (and paragraphs 167, 168 and 169), that the defendant on August 3, purchased and "angle grinder, 18 Volt battery, RY 18 V DC, 2 4 1/2" blades.

[38] Paragraph 100 contains the following: "surveillance conducted by investigators resulted in the discovery that Zalewski attended the CPR rail yards…and arrived at the location at 11:45 pm. And left at 12:12 p.m."….GPS tracking information gives locations of the defendant. There is no attempt to coordinate the location of the defendant with the cut of the barbed wire in the fence. The affiant is asserting that the defendant broke into the CPR rail yards by using power tools to cut some barbed wire and then stole keys.

[39] There is no information where the damage to the fence and the defendant's car would be together. There is perhaps an assumption that the items bought could be used to cut barbed wire. The affiant than concludes at paragraph 169, "…which I believe were subsequently used to cut the bared wire across the top of the fence line at the Canadian Pacific Rail Yards". He then goes further and states at paragraph 179, "On Wednesday, August 3, 2011 during the late evening hours there was a commercial break and enter at the CPR rail yards…that resulted in the barbed wire being cut across the top of the fence line, thus gaining access into the facility".

[40] The assertion that the defendant broke into the CPR rail yards and stole keys to new motor vehicles is, in my opinion, crucial to the statement in the search warrant at paragraph 95 that "…investigators will in fact locate keys (at the defendant's unit at Storage Mart) to vehicles that to date have yet to be stolen. Furthermore it is anticipated that there will likely be used vehicle information packages purchased along with personal property from vehicles already having been stolen…..I believe that Andrzej Zalewski is responsible for having broken into the "Canadian Pacific rail yard facility..."

[41] It is crucial to the basis upon which the search warrant will be issued, and the affiant states as such at paragraph 153, and ties the alleged break-in at the CP rail yards and the purchase of the UVIP materials to the defendant's Storage Mart Unit.

[42] While the above issues raise some doubt as to the connection of this storage unit to the possible thefts of keys in the CPR Storage Yard, the tracking information does bring the defendant's car to the storage unit in some close proximity in the time of some of the car thefts. The defendant's car attends the unit on August 11 at 9:28 p.m. and there is an early morning break and enter the next day at 2455 Meadowridge Drive (paragraph 150). The defendant's car attends the storage unit on August 15 some half hour after the attendance at Cloverdale Mall (referred to above).

[43] The officer in his affidavit makes many assumptions about what the defendant is doing ("…it is believed that Zalewski…attended the Storage Mart…to retrieve the key to the Mercedes that he intended to steal"), but that does not detract from the connections in time and place that are set out in the affidavit. The officer usually uses the words, ""it is believed (paragraph 151) when setting out these connections to the crimes. While he may be overstating his case, it does not, in my opinion, lead a reader to necessarily make the same conclusions.

[44] And finally, with regard to the storage unit, the defendant is shown to be the renter of the unit and he has a possible address about a kilometre from the unit.

[45] The defendant has quite properly pointed out some of the deficiencies in the actual G.P.S. address location of the rail yard. The address is miss-described, as is the actual owner of the property where the cars are stored. I do not think that this impacts greatly on the assertion in the affidavit. The G.P.S. tracking information puts all the entities in close proximity.

Does the Affidavit Contain Opinions Which Are Not Supported by Any Information, or Is There Any Misleading Information?

[46] Page # 1 Executive Overview: "I believe that I have identified the black Volkswagen GTI as belonging to Andrzej Zalewski…especially when left unattended to warm up…"

[47] Paragraph 25 – "…at this point in time one can only conclude the males were attempting to determine whether vehicles in their respective driveways were "warming up".

[48] I have already referred to the conclusion that it is believed that either Zalewski or another thief who was in fact the driver of the Ford F150 that was involved in the fail to remain collision". There is absolutely no information provided to support that conclusion.

