Court Information and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Adriel Soares

Before: Justice Paul H. Reinhardt

Heard on: 1, 8 August, 10 September, 13 November 2013

Reasons for Ruling released on: 3 December 2013

Counsel:

• Ian Bell for the Crown
• Alan A. Glass & Michael Grossman for the accused Adriel Soares

REINHARDT J.:

Charges Against the Accused

[1] Mr. Adriel Soares is before the court facing three charges in which he is jointly charged with Maria De Fatima Oliveira-Areia, that they, on or about 9 July 2012, in the City of Toronto, Province of Ontario, did unlawfully:

(1) Possess a controlled substance for the purpose of trafficking, to wit: Cocaine, contrary to section 5(2) of the Controlled Drugs and Substances Act; and further,

(2) Possess a controlled substance for the purpose of trafficking, to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana, contrary to section 5(2) of the Controlled Drugs and Substances Act, thereby committing an offence under section 5(4) of the said Act; and further,

(3) Possess proceeds of property, to wit: $5910 in Canadian currency, of a value exceeding five thousand dollars, knowing that all or part of the proceeds of property was obtained or derived directly or indirectly from the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code.

[2] Mr. Soares and Ms. Oliveira-Areia are also jointly charged, at the same time and place, did unlawfully:

(1) Possess a prohibited weapon, to wit: a spring loaded switchblade, contrary to section 91(2) of the Criminal Code.

1: Introduction

[3] In this proceeding, counsel for Mr. Soares is seeking to have this court quash three search warrants and exclude the evidence obtained as a result of the execution of those warrants. These search warrants are as follows:

(1) Search Warrant #1 – 8 July 2012 – ITO Affiant: Maurizio Ceresoli;

(2) Search Warrant #2 – 9 July 2012 – ITO Affiant: Maurizio Ceresoli;

(3) Search Warrant #3 – 12 July 2012 – ITO Affiant: Maurizio Ceresoli

[4] On 7 July 2012 Constable Kim Harris, in plain clothes, conducted an undercover investigation, presenting herself to Mr. Soares as his neighbour, looking for her missing cat, and gained entry from Mr. Soares into his apartment. Once inside the apartment she had a brief conversation with Mr. Soares, and made observations of the inside of the apartment, which Constable Maurizio Ceresoli, the affiant for all three warrants, testified that he relied upon and that assisted him in satisfying himself that there were grounds for the warrant.

[5] On 8 July 2012 the first Controlled Drugs and Substances Act warrant ("CDSA" warrant) was applied for and granted and the warrant was executed at Mr. Soares' residence, apartment #404, 642 Vaughan Road, in Toronto.

[6] On 9 July 2012, when the first warrant was executed, the police did not initially knock on the apartment door, or announce themselves, or request admittance, but simply rammed the door and with their weapons drawn, forced their way into the apartment.

[7] When they entered the apartment, Mr. Soares and his co-accused were found in the apartment.

[8] Police officers who entered located an interior bedroom door that was locked and again, without asking Mr. Soares to open the door, and without knocking on the bedroom door, they rammed and broke the bedroom door, in order to gain access to the bedroom.

[9] During their search of the apartment, the police officers discovered 450 grams of cocaine, a similar quantity of marihuana, and $5910 in Canadian currency. Officers also located drug trafficking paraphernalia including a cocaine press, scales, drug packaging and documents linking the applicant to the apartment. During the course of that search, a receipt for a storage locker was discovered.

[10] On the basis of these discoveries, on the same day, 9 July 2012, the police requested and obtained a second search warrant and searched a locker located at 1381 Dufferin Street, Unit #12, in Toronto. An additional 248 grams of heroin and 985 grams of cocaine were seized, along with $17300 in Canadian currency.

[11] On 12 July 2012, a third search warrant was issued to permit the police to search the property bag of Mr. Soares, lodged at the Toronto Jail, 550 Gerrard Street East, Toronto, in order to recover a key to the storage locker at 1381 Dufferin Street, Unit #12, which would assist the police in establishing Mr. Soares' control of the contents of the locker.

[12] By Notice of Application dated 24 June 2013, counsel for Mr. Soares sought leave to cross-examine the affiant, Constable Maurizio Ceresoli, and two surveillance officers, Constable Kubia and Detective Michael Balint, who purported to make statements to Constable Ceresoli regarding Mr. Soares, in support of Mr. Soares' application to quash the initial two search warrants herein, on the basis that the there was not sufficient credible and reliable evidence before the authorizing justice to permit the issuing justice to find on reasonable and probable grounds that an offence had been committed and that evidence of that offence would be found at Mr. Soares' apartment on 9 July 2012.

[13] By supplementary Notice of Application dated 23 July 2013, counsel for Mr. Soares further sought to quash the third warrant.

[14] In addition, the supplementary Notice of Application added as grounds to quash the initial warrant, the allegation that the execution of the initial search warrant on 9 July 2012, at apartment #404, 624 Vaughan Road, was not conducted in a reasonable manner or in a manner authorized by the issuing justice.

[15] It is common ground among the parties that if I grant the application to quash the initial search warrant, then the other two warrants must also be quashed.

