Court File and Parties
Court File No.: Region of Durham: 998 10 25055
Date: 2013-02-12
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kyle Odette
Before: Justice J. De Filippis
Heard on: February 5, 2013
Reasons for Ruling released on: February 12, 2013
Counsel:
- Mr. J. Clark for the Crown (Canada)
- Mr. M. Newell for the Crown (Ontario)
- Mr. A. Herscovitch for the Defendant
De Filippis, J.:
1. Introduction
[1] In 2012, the Durham Regional Police Service's Gun and Gang Unit and the Ontario Biker Enforcement Unit jointly initiated Project Kingfisher to investigate heroin and cocaine trafficking in the Greater Toronto Area. Harley Guindon and Joshua Galante were targets of wiretap authorizations obtained during this investigation. Their communications were intercepted along with those of other known and unknown persons to whom they spoke, including their conversations with Kyle Odette. On August 15, 2012, a Controlled Drugs and Substances Act search warrant was executed at the address of 103-20 Harmony Road North, in Oshawa. Entry was made at approximately 5:00am. Kyle Odette, his brother Adam, sister Angel Willan, Bianca Allen, and two children were found inside. Kyle Odette was found sleeping in one of the bedrooms. His wallet was on a desk. Under a drawer of that desk, police located and seized these items: 86 grams of crack cocaine; a .45 calibre Springfield hand gun, loaded with 7 rounds of ammunition; 22 calibre revolver, loaded with 9 rounds of ammunition; A box of 22 calibre ammunition.
[2] The aforementioned allegations are the basis of a charge of possession of cocaine for the purpose of trafficking and several firearms and ammunition charges against Kyle Odette. His trial before me began with this application, often referred to as a "Garofoli Motion", to exclude the evidence obtained pursuant to the execution of the search warrant at the apartment on Harmony Road. A related application, commonly called a "Dawson Motion", for leave to cross-examine the sub-affiants with respect to the Information to Obtain a search warrant (ITO), was abandoned at the start of the hearing.
[3] The application to exclude evidence asserts a violation of section 8 of the Charter of Rights and Freedoms. Specifically, it is claimed that the search warrant should not have been issued because the ITO does not disclose the requisite grounds to believe the defendant was involved in drug trafficking or establish a link between such offences and the Harmony Rd apartment. It is also alleged that the affiant made misleading statements through the use of headings, notes, and bald assertions in the ITO. Before considering the Garofoli Motion, the Crown raises a preliminary issue; it is submitted that the defendant does not have standing to challenge the search warrant.
2. Standing: Reasonable Expectation of Privacy
[4] A claim for relief under s. 24(2) can only be advanced by the person whose Charter rights have been infringed. Section 8 protects an individual's reasonable expectation of privacy. Accordingly, the defendant must establish that he had this privacy interest in the Harmony Road apartment. This is determined by considering the totality of the circumstances, including the following factors: presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation.
R. v. Edwards, [1996] 1 S.C.R. 128 (S.C.C.)
[5] In deciding this issue, I rely on the information contained in the ITO as well as the testimony of Tracey Willan at this hearing.
[6] The ITO discloses that a check of police records showed that 103-20 Harmony Road was, at the material time, the residence of Tracy Willan, the defendant's mother. The affiant also deposed that the defendant was seen entering and leaving the apartment on several occasions and that wiretaps reveal that Odette stated he was staying at his "mom's" place and arranging to meet people at that address.
[7] Ms Willan testified that in August 2012 she resided at 103-20 Harmony Road in Oshawa, with her daughters Angel and Randy Lee and granddaughter, Alaska. She had lived there for the preceding seven years. Ms Willan was not at home when the search warrant was executed as she was with a friend in Saskatchewan. She testified that she arranged for her daughters to live with relatives while she was gone and gave the defendant her only key with instructions to "take care of the apartment" and make sure Angel came by every couple of days to feed the cat.
[8] Ms Willan stated that the defendant did not normally reside with her; he lived elsewhere with her other son, Adam. However, about two weeks before the execution of the search warrant, her sons "lost" that apartment. The defendant was living "here and there with friends" and stayed with Ms Willan two or three nights a week. Ms Willan knew the defendant could not live with her because an earlier application to the cooperative corporation to have her other son reside with her had been declined because of "overcrowding".
[9] Ms Willan testified that she has no knowledge of drugs or guns in her apartment and would not allow them into the premises. She stated that while Randy Lee has used illicit drugs, she does not believe either daughter has had anything to do with cocaine or guns.
