Court File and Parties

Court File No.: Kitchener 13-4077 Date: 2014-02-06 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Junior Jeffrey Ball

and

Katherin Irene Olsson

Before: Justice G. F. Hearn

Heard on: December 3, 5, 12 and 20, 2013

Reasons for Judgment with respect to s. 8, s. 9, s. 24(2) of the Charter of Rights and Freedoms released on February 6, 2014

Counsel

Ms. L. Fritzley — counsel for the Crown

Mr. A. Bond — counsel for the accused Junior Jeffrey Ball

Mr. D. Charney — counsel for the accused Katherin Irene Olsson

HEARN J.:

BACKGROUND

[1] The applicants are charged jointly with charges of possession of cocaine and cannabis marijuana as well as possession of a prohibited weapon. These charges arise as a result of items seized during the execution of a search warrant granted April 5, 2013 by Justice of the Peace Ross authorizing the search of a residence purporting to be the residence of Ms. Olsson and Mr. Ball situated at 454 Shelley Drive, Unit D, Kitchener, Ontario.

[2] In addition, the accused Junior Ball is charged with further criminal offences involving the alleged possession of a firearm, i.e. a .357 magnum handgun and the offer to transfer that firearm. These charges arise as a result of findings after the search of a cell phone, again pursuant to a warrant to search granted April 10, 2013 by Justice of the Peace De Jong.

[3] The applicants jointly challenge the validity of the initial search warrant of April 5, 2013. Ms. Olsson has no standing with respect to the April 10, 2013 warrant authorizing the search of Mr. Ball's cell phone.

[4] Mr. Ball in his application does not specifically challenge the April 10, 2013 warrant but does seek to exclude the findings of that search in the context of the challenge to the April 5, 2013 warrant. It is submitted, and the court proceeds, on the basis that if the April 5, 2013 warrant fails then the same result will follow with respect to the warrant issued April 10, 2013. If the applicants are unsuccessful with respect to the April 5, 2013 warrant then the applicant Ball's application concerning the April 10, 2013 warrant will also fail. The court has proceeded on that premise on the court's understanding of the submissions of counsel.

[5] In addition to the s. 8 challenge to the April 5, 2013 warrant, the applicant Katherin Olsson also brings an application alleging a breach of s. 9 of the Charter submitting that she was arrested in the absence of reasonable grounds and as a result she was arbitrarily detained. Further, the applicant also alleges she was arrested for an improper purpose, i.e. to assist the police in the investigation of Mr. Ball and as a result the court should consider "all the circumstances" when determining the appropriate remedy with respect to the exclusion of evidence obtained during the search of this applicant's residence.

[6] The application of Mr. Ball with respect to the s. 8 challenge sets out as the grounds the contention that the Information to Obtain the search warrant of April 5, 2013 contained misleading assertions of fact which if excised would leave the remaining information deficient to meet the test required for the issuance of the warrant. Further, it is submitted the Information to Obtain (hereinafter referred to as the I.T.O.) failed to establish a sufficient temporal and spatial nexus between the place to be searched and the item to be seized.

[7] The trial commenced, pleas of not guilty were entered by both accused to all counts and the voir dire initiated with respect to the hearing of both applications. It was agreed that the application of the accused Ms. Olsson would proceed initially with respect to the s. 9 challenge. It was also agreed by counsel that there would not be an application to cross-examine the informant Det. McCarthy on the Information to Obtain.

[8] However, during the course of the s. 9 application proceeding certain statements made by Det. McCarthy prompted defence counsel for Mr. Ball to bring an application to cross-examine Det. McCarthy as the affiant on the I.T.O. More will be said with respect to this later but simply by way of background, that application was brought, heard and ultimately consented to by the Crown. Leave was granted to cross-examine Det. McCarthy on the I.T.O. and that was exercised by counsel for both applicants during the course of the applications being heard.

[9] Following the completion of Det. McCarthy's evidence no other evidence was called, submissions were made and the matter has ultimately been put to today's date for judgment on the applications.

SECTION 8 CHARTER APPLICATION

Content of the ITO in Support of the April 5, 2013 Search Warrant

[11] Detective Constable Kevin McCarthy of the Waterloo Regional Police is the lead investigator with respect to the matters before the court. He prepared and is the affiant with respect to the I.T.O. in support of the application to have a search warrant issued to search 454 Shelley Drive, Unit D, Kitchener, Ontario, believed to be the residence of Junior Ball and Katherin Olsson for the purposes of attempting to locate a Smith and Wesson .357 magnum revolver and ammunition. The warrant was signed by Justice of the Peace Ross on April 5, 2013.

[12] The I.T.O. provided the following information to the issuing judicial officer in support of that application:

(1) The affiant is an experienced police officer whose background is set out in detail. His experience includes acting as an investigator in the Criminal Investigations Branch, the Drug Unit and the Anti-Violence Guns and Gangs Unit of the Waterloo Regional Police Service.

(2) The affiant accessed various computer databanks to support the information sworn to in the I.T.O. Those databanks reveal that:

(a) Junior Ball is flagged on C.P.I.C. as being "armed and dangerous", "violent" and as an escape risk. He currently has two separate firearm prohibitions pursuant to s. 109 of the Criminal Code resulting from a conviction registered in 2008 for assault causing bodily harm and another stemming from a 2003 conviction for production of a controlled substance. Mr. Ball is a wanted person in the Province of Alberta for outstanding charges including counts of breach of recognizance, break and enter, attempted break and enter, public mischief and possession of stolen property.

(b) The criminal record of Mr. Ball is set out in detail within the I.T.O. and includes drug offences, property offences as well as offences of carrying a concealed weapon and possession of a weapon.

(c) A records check from the N.I.C.H.E. database which is a record management system with the Waterloo Regional Police indicated that Junior Ball had an address of 454-D Shelley Drive, Kitchener. Prior incident reports indicated as recently as March 7, 2013 the Waterloo Regional Police had attended at that address to speak with Mr. Ball with respect to a certain incident. At that time Mr. Ball presented as having significant injuries to his face but refused to provide any information to the police or seek medical treatment. An additional incident was noted on November 24, 2012 when Mr. Ball was observed driving a particular motor vehicle and then to park the vehicle which was registered to the applicant Katherin Olsson at the Shelley Drive address. A further query noted that Katherin Olsson had a similar address noted on the N.I.C.H.E. system, that she had a minor criminal record and had been in a relationship of some duration with Mr. Ball. The N.I.C.H.E. system also provided photographs of Mr. Ball. Additional inquiries with respect to the Canadian Firearms Registry on-line disclosed that neither Mr. Ball nor Ms. Olsson had a licence to possess firearms.