[49] In paragraph 59, the officer combines what he says is a common practice for car thieves to drive away in tandem and then makes the leap of faith assertion that the defendant intentionally drew attention to himself by making an abrupt u-turn, in order to have confederate get away. There is nothing in the factual situation to support this conclusion, although the officer could asset that as an opinion.

[50] In paragraph 65, the officer opines as to why the stolen Maserati was found in a parking lot at 1139 Royal York Road. He refers to it as a "cooling off". This is pure conjecture on his part and in any event does not assist in determining the real issue here which is the identity of the alleged thief and so lead the presiding justice to issue a warrant to search the storage locker of the alleged thief.

[51] Another example of the speculation contained in this affidavit is found at paragraph 89. Again the affiant draws upon his knowledge of car theft investigations and states that there must have been a lookout who told the persons inside the house that the homeowner was returning and that is why the Maserati was not stolen. Where is the evidence of any part of that supposition?

[52] Paragraphs 90 and 102 of the affidavit describe what the officer feels is observations of erratic driving by the defendant. The officer opines that on one occasion the defendant is doing "heat checks", which he describes as for the purpose of seeing if he is being followed. In paragraph 113 the officer goes further and suspects that since the defendant in 2008 was suspected in another car theft (Was he charged? It does not say) and became surveillance conscious.

[53] In paragraph 46 the officer relates a description given by two persons who were victims of car thefts. The witness is said to describe a black car. The officer does not also mention that the witness thought that the car was a Toyota, or Honda, but he is not sure. This is not the Black Volkswagen GTI that the officer is convinced is the vehicle involved in these thefts. I believe that he should have given a fulsome description, not just the portions of it that supported this theory of the case.

[54] One of the witnesses gives a description of the clothing. The officer does not also mention that the witness stated that he thought the perpetrator was "black, although that may have been a balaclava". The officer in cross examination explained why he did not include the reference to a possible black person in his affidavit. I do not think that the explanation is sufficient. However, the "black" description is very equivocal as the person feels it may simply have been a piece of clothing. In coming to my determination in this matter I will include that person's description in my analysis.

[55] In coming to a determination of this matter, I am prepared to excise from the affidavit all of the matters of opinion referred to within this heading. I then review the information that remains to decide whether the defendant's application can succeed.

Remaining Elements Germane to the Issue

[56] The information to obtain contains the following information which is relevant to the issue as to whether a search warrant should be issued:

1. Several thefts of automobiles in people's driveways have been committed in situations where there are no signs of break and enter to the vehicle, and there is some evidence that entry to the vehicle was by a key. There is in some cases break and enter of houses and vehicles are sometimes stolen.

2. There is evidence that several of the thefts have been of vehicles which have had a second set of keys "missing".

3. Several descriptions of the persons near the scene (with one possible exception) do not exclude the description of the defendant.

4. The type of defendant's car is identified by a.

5. The tracking data places the defendant's car, in close proximity in time and place to the location of at least 3 of the thefts (or attempted thefts).

6. The tracking data places the defendant's car in close proximity to the Government office where UVIP's are obtained for a vehicle which is subsequently stolen. The UVIP is for a 2011 Mercedes Benz ML350 which is subsequently stolen at 355 McNichol Crescent, Burlington, on August 16, 2012.

7. The likely residence of the defendant is approximately one kilometre from the Storage Mart location.

8. The defendant's car has been tracked by a tracking device to a Home Depot on August 3, 2011, at 22:34 and then is tracked to an area beside an area where new motor vehicles are stored (rail yards and containment area adjacent) at 23:45 and then leaving that area at 00:12 on August 4, 2011. This rail yard has been the subject of thefts of car keys in the past but there are no reported recent thefts. There is damage to the fence around the rail yard area, which is recent, and could be a break in.

9. The GPS tracking indicate that on August 11, 2011, at 9:28 p.m. the vehicle attends the Storage Mart Unit and attends at the residence of his co-accused Kaleta, and then on August 12, 2011 at 1:15 a.m. the tracking device places the vehicle in front of 2480 Meadowridge Dr., Oakville and a break-in occurred at 2455 Meadowridge Dr. There is also a direct observation of the defendant at this street (para. 118).