[16] By ruling dated 1 August 2013 I granted leave to counsel to cross-examine the named officers, on the basis that the applicant had satisfied me that there was a reasonable likelihood that cross-examination would assist the court in determining the validity of the first warrant.

[17] By agreement of the parties, cross-examination took place on 10 September 2013 with respect to Constable Ceresoli, and on 13 November 2013 with respect to Detective Michael Balint, and the parties provided me with an agreed statement of facts, on 13 November, and dispensed with the calling of Constable Kubia.

[18] In its written materials, the Crown stated that, with respect to the sufficiency of the evidence in the Information to Obtain ("ITO") to permit the authorizing justice to find reasonable and probable grounds ("RPG") to believe that an offence had been committed and evidence of the offence would be found at apartment #404, 624 Vaughan Road, they would rely upon the redacted ITO and would not seek to bring a Garofoli "step 6" application to have me consider excised or "redacted" material in support of the authorization.

[19] On the issue of the "reasonableness" of the execution of the warrant, the Crown produced Detective Michael Balint on the question of his initial surveillance observations on 6 July 2012 as well as the issue of the manner of the execution of the warrant at #404, 624 Vaughan Road on 9 July 2012.

[20] In its factum, in a note at paragraph 6, page 3, the Crown advised that it is content with its second paragraph on page 5 of the ITO, the following redacted paragraph in support of the authorization, under the heading "4. CONFIDENTIAL SOURCE":

The Confidential Source has been proven reliable in the past. The Confidential Source has provided information on separate occasions to police in the past that has lead (sic) to the seizure of (REDACTED).

[21] The Crown submitted that I should only take the factual circumstances of the "confirmation" investigation, as provided in the first ITO to the authorizing justice, to be that the CI who provided the "tip" regarding Mr. Soares, had previously provided the police with information that had resulted in the seizure of "contraband" and not drugs.

[22] In this ruling I have accepted the argument of the applicant, Mr. Soares, that the initial warrant should be quashed, both on the basis of the lack of sufficient objective grounds for the warrant as set out in the first ITO and because of the manner of its execution, as set out in the evidence before me. These are my reasons.

2: Summary of Facts

[23] The initial search warrant in this proceeding, with respect to apartment 404, 642 Vaughan Road in the City of Toronto was based upon an Information to Obtain ("ITO") which describes in a very summary way an investigation which began with a "tip" from a confidential informant ("CI") who provided information to the police for financial gain, in the first part of first part of July.

[24] According the narrative provided the authorizing justice in the ITO, the CI told the affiant, Maurizio Ceresoli, that a "guy by the name of SOARES" was dealing drugs outside of the Tugas Bar on Vaughan Road. The informant described Mr. Soares as male, Portuguese, 5'9", 200 pounds, and brown hair, balding on top, brown eyes, thick beard, several tattoos and wearing ear rings. He also advised that Mr. Soares was dealing powder and crack cocaine.

[25] Under the heading of "5. OBSERVATIONS", starting at the bottom half of page 5 of the ITO, Ceresoli states that on 6 July 2012 members of the Guns and Gangs Task Force conducted surveillance on the Tugas Bar and at approximately 11:40 PM observed Mr. Soares stand in front of the bar and conduct a hand to hand transaction with first, a male black person and second, a male white person.

[26] Under the same heading, at the beginning of page 6 of the ITO, Constable Ceresoli deposes:

On Saturday July 7th On Detective Constable Kim HARRIS #5322 attended the address of 642 Vaughan Road to make observations. While on scene she made these observations.

• The apartment is an older 4 storey apartment.

• Apartment #404 is on the Southwest corner of the building.

• TUGAS bar is two buildings East of 642 Vaughan Road apartment.

• TUGAS bar is at 636 Vaughan Road.

Detective Constable Kim HARRIS #5322 entered the building in an undercover capacity. While inside the building she conducted a ploy. She began looking for her missing cat. While on the 4th floor, she spoke to a male in the hallway who was going to apartment #404. Once the door was opened to apartment #404, she observed SOARES inside the apartment. She had a brief conversation with SOARES and left the building. Detective Constable Kim HARRIS #5322 described Soares as male, white, 5"9 (sic), 200lbs, brown hair balding on top, brown eyes, mole under right eye, thick beard wearing black shirt and beige shorts.

[27] Under the heading of "6. INVESTIGATIVE CHECKS" Ceresoli states that he conducted "investigative checks" on the name "Soares" and identified Soares to reside at 642 Vaughan Road, Unit 404, with a date of birth of 10 October 1973. A criminal record check found that he had been convicted for "Possession of a Schedule 1 substance in 2001".

[28] Under the heading of "7. GROUNDS TO BELIEVE THAT ITEMS TO BE SEIZED WILL BE AT THE PLACE TO BE SEARCHED" Ceresoli states that the CI has provided unspecified "intimate details" in relation to Soares and his drug dealing. He further states that he "believes" that the information provided by the informant is "true and accurate". Ceresoli further states that the following information has been corroborated:

• Adriel Soares' description provide by the informant.

• Adriel Soares has been positively identified as living at the residence at Apartment 404, 642 Vaughan Road.