(3) As a result of the information received and the searches conducted police set up surveillance on the Shelley Drive address on April 2, 2013. The same vehicle that Mr. Ball had been observed driving in November of 2012 was located in the parking lot in a space designated for the occupants of 454 Shelley Drive, Unit D. The vehicle was again queried and found to be registered to Katherin Olsson. While the surveillance was being conducted on April 3, 2013 Katherin Olsson was seen leaving the unit, attending the motor vehicle, returning to the unit initially and then ultimately leaving the unit in the motor vehicle with two children. Ms. Olsson was also observed with her children at various times on April 4, 2013. The officer set out that up to that point Junior Ball had not been seen at the residence during the course of the surveillance.

(4) The I.T.O. also set out information received from two confidential informants on prior occasions. The first informant had provided information in November of 2010 to the police which was apparently corroborated and believed to be reliable. That informant was noted to be "entrenched in the criminal subculture", had previous convictions and had never provided information to the police or been used in any other investigation other than in November of 2010. The I.T.O. confirms that the police corroborated the information provided, found it to be credible and reliable. That information set out the following:

(a) Junior Ball is a drug dealer who sells methamphetamine, cocaine, heroin, oxycontin and marijuana.

(b) He is approximately 27 years of age, muscular build and has a Tribal tattoo on his face.

(c) He has a girlfriend and they have a child together.

(d) Mr. Ball has a weapons ban but is in possession of a shotgun.

(5) With respect to the second confidential informant, he had provided information to the police throughout the year 2010 which was corroborated and believed to be reliable. He is noted to have had a lengthy criminal record and in 2010 to be a user of various controlled substances. This informant had provided information with respect to another police investigation involving controlled drugs and possession of a firearm and that investigation had resulted in the execution of a search warrant where controlled substances and a pellet gun were seized and charges had been laid. This informant provided the following information:

(a) Junior Ball is a white, well-built, bald male in his late twenties with a Tribal tattoo on his face who lives with his girlfriend and two children.

(b) He had been seen in possession of a shotgun.

(c) He sells cocaine and his mother's last name is "Ball".

(6) With respect to the information provided by the confidential informants, it is noted to have been in 2010 and there is nothing in the I.T.O. to set out particulars of any investigation that may have been followed save and except to confirm that the information had been corroborated in some fashion at the time of it being provided. There is nothing in the I.T.O. to indicate any charges were laid as a result of the information provided.

(7) Detective Constable McCarthy on April 2, 2013 received the information from another officer as noted that Junior Ball had posted images on his Facebook account of a handgun. The officer accessed the account on that date, viewed a picture of Mr. Ball to confirm that it was his account and also observed a picture of what the officer believed was a Smith and Wesson .357 magnum revolver with ammunition. It is of note, at the time the I.T.O. was submitted attached as Appendix D were photos of the postings on the Facebook page of Mr. Ball including photographs of the firearm as well as pictures relevant to the matters set out in the I.T.O, all of which photos were available for review by the judicial officer dealing with the application for the warrant. The photos are before the court and show a photograph of the applicant Junior Ball, a further photograph of children standing before a table in a room and pictures of a firearm together with ammunition on a glass-topped table.

(8) The I.T.O. contained reference to an incident involving Junior Ball and Katherin Olsson in January of 2007 when information had been received by the Waterloo Regional Police Service that Mr. Ball had purchased a .38 calibre Smith and Wesson revolver that had been stolen during a break-in. The affiant notes within the I.T.O., although this firearm was similar, it is not the same firearm depicted in the photographs attached in Appendix D to the I.T.O. At the time of this information in 2007 the applicants were residing together at another address in Kitchener. A search warrant was obtained with respect to that address and as a result of the search a .38 calibre Smith and Wesson revolver and ammunition had been located in one of the bedrooms. The I.T.O. sets out as well that at the time of the search and recovery of that firearm Mr. Ball was not at the residence. Ultimately neither Mr. Ball nor Ms. Olsson were charged with possession of that revolver.

(9) The affiant sets out the particulars of further investigation on April 4, 2013 when Det. McCarthy met with the property manager for the complex where the subject property was located. The information provided by that manager indicated Ms. Olsson resided at the residence with her two children and if anyone else was residing there on a full-time basis there would be an onus on Ms. Olsson to advise Regional Housing. The manager was shown the picture from Facebook where two young boys in their pyjamas are seen in what the officer believed was the basement at the residence occupied by Ms. Olsson. The property manager, although unable to positively identify it as the basement of Ms. Olsson's unit, did advise the officer that the image was consistent with basements within the complex.

(10) On April 4, 2013 another police officer attended at 454 Shelley Drive, Unit D, under the pretext of following up with respect to the March 7, 2013 attendance. At that time Mr. Ball did not present as being at the premises and Ms. Olsson advised the police he did not live there. She could not provide any contact or current address information but did offer take a business card and forward it to Mr. Ball when she next saw him. In the I.T.O. the officer notes it is his belief that Ms. Olsson was less than candid about Mr. Ball's residence as they had a history of a relationship and sets out he believes if Ms. Olsson had indicated Mr. Ball resided with her it would be "detrimental to both of them".

(11) On April 4, 2013 as well the officer met with an individual who did plumbing work at the housing complex and, in particular, at Unit D. The individual was shown pictures of Mr. Ball and Ms. Olsson and indicated he remembered them as being occupants of the unit when he had worked at the residence. He was shown pictures of what the officer believed was the basement of the residence and advised the picture was consistent with basements at the complex, although he could not specifically identify that particular photo as being a picture of the basement at Unit D.

