RULING ON CHARTER APPLICATION

Ontario Court of Justice

Date: December 20, 2018

Court File No.: Hamilton 17-8951

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ADAM CARROLL, SEAN BIXBY, JASON BIXBY and AUTUMN CARROLL

Before: Justice J.P.P. Fiorucci

Heard on: June 27th, 29th, July 5th, 17th, 20th, and 23rd, October 25th, 2018

Ruling on Charter Application released on: December 20th, 2018

COUNSEL

A. McLean — counsel for the Crown (Attorney General of Ontario)

T. Mimnagh — counsel for the Crown (Federal Prosecutor)

L. Shemesh — counsel for the accused Adam Carroll

J. Stephenson — counsel for the accused Sean Bixby

J. Hue — counsel for the accused Jason Bixby

M. Puskas — counsel for the accused Autumn Carroll

FIORUCCI J.:

INTRODUCTION

[1] On May 2nd, 2017, a Justice granted a search warrant authorizing the police to search five residences and eight motor vehicles. The search warrant was granted based on information contained in one Controlled Drugs and Substances Act Information to Obtain ("ITO"). Detective Constable Andrew Bishop was the affiant of the ITO. The ITO included information provided by three confidential informants ("CIs").

[2] There were four targets of the police investigation. Sean Bixby was one of the targets. The remaining co-accused in this prosecution were not targets.

[3] Sean Bixby was the target of the judicial authorizations obtained for the residence at 6335 Airport Road, Glanbrook (the "Residence") and a black 2005 Chrysler 300 motor vehicle (the "Motor Vehicle"). Det. Cst. Bishop swore in the ITO that he had reasonable and probable grounds to believe that cocaine would be found in the Residence and in the Motor Vehicle.

[4] On May 3rd, 2017, police observed Sean Bixby, Jason Bixby and Adam Carroll leave the Residence and drive away in the Motor Vehicle. Police stopped the Motor Vehicle and arrested Sean Bixby, who was a passenger. The police searched the Motor Vehicle pursuant to the authorization granted by the search warrant. A hidden trap was found in the trunk of the Motor Vehicle. Inside the trap, police located 100 vials of Cannabis resin. Sean Bixby, Jason Bixby and Adam Carroll are charged with possessing this Cannabis resin for the purpose of trafficking.

[5] On May 3rd, 2017, the police also executed the search warrant at the Residence. In the Residence, the police located a hidden compartment behind the fireplace. Inside the compartment, police found ammunition, a loaded restricted handgun with a 30 round extended magazine, 27 pounds of packaged marijuana and a bullet proof vest. All four accused are charged with offences relating to the firearm, the magazine and the Cannabis Marihuana found in the Residence.

SECTION 8 OF THE CHARTER

[6] Adam Carroll challenged the warrant that permitted the search of the Residence and the Motor Vehicle. His section 8 Charter application asserts that there was insufficient credible and reliable evidence upon which the issuing Justice could find reasonable and probable grounds to believe that an offence had been committed, or that evidence of the offence would be found within the Residence and within the Motor Vehicle. Adam Carroll seeks exclusion of the evidence seized at the Residence and in the Motor Vehicle.

STANDING

[7] With respect to the Residence, each of the remaining accused, Sean Bixby, Jason Bixby, and Autumn Carroll, filed materials seeking standing to challenge the issuance of the search warrant, relying on the recent Supreme Court of Canada decision of R. v. Jones. The Crown conceded throughout the proceedings that, pursuant to Jones, each of the four accused had standing to challenge the issuance of the search warrant for the Residence because the Crown theory, as set out in the ITO, was that all four accused resided at the Residence.

[8] There is no dispute that both Adam Carroll and Sean Bixby have standing to challenge the reasonable grounds for the issuance of the search warrant for the Motor Vehicle. Adam Carroll was the driver of the Motor Vehicle on May 3rd, 2017, and the Crown's theory is that it was Sean Bixby's Motor Vehicle. Jason Bixby did not seek standing with respect to the Motor Vehicle.

OVERVIEW OF THE PROCEEDINGS

[9] The warrant was granted based on information from three CIs. Therefore, the ITO was heavily redacted before being provided to Defence counsel.

[10] The Crown sought first to rely on the redacted ITO to support the issuance of the search warrant for both the Residence and the Motor Vehicle. The Crown, however, gave notice of its intention to proceed to "Step Six" of Garofoli if I made a finding that the redacted ITO provided insufficient grounds to justify the warrant to search the Residence and the Motor Vehicle.

[11] Counsel for Adam Carroll sought leave to cross-examine Det. Cst. Bishop on specific paragraphs in the ITO. The Crown did not object to the proposed cross-examination relating to the Motor Vehicle.

[12] The Crown did object to the proposed cross-examination of the affiant regarding certain paragraphs in the ITO which were relevant to the issuance of the warrant for the Residence. I granted the Defence leave to cross-examine the affiant regarding police observations from certain dates, and the characterization of those observations in the ITO.

[13] I found that there was a reasonable likelihood that the proposed questioning would "generate evidence discrediting the existence of one or more grounds for the issuance of the warrant". The cross-examination was directed at the credibility or reliability of the affiant, with the intention of showing not merely that the information relied upon by the affiant was false, but also that the affiant knew or ought to have known that the information was false. Furthermore, I found that the proposed cross-examination would not unduly prolong the proceedings and did not risk a breach of confidential informer privilege.

[14] I ruled that the redacted ITO did not provide sufficient reasonable and probable grounds upon which the issuing Justice could have granted the search warrant for the Residence and the Motor Vehicle.

[15] The redacted ITO provided an insufficient basis to assess the credibility of the three CIs. Since the information provided by the three CIs was significantly redacted, it was impossible to assess whether the CI information pertaining to either the Residence or the Motor Vehicle was compelling.

[16] The police observations established a relationship between Sean Bixby and Shane Sodhi, another target of the investigation, and established that Sean Bixby had some connection to the Residence. Those observations, however, did not establish a credibly based probability that cocaine would be found inside the Residence in May of 2017. Similarly, the police observations of the Motor Vehicle did not establish a credibly based probability that cocaine would be found within the Motor Vehicle.

[17] The Crown invoked "Step Six" of Garofoli, asking that I consider the redacted portions of the ITO in assessing the challenge to the warrant. The reviewing court is obliged to balance the rights of the accused to full answer and defence against informer privilege.

[18] The "Step Six" process produces disclosure by way of a judicial summary. Each accused consented to an ex parte hearing where the Crown and I were "able to engage in a frank discussion about what material could be disclosed without revealing the identity" of the CIs. Ultimately, this process resulted in the accused and their Counsel being provided with a judicial summary.

[19] In creating the judicial summary as part of the "Step Six" process, I needed to "be satisfied that the summary, together with other information available to the accused, provided the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence".

[20] When the reviewing Court considers the redacted portions that the accused cannot see, the Court must apportion weight to that information in deciding whether the warrant could have issued, taking into "account that the accused could not see it and directly challenge it".

[21] Counsel for Autumn Carroll, joined by Counsel for Sean Bixby and Jason Bixby submitted that the judicial summary provided was insufficient to permit the Defence to mount a sub-facial challenge to the warrant. The Applicant, Adam Carroll, did not make a similar argument. I find that the judicial summary provided to the Defence satisfies the Crevier requirements.

[22] I concluded that the Crown's "Step Six" application should be granted. Therefore, I considered the unredacted ITO to assess the validity of the search. Having done so, I find that there were insufficient grounds to justify the warrant to search the Residence and the Motor Vehicle. The searches, therefore, resulted in violations of section 8 of the Charter.

[23] The Charter violations were serious and had a significant impact on each of the accused. As a result, notwithstanding the serious charges and the importance of the evidence to the Crown's case, I have concluded that the evidence police seized at both the Residence and within the Motor Vehicle must be excluded from the proceedings.

THE EVIDENTIARY RECORD

[24] Since I have reviewed the unredacted ITO, I must refer to certain portions of the ITO that have been redacted in order to explain my conclusions. Any references to redacted portions of the ITO are in the footnotes to this judgment. The Defence and public will receive a copy of the reasons with all footnotes redacted, in order to protect informer privilege. A copy of my unredacted judgment will be sealed and placed in the court file so that it is available to any reviewing court. The Crown will also receive an unredacted version of my judgment.