• Officers observed Adriel Soares to be conducting drug transactions.

[29] Under the heading "8. GROUNDS TO BELIEVE THINGS TO BE SEIZED WILL AFFORD EVIDENCE OF THE OFFENCE", Ceresoli stated that he believed that by entering the premise of 642 Vaughan Road #404 he would find a quantity of drugs REDACTED.

[30] With the exception of some limited police computer data base searches that he undertook himself relating to Mr. Soares, after the "tip" from an informant, Constable Ceresoli has no evidence of his own regarding personal knowledge of the accused, Mr. Soares, prior to the "tip" he received from the individual he refers to in the ITO, the CI.

[31] Constable Ceresoli testified that he is relying in the initial ITO, herein ("ITO#1") for the purposes of obtaining the initial search warrant search warrant herein on this CI "tip", and the undercover observations of an undercover investigative officer, Detective Constable Kim Harris, on 7 July 2012, where she posed as a neighbour of Mr. Soares and gained entry to his apartment on the pretext or "ploy" that she was looking for her cat; and the very limited two "surveillance" observations of two other officers, Detective Michael Balint and Constable Kubia, who were detailed to make observations at the Tugas Bar at 11:40 AM on 6 July 2012.

3: The Evidence Adduced in the Cross-Examination of Constable Ceresoli and Detective Michael Balint & Stipulated Facts Regarding Notes of Constable Kubia

[32] Constable Ceresoli testified before me on two dates, 8 August & 10 September 2013.

[33] In cross-examination, Constable Ceresoli could not say if the CI he received the initial "tip" from had been carded. He could only say that the CI had been used in the past.

[34] Constable Ceresoli conceded that if the CI were carded, it would be a simple form of "confirmation" to check with the "Covert Operator" who was using the CI, and ask about his reliability as a CI.

[35] Constable Ceresoli also conceded that the fact that a CI had been "used in the past" did not mean that the CI was actually reliable, or provided the police with reliable information in the past.

[36] In the case of this CI, however, Constable Ceresoli told defence counsel that he had consulted "at least one officer" who confirmed that the information provided by the CI was "successful."

[37] Constable Ceresoli testified that in his opinion, when another officer tells him that information provided by the CI was "successful", it means that other officers were able to seize items that were contraband or "against the law to have in their possession."

[38] Constable Ceresoli, in cross-examination, conceded that regarding the observations of Kubia & Balint of two "hand-to-hand transactions", he was not actually told that the transactions were "drug" transactions.

[39] Constable Ceresoli testified that he spoke to Kubia by phone and received the information from Balint from some other officer, unknown. He indicated that he did not ask any questions about their observations, as to detail or what they actually observed, and could not, therefore, include any actual details of their observations in the ITO.

[40] Constable Ceresoli also confirmed in cross-examination that the two officers' observations did not result in any follow-up, seizures, arrests or charges, and were not confirmed in any other way by him, prior to seeking the search warrant. He further confirmed that this lack of confirmation on his part did not form part of the narrative in the ITO, in order to alert the issuing justice to these shortcomings in the confirmation process.

[41] In re-examination, Constable Ceresoli attempted to justify the lack of detailed observations of Mr. Soares or any arrests or charges regarding the purported "hand-to-hand transactions", on the basis that these observations were simply to "build grounds" for the arrest of the "target" Mr. Soares, and any action on the purported "hand-to-hand transactions" would have "wrecked" the investigation of Mr. Soares.

[42] In re-examination, Constable Ceresoli testified that he did not need to inquire or obtain details regarding the purported "hand-to-hand transactions" in order to inform the narrative in the ITO, simply because he trusted the experience of the two officers who made the observations, Kubia & Balint, who he described "known to him" and as "very experienced officers".

[43] In re-examination, on 10 September 2013, Constable Ceresoli also testified that he did not need to rely only on the two officers observations of the purported "hand-to-hand transactions" on 6 July 2012 because as confirmation of the original "tip" he also had the undercover observations of Constable Harris on 7 July 2012, in which she, in plain clothes, posed as a neighbour of Mr. Soares, and gained access from him to his apartment in order to make her observations by telling him she was looking for her cat.

[44] Constable Ceresoli was also cross-examined regarding the reasonableness of the execution of the first search warrant.

[45] Constable Ceresoli had to concede that both the outside apartment door and the bedroom door were forced open, but could not say from his knowledge why this had happened.

[46] Constable Ceresoli also conceded that the second ITO he prepared and swore to be true in obtaining the second search warrant, which was used to search a storage locker, was, in fact, not accurate on the manner of entry by the police of the bedroom, pursuant to the first search warrant.

[47] Constable Ceresoli conceded in cross that where his second ITO states at page four, third paragraph, that the locked bedroom door "had" to be forced open, the more accurate word for what transpired would have been to simply state the door "was" forced open.

[48] Constable Ceresoli readily conceded that in fact, Mr. Soares, who was present at the time of the forcing of the bedroom door, was never asked if he would open the bedroom door, and could have reasonably have been asked to do so.

[49] In summarizing his subjective view of the manner of the search, Constable Ceresoli stated that it was Detective Balint who was the team supervisor, in charge of the execution of the first warrant, so it was his decision to force open the doors.

