Court File and Parties

Ontario Court of Justice

Date: September 11, 2017

Court File No.: Central East Region (Oshawa)

Between:

Her Majesty the Queen

— and —

Frederick Tucker

Before: Justice F. Javed

Heard on: August 16, 25, 2017

Reasons on Application released on: September 11, 2017

Counsel

T. Jackson ....................................................................... counsel for the Crown

P. Affleck ....................................................................... counsel for the Applicant

Ruling on Section 8 Application

A. INTRODUCTION

[1] Frederick Tucker stands charged with the offences of break and enter x11 and possession of property obtained by crime x9 contrary to the Criminal Code.

[2] On this pre-trial application, Mr. Tucker challenges the validity of a search warrant into his residence at 371 John St. (rear unit), which was used to obtain evidence in this matter. He alleges that the police violated his rights under s.8 of the Charter of Rights and Freedoms (Charter) and seeks exclusion of items of evidence pursuant to s. 24(2) of the Charter.

[3] The trial is scheduled to continue before me on September 21, 2017. The parties requested a ruling in advance of the continuation of the proceedings as Mr. Tucker is in custody. After hearing submissions, I reserved my decision.

[4] For reasons that follow, I have concluded that the Charter challenge fails the R. v. Garofoli, [1990] 2 S.C.R. 1421 review. I do not find a breach of Mr. Tucker's s.8 Charter rights.

B. THE CIRCUMSTANCES OF THE ALLEGED OFFENCES

[5] The Durham Regional Police Service (DRPS) investigated a series of break and enters in Whitby, commencing on September 13, 2016. The police theorize that the offences share similar characteristics, namely, entry through the rear and were all done in close proximity to each other. Ultimately, they theorize that Mr. Tucker is responsible for them.

[6] On October 14, 2016, the residence at 544 Reynolds St. in Whitby was broken into through the rear. The intruder ransacked the house and removed several items including jewellery and electronics, including an Apple iPhone 6 smartphone (iPhone).

[7] On October 15, 2016, approximately 9 hours after the above break and enter, the homeowner of 544 Reynolds St. discovered through an Apple software application, "Find my iPhone", that his missing iPhone had been found near 371 John St. in Cobourg, Ontario.

[8] Detective Constable Peacocke of the DRPS (DC Peacocke) investigated the matter and swore an Information to Obtain (ITO), in support of a s.487 search warrant.

[9] On October 28, 2016, Justice of the Peace McIlwain granted him the warrant to enter the residence of Mr. Tucker at 371 John St. (rear unit).

[10] Upon entry, the police discovered a number of items, which they allege were taken from various homes. This included the impugned iPhone.

[11] Mr. Tucker was in custody at the time for unrelated matters and was charged accordingly.

C. THE EVIDENCE SOUGHT TO BE EXCLUDED

[12] Mr. Tucker seeks to exclude several items of evidence seized from his residence, including the 8 items listed on Appendix A of the search warrant. This includes the iPhone.

[13] In addition, Mr. Tucker also seeks to exclude other property seized from the residence, which were catalogued in the report to Justice. Specifically, this property constitutes counts 12-20 on the information, which forms all possession of property obtained by crime offences.

D. THE RECORD ON REVIEW

[14] At the outset of the application, Mr. Tucker sought leave to cross-examine the affiant, DC Peacocke, in one discrete area, namely his assertions in the ITO about the physical location of the iPhone and his alleged failure to fairly present the circumstances of the Apple anti-security software to the issuing Justice. Mr. Affleck submitted that the assertions relating to the location of the iPhone should be excised from the ITO.

[15] Without conceding the above, Ms. Jackson fairly conceded that the defence had met his onus on the leave to cross-examine requirement on this narrow issue. DC Peacocke was cross-examined on the Charter voir dire. The details of the cross-examination are discussed below as part of the amplified record.

[16] I was also provided with a copy of the search warrant (Exhibit 3), the return to Justice and ITO (Exhibit 2). In addition, Exhibit 1 involved some photographs of 371 John St., Cobourg.

E. THE APPLICABLE PRINCIPLES

[17] The parties do not dispute the applicable principles that govern this application. For greater context, I will reproduce them below with the assistance of Mr. Justice DiLuca in R. v. Ricciardi, 2017 ONSC 2788, who was recently confronted with a similar challenge. He nicely distilled the principles at paras. 12-20 as follows:

Facial and Sub-Facial Challenges

In this case, the challenge to the warrants and ITO's is comprised of both facial and sub-facial components. A facial challenge examines whether the warrant is valid on its face and whether the ITO supporting the warrant provides an appropriate basis upon which the issuing justice could have issued the warrant. A sub-facial challenge goes behind the form of the ITO to attack or impeach the reliability of its content.