(12) The I.T.O. also indicates Det. McCarthy had reasonable grounds to believe the item to be seized, i.e. the firearm, was situated at Unit D, 454 Shelley Drive, Kitchener, Ontario and also grounds to believe the item was presently at the place to be searched. In support of the latter, the officer referred in the I.T.O. to the Facebook images which had been posted on Junior Ball's Facebook page on March 23, 2013 and viewed by this officer on April 2, 2013. The officer sets out that the photographs disclose the same background and specifically refers to the glass coffee table, couch and the "very discernible patterned carpet". The officer sets out in para. 54 of the I.T.O. that "the same glass-topped coffee table, couch and identifiable carpet are seen in two other photographs in which two young male children are observed in the background wearing pyjamas" and that the officer believed, as a result of other family photographs attached to the I.T.O., the children were the children of Junior Ball and Katherin Olsson. The officer sets out he believed the pictures of the firearms had been taken in the same room as that depicted where the children had been playing. The officer also states as part of his grounds the information received previously from the confidential informants, the record of Mr. Ball, the fact Mr. Ball had apparently been a victim of a serious assault recently and the officer's experience that violence is a consistent pattern of behaviour in the drug trade. He further sets out that from the incidents he had previously investigated involving drug traffickers and firearm offences it was his view firearm owners and persons in possession of illegal firearms retain their firearms for longer periods of time to protect their illicit drug activities and ensure their personal safety. Ultimately he sets out those grounds as the basis for his belief that the firearm was to be found within the unit.

(13) In Appendix D the officer provides additional observations with respect to the various photographs shown. Again all of which was available to the justice of the peace. Among other things in Appendix D the officer sets out the particulars of the photographs showing the children and those showing the firearm and the basis for his belief the photos were taken in the same room, including the carpet pattern. In para. 11 and para. 13 of the appendix the officer sets out his view that by examining the carpet in the firearm photographs and comparing it with the carpet in the photographs of the children it is "evident" that the same carpet pattern exists. He goes on to state in the appendix, although previously having referred to it in the body of the I.T.O. as "the same", that the glass-topped wood frame table is "similar" in the firearms photos to the one pictured in the photographs of the two boys. Again in para. 13 of Appendix D he makes reference to the "similarities" of the glass table tops and carpet.

[13] On April 5, 2013 the warrant was executed. At the time of the execution of the warrant Mr. Ball was located within the residence. Ms. Olsson was not at home but was arrested shortly after the initial entry into the Shelley Drive address at her mother's residence. The search of the residence was conducted and a quantity of cocaine and marijuana together with bullet-proof vests and a set of brass knuckles were located. In addition, a cell phone was seized which was subject to a search as a result of the warrant issued on April 10, 2013. The firearm referred to was not located.

Evidence of Detective Constable Kevin McCarthy

[14] Detective McCarthy gave evidence during the course of the joint voir dire with respect to both applications alleging breaches of s. 8 and s. 9 of the Charter. He had initially been called to give evidence only with respect to the s. 9 challenge initiated by Ms. Olsson. However, during his examination by counsel for Ms. Olsson certain statements were made by the officer which led counsel for Mr. Ball to bring an application to cross-examine the officer as the affiant on the I.T.O. leading to the issuance of the April 5 and April 10, 2013 search warrants.

[15] The application was brought, granted and Det. McCarthy was then cross-examined by counsel for both of the applicants in the context of the s. 8 challenge. The application for leave to cross-examine arose as a result of certain statements made by Det. McCarthy during his examination on the s. 9 application essentially stating at that time he did not believe he had the grounds to arrest Ms. Olsson until he had actually entered the premises pursuant to the warrant and viewed the basement and its contents.

[16] During the examination of Det. McCarthy by counsel for Ms. Olsson in the context of the s. 9 application, he was asked when the reasonable grounds to arrest Ms. Olsson "crystallized in your mind". He had responded as follows:

"The decision to attend Katherin Olsson's mother's house and arrest her was ultimately made when I went into the residence to confirm that the basement, the layout of the basement, the green sofa that was down there, the very distinct pattern of rug, all those items were consistent with the photos that I had used in my Information to Obtain. That ultimately made me decide to attend Katherin Olsson's mother's house with the intention of arresting her.

Question: I take it then based on that answer and your prior answers that there was no plan to arrest Ms. Olsson prior to the search, that you didn't think there were reasonable grounds to arrest her, prior to you going into the home to look for yourself at that basement?

Answer: Yes.

Question: And the reason for that based on the answer you've just provided I understand you didn't think there were reasonable and probable grounds to arrest her because you wanted to confirm for yourself that the Facebook photographs were taken in the basement of her residence. Is that fair to say? I think that's what you just said.

Answer: Essentially, yes.

Question: And I take it from that in your mind there was some doubt as to the fact that the photographs were taken in the basement of the residence?

Answer: Er, I was confident that they were there and I laid out my grounds in the Information to Obtain all those reasons but until I went down and saw the basement I was not one hundred percent sure. You're right.

Question: I'm not talking about a hundred percent I'm talking about reasonable grounds. You didn't have grounds to arrest Ms. Olsson prior to the search of the home and that's what you've just said. I take it that what gave you the reasonable grounds was to confirm for yourself that the photographs were in fact taken in the basement?

Answer: Yes.

Question: So I put it to you again that there was some doubt in your mind that the photographs were in fact taken in the basement that's why you wanted to establish that for yourself, go to the basement, have a look, you wanted to check for yourself because there was some doubt?

Answer: There was some doubt, I wasn't a hundred percent sure.

Question: In fact there was significant doubt that you didn't believe in your mind that there were grounds to arrest Ms. Olsson?

Answer: No I mostly had a belief that the basement was at that address. There was no need to arrest Katherin Olsson prior to that. If she was at the residence at the time of the execution of the search warrant she would have been detained as part of the investigation, if she was there, she would have very readily been advised that she was technically under arrest.

Question: The reason that she would have been detained is because there weren't reasonable grounds to arrest her prior to going in and confirming for yourself that the photographs were in fact taken in the basement?

Answer: Yes I would agree with that."

[17] As a result of the answers given by the officer counsel for Mr. Ball sought leave to cross-examine the officer who was the affiant on the I.T.O. with respect to the credibility and/or reliability of the statement he had made in the I.T.O. that he had reasonable and probable grounds to believe the gun would be found at the residence.