[50] Constable Ceresoli testified that if he had been directing the execution of the warrant, he would probably have done the same and forced open both apartment doors for in his words "my safety".

[51] Detective Michael Balint, who made some initial surveillance observations and was the officer-in-charge and in attendance at the scene at the time of the execution of the first search warrant was called by the Crown and examined in chief and then cross-examined both on the issue of the grounds for the search warrant and on the reasonableness of the search.

[52] Detective Balint testified before me on 13 November 2013.

[53] He testified that at 11:44 PM, from a distance of approximately twenty yards away, he observed Mr. Soares leave the bar and walk west a short distance on Vaughan Road.

[54] He testified that it was his belief that Mr. Soares then engaged in a "hand to hand" drug transaction with an unknown black male and then walked back east to the Tugas Bar on the south side of Vaughan Road.

[55] The stated that, although it was very dark he was able to make out what was happening because of artificial lighting from the Tugas Bar.

[56] He stated that he saw Mr. Soares stretch out his hand to the unknown male, black individual and the unknown male then looked into his own hand.

[57] Detective Balint testified that he believed, from his experience including working as a Detective for three and one-half years, a major crime officer at 51 Division for one year, in the Vice Squad at 14 Division from 2003 to 2006 and with the Guns and Gang drug and gun related investigations, involving his role in surveillance in some fifty to seventy-five transactions that it was a drug transaction although he could not see what was exchanged.

[58] Detective Balint also testified as to the manner that the first search warrant was executed, and confirmed that he was responsible for the decisions relating to the execution of the first warrant on 9 July 2012.

[59] Detective Balint testified that sometime after 11:41 he received information that Mr. Soares and a female had left the bar and gone to the apartment at 624 Vaughan Road.

[60] Detective Balint testified that prior to his and his team arriving at 624 Vaughan Road he had told everyone on the team that, if the door to the apartment was locked when they arrived, the plan was to break down the door using the ram, and to dispense with knocking on the door and requesting that the door be opened by Mr. Soares or his companion.

[61] Detective Balint further testified that officers were able to enter the building and went up to the fourth floor, where they heard unspecified "noises" in the apartment.

[62] Detective Balint testified that he concluded that the two occupants were not going to leave the apartment again that evening and so he made the decision to commence the execution of the warrant and the ramming of the door.

[63] He testified that he did not even consider knocking on the fourth floor apartment door and requesting the door be opened. His only consideration was whether the door was locked.

[64] Detective Balint testified that the other officers in his team drew their service revolvers, and he drew his taser for the purpose of the initial entry into the apartment.

[65] Detective Balint testified that once they had gained entry to the apartment, they quickly began going through the apartment, room by room.

[66] He testified that the locked bedroom door was rammed open as a matter of "practice" to avoid possible loss of evidence or weapons being used by the "occupants" of the apartment.

[67] In cross-examination, Detective Balint conceded that the prior surveillance, including the undercover observations of Constable Harris, when she entered Mr. Soares' apartment on 7 July 2012, was that no one else lived in the apartment, other than Mr. Soares.

[68] In cross-examination Detective Balint could not say whether he had any knowledge that Mr. Soares had a record, or had any incidental history of violence, involving his being armed, having weapons or being violent.

[69] It was also conceded, by the Crown, that there was no evidence that the investigating officers had at the time of the execution of the search warrant connecting Mr. Soares with weapons, guns or a penchant for violence.

[70] Detective Balint also conceded to the defence that in every search warrant in which he was involved, a sample of over 200, where the door was locked, and the person of interest was believed to be inside the residence, the door would be rammed to avoid the loss of the evidence of drug possession.

[71] It was also conceded, by the Crown, that there was nothing in the three ITO's or police files on Mr. Soares with respect to officer safety or potential loss of evidence.

[72] In concluding, the two sides of this case stipulated facts, in order to dispense with the requirement that Constable Kubia be produced as a witness.

[73] The agreed facts, arising from his disclosed notes of his observations on 6 July 2012, were as follows:

23:53 "POI" re-appeared outside Tugas Bar, smoking.

23:57 Unknown individual #3; white male, 5'8", black & grey hair, grey T-shirt, approximately 35 years old, approached P.O.I and did "H to H", then unknown #3 walked eastbound away from Tugas Bar out of sight and P.O.I. went back in bar.

4: The Legal Framework

4.1: Legislation – Warrants

Information for search warrant (Controlled Drugs and Substances Act ("CDSA"))

Section 11(1) of the Controlled Drugs and Substances Act provides:

A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) anything that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

4.3: Sections 8 & 24 of the Canadian Charter of Rights & Freedoms

Search or seizure

Section 8 of the Canadian Charter of Rights and Freedoms provides:

Everyone has the right to be secure against unreasonable search or seizure.