A. Information contained in the ITO

[25] In addition to Sean Bixby, three other individuals were targets of the investigation: Shane Sodhi, Amargit Sodhi, and Delroy Nestar. The ITO contains information about all four targets. The following is a summary of the information that relates to Sean Bixby.

(a) Overview of the Investigation

[26] In 2016, the Halton Regional Police – Drug and Morality Unit received CI information. CI#1 advised police that Shane Sodhi and his father, Amargit Sodhi, are involved in drug trafficking. According to the judicial summary, on a specific date in Autumn of 2016, CI#1 provided details of Sean Bixby's involvement in drug trafficking, and Sean Bixby's relationship with Shane Sodhi and Amargit Sodhi.

(b) Introduction of Involved Parties

[27] This section of the ITO provides information about the four targets.

[28] The affiant states that three CIs informed police that Sean Bixby is a drug trafficker, and that, during surveillance, police observed Shane Sodhi attend Sean Bixby's residence, as well as meet with him in different parking lots, following which Shane Sodhi was observed engaging in suspected drug transactions.

[29] An MTO query revealed that Sean Bixby's Ontario Driver's Licence had a registered address of 96 Degrow Crescent, Binbrook, and that he had no vehicles registered to him.

[30] The ITO states that, on September 1st, 2016, Hamilton Police attended 96 Degrow Crescent, Binbrook, to serve a summons on Sean Bixby. An unknown male yelled through the door that Bixby did not live there anymore. Hamilton Police then attended the Residence at 6335 Airport Road, Glanbrook, where they spoke with Sean Bixby. Sean Bixby told police that this was his "girls" house and that he had been living there for two months.

(c) Investigative Grounds: Confidential Information Received

[31] Paragraphs 17 to 19 of the ITO provide details of the information received from the three CIs.

(i) Information from CI#1

[32] In 2016, CI#1 told police that Shane Sodhi is dealing large volumes of cocaine, and also provided details of Sean Bixby's involvement in drug trafficking, and his relationship with Shane Sodhi and Amargit Sodhi.

[33] According to the judicial summary, on two specific dates in 2017, CI#1 provided police with specific details about Sean Bixby's drug trafficking methods, both past and present.

(ii) Information from CI#2

[34] In 2017, CI#2 provided information to a police officer about Sean Bixby. The information included:

(a) That Sean Bixby lives at the Residence at 6335 Airport Road;

(b) Security cameras, locks and security precautions at 6335 Airport Road;

(c) That Sean Bixby lives at 6335 Airport Road with his girlfriend, his brother and his girlfriend's brother;

(d) That Sean Bixby has numerous firearms;

(e) The judicial summary states that CI#2 provided specific details about Sean Bixby's drug trafficking methods;

(f) Bixby deals cocaine. According to the judicial summary, CI#2 provided specific details about Sean Bixby's trafficking in cocaine;

(g) According to the judicial summary, Sean Bixby is associated with members of the Hamilton Hell's Angels, and CI#2 provided details of Sean Bixby's involvement in criminal activity;

(h) The judicial summary states that CI#2 provided details about how Sean Bixby traffics in cocaine;

(i) The judicial summary states that CI#2 provided information about the use or lack thereof of certain communication tools by Sean Bixby.

(iii) Information from CI#3

[35] CI#3 provided the following information to police in 2015:

(a) According to the judicial summary, CI#3 provided specific details about Sean Bixby selling drugs to another named individual and the frequency and amount of drugs he sells to that named individual;

(b) Sean Bixby is a known drug trafficker.

[36] Appendix F of the ITO, which is heavily redacted, contains the full details of the information that the three CIs provided.

(d) Investigation

(i) Surveillance of Shane Sodhi throughout January 2017

[37] The police conducted surveillance on Shane Sodhi throughout January of 2017. In the ITO, the affiant expressed his belief that police observations of Shane Sodhi on certain dates in January 2017 confirmed CI#1's information that Shane Sodhi was involved in drug dealing.

(ii) Surveillance of Shane Sodhi on January 31st, 2017

[38] At some point in the investigation, the police installed a tracking device on Shane Sodhi's Acura motor vehicle. On January 31st, 2017, the tracking device located Shane Sodhi's Acura parked in the driveway of 6335 Airport Road, Glanbrook.

[39] In the ITO, the affiant states that the police located Shane Sodhi's Acura parked in the driveway at 5:25 p.m.. The police also observed other vehicles parked in the driveway at that time.

[40] The ITO then states that, at 5:53 p.m., "SODHI left the area in his Acura and drove to a plaza located at 301 Fruitland Road, Stoney Creek, where he exited the Acura and entered a Subway restaurant".

[41] Surveillance continued on Sodhi. Police observed an unknown male arrive at 6:35 p.m. in a white Hyundai Sante Fe. The unknown male parked the Sante Fe close to Sodhi's Acura. He went into the Subway restaurant.

[42] At 6:36 p.m., Sodhi and this male came out of the Subway. Both men got into the Sante Fe. At 6:42 p.m., Sodhi got out of the passenger seat of the Sante Fe carrying a white square shaped box, which he brought to his Acura.

[43] At 6:43 p.m., Sodhi left the area and drove to 277 Fruitland Road Stoney Creek, where he parked his Acura in the driveway and went into the residence. At the time, the officers were not able to see if he brought the white box into the residence.

[44] At 8:33 p.m., Sodhi exited 277 Fruitland Road and left the area in his Acura. He drove to Hutch's restaurant in Hamilton. He parked his vehicle next to a white Hyundai Santa Fe which was similar in colour and model to the one previously observed in the Subway parking lot. Approximately three minutes later, Sodhi's Acura left the parking lot.

[45] Det. Cst. Bishop includes an "Affiant's Note" in the ITO regarding the police observations on January 31st, 2017. In this Affiant's Note, he states his belief that Shane Sodhi conducted a suspected drug transaction with the unknown male. He also states his belief that "this is important because this transaction occurred subsequent to Shane SODHI attending 6335 Airport Road, which is the residence of Sean Bixby".

[46] The Affiant's Note also states that the transaction was completed immediately after Shane Sodhi left 277 Fruitland Road. Det. Cst. Bishop expresses his belief that Shane Sodhi is storing a part of his drug supply at 277 Fruitland Road, Hamilton.

(iii) Surveillance in the Area of the Residence on February 6th, 2017

[47] On February 6th, 2017, the police conducted surveillance in the area of the Residence. The ITO states that "[d]uring the previous course of the surveillance, police have observed Shane SODHI attend this residence, following which he was further observed engaging in a suspected drug transaction".

[48] In the ITO, the affiant states his belief that a suspected drug transaction occurred at the Residence on February 6th, 2017.

[49] The affiant's belief is premised on the police observations. At 12:33 p.m., a black Range Rover left the area of the Residence and drove to a local hospital. Sean Bixby got out of the Range Rover and went into the hospital. An MTO query of the Range Rover showed the registered owner as Autumn Carroll. At 1:36 p.m., Sean Bixby departed the hospital and left the area in the Range Rover.

[50] The Range Rover was misplaced by police at 1:43 p.m., but was later located in the driveway of the Residence at 6335 Airport Road.

[51] At 4:05 p.m., an unknown male arrived at the Residence in a black Chevrolet Suburban, parked in the driveway, and entered the Residence. Approximately two minutes later the same male came out of the Residence, got into his vehicle, and left the area.

[52] In the Affiant's Note, Det. Cst. Bishop states that the short duration of this visit, his training and experience, and the totality of the investigation lead him to believe that the unknown male attended the Residence for the purpose of conducting a suspected drug transaction. He states in the ITO that these observations are also important because they show that Sean Bixby operated the Range Rover that police observed in the driveway prior to the Suburban arriving.

(iv) Surveillance of Sean Bixby on February 8th, 2017

[53] In the ITO, the affiant states his belief that another suspected drug transaction occurred at the Residence on February 8th, 2017.