[18] On December 5, 2013 the officer was recalled and cross-examined by counsel. He acknowledged having made the statements to Mr. Charney on December 3, 2013 when he stated that he did not have reasonable and probable grounds to arrest Ms. Olsson until he had been in the basement and confirmed in his mind that the basement was the same basement depicted in the pictures he had viewed. The officer was quite candid at this point and said that was an error, he had made a mistake and at the time he made that statement he was confused as to the nature of questioning by counsel. He also offered that in the totality of his evidence given on December 3, 2013 he had maintained throughout that if Ms. Olsson had been at the residence she would have been arrested. He had in fact relayed his grounds to the emergency unit prior to it entering the residence for the arrest of Ms. Olsson. He became confused he states as a result of the questioning by counsel for Ms. Olsson as Ms. Olsson had not in fact been found within the residence but only later at her mother's residence.

[19] The officer indicated he meant to state if he had attended in the basement and that was not the basement in the pictures he would not have had grounds. When he confirmed the basement was the same as the pictures that simply furthered his grounds. It is clear the officer's position is that he simply misspoke and misunderstood the questioning by counsel the previous day. He made it clear it was a mistake and he was not trying to be deceptive or mislead the court.

[20] He stated in cross-examination he did possess reasonable and probable grounds to arrest Ms. Olsson prior to seeing the basement. He was simply reassessing the grounds at all stages and once he confirmed the basement was the same in his mind as the one depicted in the photographs his reasonable and probable grounds were simply, as he put it, "further cemented".

[21] The officer acknowledged he could see how his answers on the preceding date had resulted in concerns and he appreciated from his own point of view how he made that error. He referred to all the steps that he had taken prior to the entry into the residence and although he did not have one hundred percent proof, all of the information he had obtained prior to the search warrant being executed indicated to him it was the same basement. He in fact under very thorough cross-examination stated he at all times was "entirely confident" the basement they were about to search was the same one depicted in the photographs, although he candidly conceded he was not one hundred percent sure.

[22] He also offered that at the end of his evidence on December 3, 2013 he had contacted the Crown and told the Crown he believed he had been mistaken in some of the statements he had given. He had been advised of the application to be brought to cross-examine him in a general way only and it was then upon reflection of his own evidence that he appreciated he had made a mistake. He had come to that conclusion on his own, said that he had made the statements he had because he was confused and became "disjointed" based on the what-if situation, i.e. if Ms. Olsson had not been at the residence. Ultimately he indicated clearly he "absolutely" believed he had the reasonable and probable grounds to arrest and as well had the same belief with respect to the contents of the I.T.O.

[23] That concluded the evidence on the voir dire with respect to the s. 8 challenge.

Legal Principles and the Review of Search Warrants

[24] Section 8 of the Charter states everyone has the right to be secure against unreasonable search or seizure.

[25] A warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search the onus is on the Crown to rebut the presumption of unreasonableness. Here there is a judicially authorized warrant and the onus as a result rests on the applicants to establish a breach of their Charter rights. That onus is on a balance of probabilities and requires the applicants to establish there was no basis for the authorization. See Regina v. Morelli, 2010 SCC 8.

[26] In order to obtain a search warrant the police must demonstrate upon oath reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search. Reasonable and probable grounds amounts to credibly-based probability. See Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 168.

[27] In conducting the analysis of the decision of Justice of the Peace Ross with respect to the April 5, 2013 warrant, the scope of such review is set out by Justice Sopinka in Regina v. Garofoli, 60 C.C.C. (3d) 161 (SCC), at p. 188:

"The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge."

[28] This court reviewing the search warrant ITO does not stand in the place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The proper circumscribed limits of a review are summarized in Regina v. Mahmood, 2011 ONCA 693 at para. 99.

[29] This court then is not entitled to substitute its own decision for that of the authorizing justice. The question for determination is whether there was sufficient credible and reliable evidence to permit the authorizing justice to find reasonable and probable grounds to believe an offence had been committed and evidence of that offence would be found at the specified time and place. See Regina v. Morelli, supra, at paras. 40 to 42.

[30] The review of a search warrant can take the form of either a "facial validity" challenge and/or a "sub-facial validity" challenge. The former involves a consideration of the material presented to the authorizing justice without regard to the evidence called on the voir dire to determine whether the essential requirements necessary for the issuance of the search warrant had been met. A sub-facial challenge utilizes the evidence on the voir dire to attack the reliability of the material presented to the authorizing justice. See Regina v. Araujo, [2002] S.C.R. 992 at para. 50.

[31] Where it is established that the Information to Obtain contains misleading information or omitted material facts the reviewing judge must consider the sufficiency of the grounds after removing the offending text, or, in the case of an omission adding in the missing fact or facts. Erroneous information must also be excised. See Regina v. Morelli, supra, para. 41 and Regina v. Araujo, supra, paras. 54 to 59.

[32] In Regina v. Ngo, 2011 ONSC 6676, the court set out some guidelines to be in place for a constitutional review of the Information to Obtain. Those guidelines set out by Justice Hill in that case are as follows:

"(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff'd, 2011 SCC 32).

"(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application": R. v. Nguyen, 2011 ONCA 465, at para. 57.

"(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant, (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543.

"(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling 2006 NSCA 124, (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez, (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364.

"(5) It will not be surprising that an ITO will have some flaws – "[f]ew applications are perfect": Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

"(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": C.B.C. v. A.-G. for New Brunswick, (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo 2000 SCC 65, (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470."

[33] In Regina v. Bui, 2014 ONSC 8, Mr. Justice Goodman set out the principles to be applied in the context of a review of a search warrant Information to Obtain. Those principles are summarized at para. 49 of that particular judgment and are as follows:

"(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot, (1989), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, "or even on a balance of probabilities": R. v. Jacobson, (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds "are not proof absolute" though they must be more than mere suspicion: R. v. Smith 1998 ABCA 418, (1998), 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

"(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. "There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles": R v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.

"(3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris, (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).

"(4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request" for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M., (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.

"(5) The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell, (1996), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson, (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501.