Enforcement of guaranteed rights and freedoms

Section 24(1) of the Canadian Charter of Rights and Freedoms provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

Section 24(2) of the Canadian Charter of Rights and Freedoms provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

4.4: Case Law - The Information to Obtain ("ITO") - The Charter Context

[74] Any interference with a reasonable expectation of privacy must be done either pursuant to a warrant or prior judicial authorization, or must fall within some exceptional circumstances. A warrantless search is presumptively unreasonable. (Hunter v. Southam Inc., [1984] S.C.J. No. 36 (S.C.C.) (QL).)

[75] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. (R. v. Collins, [1987] No. 15, paragraph 23, per Lamer, C.J.):

23 A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. In this case, the Crown argued that the search was carried out under s. 10(1) of the Narcotic Control Act, supra. As the appellant has not challenged the constitutionality of s. 10(1) of the Act, the issues that remain to be decided here are whether the search was unreasonable because the officer did not come within s. 10 of the Act, or whether, while being within s. 10, he carried out the search in a manner that made the search unreasonable.

[76] In Hunter v. Southam, supra, the Supreme Court of Canada defined the standard for obtaining prior judicial authorization for a search.

[77] Justice Brian Dickson, later Chief Justice, speaking for the court, stated:

Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strong reason to believe" that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is "reasonable ground to believe" that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation ...." The phrasing is slightly different but the standard in each of these formulations is identical. 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.

[78] The Supreme Court, in this articulation of the test, balanced the competing interests of crime investigation and expectations of privacy, as follows:

(1) 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.

(2) The minimum standard, consistent with s. 8 of the Charter, is

"...reasonable grounds to believe", established upon oath, that there is evidence of an offence to be found in the place to be searched.

Hunter v. Southam Inc. paragraph 47 and following

[79] The Supreme Court of Canada in R. v. Debot, [1989] S.C.J. No. 118 (QL), per Wilson, J., at paragraphs 47 to 58 stated that the appropriate standard is one of "reasonable probability" and in making this determination, the court must have regard to the totality of the circumstances.

[80] In weighing evidence relied on by the police to obtain a search warrant, the authorizing judicial officer must consider:

(1) whether the information predicting the commission of a criminal offence was compelling;

(2) when the information was based on an informer's tip, whether the source was credible; and

(3) whether the information was corroborated by a police investigation prior to seeking the authorization. (Debot, supra, paragraph 57)

[81] It is not necessary for the police to confirm each detail in an informer's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. On the other hand, the level of verification required may be higher where the police rely on an informer whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater:

59 The informant whose credibility is most critical, of course, is the one who provided the details of the anticipated transaction. At trial, Constable Gutteridge testified that this source was not paid for his information and had no outstanding charges or investigation pending against him. The officer stated that he had received information in the past from this source about the activities of traffickers in general in Wallaceburg which the police had corroborated through surveillance. Information from this source had once led to a search warrant's being executed on an apartment at which a quantity of speed (less than anticipated) and marijuana were located along with scales and debt lists. Moreover, Constable Gutteridge testified that he had seen the informant and Carpenter together on at least three or four occasions which lends some support to the informant's claim that he received the information about the anticipated transaction directly from Carpenter. These pieces of evidence tend to validate the decision to treat the informant as credible. Different considerations would, of course, apply in situations where the police rely on an anonymous tip or on an untried informant. In such circumstances the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source. (Debot, supra, at paragraph 59)

4.5: The Standard of Review for a Warrant

[82] I agree with the Crown's assertion that the reviewing judge does not substitute their own opinion for that of the authorizing justice. (R. v. Garofoli, [1990] 2 S.C.R. 421 (QL) at p. 1452).

[83] The task of the reviewing judge is described with considerable care by Justice Morris Fish of the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (QL), at paragraphs 39 to 60:

39 Under the Charter, before a search can be conducted, the police must provide "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 the search" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

40 In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace 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.

5: Interpretation of The Legislation – (Case Law)

5.1: The Information to Obtain ("ITO") - Full, Frank and Fair Disclosure

[84] Search Warrants, in the normal course, are applied for on an "ex parte" basis, that is, only one party, or litigant, is present. In a criminal law context, in most circumstances, it is only the law enforcement officer seeking the warrant, who appears before the judicial officer. This makes the application subject to the additional scrutiny that applies to ex parte proceedings in other litigation contexts.

[85] Justice Robert Sharpe, as he then was, in United States of America v. Friedland, [1996] O. J. No. 4399 (Ont. Gen. Div.) (QL) described the duty of a party bringing an ex parte application (in that case with respect to a Mareva injunction) as an "exceptional one". He stated at paragraph 27:

Did the Plaintiff make full and frank disclosure of the case when it sought the ex parte Mareva injunction?

26 It is a well-established principle of our law that a party who seeks the extraordinary relief of an ex parte injunction must make full and frank disclosure of the case. The rationale for this rule is obvious. The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party. As a British Columbia judge noted recently:

There is no situation more fraught with potential injustice and abuse of the Court's powers than an application for an ex parte injunction.

(Watson v. Slavik, [1996] B.C.J. No. 1885, August 23rd, 1996, paragraph 10.)

27 For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side.

28 If the party seeking ox parte relief fails to abide by this duty to make full and frank disclosure by omitting or misrepresenting material facts, the opposite party is entitled to have the injunction set aside. That is the price the Plaintiff must pay for failure to live up to the duty imposed by the law. Were it otherwise, the duty would be empty and the law would be powerless to protect the absent party.