[54] The police observed the same black Range Rover in the driveway at 10:20 a.m.. At 11:18 a.m., Sean Bixby left the area in the Range Rover. He travelled south on Miles Road, then conducted a U-turn on Miles Road and returned toward Airport Road. The ITO states that Bixby then travelled back to 6335 Airport Road where he parked in the driveway.

[55] The affiant says that these observations are important as they show that Sean Bixby left 6335 Airport Road, Glanbrook, for the second time in a three day period. These observations, together with the information provided by CI#2 that Sean Bixby resides at 6335 Airport Road, leads the affiant to believe that Bixby resides there.

[56] The suspected drug transaction occurs at 11:22 a.m., when a Ford F150 with an unknown licence plate arrived at the Residence. Three minutes later the same F150 left the area.

[57] The affiant states that he believes the unknown male attended the Residence for the purpose of conducting a suspected drug transaction. The affiant bases his belief on his training and experience, consideration of the investigation in its totality, and the short duration of the visit.

(v) Surveillance on February 21st, 2017 - Bixby Meets with Shane Sodhi

[58] On February 21st, 2017, police witnessed a short meeting between Shane Sodhi and Sean Bixby in the parking lot of the Attic restaurant in Stoney Creek.

[59] At 5:43 p.m., Shane Sodhi arrived in the parking lot driving his Acura. At 5:49 p.m., a black Ford Escape with Ontario Licence Plate BSDJ562 entered the lot and parked beside the Acura. The driver of the Ford Escape was identified as Sean Bixby. Mr. Bixby got out of the Ford Escape and entered the passenger side of the Acura.

[60] At 5:56 p.m., Sean Bixby got out of the Acura and returned to the Ford Escape. Shortly thereafter Sodhi and Bixby left the area in their respective vehicles. An MTO query of the Ford Escape showed the registered owner to be Autumn Carroll.

[61] In the ITO, the affiant states his belief, based on the short duration of this meeting, his training and experience, and the totality of the investigation, that Shane Sodhi and Sean Bixby met to conduct a suspected drug transaction.

[62] At 6:01 p.m., Shane Sodhi arrived at a townhouse complex located at 1 Royalwood Court in Stoney Creek. Mr. Sodhi parked his vehicle in front of unit #14, blocking a Dodge Journey that was parked in the driveway of that unit. Approximately ten minutes later, Sodhi left the area, followed out of the complex by the black Dodge Journey.

[63] In an Affiant's Note, the affiant states that, based on the short duration of Sodhi's stay in the vicinity of this address, he believes Sodhi attended the area in order to conduct a suspected drug transaction. The affiant also notes that Sodhi did so immediately after meeting with Bixby.

(vi) Surveillance on March 2nd, 2017 - Sodhi attends 6335 Airport Road

[64] On March 2nd, 2017, police conducted surveillance on Shane Sodhi and saw him attend 6335 Airport Road, Glanbrook.

[65] The police observed Shane Sodhi driving his Maserati that day. At 2:26 p.m., Sodhi came out of 277 Fruitland Road and left the area in the Maserati. He attended a number of businesses in the Stoney Creek area, and then drove to 6335 Airport Road, Glanbrook.

[66] Sodhi arrived at the Residence at 3:44 p.m.. He parked his Maserati in the driveway. At that time, the black Ford Escape with Ontario Licence Plate BSDJ562 was also parked in the driveway. The police had previously observed Sean Bixby operate this Ford Escape.

[67] At 4:03 p.m., Sodhi left the area in the Maserati. In the ITO, the affiant states his belief that these observations are important because they show Shane Sodhi attended Sean Bixby's residence.

(vii) Surveillance on March 9th, 2017- Sean Bixby Meets with Shane Sodhi

[68] On March 9th, 2017, the police witnessed another short meeting between Shane Sodhi and Sean Bixby. This meeting occurred in the parking lot of a Buffalo Wild Wings restaurant in Stoney Creek.

[69] Shane Sodhi arrived at this location at 7:15 p.m. in his Acura. Sodhi parked in the rear lot and remained seated inside his car. At 7:22 p.m., the black Ford Escape with Ontario Licence Plate BSDJ562 arrived and parked in the space directly behind Sodhi's Acura.

[70] Sean Bixby got out of the Ford Escape. Bixby entered the passenger side of the Acura. At 7:28 p.m., Bixby got out of the Acura and walked to the rear passenger side of the Ford Escape. Bixby reached in briefly before returning to the passenger seat of the Acura. Bixby remained in the Acura for approximately one minute before walking back to the Ford Escape.

[71] Sodhi began leaving the lot in the Acura, but stopped and exited his vehicle. Sodhi then walked over to and reached into the rear passenger side, and appeared to be moving something in the back seat area. After doing this, Sodhi returned to the driver's seat and left the area.

[72] In the ITO, the affiant states his belief that Sodhi and Bixby met on March 9th to conduct a suspected drug transaction. He bases his belief on the short duration of the meeting, and the previous police observations from February 21st when Bixby and Sodhi met to conduct a suspected drug transaction.

[73] In an Affiant's Note, Det. Cst. Bishop states observations regarding the meeting. He notes that these observations also corroborate information provided by Informer #3 (CI#3) that Sean Bixby is a drug trafficker.

[74] Surveillance continued on Shane Sodhi after he left the Buffalo Wild Wings parking lot. At 7:41 p.m., he arrived at a townhouse complex located at 1401 Plains Road East, Burlington. At 8:29 p.m., Sodhi left that area. At 8:33 p.m., he arrived at 1437 Reynolds Avenue, Burlington where he parked his vehicle in the driveway of the residence. At 8:48 p.m., Sodhi left the area in his vehicle.

[75] In the Affiant's Note following this subparagraph, the affiant states that, based on these observations, and considering the investigation in its totality, he believes Sodhi attended 1437 Reynolds Avenue, Burlington, in order to conduct a drug transaction.

[76] At 9:07 p.m., Sodhi arrived at 1047 Central Avenue, Hamilton. He subsequently left this address at 9:12 p.m.. Following this, Sodhi drove directly back home, at which time surveillance was terminated.

[77] In an Affiant's Note, Det. Cst. Bishop states that, based on the short duration of Sodhi's stay at 1047 Central Avenue, Hamilton, and considering the investigation in its totality, he believes that Sodhi attended there to conduct a suspected drug transaction. The affiant also expresses his belief that this is important because this is the second transaction on the same date that followed Shane Sodhi meeting with Sean Bixby.

(viii) Surveillance on March 28th, 2017 of Sean Bixby

[78] On March 28th, 2017, the police conducted surveillance on Sean Bixby commencing in the area of the Residence at 6335 Airport Road, Glanbrook.

[79] At 9:15 a.m., police observed a red Lamborghini and other vehicles parked in the driveway. At 10:53 a.m., the Lamborghini left the area and drove to a Pioneer Gas Station in Hamilton. A male believed to be Sean Bixby got out of the vehicle and made a call on a payphone. At 11:00 a.m., Bixby left the area in the Lamborghini.

[80] At 11:46 a.m., police observed the Lamborghini back in the driveway at the Residence. Surveillance was terminated at 4:30 p.m..

[81] The affiant states in the ITO that these observations show that Sean Bixby left and then returned to the Residence, which furthers his belief that Bixby resides there, along with previous observations of Bixby leaving and then returning to this address, and the information provided by Informer #2 (CI#2) that Sean Bixby resides there.

(ix) Surveillance on April 26th, 2017: the Chrysler 300

[82] On April 26th, 2017, the police again conducted surveillance commencing in the area of 6335 Airport Road, Glanbrook.

[83] In the ITO, the affiant states the following:

(a) At 10:02 a.m., a black Chrysler 300 bearing Ontario licence plate CBRX732, and a beige Ford Taurus were observed in the driveway. At 10:25 a.m., the Chrysler 300 left the area and travelled to the Rona store located at the corner of Rymal Road and Nebo Road. Bixby and an unknown male then exited the 300 and entered the Rona. At 10:37 a.m., both exited the Rona and left the area in the 300. An MTO query of the Chrysler 300 showed that it is registered to Christina Judiczew.