10. On August 15, 2011, the defendant car was at the Storage Mart at 1:15 a.m. and on that evening the thefts occurred in Stoney Creek and Burlington.

11. The defendant has a criminal record for offences including break enter and theft and possession of stolen property with values of 5,000 dollars and for theft over 5,000 dollars.

Analysis

[57] As stated in the recent decision of the Ontario Court of Appeal in R. v. Nguyen, 2011 ONCA 465:

23 The ultimate test is whether -- after excising any offending portions of the ITO -- there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO -- depending on the nature and severity of these faults -- may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.

24 Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown's submission that this question appears to have been lost in the trial judge's focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.

25 In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]

[58] I have already noted above, that the affiant on many occasions expressed an opinion as to what the defendant was doing and expressing motivations for various actions. On one occasion the affiant did not mention a potential description of persons, which was not consistent with the description of the defendants. While the expressions of opinion were not all appropriate, I noted that in all circumstances the affiant stated that it was an opinion. The defence argues that the sheer weight of the number of opinions should give me pause. There was a misstatements, but in the context of the weight of all of the information give in this affidavit, I do not think that it could have unduly affected the decision making process of the issuing justice.

[59] As a further matter, I must comment upon the sheer length and complexity of the materials provided to the issuing justice. Over 200 paragraphs and an appendix totalling 60 pages, made for difficult reading at best. As stated by Justice LeBel in R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65:

"So long as the affidavit meets the requisite legal norm, there is no need for it to be as…detailed as an automotive repair manual."

[60] The issuing justice would have had a difficult time perusing through all of the information in this affidavit to find the relevant information. The sheer size and variety of information received by the affiant officer makes it a difficult drafting task. That however, does not relieve the issuing Judge (and the reviewing Judge for that matter) from carefully perusing the document, notwithstanding its complexity and obvious problems. The issuing Judge is presumed to know the law and to have read all of the materials.

[61] Of most importance to my consideration, is whether looking at the totality of the information which was properly in front of the issuing justice, has the standard been met; that is, is there sufficient information upon the record that the justice could have issued the warrant? Did there exist, reasonable and probable grounds to believe that a specified crime has been committed and this proposed search will afford information of the crime?

[62] In my opinion the linkage of the defendant to the car and the tracking information which was obtained putting the defendant in the vicinity of the auto storage yard, the storage unit and ultimately at several of the theft and break-in locations is the information that could tip the scales in favour of the justice having sufficient information to allow a search of the storage unit. The fact that there is more than one location of thefts that he is tracked to, and the fact that these locations are away from his home also adds weight and force to them. While it is a factor that at the time these auto thefts are being committed, there are no reports of break-ins at the auto yard, there is evidence that thefts of keys have occurred in the past. There is evidence that in at least one auto theft, the second key is missing. I therefore do not think that the absence of reported thefts, at the CP rail yard is a crucial omission. The obtaining of at least 2 UVIP's for newly delivered vehicles makes up for this deficit. I note that the address for the location of the GPS report at the rail yard was incorrectly stated. I do not think that has a great impact. The addresses are near one another. The miss-description of the proper name (and ownership) of the storage facility is not a serious omission. The G.P.S. evidence puts the defendant's car in close proximity to the facility.

[63] The fact that the defendant would have a privacy interest in the storage unit is undeniable, but it is also true that such a privacy interest is not as great as his privacy interest in his home.

Conclusion

[64] Notwithstanding the many expressions of opinion, which are not supported by evidence and the several items I have excised from consideration, I believe that there was sufficient evidence in the affidavit of the commission of offences, and that information of that offence will be located at the place sought to be searched, and such information would allow the using Justice to issue the warrant.

[65] The results of the s. 487.01(1) warrant, which are contained in paragraph 250 of the subsequent affidavit to obtain, will not be excised from that affidavit. Applying the foregoing analysis to the affidavit of September 9, 2011 results in a similar conclusion and the application to exclude the results of the search is dismissed.