[86] It is for this underlying principled reason that a search warrant affiant must set out the facts fully, fairly and frankly for the authorizing judge in order that he/she can make an assessment of whether these facts rise to the standard required in the legal test for the warrant. The requirement of full, frank and fair disclosure is fundamental, as explained by Justice Sharpe, above. In his decision in R. v. N.N.M., [2007] O.J. No. 3011 (S.C.J.) (QL), at paragraph 320 and following, Justice Casey Hill elaborates on this point:

320 Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie, 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc., 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-9.

321 An aspect of an affiant's disclosure obligation is to reveal, not to conceal, any unconstitutional investigative step by which the authorities have secured information relevant to the ongoing investigation: Grant (S.C.C.), at 196-7; R. v. Creelman, [2007] N.S.J. No. 174 (C.A.) at para. 28-36. As a general rule, it does not lie with the police to not disclose on the basis that they are confident that the misconduct is irrelevant because of an independent source for the information, inevitable discovery or attenuation. The court considering the warrant application will itself make the determination of the relevance of the pre-application behaviour. The disclosure may be relevant not only to the discretion to issue/refuse a warrant but also to whether the justice asks for more information (Araujo, at 464) or considers the imposition of conditions relating to execution of the warrant: Baron, at 526.

322 The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence, or the omission of facts material to the exercise of discretion to issue a warrant are all relevant to review of a warrant and relate to whether there continues to be any basis for the decision of the authorizing judge: Garofoli, at para. 56. Ordinarily, the reviewing court looks to the remaining grounds of belief in an ITO after redaction of the offensive text, or in the case of an omission with the addition of the relevant missing fact(s), in order to determine whether there is a basis upon which the court could have issued the warrant: R. v. Bisson, 94 C.C.C. (3d) 94 (S.C.C.) at 95-6; Araujo, at 471-2; R. v. Wiley, 84 C.C.C. (3d) 161 (S.C.C.) at 170-2; R. v. Kesselring, 145 C.C.C. (3d) 119 (Ont. C.A.) at 123. "In this way, the state is prevented from benefitting from the illegal acts of the police officers, without being forced to sacrifice search warrants which would have been issued in any event": Plant, at 215; Smith, at 76.

323 That said, a reviewing judge is not foreclosed, in appropriate circumstances, "from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves": Morris, at 553 (passage approved in Araujo, at 473); Creelman, at para. 36; R. v. Colbourne, 157 C.C.C. (3d) 273 (Ont. C.A.) at para. 40; Kesselring, at 127-8; R. v. Dellapenna, 62 B.C.A.C. 32 at para. 50; R. v. Donaldson, 58 C.C.C. (3d) 294 (B.C.C.A.) at 310-312.

6: Analysis of the Facts

The Initial ITO

[87] In the initial ITO, Constable Ceresoli deposed that the CI provided the police with the allegation that Mr. Soares was dealing drugs out front of the Tugas Bar at 636 Vaughan Road.

[88] In cross-examination, Constable Ceresoli conceded that he had no personal knowledge of either the CI or the targeted suspect, Mr. Soares.

[89] Constable Ceresoli also conceded that he had no knowledge of the details of any information provided by the CI to the police in the past.

[90] Constable Ceresoli also conceded that although he spoke to "at least one officer" who confirmed that the information provided in the past by the CI was "successful" he could not say what this "success" amounted to.

[91] In further cross-examination he conceded that "success" in this context could simply be the equivalent of the subsequent police discovery of "contraband" unrelated to drugs or the selling of drugs.

[92] Constable Ceresoli also conceded in cross-examination that he had neither sought nor received any details from either Constable Kubia or Detective Balint as to the "hand to hand" transactions they purported to observe on the evening of 6 July 2012 referred to in the first ITO.

[93] Constable Ceresoli conceded that he was not actually told that the "transactions" referred to were even drug transactions, and although he inferred this, he, himself did not explicitly state this in the first ITO.

[94] Constable Ceresoli also confirmed that the two officers observations had not resulted in any follow-up, seizures, arrest or charges, and were not confirmed in any other way by him, prior to his preparation of the first ITO.

[95] Constable Ceresoli, in cross-examination, on 10 September 2013, however, stated in his evidence before me that he was able to confirm to his satisfaction the reliability of the CI by stating that he also had the benefit of the undercover observations of Constable Harris on 7 July, but did not elaborate these observations either in the first ITO, or before me as a witness.

[96] If, indeed, Constable Harris had provided Constable Ceresoli with evidence of illegal drug activity by Mr. Soares, they should have been referenced as forming a basis for the "reasonable belief" in the first ITO, and should have been detailed in a clear manner in the ITO presented to the judicial officer to whom Constable Ceresoli submitted the first ITO.

[97] On the facts before me, in this case, it is important to note that the officers in this investigation could rely neither on previous police history or personal knowledge of Mr. Soares to buttress the "tip" or the solitary and dated record entry from 2001. This was not a person they had been tracking over a period of time, or with whom they were familiar or with whom they had confirmed criminal antecedents as a "dealer" or member of a drug network.