"(6) A court considering the issuance of a search warrant is entitled to draw "reasonable inferences:" R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling 2006 NSCA 124, (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Sanchez, (2004), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370."

[34] The affiant in an Information to Obtain, in this case Det. Cst. Kevin McCarthy, has an obligation to be frank, fair and honest in the Information to Obtain. In assessing the validity of a search warrant any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, over-emphasis or a failure to mention material facts or misleading information. All of these deficiencies can leading to a finding that the warrant is invalid. See Regina v. Bui, supra, para. 50.

ANALYSIS

[35] Basically the applicants' submissions with respect to the s. 8 challenge centre on the following:

(1) Did the I.T.O. with respect to the April 5, 2013 warrant show a sufficient temporal and spatial connection between the items sought and the place to be searched? The applicants submit that it does not.

(2) The applicants further submit the search warrant should be determined to be "invalid" as a result of what the applicants state are misleading statements of fact contained with the I.T.O. This relates specifically to comments in the I.T.O. with respect to the table, the couch and the carpet depicted in the various photos.

[36] In dealing with the application I keep in mind the principles with respect to the standard for warrant review I have previously set out. I keep in mind the warrant review begins from a premise of presumed validity and as a result of that presumption the onus of demonstrating the invalidity falls on the applicants, in this case Mr. Ball and Ms. Olsson. Further, the case law clearly indicates the scope of the warrant review is narrow, it is not a de novo hearing of the exparte application and I am not to substitute my view for that of Justice of the Peace Ross who issued the warrant. The standard is simply whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe an offence has been committed and evidence of that offence will be found at the specified time and place of the search.

[37] Here, in addition to the review of the I.T.O. the record has been amplified somewhat as a result of the cross-examination of Det. McCarthy on the very narrow issue as a result of his apparent change in evidence on the issue of reasonable grounds to arrest Ms. Olsson from the initial date he gave evidence on December 3, 2013 until his next attendance in court on December 5, 2013. Although this may not be amplification evidence in the traditional sense on such applications, it is other evidence the court considers in its review of the warrant.

[38] The review requires a contextual analysis. It is not this court's role to draw inferences or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. Again, see Morelli, supra.

[39] In this case I note the following:

(1) The I.T.O. sets out the experience and expertise of Det. McCarthy. He has been involved in numerous investigations in special units within the Waterloo Regional Police Service and has been a police officer since 1999. As noted in Regina v. MacKenzie, 2013 SCJ No. 150, a decision of the Supreme Court of Canada, at para. 62:

"Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, 'a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police' (Yeh, at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold."

(2) The I.T.O. sets out the criminal history of the applicant Junior Ball. Mr. Ball has a criminal record which contains a number of entries including offences involving controlled drugs and substances as well as weapon and violent offences. Further, he was noted to be subject to two separate firearm prohibitions, the most recent being from a conviction for assault cause bodily harm in 2008. In addition, there is reference in the I.T.O. to outstanding warrants from the Province of Alberta with respect to a variety of property offences. Of some importance as well is the fact in January of 2007 police had acted upon information that Mr. Ball had purchased a .38 calibre Smith and Wesson revolver that had been stolen in a residential break and enter. A search warrant was obtained and executed at the then residence of Ms. Olsson and Mr. Ball. Although Mr. Ball was not at home at the time, the revolver and ammunition were located within the residence. The I.T.O. sets out the specifics of that particular seizure and the similarity to the type of firearm which was the subject of the I.T.O. in April of 2013 but also notes it is not the same firearm and further notes in the spirit of completeness Mr. Ball was not at the residence at the time and no charges were ultimately laid against either Ms. Olsson or Mr. Ball. Still, the 2007 seizure is not of limited assistance as suggested by counsel for the applicants but is in fact a factor that was quite open for the issuing justice of the peace to consider in his assessment of the I.T.O. in its entirety.

(3) The I.T.O. sets out details of information provided by two confidential informants. That information is somewhat dated in the sense it was in 2010 and the dating of that information was provided in the I.T.O. for the justice of the peace to consider. The information appears to have been compellable, credible and corroborated and appears to be similar in nature from both informants. It is important to remember the primary basis for the I.T.O. is not the information provided by the two informants. However, that information is important in providing some background which is consistent with the information otherwise relating to April 2013 concerning Mr. Ball having previously had in his possession firearms. The information was corroborated by the police and notwithstanding no charges were laid, this information in the context of the entire warrant was information properly available for the justice of the peace to consider.

THE ISSUE OF SPATIAL NEXUS

[40] A good deal of the applicants' submissions relate to the fact that the I.T.O. does not disclose sufficient credible and reliable evidence that would permit the justice of the peace to find reasonable and probable grounds to believe an offence has been committed and that evidence of that offence would be found at the specified time and place, i.e. on April 5, 2013 at the residence at 454 Shelley Drive, Unit D, Kitchener, Ontario. Counsel for the applicants contend the series of circumstantial inferences set out in the I.T.O. fail to meet the necessary threshold of credibility-based probability that the firearm would be found in the place to b searched.

[41] The issue of spatial nexus is based primarily on the photographs found on the Facebook entry of Mr. Ball and to some extent the surveillance and the preliminary investigation done prior to the I.T.O. being completed by the investigating officer.

[42] Dealing with the issues other than the photos, it is clear there was sufficient information in the I.T.O. that the justice could be reasonably satisfied to the degree required both Mr. Ball and Ms. Olsson resided at the subject residence. There is reference to the property manager confirming the occupancy of the unit by Ms. Olsson and her children, although Ms. Olsson apparently had never reported that Mr. Ball was residing at the residence. However, the plumber had done work at the residence relatively recent to April of 2013, in December of 2012 and recalled Mr. Ball and Ms. Olsson being present. Although neither of those individuals could identify the basement as that of Ms. Olsson and Mr. Ball as depicted in the photographs, they could confirm the basement was consistent with the basements of the units at that particular complex.

[43] Further, on March 7, 2013 the police had attended at the residence, spoken with Mr. Ball who was there at the time with respect to injuries he had sustained in some type of altercation. As well, Mr. Ball had been observed operating the van registered to Ms. Olsson and parking it at the Shelley Drive address in November of 2012. This was the same van Ms. Olsson was seen operating on April 3, 2013 and observed by the police on April 2, 2013. It was certainly very much open to the justice of the peace to conclude that in April of 2013 both Mr. Ball and Ms. Olsson were residing at that address.