(b) At 10:51 a.m., the 300 arrived in the area of Lorraine Drive, Hamilton, where it is believed Bixby and the unknown passenger entered a residence on Lorraine Drive. At 11:13 a.m., Bixby and the unknown male along with another unknown male entered the 300 and left the area.

(c) At 11:36 a.m., the 300 arrived at a residence located at 286-288 Green Mountain Road, Stoney Creek, which I know from a previous investigation was a licenced marihuana growing operation. At 12:06 p.m., Bixby and the two unknown males entered the 300 and left the area.

(d) At 12:31 p.m., the 300 arrived back in the area of Lorraine Drive, Hamilton, where a third unknown male entered the 300. The 300 then left the area.

(e) At 1:00 p.m., the 300 arrived back at 6335 Airport Road, Glanbrook, where Bixby and the three unknown males entered the residence.

(f) At 1:25 p.m., a black Dodge Challenger bearing Ontario Licence plate BVHF447 arrived and parked in the driveway. Bixby then exited the residence and spoke with the driver near the front door of the residence. Approximately two minutes later a grey Ford Escape bearing Ontario Licence Plate DUNNFUN arrived at the residence, and an unknown female exited the Escape and spoke with the male from the Challenger. At 1:29 p.m., both the Escape and the Challenger left the area. At 1:39 p.m., Bixby exited the residence and left the area in the 300. Surveillance was terminated at 1:57 p.m..

[84] In the Affiant's Note at the conclusion of this paragraph, Det. Cst. Bishop states his belief regarding the importance of these observations from April 26th, 2017:

(1) Firstly, based on the investigation in its entirety, along with the short duration of stay from the unknown male in the Challenger, he believes that this unknown male and Bixby conducted a suspected drug transaction at 6335 Airport Road, Glanbrook;

(2) Secondly, he states his belief that these observations are important as they show that Bixby was in the Chrysler 300 prior to arriving back at 6335 Airport Road, Glanbrook. He states in the Affiant's Note that, as previously stated, Bixby has been observed using four different vehicles during this investigation (Range Rover, Ford Escape, Lamborghini and the Chrysler 300). Det Cst. Bishop makes the following statement in the Affiant's Note: "When I consider that Bixby has used the Escape, the Range Rover and the Chrysler 300 on days in which I believe he has conducted suspected drug transactions, I believe Bixby uses different vehicles to facilitate his drug activity. I know from my training and experience that drug traffickers will often use different vehicles to avoid being stopped by police and in attempt to insulate themselves from police investigation, which I believe is evident by the observations of Bixby driving four different vehicles which are registered to different people".

(e) Appendix F: Confidential Information

[85] Appendix F of the ITO contains the information provided to police by CI#1, CI#2, and CI#3. Each of the three CIs provided information about Sean Bixby, which has been redacted. This information will be reviewed when I assess the three Debot criteria below.

(i) CI#1

[86] CI#1 is a carded confidential human source. According to the judicial summary, the ITO discloses the basis of CI#1's knowledge and reveals how CI#1 obtained the information, but it is unclear whether the information provided is firsthand knowledge, second hand knowledge, or knowledge without knowing its source.

(ii) CI#2

[87] CI#2 is a carded confidential human source. According to the judicial summary, the ITO discloses the basis of CI#2's knowledge and reveals how CI#2 obtained the information, which may be a mix of firsthand knowledge, second hand knowledge, or knowledge without knowing its source.

(iii) CI#3

[88] CI#3 is a carded confidential human source. The judicial summary states that the ITO discloses the basis of CI#3's knowledge and reveals how CI#3 obtained the information, but it is unclear whether the information provided is firsthand knowledge, second hand knowledge, or knowledge without knowing its source.

B. Cross-Examination of the Affiant

(a) Areas in Which Cross-Examination was Permitted

[89] I permitted cross-examination of the affiant regarding potentially misleading statements he made in the ITO about the police observations on January 31st, February 6th, February 8th, and April 26th, 2017.

(b) January 31st, 2017

[90] Det. Cst. Bishop admitted in cross-examination that no police officer saw Shane Sodhi go into or come out of the Residence at 6335 Airport Road on January 31st, 2017. The only basis for his opinion that Sodhi was at the Residence that day were police observations of Sodhi's Acura parked in the driveway.

[91] In paragraph 64 of the ITO, Det. Cst. Bishop summarizes his grounds to believe that evidence would be found if the Residence was searched. He includes the following in paragraph 64d): "Observations made on January 31st, 2017, at which time Shane SODHI attended Sean Bixby's residence at 6335 Airport Road, Glanbrook, then conducted a suspected drug transaction after leaving".

[92] Det. Cst. Bishop was cross-examined about this statement in the ITO and made a number of admissions. Firstly, he acknowledged that the manner in which he drafted paragraph 64d) suggests that Mr. Sodhi went inside the Residence on January 31st, 2017. Secondly, he testified that he wanted to portray to the issuing Justice that Mr. Sodhi had gone into the Residence and then conducted a suspected drug transaction after leaving. Next, he agreed that the significance of paragraph 64d) was to lead the issuing Justice to believe that Mr. Sodhi went into the Residence, and got something from inside the home to furnish him or allow him to do a suspected drug transaction.

[93] When Defence counsel pointed out that all of that was actually not observed, Det. Cst. Bishop replied:

It wasn't observed but I think it's reasonable to say when we have three separate sources saying that Sean Bixby is a drug trafficker combined with observations made where the Acura is in the driveway, and then Shane Sodhi leaves, meets with the unknown male at the Subway, receives a box from that unknown male, goes into Fruitland and afterwards he leaves Fruitland and meets at a separate parking lot for I think it was two minutes-I think it's reasonable to say that it's possible he conducted a drug transaction.

[94] Furthermore, Det. Cst. Bishop testified that he believed it was reasonable for him to suggest to the issuing Justice that Mr. Sodhi went into the Residence because the police were periodically driving by and no one saw him in the Acura. Det. Cst. Bishop testified: "So I think it's fair to say that he went inside the house".

[95] Det. Cst. Bishop also acknowledged that, at 5:53 p.m., based on their observations, the police believed that "it may be" Sodhi who left the area of the Residence. The police were not certain it was Sodhi driving the Acura until later, when they saw him go into the Subway restaurant.

[96] Det. Cst. Bishop agreed that paragraph 64d) leaves out any reference to Mr. Sodhi's attendance at 277 Fruitland Road after his vehicle is seen in the driveway of the Residence, but before conducting the suspected drug transaction. In this paragraph, the affiant also left out the fact that police believed 277 Fruitland Road to be an address where Shane Sodhi stored part of his drug supply.

[97] Det. Cst. Bishop agreed with Defence Counsel that he needed to suggest to the issuing Justice that Mr. Sodhi got drugs from the Residence, but no observations were made of Mr. Sodhi actually obtaining anything at the Residence that day.

(c) February 6th, 2017

[98] Det. Cst. Bishop testified that the address associated with Autumn Carroll's Range Rover was 6335 Airport Road, Glanbrook. This information was not provided to the issuing Justice.

[99] Although the police had a licence plate for the Chevrolet Suburban that arrived at the Residence at 4:05 p.m., the police did not determine the registered owner of the Suburban. At the time of drafting the ITO, Det. Cst. Bishop had no information about the identity of the unknown male who arrived in the Suburban, went into the Residence for approximately two minutes, and then left in his vehicle.

[100] Det. Cst. Bishop agreed with Defence counsel's suggestion that this unknown male could have been a resident of that household or could have been a family member of the residents. Det. Cst. Bishop testified that, even if the unknown male was a family member of Autumn Carroll (such as her father, brother, or uncle), this would not have changed his opinion that what was observed was possibly a drug transaction.

[101] When asked whether he relied on the information provided by the three confidential human sources as the basis for his opinion that the unknown male was there for drugs, Det. Cst. Bishop testified: "Like I said before, when I considered the fact that three people were saying that Sean Bixby is a drug dealer, that a car that I didn't believe was associated at the time to that residence shows up and goes in and out in two minutes, an unknown male, I believed that it was possible that they conducted a drug transaction".