Reasonable and Probable Grounds

Warrants are generally issued on the basis of "reasonable and probable grounds". This standard requires "credibly based probability"; see R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Amare, 2014 ONSC 4119 at para. 83, (aff'd 2015 ONCA 673). The ITO must disclose reasonable grounds to believe that an offence has been committed and that evidence in relation to that offence will be found at the place to be searched; see R. v. Sadikov, 2014 ONCA 72 at para 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417 at para. 9:

In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry").

Subjective and Objective Components

The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable, see R. v. Storrey, [1990] 1 S.C.R. 241 at page 250. An officer is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 117 C.C.C. (3d) 193 (ONCA) at p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 at para. 48.

Precision and Basis for Belief

An ITO must contain a reasonable degree of precision about the items being searched for, assessed within the context of the case; see R. v. Church of Scientology and the Queen (No.6) (1987), 31 C.C.C. (3d) 449 (ON CA) at p. 509. The ITO must also establish a basis for the reasonable belief that those items will afford evidence in respect of an offence under investigation; see Canadian-Oxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at para. 15.

Location Specification

The ITO should also precisely specify the location or place that is to be searched, including any computers or smartphones that may be found at the location; see R. v. Ting, 2016 ONCA 57, R. v. Vu, 2013 SCC 60 at para. 2 and R. v. Fearon, 2014 SCC 77. As well, the ITO must provide grounds supporting the belief that the listed offence or offences have been committed though exact precision is not required; see Morelli, 2010 SCC 8 at para. 50 and R. v. Ward, 2012 ONCA 660 at paras. 110-116.

Role of Issuing Justice

The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established; see R. v. Harris (1987), 35 C.C.C. (3d) 1 (ONCA) at p. 13-16 and Church of Scientology, supra, at p. 500. That said, an issuing justice is permitted to draw reasonable inferences from stated facts; see R. v. Nero and Caputo 2016 ONCA 160 at para. 71.

Role of Reviewing Judge

On a review, the role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant; see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, supra, at para. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

Holistic Review

The review is conducted based on the whole of the ITO using a common sense approach to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant; see R. v. Morelli at para. 167, R. v. Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Ngyuen, supra, at para. 58, R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Persaud, 2016 ONSC 8110 at para. 64.

Excision Exercise

The excision exercise requires that any unlawfully obtained evidence be removed from consideration in assessing the sufficiency of grounds in an ITO, see R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.), R. v. Plant (1993), 84 C.C.C. (3d) 203 (SCC) and R. v. Wiley (1993), 84 C.C.C. (3d) 161 (SCC). While the continued validity of the automatic exclusion approach has been criticised, it remains the law; see R. v. Jasser, 2014 ONSC 6052 at paras. 26-34.

F. THE POSITIONS OF THE PARTIES

[18] The parties filed written submissions, which were supplemented by oral argument. To some degree, the facial and sub-facial challenges blended with each other. It is helpful to isolate them to assist with the discussion that will follow.

(i) The Facial Challenge

[19] Mr. Affleck advanced the position that the warrant was facially invalid on two bases. First, it was based on "stale information", as there was no rational basis to determine the currency of the iPhone's location. Specifically, the warrant was authorized almost 2 weeks after the alleged incident and there was no reasonable inference that it would still be inside 371 John St. at the time it was granted. Second, when viewed as a whole, DC Peacocke's subjective belief that the iPhone was inside 371 John St. could not be objectively supported by the ITO.

[20] Ms. Jackson responds that the belief that the iPhone was still in the residence at the time of the search warrant was a reasonable and common sense inference.

(ii) The Sub-Facial Challenge

[21] The facial attack was also advanced as a sub-facial challenge on the "amplified record" (paragraph 24, defence written materials). Mr. Affleck similarly submitted that the amplified record did not provide any reasonable basis that the warrant could have issued. This was primarily premised on the court excising from the ITO assertions related to the location of the iPhone being inside the residence. More specifically, Mr. Affleck submits that DC Peacocke misled the issuing Justice about the location of the iPhone based on two material omissions. First, since the iPhone was "near" 371 John St., the failure to investigate the surrounding buildings and second, the failure to take steps relating to the Apple anti-security software. When viewed as a whole, he submits that with these two material omissions, the affiant was not full, frank and fair and the warrant could not have reasonably issued.

[22] Ms. Jackson responds that the sub-facial challenge also fails because DC Peacocke did not mislead the issuing Justice. He provided all the facts known to him at the time, including a screen shot of the location of the iPhone. He did not have to take additional steps to negate his belief and when viewed as a whole, the search warrant could have been reasonably issued.