[44] The main focus of the applicants' submissions with respect to the issue of spatial nexus is attempting to connect the basement of that particular residence to the photographs posted on Mr. Ball's Facebook. The information obtained from the property manager and the plumber, and the surveillance would indicate clearly the applicants resided at that address. The photographs attached to the Facebook page show the children in what appears to be a basement area with the presence of a table, a couch and carpet all on the same Facebook entry. Further, all of these were uploaded to Facebook on March 23, 2013. All of this was before the justice of the peace in photographs which the justice of the peace would have had the ability to view on his own in some detail and compare the items referred to in the I.T.O.

[45] The applicants concede the photographs show the children of Ms. Olsson but suggest the I.T.O. does not contain sufficient information to indicate the pictures of the children were taken in the basement of the unit. Given the information otherwise set out in the I.T.O. with respect to that particular unit and the presence of the children living in the unit together with the similarity of the basement found in other units within the same complex, it certainly was open to the justice of the peace to conclude that the photograph of the boys in their pyjamas was taken in the basement. There is no date identifying when that particular photograph was taken, although given the fact the photograph was uploaded on March 23, 2013 and given the fact there is some granted minimal reference in the I.T.O. with respect to the school age nature of the children, that was information available for the justice of the peace to consider. A reasonable finding based on that information would be that in fact the basement depicted was in the unit occupied by Ms. Olsson and Mr. Ball in April of 2013.

[46] The pictures of the firearm on the table, noted at one point in the I.T.O. to be the "same" and then in Appendix D as "similar" to the table shown in the pictures of the boys was something that the justice of the peace would have had an opportunity to view on his own as the photographs were available.

[47] The applicants make a good deal of the fact that the references to the "similarity" or "sameness" of the carpet, the couch and the table is misleading in the I.T.O., but that particular submission really carries little weight when one considers it was simply not the bald statements within the I.T.O. that were before the justice of the peace. There were also a number of photographs on which the investigating officer had made his own inferences that the table on which the gun was situated was found in the basement where the boys' picture had been taken at the residence on Shelley Drive. The justice of the peace had it open to him to look at the photographs and one can only assume that he did. It would have been quite open to the justice of the peace to come to perhaps a different conclusion or the same as suggested by the officer in the I.T.O. but it was an informed decision the justice of the peace was in a position to make. He had all of the information including not only the statements but also the photographs to enable him to make that decision. I agree with the Crown "a picture is worth a thousand words" and the justice of the peace had the pictures available for review.

[48] Looking then at the pictures themselves there does appear to be some similarity between the carpet and there does appear to be a couch, although to be quite candid it is not readily apparent when looking at the photographs. The couch and the carpet appear to be in the pictures not only of the boys but in the picture of the firearm. The table on which the gun is situated is not the same table as shown in the picture with the boys and that is conceded now by the Crown. However, the Crown indicates it is a "strikingly similar table with the same shade of wood and some smoky glass". It is important the justice of the peace was not viewing the table in isolation but also presumably keeping in mind all of the information in the I.T.O. including the presence of a similar couch and distinct carpet.

[49] The defence makes a point of the fact that the officer allegedly misled the justice of the peace by referring to the table as the "same" table in one location and as a "similar table" in another. I find no merit in that submission. First of all, the justice of the peace had the photographs to draw his own conclusion and, secondly, it is hard to find that if the officer was attempting to mislead the justice of the peace he would have used both terms as opposed to being consistent in his alleged attempt to mislead by using the word "same" throughout the I.T.O. He did not and again clearly the justice of the peace could have drawn his own conclusions by simply reviewing the photographs which were part of the I.T.O.

The Issue of Temporal Nexus

[50] The applicants submit the I.T.O. was "woefully deficient" in establishing a connection in time to the place to be searched and the items sought. The applicants submit there should have been recent information or evidence to support the assertion that the item sought, i.e. the firearm, was to be found in the place at the time the residence was searched.

[51] I accept the Crown's submission with respect to the issue of temporal nexus. There were reasonable grounds to believe the boys' pictures and the picture of the firearm were taken in the basement of the unit as noted. The photos that were reviewed by the officers had just been uploaded to the Facebook page of Junior Ball on March 23, 2013, a short time prior to the issuance of the warrant. The ages of the children in the photographs are consistent with the photos from the Facebook page of Katherin Olsson which were also before the justice of the peace and her attendance at the elementary school to pick up the third child while accompanying two children on April 3, 2013 as noted during the surveillance would indicate the approximate ages of the children. When one looks at the photos of the gun and the children and considers the couch, the carpeting, the table and the date of posting of the various photos on the same day there certainly was sufficient evidence before the issuing justice to determine that the firearm would still be in the residence. This was also open to the justice of the peace to consider in light of the information contained in the I.T.O. with respect to this officer's previous investigations concerning people in the drug trade, the presence of violence and firearms and the tendency for persons in possession of illegal firearms to retain them to protect their illicit drugs and ensure their personal safety. Mr. Ball had apparently been injured as a result of an assault which had led the police to his residence in March. In view of the fact he did not provide information it certainly was open to the justice of the peace to consider that may have been as a result of some illicit activity. The presence of the gun at the time of the issuance of the warrant and the proximity of that particular assault are factors to be considered as expanded upon by the officer in the I.T.O. All of this information was available to the justice of the peace and presented in a very candid and reasonable manner in the I.T.O.

[52] With respect to the evidence of Det. McCarthy given during the hearing of the application under s. 9 and then as a result of the application for leave to cross-examine within the context of the s. 8 challenge, I have had an opportunity of viewing Det. McCarthy both on December 3, 2013 and then again on December 5, 2013. I have also had an opportunity to review his I.T.O. Dealing with the I.T.O. initially, it seems to me that Det. McCarthy presented very fairly the facts he was relying on to form his belief. He provided the justice of the peace with information that might not support that particular belief and left it up to the justice of the peace to make his own decision. He clearly indicated he did not have any information with respect to reasonable grounds to indicate Mr. Ball had currently in his possession controlled substances. He did not request a C.D.S.A. search warrant for that reason. He sets out the dates of his information, the particulars of his information and indeed on occasion refers to the shortcomings in that particular information.