[102] Det. Cst. Bishop confirmed that Sean Bixby was not seen at the Residence at 4:05 p.m. on February 6th, 2017.

(d) February 8th, 2017

[103] Det. Cst. Bishop agreed with Defence Counsel's suggestion that he cannot say that Sean Bixby was inside the Residence on February 8th, 2017. No one observed him go into the Residence, or come out of the Residence that day.

[104] Det. Cst. Bishop also agreed that he was trying to impart to the issuing Justice that Sean Bixby was inside the Residence, left the Residence in the Range Rover, and therefore, lives at the Residence.

[105] Sean Bixby was not seen getting into the Range Rover at the Residence and leaving the area. It was not until Mr. Bixby was on Miles Road that police confirmed it was him driving the Range Rover.

[106] Det. Cst. Bishop acknowledged that the manner in which he drafted paragraph 31 of the ITO was not entirely accurate, and that it would have been more accurate to say that Sean Bixby was seen driving the Range Rover in that area.

(e) April 26th, 2017

[107] Det. Cst. Bishop was cross-examined about police surveillance on April 26th, 2017.

[108] The following is a summary of Det. Cst. Bishop's testimony:

(1) He confirmed that he sought a search warrant for the Motor Vehicle based entirely on the police observations from this one day;

(2) The police did not observe Sean Bixby operate/drive the Motor Vehicle on April 26th, 2017;

(3) He made an error in those portions of the ITO where he described Sean Bixby as the "operator" or "driver" of the Motor Vehicle on April 26th;

(4) He acknowledged that neither P.C. Allen nor P.C. Bowes identified the driver of the Motor Vehicle on April 26th, 2017;

(5) P.C. Allen's notes from April 26th, 2017 state that the male observed entering the passenger seat of the Motor Vehicle, at 10:26 a.m., was "possibly" the target, Sean Bixby;

(6) Similarly, the notes of P.C. Bowes state that the white male who got into the passenger side of the Motor Vehicle in the morning is "believed to be" the target, Sean Bixby;

(7) P.C. Allen's notes state that, when the Motor Vehicle arrived back at the Residence, at approximately 1:01 p.m., the "same male" exits the passenger seat and went into the Residence with the driver;

(8) According to the notes of P.C. Bowes, at 1:01 p.m., the Motor Vehicle pulled back into the driveway of the Residence and Sean Bixby exited the passenger side and went into the front door of the Residence. At this time, nothing was seen in his hands;

(9) For the time of 1:37 p.m., the notes of P.C. Allen simply state that the Motor Vehicle pulls out and exits eastbound. Det. Cst. Bishop agreed with Defence Counsel's suggestion that there is no indication as to who pulls out and exits in the Motor Vehicle, and that he is not in a position to say who left the Residence at that time.

ANALYSIS

A. Overview

[109] In order to comply with section 8 of the Charter, prior to conducting a search, the police must establish, 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.

[110] The search warrant is presumptively valid. The question for me, as the reviewing Court, is not whether I would have issued the warrant, but whether there was sufficient credible and reliable evidence to permit the issuing Justice to authorize the warrant. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.

[111] "Reasonable and probable grounds" means a "credibly based probability" and does not mean "proof beyond a reasonable doubt" or even the establishment of a prima facie case. An accused bears the burden of demonstrating that the ITO is insufficient by showing that the minimum standard required for authorizing the search was not established in the ITO.

[112] The review is not based solely on the ITO as it was presented to the issuing Justice. The reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence. Amplification evidence is "additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice".

[113] The legal obligation on the police seeking an ex parte authorization is "full and frank disclosure of material facts". The ITO must "set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization".

[114] The Supreme Court of Canada has said that "[a] corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers". Police officers seeking authorizations "should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions".

[115] There must be sufficient reliable evidence after excision and amplification to provide grounds for the issuance of the warrant.

B. The Step-Six Application

[116] Challenges to search warrants involve competing interests "such as enforcement of criminal law, informant privilege, and full answer and defence".

[117] If the Crown applies under "Step Six" of Garofoli to have the trial Judge consider the unredacted ITO, the trial Judge should only do so if he or she is satisfied that the judicial summary provides the applicant with a meaningful basis upon which to challenge the warrant in argument or by evidence.

[118] However, the right to full answer and defence at the Garofoli hearing stage of the proceedings is distinct from the right to full answer and defence at trial. The Ontario Court of Appeal has made it clear that "[w]arrant review is an integral part - a first step - in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored."

[119] The trial Judge must be satisfied that the judicial summary "includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained". As the Ontario Court of Appeal explained, "[t]his means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot". However, the context "will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege".

[120] The right to make full answer and defence, at this stage, "includes the right to know the basis on which the search warrant was granted, as this is needed to challenge the admissibility of the seized evidence". The judicial summary should, therefore, provide the accused with sufficient information to "evaluate whether the preconditions for issuing the warrant were met". This includes "information that speaks to the three Debot factors: whether the information was compelling and corroborated, and whether the informer was credible".

[121] In Crevier, the Ontario Court of Appeal provided guidance to trial Judges who must prepare judicial summaries. The Court in Crevier provided a list of the types of information that the judicial summary "may indicate is or is not present in the redacted portions of the ITO". However, the Court was clear that the trial Judge ought to consider including these items "to the extent they are relevant and will not risk revealing the identity of the confidential informer".

[122] The information contained in the judicial summary "will vary from case to case. The list is illustrative only; it is neither prescriptive nor exhaustive". The failure to include one or more of the items on the list will not necessarily make the judicial summary inadequate. A sufficient judicial summary "should let the accused know the nature of the information behind the redactions, provided this would not breach informer privilege".

[123] The Ontario Court of Appeal in Crevier instructs that, when the trial Judge is assessing the sufficiency of the ITO, he or she must take into account the fact that counsel could not fully challenge the information contained in the unredacted ITO:

Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant's issuance. The judge will consider the extent to which the accused's inability to directly challenge the redacted portions should affect the weight to be given to those portions. The exercise here is somewhat akin to the admission of testimony that is not subject to complete and full cross-examination because of a witness's intervening illness or death. In those cases, the lack of testing by cross-examination is taken into account in weighing what is otherwise admissible evidence. Similarly, in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.

[124] Counsel can make meaningful submissions without being fully aware of the information contained in the redacted portions of the ITO. Those submissions can take the form of closing submissions in the alternative.

[125] I find that the judicial summary I provided was sufficient to permit counsel to mount both a facial and sub-facial attack on the ITO. In arriving at this conclusion, I considered the fact that Counsel could, and did, make closing submissions in the alternative. As a result, I considered the full unredacted ITO.

C. The Debot Criteria

[126] On this review, I must consider "the nature and quality of the information that was before the issuing justice". Where confidential informant information is relied on in support of a search warrant, "[t]he court must ask whether the source was credible, whether the information was compelling and whether the information was corroborated by police investigation".

[127] It is the "'totality of the circumstances' that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two". The three criteria of credible, compelling, and corroborated are, therefore, not separate tests.

(a) Was the Information Credible?

[128] The assessment of the credibility of the source involves "considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police". No one factor is determinative.

(i) Criminal Histories for Each CI

[129] With respect to criminal histories for the CIs, the judicial summary states that each CI may or may not have outstanding charges and/or a criminal record, and if so, a complete record may or may not have been disclosed in the ITO.

(ii) Credibility of CI#1

[130] The only information in the redacted ITO regarding CI#1's credibility is the fact that he or she is a carded confidential human source who has provided information to police on a number of occasions pertaining to different individuals involved in drug activity.

[131] I examined the redacted portions of Appendix F to assess CI#1's credibility as a source of information. There are some factors which weigh in favour of CI#1's credibility. There are other factors which cause me to have significant concerns regarding CI#1's credibility. On balance, after considering all of the factors, I find that, while there is some credibility to CI#1 as a source of information, his/her information must be approached with caution.

(iii) Credibility of CI#2

[132] With respect to CI#2, the redacted version of Appendix F states only that he or she is a carded confidential human source who has provided previous information "that was later confirmed by search warrants and other methods of investigation".