[98] In short, as mentioned at the outset, the first ITO in this case is reduced by scrutiny to an unconfirmed "tip" from a CI, with no confirmed track record with respect to drug investigations. The added observations of the "team" including officers Kubia, Balint & Harris, as presented in the first ITO, do not go farther than raising, in my view, the mere possibility of illegal activity of some sort in front of the Tugas Bar.

[99] Moreover, there is nothing in the ITO to sufficiently link Mr. Soares' alleged drug dealing and his residence.

[100] In my view, at best, the ITO, as prepared, provides a subjective ground for suspicion, but objectively does not afford reasonable and probable objective grounds to permit a reasonable, unbiased and properly-instructed-in-the-law observer to believe that the items to be seized would be found at Mr. Soares' residence.

[101] In the second ITO prepared by Constable Ceresoli, sworn on 9 July, 2012, he states, on page 4, under the title: 3. OVERVIEW OF OFFENCE:

On Sunday July 8th 2012, I was the affiant to a Controlled Drugs and Substances Act search warrant for the address of 624 Vaughan Road #404 in the City of Toronto. The target's name for this investigation was Adriel SOARES. S search warrant was granted for this address by Honourable Justice Sally Marin. This warrant was authorized for July 8th 2012, 07:00 pm to July 10th 2012, 07:00 pm (See Appendix "D")

On Monday July 9th 2012 at approximately 12:35 am, Members of the Guns and Gangs Task Force executed the warrant at 624 Vaughan Road 3404. Officers entered the apartment to find the target Adriel SOARES and an unknown female inside.

Members located a bedroom that was locked and had to be forced open. Upon entry officers located a large cocaine press, a small marihuana grow operation and a quantity of drugs stored in the bedroom (455.52 grams cocaine and 457.18 grams marihuana). Throughout the apartment was paraphernalia used for drug trafficking (small baggies, large baggies, cut used to mix with powder cocaine, scales).

Officers also seized $5910 in Canadian currency as Proceeds of Crime.

As officers searched the premise, officers observed several receipts that appeared to be receipts for rent in the name of Andy SOARES. Officers also located a business card from a storage facility called MACEDO Self-Storage at 1381 Dufferin Street in the city of Toronto. The card was seized as evidence and further investigation.

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This amount of drugs and the fact that he had a cocaine press in his apartment leads me to believe that he is involved in a larger organized crime syndicate than we know of. (Emphasis added)

[102] As can be seen by a review of the first ITO, above, this section of the second ITO purports to provide an "overview" that does not accurately reflect the state of the investigation at the time the initial search warrant for 624 Vaughan Road #424 was obtained.

[103] The first CI "tip" which formed the basis for the first ITO did not, in any way, suggest that Mr. Soares was part of an "organized crime syndicate". Moreover, the very minimal police efforts to confirm the CI "tip" did nothing to infer any such involvement by Mr. Soares or the likelihood of drugs or drug paraphernalia being found in his residence.

[104] In cross-examination in this application hearing, Constable Ceresoli readily conceded that his only confirmation of the tip relied upon the observations of the three officers; Kubia, Balint & Harris, and the dated criminal record of Mr. Soares.

[105] This is in stark contrast to the tip in Debot, which provided specific detail in terms of a time and place of a planned drug deal, quantities involved and named participants.

[106] In my view, the information in the first ITO in this case did not elevate mere suspicion into sufficient grounds for a warrant.

[107] Because the warrant should not have issued, the subsequent search violated s. 8 of the Charter.

7: Applications to Quash and the Exclusionary Principles Under 24(2)

[108] The drugs seized, as stated by the Crown are significant in quantity and also non-conscripted real evidence, as is the phone and the knife, which would provide the Crown with evidence at in this trial against Mr. Longstaff.

[109] The real evidence and quantity of drugs seized, and the societal interest in trial fairness all suggest the admission of the seized items.

[110] However, in my view, the prospective considerations, as articulated by the Supreme Court of Canada in Grant and Harrison, tip the scales in favour of exclusion.

[111] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[112] In the first example of the Supreme Court of Canada applying these principles to exclude, in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, released at the same time as R. v. Grant, supra, Chief Justice Beverley McLachlin was applying the principles in a case where the accused and his friend were driving a rented vehicle in Ontario, and were stopped by a police officer. The officer testified that he noticed that the vehicle had no front licence plate but it was only after activating his roof lights to pull it over, he realized that, because it was registered in Alberta, the vehicle did not require a front licence plate. Even though he had no grounds to believe that any offence was being committed, the officer testified that abandoning the detention might have affected the integrity of the police in the eyes of observers. He arrested the accused after discovering that his driver's licence had been suspended. The officer then proceeded to search the vehicle. He found two cardboard boxes containing 35 kilograms of cocaine.

[113] The Chief Justice excluded the evidence. She stated at paragraph 3 of her decision:

3 Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused's rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a "brazen and flagrant" disregard, to quote the trial judge, of the appellant's Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter. I would therefore allow the appeal and enter an acquittal.