G. ANALYSIS

[23] In my view, both defence challenges, however construed, fail.

[24] I propose to address the facial attack first then will move to the sub-facial challenge in both incarnations. I will address the argument that the ITO was defective due to deficient grounds when considering the record before amplification (the facial challenge) and after amplification (the sub-facial challenge).

(i) The warrant was invalid based on "stale information"

[25] The break and enter into 544 Reynolds St., Whitby, occurred on October 14, 2016. The matter was ostensibly reported to the DRPS, which generated an occurrence report by Cst. Gendron. This report was reviewed by DC Peacocke on October 26, 2016. It is unclear what happened between October 14 and October 26 with the exception of October 15, 2016, where the owner of the residence, Donald Hunt, called the police and provided them with a screen shot as an attachment in an email which purported to tell him through a "Find my iPhone" application that his iPhone was near 371 John St. The screen shot added: "Your iPhone's last reported location will be available for 24 hours".

[26] This advanced the police investigation with DC Peacocke swearing an ITO on October 28, 2016, some 13 days later. Again, it's unclear why the police waited 13 days, which of course exceeds 24 it notes on the screen shot. This issue was left unexplained on the record, which is not fatal to the ultimate issue of whether the warrant could have issued.

[27] A search warrant under s.487 of the Criminal Code requires the police to believe that that there is evidence in the residence being sought. This connotes a present tense or a currency requirement. Mr. Affleck argues that the inference that the iPhone was still in 371 John St. at the time it was sworn and ultimately executed, was not reasonable.

[28] At first blush, this argument has some traction – but when the ITO is viewed as a whole, it cannot succeed. DC Peacocke specifically deposed in paragraphs 18-21 of the ITO why he believed the iPhone was still inside the residence on October 28, 2016. Most, if not all of these assertions were not challenged. Cumulatively, they include:

• Mr. Tucker was arrested for a parole warrant violation on October 25, 2016, thus 11 days after the break and enter;

• The iPhone had been blacklisted which would render it useless and "without value";

• The sheer volume of property would make it difficult to sell without arousing the attention of law enforcement; and

• The belief that stolen property is kept on one's person, which includes in their home or in their vehicle. Mr. Tucker did not own a vehicle, thus he believed it was still stored in his home.

[29] The question becomes whether the issuing Justice could have inferred that the iPhone was still in the residence as of October 25, 2016, some 10 days after it was discovered by Mr. Hunt through his Apple application. This was the inference drawn by DC Peacocke. In my view, this was a reasonable inference and more importantly, could also have been drawn by the issuing Justice. DC Peacocke had no information about the iPhone being removed from the residence, which would have been speculation at best. He could not negative something he did not know. What he did know is that as of a certain date, it was located near 371 John St. As I will explain later on, it was reasonable for him to believe that it was within a residence as opposed to on the ground or somewhere else near 371 John St. For it to be removed from 371 John St., it would involve somebody removing it. The currency requirement hinges on an unexplained period of 10 days. There's no evidence led by the defence that challenges the sincerity or reliability of this claim. Given the other steps he took, including ascertaining Mr. Tucker's history, which also included a previous set of circumstances where property was located later on, his belief was reasonable. This is not a case like R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.), where the affiant was criticized for not explaining why drugs were believed to be at the place to be searched as he had hastily copied another warrant. The currency requirement was sufficient in this case.

[30] I agree with the Crown position that the delay, which in this case is about 10 days, was still reasonable to ground an inference that the iPhone was still "near" and ultimately inside 371 John St. I remind that the ITO has to be considered as a whole.

(ii) The warrant was invalid based on a lack of reasonable and probable grounds on the ITO as submitted

[31] Mr. Affleck's second prong is an argument that even before amplification, the test for reasonable and probable grounds could not have been met. I disagree. I harken back to the comments of Paciocco J. (as he then was) in Floyd, supra. He explained:

In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry").

[32] The amplified record does not challenge the credibility inquiry. In other words, there's nothing to challenge the truthfulness of DC Peacocke's assertions in the ITO. The challenge focuses more on the sufficiency inquiry. This inquiry permits an issuing justice to draw reasonable inferences from stated facts: R. v. Nero and Caputo, 2016 ONCA 160, at para. 71. Before amplification, there was more than sufficient evidence to meet the statutory test that an offence of break and enter had been committed and evidence of the offence would be found at 371 John St. (rear unit). Moreover, there was ample evidence to connect Mr. Tucker to the residence and the offence of break and enter.