[10] In arguing against standing, the Crown contrasts the defendant's claim of an expectation of privacy with that of the applicant in the leading case of Edwards, supra. Edwards had a key to his girlfriend's apartment, was a guest over a three year period, and while he did not contribute to rent or household expenses, he did keep belongings in the apartment. He was described as being "no more than an especially privileged guest." The Supreme Court of Canada concluded he did not have a reasonable expectation of privacy. The Crown argues that Odette had no greater connection to his mother's apartment than Edwards did in that of his girlfriend. Counsel argues that Ms Willan provided her key to the defendant for the limited purpose of assisting Angel to feed the cat and watch over the place. In this regard, it is pointed out that neither Ms Willan nor the housing cooperative gave the defendant permission to live there.
[11] I agree with the Defence that the comparison between this case and Edwards underscores the validity of Odette's assertion of a reasonable expectation of privacy in the Harmony Road apartment. Like Edwards, the evidence shows he had stayed there in the past and intended to resort to the apartment in future. Unlike Edwards, he had only key to the premises and, as such, was only person who could regulate access to it. In addition, unlike Edwards, the defendant was present at execution of search warrant and was found sleeping in bed with a woman. Moreover, a fair reading of Ms Willan's evidence is that she knew the defendant would reside at her apartment while she was out of province – at least some of the time – because he had no permanent residence of his own. In the circumstances of this case, the fact that the housing cooperative would not have allowed him to live at the apartment does not undermine his expectation of privacy. I find this to be reasonable and conclude that the defendant has standing to seek relief pursuant to the Charter.
3. Reviewing the Search Warrant
3.1 General Principles
[12] I am the reviewing justice for the search warrant in question. My role is different from that of the authorizing justice. The reviewing justice must examine the material that was before the issuing justice, as amplified on review, to determine whether there was any basis for the order: R. v. Garofoli, [1990] 2 S.C.R. 1421 and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. This is because a search warrant, like other court orders, is presumptively valid. The onus is on an applicant to demonstrate that the warrant was invalid: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (CA), Aff'd 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 45. In this review, the record has not been amplified and I will consider the same material that was before the authorizing justice.
[13] The purpose of the search warrant review is not to second guess the issuing judge. The Court of Appeal for Ontario has stated that:
The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge's opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked.
R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 (Ont. C.A), at para. 11.
[14] Statutory provisions authorizing search or seizure must conform to the "minimum constitutional requirements demanded by s. 8 of the Charter; namely, "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of search. R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, para 39.
[15] The application of this standard means that "the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion". Thus, although the standard of reasonable and probable grounds is not as high as proof beyond a reasonable doubt, "[m]ere suspicion, conjecture, hypothesis or 'fishing expeditions' fall short of the minimally acceptable standard from both a common law and constitutional perspective." R v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), para 31. On the other hand, "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued." R v Jacobson, [2006] O.J. No. 1527 (Ont. C.A.), para 22
[16] In presenting an ITO, an affiant has the duty "to make full and frank disclosure" to the issuing justice:
…When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
[17] In discharging the duty to be full and frank, the affiant must avoid stating conclusions and opinions not supported by reported facts and sources:
…any factual assertion by the applicant within the four corners of the affidavit must be sourced to some investigative resource. Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient for an applicant to simply state conclusions, opinions and facts without providing the court the source or origin for such conclusions, opinions or facts. The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves.
Criminal Code (Re), [1997] O.J. No. 4393 (Gen. Div.) at para. 7
[18] Therefore, the question to be answered is whether the authorizing justice was presented with sufficient credible and reliable evidence to permit her to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. In this regard, it will be necessary to consider if the affiant discharged his duty to provide full and frank disclosure in the ITO. In answering this question, I do not substitute my opinion for that of the authorizing judge but determine if there is a proper basis for the decision to issue the warrant.
3.2 The Grounds Relied Upon to Obtain This Warrant
[19] On August 13, 2012, Cst. Jason Price of the Durham Regional Police Service presented an ITO for a Controlled Drugs and Substances search warrant for 103-20 Harmony Road to search for evidence of drug trafficking, including drugs and related paraphernalia. The application was based on surveillance conducted by members of the Durham and Peterborough Police services, as well as two wiretaps authorizations in connection with Project Kingfisher. The affiant has experience in drug trafficking investigations as a member of the Durham Regional Police Service Gun and Gang Unit.