[114] In her reasons, the Chief Justice stated that the Charter breaches were a significant, if not egregious intrusion on the accused Charter-protected interests. She stated that the trial judge's reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. She stated that he placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights.

[115] In Harrison, the arresting officer testified at trial that he know he had no grounds to stop the vehicle under the provincial HTA legislation, but did so anyway.

[116] In her s. 24(2) Charter reasons for excluding the evidence, Chief Justice McLachlan emphasised the need for the justice system to disassociate itself from flagrant abuses such as occurred in Harrison, as admitted by the arresting officer.

[117] I shall consider these three factors in turn.

[118] First, the Charter-infringing state conduct in this case, as explained in Hunter v. Southam Inc., supra, was the search of the accused's residence, first surreptitiously and then pursuant to a search warrant.

[119] The search was initially unwarranted, but resulted in the obtaining of a warrant and a search and seizure conducted pursuant to a search warrant by officers who appear to believe they were acting under lawful authority.

[120] Accordingly, I am prepared to find that the executing officers did not wilfully breach the Charter. This consideration favours admission of the evidence. On that point, the search and seizure cannot be characterized as particularly egregious.

[121] The search in this case was based upon a CI tip, where the credibility of the informant was not personally known to the officer, Ceresoli, who prepared the ITO, and who made a minimal attempt to verify that credibility, and who provided the authorizing judicial officer with minimal details of with respect to credibility or reliability.

[122] Initial "confirmation" of the CI tip was apparently made by an undercover officer who held herself out to be a neighbour of the accused, in order to gain access to his apartment.

[123] As set out above, this initial search of the residence was done by a plain clothes officer impersonating a neighbour of the applicant, and apparently relied upon, by the officer who was the affiant in the first ITO, but no inculpatory details of her observations made their way into the first ITO.

[124] Furthermore, and in addition, the affiant, Constable Ceresoli, treated as "confirmation" bald statements by two surveillance officers that they had observed "hand to hand" transactions, which he did not seek to clarify or substantiate in any way so as to provide the authorizing judicial officer with objective pieces of evidence of wrong-doing on the part of Mr. Soares.

[125] Moreover, in a circumstance where, in my view, the officers used excessive force in ramming and breaking down both an exterior and interior door in the presence of the applicant, no information was provided to the authorizing justice to justify or seek permission to do so.

[126] Finally, in the information that was provided to the authorizing justice, there were no material details regarding the place at which the authority was sought to search, the accused's residence at #404, 642 Vaughan Road, that suggested criminal activity was being carried out there.

[127] In my view, this is unacceptable and sloppy police work, depending, as it does on largely subjective and unreviewable police investigative techniques, and includes poor drafting and lack of clarity in the ITO.

[128] In my view, when the police in Canada are conducting their affairs in a constitutional setting of judicial oversight and relying on prior authorization for the search of a private residence, they must provide the justice to whom they are applying for authorization with a sufficient factual basis to permit the justice to exercise that oversight duty in a transparent and reviewable way.

[129] The repute of the administration of justice is jeopardized by police officers who shroud their investigations in opaque language and material omissions when preparing an ITO for the purposes of judicial approval of their search powers.

[130] 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 conclusionary in nature, and do not permit active or sufficient judicial oversight.

[131] Moreover, they must take care not to otherwise either exaggerate or minimize the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

[132] The repute of the administration of justice is significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of private residences.

[133] In addition, in this case, the manner of the carrying out of the search was not reasonable in two distinct ways:

(1) On 7 July 2012, the use of an initial surreptitious surveillance entry by a plain clothes officer impersonating a neighbour of the applicant;

(2) On 9 July 2012, the initial entry into the applicant's apartment pursuant to the search warrant was predicated on a pre-existing plan, according to the team supervisor who testified before me, Detective Balint, to always ram the door of the residence, where drugs were involved and the person of interest was present inside the premises.

[134] In my view, these two factors raise concerns about officer training and professionalism when participating in the preliminary investigations and subsequent searches pursuant to pre-authorized warrants to search.

[135] No information was provided in the initial ITO, or in fact existed, at the time of the execution of the warrant, to suggest that officer safety was at risk if the officers had, rather than ramming and breaking down the front door had knocked on the apartment door where Mr. Soares was known to be that evening, and requested that he open the door and permit the officers to enter.

[136] In concluding in his judgment in Morelli, that the evidence seized from Mr. Morelli's computer should be excluded, Justice Morris Fish states:

109 In my view, 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.

110 Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

111 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.

112 I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.

113 I would therefore exclude that evidence and, since there was no possibility that the accused could have been convicted in the absence of the evidence, I would allow the appeal, quash the appellant's conviction and enter an acquittal in its place.

[137] In my view, this reasoning applies with similar force to the manner in which the evidence was obtained in the case at bar.

[138] I have therefore concluded that this totality of factors taken as a whole, and seen through the prism of the reasoning found in Grant, Harrison and Morelli requires exclusion of the evidence.

[139] As a result, in my view, the admission of the seized evidence in this case would bring the administration of justice into disrepute, and therefore must be excluded.

[140] In the result, the charges against Mr. Soares are dismissed.

Released: 3 December 2013

Signed: "Justice Paul H. Reinhardt"