[133] I have examined the redacted portions of Appendix F to assess CI#2's credibility as a source of information. A close examination of these redacted portions has led me to conclude that there are some factors weighing in favour of CI#2's credibility. However, those factors are significantly outweighed by other factors weighing against CI#2's credibility.

(iv) Credibility of CI#3

[134] CI#3 is a carded confidential human source, who has previously provided information to police pertaining to different individuals involved in drug activity. The police engaged in investigations as a result of information provided by CI#3.

[135] By examining the redacted portions of Appendix F of the ITO, the factors weighing in favour of CI#3's credibility are significantly outweighed by the factors detracting from CI#3's credibility.

(b) Was the Information Compelling?

[136] An assessment of "[t]his aspect of the Debot analysis relates not to the source of the information, but rather the information itself and whether it has the characteristics that lead to the conclusion that it is reliable".

[137] In R. v. Greaves-Bissesarsingh, Code J. observed that "a detailed tip, based on first hand observations that are reasonably current, has generally been regarded as "compelling" in the case law". Code J. went on to state that, "[o]n the other hand, a vague or conclusory tip, based on second hand hearsay that is not reasonably current, would obviously not be "compelling"".

[138] The case law provides examples of tips that have been found to be "compelling" and those that are not "compelling". For example, Rosenberg J.A. described a "compelling" tip in R. v. Rocha:

Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent's brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip.

[139] The Ontario Court of Appeal in R. v. Kesselring found that the following facts supported a finding that the informer's tip was "compelling":

In our case, the informant provided considerable detail about the appellant and the nature of the marijuana growing operation that he said was taking place in the appellant's house. The information included the names of the occupants of the house, a physical description of the appellant, a description of the house, its approximate location, the appellant's occupation and detailed information regarding the hydroponic marijuana growing operation, which was consistent with the informant having been in the house and having observed the operation.

[140] In R. v. Hosie, the Court found that the tip was not "compelling". In Hosie, the affiant of the ITO swore to the following:

[5.] I received information from Cpl. Campbell that a source believed reliable has advised that George Hosie recently moved to Everts Ave, Windsor, Ontario and has established a very hightech hydroponic marihuana growing operation. Cpl. Campbell further advised that information supplied by the source, while it has not lead to previous arrests, has been confirmed through other sources and otherwise investigated and found to be reliable.

[141] Rosenberg J.A. provided the following reasons for finding that this tip was not "compelling":

In my view, the information supplied is far from detailed and could not be described as compelling, in the sense referred to by Wilson J. in Debot. There is no indication as to the informer's source of knowledge or how current the information is. There is no way to know whether the informer has obtained this information through personal observation as opposed to rumour or second or third hand information. The use of the phrase "very hightech" does not advance the case in any real sense. Had the informer provided information as to the type of equipment and similar details then the justice might have been able to infer that the informer had obtained the information first hand. That kind of detail, however, is lacking.

[142] The information relied upon in an ITO must establish that there is reason to believe that evidence will be found at the time the warrant is executed. Trotter J. (as he then was) explained the currency requirement:

In determining whether reasonable grounds exist to search a location, the currency or freshness of the evidence is important. Numerous courts have held that an Information to Obtain a search warrant must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there.

[143] Assessing whether the evidence relied upon in the ITO is sufficiently recent to support reasonable grounds will depend on a number of factors, including the time that has passed, the nature of the thing that is sought, and the location to be searched. As Trotter J. stated:

For instance, in some of the cases cited above, the courts were concerned about the currency of information relating to the location of drugs. Given the nature of drugs and drug trafficking, information concerning the location of drugs will soon lose its value in supporting a claim of reasonable grounds to search a place.

(i) Was the CI Information about the Residence Compelling?

[144] In 2017, CI#2 advised a police officer that Sean Bixby lives at the Residence at 6335 Airport Road, Glanbrook with his girlfriend, his brother, and his girlfriend's brother.

[145] I am required to assess whether the CI information predicting that cocaine and evidence of cocaine trafficking would be found at the Residence was compelling.

[146] The CI information pertaining to the Residence and Sean Bixby has compelling features due to the detailed nature of some of the information provided. However, after examining the totality of the information, I find that it was minimally to moderately compelling.

[147] I base this finding on the inability to determine the source or sources of certain information and concerns I have about the currency of the information.

[148-151] [REDACTED]

[152] There is CI information in the ITO predicting that cocaine, and evidence of cocaine trafficking, would be found at the Residence at 6335 Airport Road, Glanbrook. However, a significant portion of this CI information is "so devoid of detail as to the source and reliability of the information that it might be nothing more than rumour". Furthermore, the CI information lacks the currency necessary to satisfy the issuing Justice that it was probable, rather than merely possible, that cocaine would be found at the Residence.

[153] The following are my reasons for these findings:

(1-6) [REDACTED]

(ii) Was the CI Information about the Chrysler Motor Vehicle Compelling?

[154] I find that the CI information predicting that cocaine would be found in the Chrysler Motor Vehicle is minimally compelling. In fact, it is almost negligible.

[155] I have reached this conclusion for the following reasons:

(1-2) [REDACTED]

(c) Was the Information Corroborated?

[156] The police will rarely be able to confirm a tip "to the extent of having observed commission of the offence and that level of confirmation is not required". However, "meaningful corroboration requires more than confirmation of neutral or easily discernible facts". This inquiry "is concerned with independent confirmation of the tipster's information".

[157] Independent confirmation "will often prove a powerful means of buttressing reliability". Pomerance J. explained the need to assess the quality of the apparent confirmation:

The analysis here is similar to that which applies to the testimony of accomplice witnesses. We look for confirmation because if the speaker is proven to be correct about certain details, it might be safe to rely on other items of information that he or she has provided. There must be a meaningful assessment of the quality of the apparent confirmation. Confirmation of neutral and readily discernible facts - such as the suspect's address, and the type of car he drives - may not imbue a tip with the requisite degree of reliability.

[158] The police are not to engage in circular reasoning by resting their conclusions about observations on their belief that the target is a drug trafficker. This does not constitute independent confirmation of an informant's tip.

(i) Was the CI Information about the Residence Corroborated?

[159] In the ITO, the affiant set out his belief that the investigation had corroborated aspects of the CI information. With respect to the Residence, I find that there was only minimal corroboration of the CI information.

[160] In this case, the police would be seeking to corroborate a number of pieces of information provided by the CIs. Generally, the police would be looking for evidence of a relationship between Sean Bixby and Shane Sodhi (and possibly Amargit Sodhi), evidence of Sean Bixby's residency at or association to the Residence, evidence of security precautions such as cameras at the Residence, evidence of the other persons who live at the Residence, and any evidence suggesting that cocaine would be found at the Residence if a search was conducted.

[161] More particularly, the police would be seeking to corroborate the following items of CI information:

(1-4) [REDACTED]

[162] Throughout January of 2017, and beyond, the police surveillance appeared to corroborate information that Shane Sodhi was a drug trafficker.

[163] In the ITO, the affiant told the issuing Justice that, on January 31st, 2017, police located Shane Sodhi's Acura parked in the driveway of the Residence through the use of a tracking device previously installed on the Acura. The issuing Justice was also told that "Shane Sodhi left the area in his Acura and drove to a plaza in Stoney Creek". This was followed by the meeting between Sodhi and an unknown male in a Subway parking lot, after which Sodhi drove to 277 Fruitland Road, Stoney Creek, where police believe Sodhi is storing a part of his drug supply. Later that evening, Sodhi left 277 Fruitland Road and conducted what the affiant suspected to be a drug transaction.

[164] In the ITO, the affiant expressed his belief that it was significant that the suspected drug transaction occurred "after Shane Sodhi attended 6335 Airport Road, which is the residence of Sean Bixby", and immediately after Shane Sodhi left 277 Fruitland Road. At a later point in the ITO, the affiant states that his grounds include police "[o]bservations made on January 31st, 2017, at which time Shane Sodhi attended Sean Bixby's residence at 6335 Airport Road, Glanbrook, then conducted a suspected drug transaction after leaving".

[165] Cross-examination of the affiant revealed that police did not observe Sodhi "attend" at the Residence on January 31st, 2017. Mr. Sodhi was not seen going into or coming out of the Residence. His vehicle was observed parked in the driveway.