[20] Between May and August 2012, surveillance was conducted on Harley Guindon and Joshua Galante, two of the primary targets of Project Kingfisher - an investigation, it is said, that disclosed that both men were active drug dealers. On May 3, 2012, the defendant was intercepted speaking to Guindon; this revealed that the defendant had tried to meet Guindon at his business, "Polfit", which based on the investigation, Price believed to be a storage location for drugs. Guindon told the defendant that the business was open, and "we don't go there anymore."
[21] On this date, the police were also conducting surveillance on Galante. The latter was followed to 54 Wilson Road North, in Oshawa. At 12:49pm, Galante entered the side door of the residence using a key and holding a plastic bag. He was then followed to Bowmanville where he met with Andrew Robinson. Robinson was in Galante's car for six minutes before he left. The affiant deposes that intercepted communications show that Robinson was a street level drug dealer and Galante was his supplier. Galante was followed back to Oshawa and entered a Tim Horton's plaza. At 2:39 PM the defendant entered that vehicle and it moved within the parking lot and, one minute later, the defendant left the vehicle. Galante was followed to a residence at 54 Wilson Rd. Twelve minutes later, Galante exited the residence and returned to the Tim Horton's parking lot and again met the defendant. The latter entered the vehicle at 2:59 PM and it was followed to Ritson Road and Arthur Street where, at 3:00 PM, the defendant exited the vehicle. The affiant also deposed that on May 17, 2012, two weeks after this surveillance, the execution of a General Warrant identified 54 Wilson Rd. as a "stash house" for items related to drug trafficking.
[22] On July 26, 2012, at 7:10pm, the Odette brothers were observed talking to a group of males by a black pickup truck, near a Coffee Time restaurant. They walked across the street to a complex at the southwest corner of Simcoe and Wentworth streets, in Oshawa. The black pickup truck followed them into the complex. At 7:15pm, the Odette brothers entered the rear of the pickup truck and the doors closed. They appeared to be looking at something in the centre of the truck. Two minutes later, the defendant left the pickup truck and entered a Neon motor vehicle that was parked beside it and operated by a light-skinned black female. The defendant occupied the front passenger seat and was seen "reaching over the driver-side and handed something to Adam Odette that appeared to be a plastic bag the size of Odette's palm". The defendant exited the Neon and returned to the pickup truck. One minute later, the Odette brothers left the pickup truck with nothing in their hands. The defendant went to the driver's seat of the Neon, the female entered the front passenger seat and Adam Odette went to the rear of the car. At 7:24 PM, the vehicle stopped at an address on Douglas Street and Adam Odette entered apartment 3B "holding an unknown item in his left hand" and left the apartment two minutes later. As he did so he was seen to be "holding his right pants pocket" prior to boarding the Neon again. The Neon was "misplaced" at 7:40 PM. At 8:12 PM, it was located at 134 Simcoe Street North and the defendant was observed exiting this address.
[23] The affiant stated his belief that the events on May 3 and on July 26 are consistent with illicit drug transactions.
[24] On August 3, 2012, the defendant was intercepted speaking to Galante; the defendant reported that he had an argument with his mother's building manager and Galante responded by stating, "oh you're at your mom's." The two set up a meeting and the defendant said the buzzer was 127. The affiant deposed that a check of police records shows that Tracey Willan is the mother of the Odette brothers and lives at 103-20 Harmony Road. Further investigation showed that the name "Willan" is beside buzzer number "127" at that address. On August 4 and 8, the defendant was observed at 20 Harmony Road North. On the latter date, Odette was intercepted telling Guindon that he was at his "mom's", and made arrangements for Guindon to pick him up there.
[25] The affiant deposed that a search of three police data banks reveals that the defendant is 30 years old and has 46 convictions, including two for trafficking in a controlled substance, robbery and manslaughter. His brother, Adam Odette, has 16 convictions, including trafficking in a controlled substance and possession of a controlled substance for the purpose of trafficking and firarms offences.
[26] Based on the foregoing, the affiant stated his belief that the defendant was a drug trafficker and that he was residing at 103-20 Harmony Road North, Oshawa. Based on his experience, he believed evidence of his drug trafficking activities would be found there. Before considering whether the authorizing justice could have issued the warrant based on the information provided by Cst. Price, it is necessary to deal with the defendant's claim that the affiant made misleading statements.
3.3 Is the ITO Misleading?
[27] The ITO in this case makes use of headings such as "Kyle Odette attempts to meet Guindon" and "Galante conducts a drug transaction with Kyle Odette". The defendant asserts that such language "makes it clear that the affiant was aware of the weakness of his grounds and thus sought to artificially bolster them through misleading headings and conclusory statements [in other notes]". The latter are contained in italicized font at several places in the ITO.