[53] That is the background under which he is now being portrayed as an individual who is not credible nor reliable. Counsel refers to trickery, deception and portrays Det. McCarthy as simply looking for someone, as he put it, with a "green sash to sign off on it, i.e. the warrant". Although clearly Det. McCarthy seemed to have done a complete about-face with respect to his evidence on December 3, 2013 and then on December 5, 2013 it seemed to me that he was being simply candid, honest and fully accepting he was in error under a misapprehension when he answered questions on December 3, 2013 with respect to the reasonable and probable grounds to arrest Ms. Olsson.

[54] Detective McCarthy indicated on December 5, 2013 he was confused about the questioning and the nature of the questioning on December 3, 2013. Given the manner in which he addressed the obvious inconsistencies in his evidence on December 3 and December 5, 2013, to be quite frank I found him to be an open and honest witness. He simply made a mistake. His preparation of the I.T.O. and the presentation of his evidence otherwise indicates to me that he is a very fair and honest witness. He presented as a forthright witness and I find him to be such. In fact, when one reads the I.T.O. it strikes me as a very balanced and reasonable presentation of the information that was available to the officer. The officer simply put it in the I.T.O. and submitted the application. It was up to the justice of the peace to reasonably review that information including the photographs that were attached. I cannot assume he did anything but that on the basis of the evidence I have before me. I do not find that Det. McCarthy engaged in any type of deliberate misconduct, deception or misrepresentation either in the preparation of the I.T.O. or in the giving of his evidence on the application.

[55] In my view, there really was no attack on the credibility on the officer's part when preparing the I.T.O., only an attack on the shortcomings and perhaps some inconsistent wording. The facial validity of the warrant was all that was in issue until the evidence of Det. McCarthy on December 3, 2013 raised some concerns about his credibility not only on the arrest issue but also on the issue of the preparation of the I.T.O. I find the position of the applicants in regard to either is not well-founded. The totality of the I.T.O., the surveillance conducted as well as the background information concerning Mr. Ball and Ms. Olsson provided cogent evidence that the firearm would be found within the residence on Shelley Drive. I find that the officer's belief was a reasonable one, well-founded, the information was before the justice of the peace for review and the evidence was sufficient for the justice of the peace to make the assessment he did. Accordingly, the issuance of the warrants was justified and there is no breach of s. 8. In light of that finding there is no need to consider the s. 24(2) issue and the s. 8 challenge as set out in that particular application is dismissed.

[56] As a result the s. 8 application will be dismissed both with respect to the warrant issued on April 5, 2013 and April 10, 2013.

Allegation of s. 9 Breach

[57] There is also before the court an application on behalf of Ms. Olsson only alleging that her rights under s. 9 of the Charter have been breached. The applicant alleges that she was arrested in the absence of reasonable grounds and arbitrarily detained contrary to s. 9 of the Charter. She asks for various relief if such a breach is found.

Evidence on s. 9 Application

[58] The evidence in support of this application is comprised of the evidence of Det. Cst. McCarthy, which evidence has been reviewed in detail with respect to the s. 8 application, and as well the evidence of Det. Cst. Michelle Selby.

[59] Detective Selby was involved in the investigation of this matter with other members of the Waterloo Regional Police Service. She did not take part in the search of the residence after the execution of the warrant, but she was involved with the arrest of Ms. Olsson shortly after the warrant was executed.

[60] She had some knowledge of Ms. Olsson being a resident at the particular address as a result of the attendance of another officer shortly before April 5, 2013, the purpose of which attendance was to determine the presence of Mr. Ball. She was aware at the time the search was executed Ms. Olsson was located at another address and had been surveilled to that address. It was that address where Ms. Olsson was ultimately arrested.

[61] She confirmed upon the search warrant being executed Det. Cst. McCarthy had confirmed the basement area of that residence corresponded to the room depicted in various pictures which had been posted on Facebook by Mr. Ball including pictures of a handgun. It was determined to arrest Ms. Olsson as it appeared then she was a resident of the premise and had the ability to access the residence. The photograph depicting the handgun appeared to be taken in a room within the residence. She then formed her reasonable grounds to arrest Ms. Olsson for possession of a firearm. She indicated Ms. Olsson was not arrested at that time for possession of any of the items found in the residence as this officer was not aware of any findings in the residence at the time of the arrest.

[62] She and Det. Cst. McCarthy attended at the address where Ms. Olsson was located. They spoke to her at 5:47 p.m. The warrant had been executed at 4:44 p.m. on April 5, 2013 and Ms. Olsson was arrested at 5:57 p.m.

[63] The officer agreed the investigation had focussed on Mr. Ball and there was no reason to believe that Ms. Olsson had taken the photographs. The officer testified her grounds included the fact that the gun was present in the pictures, Ms. Olsson lived there, had access to the residence and there was a previous incident involving a handgun and Ms. Olsson from 2007 that she was aware of. She was also aware the 2007 incident involved the issuance of a public safety warrant and although a gun apparently was recovered, no charges were laid against either Mr. Ball or Ms. Olsson.

[64] The officer confirmed the basis for the arrest was the photograph of the gun taken in the basement and the decision had been made to arrest Ms. Olsson if she had been found in the residence. However, once it was confirmed the basement area and the tables identified in the photos were located within the residence it was agreed among the officers to arrest Ms. Olsson outside of the residence. It is important to note Det. Cst. Selby's evidence is that there was a decision to arrest Ms. Olsson actually made before the search and once the photographs were confirmed to reflect the basement area where the picture of the gun had been taken, it was agreed to arrest her outside of the residence in order to prevent the continuation of the offence as they did not know where the firearm was at that point. The intent was then to conduct an interview as well of Ms. Olsson, although this officer was not involved with anything else other than the arrest. When asked if she considered the issuance of an arrest warrant, the officer was quite candid and stated that particular option did not cross her mind.

[65] It is clear the officer's grounds to arrest were distilled to knowledge of the history of Ms. Olsson, the fact she resided at the residence and had access to the residence, the fact the basement appeared to be the basement depicted in the pictures where the handgun was photographed and Ms. Olsson should have known about the presence of the firearm.