[166] What is concerning and troublesome is that Det. Cst. Bishop acknowledged in cross-examination that he intended to portray to the issuing Justice that Mr. Sodhi had entered the Residence, had obtained something inside the Residence to allow him to complete a drug transaction, and had then conducted a suspected drug transaction after leaving the Residence.

[167] Det. Cst. Bishop felt he was justified leaving the issuing Justice with the impression that Sodhi had entered the Residence based on the fact that police had observed his vehicle parked in the driveway, and no police officer had seen him in the vehicle—therefore, he must have gone into the Residence. The cross-examination also revealed that police believed "it may be" Mr. Sodhi who left the area of the Residence, but were only able to identify him when he was seen going into the Subway restaurant.

[168] Det. Cst. Bishop agreed that he needed to suggest to the issuing Justice that Mr. Sodhi got drugs from the Residence on January 31st, 2017, even though no observations were made of Mr. Sodhi actually obtaining anything at the Residence that day.

[169] The Crown submits that, although paragraph 64d) is drafted in a way that suggests that Mr. Sodhi left the Residence on January 31st, 2017 and then conducted a suspected drug transaction after leaving, the issuing Justice would have read the entire ITO, including paragraph 28, and would therefore have known that prior to the suspected drug transaction, Mr. Sodhi had also attended 277 Fruitland Road where police suspect Mr. Sodhi stores part of his drug supply. Therefore, the issuing Justice would have had the full picture of what had transpired that day.

[170] With respect, this does not address the concerns I have regarding the affiant's evidence. Det. Cst. Bishop acknowledged that he drafted the portions of the ITO pertaining to January 31st, 2017 with the intention of portraying to the issuing Justice that Shane Sodhi had entered the Residence, when in fact he knew that the police had not observed Sodhi enter the residence.

[171] Because this was a deliberate attempt to mislead the issuing Justice, the sentence in the Affiant's Note after paragraph 28 of the ITO which states the affiant's belief in the importance of the drug transaction occurring subsequent to Shane Sodhi attending the Residence will be excised. Paragraph 64e) will also be excised, as will the sentence in paragraph 29 which states "[d]uring the previous course of the surveillance, police have observed Shane Sodhi attend this residence, following which he was further observed engaging in a suspected drug transaction".

[172] The police observations from February 6th, 2017, confirm that Sean Bixby operated the black Range Rover, a motor vehicle which was registered to Autumn Carroll. Cross-examination of the affiant revealed that police queries of this vehicle showed it to be associated to the 6335 Airport Road address. I did not find this omission to be particularly misleading, nor do I find that it was a deliberate omission. However, this omitted fact can be properly "added to the picture" in order to provide all material facts.

[173] What I have also considered on this review is the evidence adduced at the voir dire that Sean Bixby was not seen at the Residence at 4:05 p.m., the time at which the affiant believes a suspected drug transaction occurred with an unknown male who arrived in a Chevrolet Suburban.

[174] No efforts were made by police to determine the identity of this male, although the Licence plate number of the Suburban was visible to police. In cross-examination, Det. Cst. Bishop stated that knowing the identity of this male would not have changed his opinion that the short duration of his stay made it "possible that they conducted a drug transaction". His belief appears to be primarily premised on the information received from confidential sources that Sean Bixby was a drug dealer, rather than independent observations seeking to confirm that information.

[175] While the police need not actually observe the commission of the crime, it is relevant that the unknown male observed on February 6th is not seen leaving the Residence with anything in his hands.

[176] In the ITO, the affiant states his belief that another suspected drug transaction occurred at the Residence on February 8th, 2017. The testimony of Det. Cst. Bishop regarding the police observations from this date also raises concerns.

[177] On February 8th, the police saw Sean Bixby driving the Range Rover in the area of the Residence at 11:18 a.m.. The ITO states that Bixby travelled back to the Residence where he parked in the driveway. The affiant states his belief in the ITO that this observation is important because it shows that Sean Bixby left 6335 Airport Road, Glanbrook, for a second time in a three day period, which strengthens his belief that Sean Bixby resides there.

[178] On the voir dire, Det. Cst. Bishop testified that, in fact, he cannot say that Sean Bixby was inside the Residence on February 8th, 2017 because no police officer observed him go into or come out of the Residence that day.

[179] What is troubling is his acknowledgment in cross-examination that he was trying to impart to the issuing Justice that Sean Bixby was inside the Residence, left the Residence in the Range Rover, and therefore lives there. He acknowledged that it would have been more accurate to say that Sean Bixby was seen driving the Range Rover in that area.

[180] I find that, at the very least, the affiant used language that was likely to mislead the issuing Justice and breached his duty to make full disclosure of material facts. The sentence in the Affiant's Note which states that Sean Bixby "left 6335 Airport Road, Glanbrook for a second time in a three day period" does not accurately portray what police observed. I have excised this phrase and included the fact that Sean Bixby was seen driving the Range Rover in the area.

[181] With respect to the February 8th observations, there is no evidence that Sean Bixby was present at the Residence at 11:22 a.m., when police observed the Ford F150 arrive and then depart from the area three minutes later.

[182] The manner in which the ITO is drafted makes it unclear whether the unknown male from the Ford F150 was observed going into the Residence, or merely observed leaving in the Ford F150. In any event, there is no evidence that this unknown male left the Residence with anything in his hands, or that Sean Bixby participated in a suspected drug transaction at the Residence on February 8th, 2017.

[183] Police observed the first meeting between Sean Bixby and Shane Sodhi on February 21st, 2017 in the parking lot of the Attic restaurant. Although the police did not observe the two men exchanging anything, I find that the short duration and the circumstances of the meeting, provides some corroboration for the information that Sean Bixby and Shane Sodhi are involved in drug trafficking, and that there is a relationship between them, that may involve drug trafficking.

[184] However, this February 21st meeting does not provide corroboration that assists in establishing a credibly based probability that cocaine and evidence of cocaine trafficking will be found at the Residence.

[185] I find that Mr. Sodhi's attendance at a townhouse complex after his meeting with Sean Bixby on February 21st does not assist the police to corroborate any CI information. Shane Sodhi blocked in another vehicle parked in the driveway of one of the units and approximately ten minutes later, he left the area, followed by the vehicle that he had blocked in.

[186] The affiant's stated belief in the ITO that Mr. Sodhi attended the townhouse complex to conduct a suspected drug transaction is unsupported by the police observations. There were no observations of Mr. Sodhi meeting with anyone at the townhouse complex or even getting out of his vehicle. It is unclear how Mr. Sodhi leaving the area in his vehicle followed by another vehicle can be perceived as a drug transaction. There does not appear to have been any transaction at all. Nonetheless, the affiant opines in the ITO that this is significant because the suspected drug transaction occurred shortly after Mr. Sodhi met with Mr. Bixby at the Attic Restaurant.

[187] On March 2nd, 2017, Shane Sodhi drove his Maserati to the Residence at 6335 Airport Road, arriving there at 3:44 p.m.. He parked in the driveway of the Residence. A Ford Escape motor vehicle that Mr. Bixby had been seen driving on February 21st, 2017 when he met Mr. Sodhi in the parking lot of the Attic restaurant was also parked in the driveway. Mr. Sodhi left the area in the Maserati at 4:03 p.m..

[188] This observation offers some corroboration of information that there is a relationship between Shane Sodhi and Sean Bixby. However, there are no observations of Shane Sodhi going into or coming out of the Residence with anything in his hands.

[189] Although the police did not observe Sean Bixby and Shane Sodhi exchange anything at their meeting in the parking lot of the Buffalo Wild Wings restaurant on March 9th, 2017, I find that the short duration and the circumstances of the meeting, provides some corroboration for the information that Bixby and Sodhi are involved in drug trafficking, and that there is a relationship between them, that may involve drug trafficking.

[190] However, this March 9th meeting does not provide corroboration that assists in establishing a credibly based probability that cocaine and evidence of cocaine trafficking would be found at the Residence.