[28] The Crown submits that the use of headings in the ITO could not have misled the issuing justice because following each heading the "facts" were set out in full detail. The issuing justice was fully capable of reading and digesting that information, and determining whether the headings were accurate. Moreover, the Crown states that the suggestion that there is something improper about the "affiant's note" is equally without merit; an affiant is entitled to draw upon their experience, state an opinion, and highlight inferences that an issuing justice ought to draw.
[29] I agree with the submissions by the Crown about the headings and statements of opinion in this ITO; they are not misleading. Indeed, the practice of distinguishing an opinion by italicizing it was commented upon in R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 (Ont. S.J.) where Hill J. stated that "This approach cannot fairly be criticized."
[30] The defendant also submits that ITO contains "bald assertions" that are at best meaningless and potentially misleading. Two, in particular, are highlighted: It is argued that the declaration that Guindon and Galante are drug dealers is mere narrative, without supporting source. Another example is the affiant's note to paragraph 31(a): "I know through the course of the investigation that Guindon's business, a woman's fitness studio known as "Polfit" has been identified as a location believed to be utilized to store controlled substances". Again, it is claimed that "nowhere in the ITO does the affiant mention the source of this knowledge or information".
[31] The defendant is correct in stating that bald assertions cannot be the basis of reasonable and probable grounds and can lead to confusion. However, I do not agree that the examples cited above are un-sourced narrative. It follows that I reject the suggestion they are misleading for this reason.
[32] The affiant's report about the movements of the defendant and others on May 3 and July 26 is referenced in the ITO to notes made by named surveillance officers. His reliance on intercepted communications is sourced to particular wiretap authorizations. The affiant's opinion that the defendant was involved in drug dealing and that evidence of this might be found at the Harmony Road apartment is, in part, based on these reports as well as his previous convictions for drug trafficking. That opinion is also grounded in the affiant's assertion that Guindon and Galante are drug dealers; indeed, it is claimed they are part of an illicit network operating in the Greater Toronto Area. This statement is said to be based on information from confidential human sources, search warrants, dialled number recorders, production orders and tracking warrants leading up to two wiretap authorizations. The affiant states that, "In an effort to keep this application concise, I will not be detailing all of the prior applications and investigative steps taken leading up to the Part VI wiretap authorization for Project Kingfisher. I am only going to detail the prior applications and investigative steps which impact on this application." Similarly, with respect to the declaration that Polfit is a place used to store drugs the affiant stated that, "I know through the course of the investigation" that "Polfit" is a stash house.
[33] An application for a particular search warrant that arises from a larger investigation will often create a tension between the affiant's duty to provide full and frank disclosure and the need for an ITO to be concise; with respect to the latter, see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. An affiant is not required to state every piece of information within his knowledge to support every assertion made in an ITO. Moreover, an affiant is entitled, if justified by training and/or experience, to draw inferences and state opinions in an ITO: Ngo, supra para 35.
[34] In this case, the affiant grounded his declaration that Guindon and Galante are drug dealers and used Polfit as a stash house on the information uncovered in Project Kingfisher. He did not provide particulars of the relevant evidence in question. The authorizing justice was well aware of this; indeed, the affiant stated that such details have been omitted with a view to presenting a concise ITO. In any event, whether or not the affiant should have said more, there is nothing in the record before the authorizing justice, or before me on this review, to undermine his assertion that Project Kingfisher revealed that Guidon and Galante are drug dealers.
4. Was there a Charter Breach?
[35] The Defence submits that the ITO does not disclose any grounds to believe the defendant was involved in drug trafficking or that there could be evidence of this at the Harmony Road apartment. In this regard, counsel stated:
On May 3, Kyle Odette is twice seen entering and then exiting Josh Galante's vehicle approximately one minute later. Police do not observe any objects or items pass between them…..On July 26, 2012, Kyle Odette is seen in a vehicle passing what "appeared to be a plastic bag the size of Odette's palm" to his brother Adam Odette. Beyond this brief observation, there is no evidence or information as to what this bag contains. To suggest that these two observations, combined with the fact that the Applicants have criminal records for drugs, is sufficient to form grounds to obtain a warrant to search a dwelling house, makes a mockery of the requirement of reasonable and probable ground and prior judicial authorization…..Secondly, and perhaps more importantly, there is not the slightest hint of evidence that the Applicant has ever possessed a controlled substance at 20 Harmony Road. Indeed, the ITO suggests that the Applicant was in fact staying at a different address, 134 Simcoe Street North where the Applicant and his brother were seen exiting on July 26, 2012, the day of the second alleged drug transaction.