[66] In cross-examination the officer confirmed again her grounds. She had reviewed the search warrant material before execution of the warrant and confirmed once the officers walked into the basement it was the same basement depicted in the photographs where the picture of the boys had been taken. She noted why she came to that conclusion. She was aware Ms. Olsson had a criminal record, although not aware of the particulars, and was also aware of the 2007 incident. She was consistent in her evidence she had reasonable and probable grounds to effect the arrest of Ms. Olsson for the reasons she had indicated and also offered the arrest was effected when it was to stop Ms. Olsson from going back into the residence as the police had not located the handgun and were concerned as to its whereabouts.

[67] The only other evidence on the application was that of Det. Cst. McCarthy. That evidence has been reviewed in some detail with respect to the s. 8 application. As noted within that review, there were concerns arising as a result of the evidence initially given by Det. Cst. McCarthy and those concerns were addressed by counsel and ultimately led to counsel cross-examining Det. Cst. McCarthy on the contents of the I.T.O. to a limited degree.

[68] With respect to the s. 9 issue, Det. Cst. McCarthy effectively confirmed the evidence of Det. Cst. Selby with respect to the grounds for the arrest. It was clear the intention of the officers was to arrest Ms. Olsson if she had been found in the residence. Prior to the search warrant being executed she had been surveilled to another residence and once the officers were in the residence and determined for many reasons that the basement in the residence was that depicted in the photos the decision was made to arrest Ms. Olsson at the location where she was located. The detective advised she was arrested, transported to the station and after providing a statement it appears she was not formally charged with firearms offences but was charged with respect to the findings otherwise which resulted from the search of the residence.

ANALYSIS AND RULING

[69] Section 495 of the Criminal Code sets out the prerequisites for a peace officer making an arrest of an individual without a warrant. The prerequisites include a reference to reasonable grounds. In Regina v. Storrey, [1990] 1 S.C.R. 241, Justice Cory stated in order to carry out a lawful arrest a police officer must personally believe that he or she has reasonable and probable grounds. In addition to those subjective grounds, it must be objectively established those reasonable and probable grounds existed.

[70] Mr. Justice Cory in Regina v. Storrey, supra, noted as follows:

"It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest."

[71] The court went on to say that the police do not need to demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for a conviction before making the arrest.

[72] Mr. Justice Cory quoted reasons in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.) where the court stated:

"The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably."

[73] In Regina v. Golub, [1997] O.J. No. 3097 (ONCA), the court held that context plays an important role in determining whether reasonable and probable grounds exist. There the court stated:

"In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

"In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable."

[74] Ultimately, the issue is not whether the officer, in this case Det. Cst. Selby, could have conducted a more thorough investigation. The issue is whether the officer when making the arrest of Ms. Olsson subjectively and objectively had reasonable and probable grounds to do so. Again, it is important to note that in assessing this context matters. In that regard it is also important to remember, although Det. Selby, and indeed Det. McCarthy, did not know at the time of the arrest the results of the search warrant and what was actually found and what was not found, I find it is very clear that Det. Selby had reasonable and probable grounds to arrest Ms. Olsson when she did.

[75] I find that decision was not made on the spur of the moment. There was a clear intention to arrest Ms. Olsson if she had been found in the residence at the time the search warrant was executed. She was not and, although the grounds were further advanced or "cemented" as Det. McCarthy states once the officers had an opportunity to view the basement and compare them with the photographs that had been posted on Facebook, there were in fact grounds in any event to arrest Ms. Olsson, I find, even prior to that confirmation. That simply confirmed the arrest would take place outside of the residence.

[76] This was a dynamic and ongoing investigation at the time of the arrest, to be sure. But at the time of the arrest reasonable and probable grounds did exist. Detective Selby articulated those grounds very well during the course of her evidence and there is no inconsistency or minimization of those grounds as a result of the cross-examination conducted.

[77] At the time of the arrest Det. Selby knew the following:

(1) She had reviewed the contents of the I.T.O. and was familiar with the background including surveillance, prior attendances at the residence, previous occurrences and the particulars of the relationship between Ms. Olsson and Mr. Ball.

(2) She knew Ms. Olsson resided in the home as a result of Waterloo Regional Police Service surveillance and previous contact with Ms. Olsson.

(3) She had had an opportunity to view the photos posted on Facebook by Mr. Ball, all on the same day, March 23, 2013 in close proximity to the date of the arrest and the execution of the warrant. As a result of viewing those photos she was able to determine that the photos depicting the gun were taken in a similar room to where the photos of the two boys had been taken and that was in the basement of the residence occupied by Ms. Olsson.

(4) As a result of the photo of the boys and the presence of Ms. Olsson who was their mother and seen with the children on occasions during surveillance it was reasonable for the officer to conclude Ms. Olsson had access to the entire residence.

(5) Further, prior to the arrest the officer had entered the basement pursuant to the warrant and made further observations which simply confirmed her subjective belief that the basement was in fact the room depicted in the various photographs including the photograph of the gun and the ammunition on a table.

[78] The court finds, Det. Selby had reasonable and probable grounds to believe that Ms. Olsson was, as a result, in the possession of the firearm depicted in the photo. She certainly subjectively believed that and a reasonable person looking at all the circumstances known to the officers from an objective point of view would come to the same conclusion. Det. Selby was entitled to take into account information gleaned from the I.T.O. and draw her own conclusions. I accept the decision to arrest Ms. Olsson was not something that was simply made up after the entry into the residence but that decision had been made prior to the execution of the warrant. I further find there had been no "plan" in place to simply detain Ms. Olsson for the purpose of getting further information through an investigation or statement implicating Mr. Ball. In my view grounds existed. This was, as noted, a dynamic situation involving the presence of a firearm in a residence. The decision to arrest was well considered and reasonable and probable grounds are, in my view, more than well-founded.

[79] As a result, this application will also be dismissed. Again, as the application has been dismissed and no breach has been found there is no need to conduct a s. 24(1) or (2) analysis.

Released: February 6, 2014

Signed: "Justice G. F. Hearn"