[33] In this case, DC Peacocke took adequate investigative steps to connect the dots to meet the above requirements. This includes but is not limited to:

• The disclosure that he spoke with Mr. Hunt and finding out that there had been no further activations of the location of the iPhone since October 15, 2016. This reasonably means that the iPhone may not have moved from it's original location "near 371 John St.";

• The disclosure that he spoke with the crime analyst to determine the modus operandi of break and enters from September 14 to October 24, 2016. It would appear that the entry point in all incidents was through the rear;

• The disclosure that 371 John St. is a duplex;

• The disclosure that a search was done to determine who lives at 371 John St. This led to the discovery of one Denise Silk who did not have a criminal record;

• The disclosure that he learned from the crime analyst that Mr. Tucker had been arrested in the past for the offence of break and enter in the general area with the same modus operandi (entry through rear);

• The disclosure that Mr. Tucker was connected to 371 John St. through CPIC records and had a criminal record for break and enter;

• The disclosure that he reviewed the above occurrences and confirmed the same modus operandi (entry through rear); and

• The disclosure that Mr. Tucker had been convicted of breaking and entering into the same residence (544 Reynolds St.) in 2013 where property was recovered 3 months later.

[34] When viewed as a whole, there were sufficient objective grounds to support DC Peacocke's subjective belief supporting issuance of the warrant. It was targeted to the rear unit and not the address as a whole and moreover targeted to Mr. Tucker. Again, I remind that the ITO as a whole needs to be examined and not merely isolated passages. Grounds are to be assessed cumulatively: R. v. Campbell, 2010 ONCA 588; R. v. Cunsolo, [2008] O.J. No. 3754 (SCJ).

[35] For the above reasons, the facial challenges fail.

(iii) The warrant could not have issued based on a lack of reasonable and probable grounds in the ITO as disclosed on the amplified record

[36] As noted above, the sub-facial challenge is premised on alleged misleading information arising from two material omissions. Given that both challenges blended with each other, I propose to reproduce Mr. Affleck's conclusions of the amplified record. He submitted:

1. The iPhone was found merely found "near" 371 John St. on October 15, 2016 approximately 9 hours after the break and entry at 544 Reynolds St.;

2. The Applicant was the main suspect in a series of break and entries in the area;

3. The Applicant has been convicted of similar break and entries;

4. In 2014, the Applicant was convicted of possession of stolen property in relation to a break and entry at 544 Reynolds St. and the break and entry charge in relation to 544 Reynolds St. was withdrawn;

5. 544 Reynolds St. is the same residence from which the iPhone in this case was stolen;

6. Upon the Applicant's arrested in 2014, he had a number of items of stolen property in his house which were detected after execution of a search warrant;

7. The person living in 371 John St. (front) does not have any criminal record of any associates with criminal records.

[37] Mr. Affleck argues that the above conclusions do not provide a "reasonable basis" for issuance of the warrant. I disagree.

[38] In R. v. Mahmood, 2011 ONCA 693 at para. 99, Watt J.A. held:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[39] The test on review is whether the warrant "could", not reasonably should, have issued. This test is amply met in this case as DC Peacocke took adequate investigative steps to connect the dots to furnish him with the objective grounds to support his subjective belief. I will not repeat these steps, which I have outlined above on the facial challenge. They apply to the sub-facial challenge as well.

[40] I do not find that DC Peacocke misled the issuing Justice about the location of the iPhone. At most, the offending passage is in the Overview section of the ITO, which states: "the location of the iPhone was provided by the complainant, Donald Hunt as 371 John St. in Cobourg. This is the residence of Frederick Tucker".

[41] First, there is nothing factually incorrect about the assertion that the residence is of Mr. Tucker. He disclosed that the residence is a duplex and investigated that the other occupant was likely not involved. This was a reasonable belief. He isolated Mr. Tucker as residing in the rear unit. As noted in Nguyen, supra at para. 51: "[t]here is no obligation on the police in applying for a search warrant to explain every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event".

[42] Second and more importantly, the use of the language "physical location" of the iPhone was stated in the Overview section, not in his grounds. The grounds adequately explain his belief as to why the iPhone was inside the residence and not somewhere else. Most significantly, DC Peacocke included a copy of the attachment received by the police. That attachment, which I can assume was reviewed by the issuing Justice, makes it abundantly clear that the location of the iPhone was "near 371 John St". It states as much. DC Peacocke went on in his Conclusion section to depose that the pin location of the security software is "near the rear of the building". He does not say it is inside the building but instead provides facts which leads one to reasonably conclude as much. This was not simply a conclusory statement but instead was supported by 10 pages of the ITO, which explains how he objectively believed that the iPhone was inside 371 John St (rear unit). Again, when viewed as a whole, the Justice could have objectively drawn this inference.