[36] Unlike the authorizing justice, with the benefit of the testimony of Ms Willan, I know that the defendant did not reside at the Simcoe Street apartment at the material time and was, in fact, without a permanent residence. Accordingly, he was staying at Harmony Road two to three nights a week.
[37] As particularized above, the affiant's claim that the defendant was a drug trafficker and that evidence of this could be found at 103-20 Harmony Road North, Oshawa is based on information showing that:
(1) The defendant and his brother have lengthy criminal record that include drug trafficking;
(2) The suspicious nature of the meetings and conversations between the defendant and his brother with Guindon and Galante from May to August, 2012;
(3) Guindon and Galante are drug dealers; and
(4) The defendant resorted to his mother's apartment on Harmony Road in the weeks leading up to the application for a search warrant.
[38] This information, considered in totality and in context can give rise to a reasonable inference that the defendant was engaged in drug trafficking and that evidence of that enterprise could be found at the Harmony Road apartment. In other words, the authorizing judge was presented with reliable evidence that might reasonably be believed and, as such, the warrant could have issued.
[39] As previously stated, the claim that Guidon and Galante are drug dealers is linked by the affiant to his knowledge Project Kingfisher and his experience as a drug investigator. I concluded that this means the opinion is based on credible information and noted that the limited foundation for the opinion was not undermined. However, if I am wrong about this and the claim is simply a bald assertion, my conclusion cannot stand; that is, I would find that the remaining three categories of information fall short of reasonable and probable grounds and amount to reasonable suspicion. Accordingly, it is appropriate to determine if, in such a case, the evidence should be excluded.
5. Would the Evidence be Excluded?
[40] This analysis is based on my findings that the affiant discharged his duty to make full and frank disclosure in showing a reasonable suspicion to obtain a warrant for a private dwelling. The failure to establish reasonable and probable grounds rests on the assumption that the information about Guindon and Galante are bald assertions.
[41] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are obviously fact specific. The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. This may not be the case in a case where the admission of evidence is gathered through a violation committed in good faith. The second stage focuses on the impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. In this regard the spectrum includes intrusions that are fleeting or technical to those that profoundly affect bodily integrity and human dignity. The third inquiry considers the value of a trial on the merits. In this regard, the reliability of the evidence is important. R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, para 71 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, para 36.
[42] In the case of search warrants, the first inquiry means the court cannot condone fraud or the issuance of warrants on little or no grounds. It also implies that the court must also not be unduly tolerant of carelessness. The Supreme Court of Canada has observed that,
…the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued…..The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.
R v. Morelli, supra, paras. 109-11
[43] In this case, the affiant's bald assertions about Guindon and Galante are not due to fraud or undue carelessness; it is reasonable to conclude that this was caused by the desire to be concise and the failure to do so properly. Apart from this error, the affiant adhered to his duty to make full and frank disclosure and established reasonable suspicion to support the issuance of a warrant. This standard is insufficient. However, the seriousness of Charter infringing conduct is mitigated by the transparent attempt to comply and the fact the ITO comes close to meeting the requisite standard. In this regard, the comments of Justice Rosenberg in R v Rocha 2012 ONCA paras 28 – 29:
Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence…..
I should not be taken as holding that whenever a search warrant has been granted, the first Grant inquiry favours admission of the evidence. But the approach is not, as held by the trial judge, to hold in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.
[44] Under the second Grant consideration, the fact that this warrant was issued for a private dwelling means there is a substantial impact on Charter protected interests. However, with respect to this particular defendant that effect is diminished by the fact that he was a temporary guest at the residence. Nevertheless, I accept that the intrusion on his privacy was serious. The third inquiry looks to the value of a trial on the merits. The seizure of cocaine, handguns, and ammunition is reliable evidence and exclusion is fatal to the prosecution.
[45] Having considered the issues that inform the application of s. 24(2) of the Charter, I find that the administration of justice would not be brought into disrepute if the evidence obtained by the violation of s. 8 is admitted at this trial. The first and third inquiries mandated by Grant do not support exclusion of the evidence and these considerations outweigh the impact of the Charter breach on the defendant.
6. Result
[46] I conclude that there was a basis upon which the authorizing justice could have issued the warrant and that the defendant's rights as guaranteed by the Charter were not infringed. If I am wrong in so finding, I would nevertheless admit the evidence in question.
[47] This motion was well argued and counsel obviously put much thought into it. I thank Mr. Herscovitch and Mr. Clark for their efforts and assistance.
Released: February 12, 2013
Signed: "Justice J. De Filippis"