[43] An affiant is allowed to be an advocate in swearing an ITO as long as he remains full, frank and fair. There is no obligation for him to spell out the obvious or critically posit all alternatives to his belief – as long as he remains fair. Here, DC Peacocke laid out all the facts for the issuing Justice with a nudge to issue to the warrant based on his belief. This was permitted. I do not find that he misled the Justice by his use of the words "physical location" in the Overview section. This need not be excised.

[44] However, even if I were to excise the words "physical location" and accept Mr. Affleck's argument that at most, the ITO supports an assertion that it was "near" 371 John St., I have already explained above why that too would have furnished the issuing Justice with enough grounds on which the warrant could have issued. Again, the ITO is to be assessed as a whole, not simply dissected line by line. I do agree that the affiant could have used more clear language but overall, he was full, frank and fair. Mr. Affleck accepts that DC Peacocke did not willingly set out to deceive the issuing Justice but the language he used must have. There's simply no evidence of this. The law requires me to proceed on the basis that the Justice read the whole ITO, not just a few lines in isolation. If I proceed on the basis that the ITO only supported "near 371 John St.", the core substance of the ITO supported issuance of the warrant: Morelli at para. 167.

[45] Third, Mr. Affleck complains that DC Peacocke misled the Justice about the operation of the Apple anti-theft software. In particular, he used strong language suggesting he firmly knew how the software operated and took no steps to verify this belief. Specifically, in the Overview section he swore:

5. At 1:20 am on October 15th 2016, less than 9hrs after the break and enter was discovered the iPhone was powered on and connected to a Wi-Fi internet connection. This activated the antitheft security software in the phone. This software sends a message to apple with the physical location of the iPhone which is forwarded to the owner of the phone through the iCloud account.

[46] The amplified record makes it clear that DC Peacocke grounded his belief about the software based on personal experience. He testified that he had used the "Find my iPhone" application in the past both personally and professionally. In all cases, the software had assisted in finding the device. He understood that for the software to work, it had to connect to an internet connection. He agreed that he didn't confirm this with Apple but felt he didn't need to. Moreover, he had swore to this in a previous warrant which was granted. In 2015, the software gave him GPS coordinates and not a firm address. The other case involved a missing iPad, which also gave a general location. He was able to narrow it down and located the item upon execution of a warrant. He did not believe that the software was impacted by how it connected to the internet, whether it was WiFi or through GPS coordinates. This would not have impacted the accuracy of the pin drop that appears on the attachment.

[47] In my view, the amplified record does not advance the defence position and may in fact make his belief even stronger post amplification. The record reveals the steps he didn't take, such as contacting Apple security to confirm the reliability of the software. However in the circumstances of this case, he did not have to as he had personal and professional experience that it had worked in the past. This wasn't the first time he was exposed to the software. In Nguyen, supra, the Ontario Court of Appeal held at para. 50, "there is no obligation on a warrant applicant to explain away in advance, every conceivable indicia of crime they did not see or sense". I disagree with the defence argument that the inference that DC Peacocke had knowledge about the workings of the Apple software was not available. When the ITO is viewed as a whole and certainly after the amplified record, it was more than reasonable.

[48] Furthermore, there is nothing in the record that suggests, irrespective of the lack of any additional efforts that DC Peacocke was factually wrong about his belief. Put differently, no evidence was lead by the defence to show that the software worked differently than that attested to by DC Peacocke or that DC Peacocke knew this and concealed it from the Justice. In other words, I do not know if DC Peacocke had contacted Apple, they would have told him that he was right or wrong. If he was right, then this exercise is largely moot but if he was wrong, I do not know the extent of his errors (if any) and how it would have impacted the location of the pin drop that appears on the Find my iPhone attachment. There is simply a speculative gap in the amplified record that he might have been wrong which isn't enough to negate the existence of reasonable grounds. The defence concedes that the affiant did not set out to deliberately deceive the issuing Justice. I agree with this assessment. If so, I'm simply left with whether his personal belief was objectively reasonable. For all the above reasons, when the ITO is viewed as a whole, I have no difficulty concluding that it was.

[49] For the above reasons, the sub-facial challenge also fails.

(iv) Section 24(2)

[50] The parties made brief submissions on the applicability of s.24(2). In light of my conclusions on the s.8 issues, s.24(2) is not engaged and need not be considered.

H. CONCLUSION

The section 8 challenge is dismissed. The impugned evidence is admissible.

Released: September 11, 2017

"F. Javed J."

Footnote

[1] The written materials are drafted as October 15, "2017". I can reasonably surmise this was a typo and should be 2016.