[191] The police observations on March 28th, 2017 of Sean Bixby operating the red Lamborghini that was seen in the driveway of the Residence provide evidence that Sean Bixby has some association to that address.

[192] On April 26th, 2017, police observed a male attended the Residence at 1:25 p.m. in a black Dodge Challenger. Bixby came out of the residence and spoke with this male near the front door of the Residence. The ITO does not state that there was anything but a conversation between Mr. Bixby and this male. For instance, police did not observe a hand to hand transaction. However, in the ITO, the affiant states his belief that based on the short duration of the stay of this unknown male, he was there to conduct a suspected drug transaction with Mr. Bixby. That belief does not appear to be supported by the observations.

[193] In summary, I find that the police observations from the various dates provide some corroboration for the CI information relied on to seek a warrant to search the Residence:

(1) The observations establish that Sean Bixby may have some connection to the Residence at 6335 Airport Road, Glanbrook. He is seen operating a motor vehicle associated to the Residence on February 6th and February 8th and is seen operating another motor vehicle that is located parked at the Residence on March 28th. Sean Bixby is actually seen going into and coming out of the Residence on April 26th and briefly meeting someone outside. However, there is no evidence showing how he gained entry (ie. whether he was let in or used a key to enter the home);

(2) There are observations which support the claim that Shane Sodhi is a drug trafficker;

(3) There are observations which show that Shane Sodhi and Sean Bixby are known to each other. Mr. Sodhi's Acura is located parked in the driveway of 6335 Airport Road on January 31st, an address Sean Bixby has some connection to, and Shane Sodhi drove another vehicle to this Residence on March 2nd;

(4) Furthermore, the brief meetings between the Shane Sodhi and Sean Bixby on February 21st and March 9th offer some corroboration for information that Shane Sodhi and Sean Bixby are both involved in drug trafficking, and that there is a relationship between the two of them that involves drug trafficking. However, police did not observe Bixby and Sodhi exchange anything on either of these dates;

(5) The affiant states his belief in the ITO that three attendances of short duration to the Residence by unknown persons on different dates supports the inference that drug transactions are occurring there. On the first two dates, February 6th and February 8th, Sean Bixby was not seen at the Residence although he was seen driving a vehicle associated to the Residence. On April 26th, Sean Bixby was seen briefly come outside the Residence at the time the affiant suggests there was a suspected drug transaction. However, of significance, on each of these three dates, no one is noted to have been observed going into or coming out of the Residence with anything in their hands.

[194] The police observations do not corroborate:

(1-2) [REDACTED]

(3) There were no police observations that confirmed the existence of security precautions including cameras at the Residence;

(4) The surveillance offered some evidence that Sean Bixby may reside at the Residence, but it was not substantial.

[195] For the above reasons, I conclude that there was only minimal corroboration of the information provided by the confidential sources.

(ii) Was the CI Information about the Chrysler Motor Vehicle Corroborated?

[196] As I previously stated, I found that the CI information predicting that cocaine would be found in the Chrysler Motor Vehicle is minimally compelling, almost negligible. The police observations do not do the work necessary to compensate for the lack of compelling CI information.

[197] Det. Cst. Bishop confirmed in cross-examination that he sought a search warrant for the Motor Vehicle based entirely on police observations from the one date, April 26th, 2017. Those police observations were made by P.C. Allen and P.C. Bowes. P.C. Allen had two pages of notes on the subject, and P.C. Bowes had three pages.

[198] Neither of the officers identified the driver of the Motor Vehicle on April 26th, 2017. However, when he describes the significance of the police observations in the ITO, Det. Cst. Bishop states that the observations of Sean Bixby "driving" four different vehicles, including the Chrysler Motor Vehicle on this date, supports the information that he is a drug dealer and that a search warrant should be granted to search the Chrysler Motor Vehicle.

[199] In the Affiant's Note in paragraph 53 of the ITO, Det. Cst. Bishop states three times that Bixby "has been observed using", "has used", and "uses" four different vehicles, including the Chrysler Motor Vehicle to conduct suspected drug transactions.

[200] When the affiant summarizes his grounds to believe that cocaine will be found in the Motor Vehicle, at paragraph 73 of the ITO, he again states that Bixby operated the Motor Vehicle on April 26th.

[201] It is difficult to understand how the affiant could rely on the sum total of five pages of notes and make the error he did in describing Bixby as the operator of the Motor Vehicle when the notes of both officers state that he is a passenger. It is especially difficult to understand how this error could have been made in two separate paragraphs of the ITO when the observations from that date are the only observations relied on to support his grounds to believe that cocaine would be located within the Motor Vehicle.

[202] Although I have some concerns that this may have been another deliberate attempt to mislead the issuing Justice, I find that, at the very least, the affiant was reckless or negligent in the drafting of this portion of the ITO.

[203] In the Affiant's Note at the end of paragraph 53, I have excised the portion of the last sentence where the affiant states "which I believe is evident by the observations of Bixby driving four different vehicles which are registered to different people".

[204] With respect to paragraph 73a), I have excised the reference to Bixby having operated the Motor Vehicle, and I amplify the record to include that Bixby was observed as a passenger in the Motor Vehicle on April 26th.

[205] What remains provides insufficient grounds upon which the issuing Justice could have issued the warrant for the Motor Vehicle. Sean Bixby is merely observed as a passenger in the Motor Vehicle on this one date. He is not seen conducting any suspected drug transactions connected to the Motor Vehicle.

[206] A close review of paragraphs 53 and 73 of the ITO reveals that the basis of the affiant's belief that cocaine would be found in the Motor Vehicle is the fact that Bixby "operated" the Chrysler Motor Vehicle on April 26th "and conducted a suspected drug transaction after arriving back at his residence".

[207] In essence what the affiant appears to be saying is that since the Motor Vehicle is seen at the Residence, a place at which the affiant has grounds to believe drugs would be located, a search of the Motor Vehicle is justified. Such a finding is not supportable.

(d) Conclusions Respecting the Sufficiency of the Grounds

[208] In this case, I have found that the information provided by CI#1 must be approached with caution, that the factors weighing in favour of CI#2's credibility are significantly outweighed by other factors weighing against his/her credibility, and that the factors weighing in favour of CI#3's credibility are significantly outweighed by the factors detracting from his/her credibility.

[209] The combined CI information about the Residence is minimally to moderately compelling, and there was only minimal corroboration of the information.

[210] The combined CI information about the Motor Vehicle was minimally compelling. I found that it was almost negligible. The police observations did not adequately compensate for the absence of sufficiently credible and compelling CI information.

[211] Having considered that nature and quality of the information that was before the issuing Justice, and the totality of the circumstances, I conclude that there did not exist a "credibly based probability" that cocaine and evidence of cocaine trafficking would be found in the Residence, or that cocaine would be found in the Motor Vehicle.

[212] The test for a search warrant to issue is "a credibly based probability, not a credibly based possibility".

[213] Accordingly, I conclude that there was not sufficient credible and reliable evidence to permit the issuing Justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time in both the Residence and the Motor Vehicle. Therefore, the search of both violated the section 8 Charter rights of the accused.

SECTION 24(2) OF THE CHARTER

[214] I have found that the section 8 Charter rights of the accused were infringed. The application for exclusion of evidence under section 24(2), requires me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

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

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

The Seriousness of the Charter-infringing Conduct

[215] This inquiry necessitates an evaluation of the seriousness of the state conduct that led to the breach. In Grant, the Supreme Court of Canada held that "[t]he main concern is to preserve public confidence in the rule of law and its processes". The touchstone of the analysis for this first inquiry of Grant is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct".

[216] The admission of evidence "obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute".

[217] In R. v. Morelli, the Supreme Court of Canada addressed how the repute of the administration of justice can be jeopardized in the context of police applications for search warrants:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

[218] On the first prong of Grant, the approach is:

…to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.

[219] Police conduct can fall at the serious end of the continuum for the purposes of the first branch of the section 24(2) analysis where an ITO contains serious and significant deficiencies, such as insufficient indicia of the credibility and reliability of the confidential informants. The conduct can also fall at the serious end of the spectrum where the police fail to seek meaningful corroboration of the informants' tips.

[220] Where the affiant is not reasonably diligent, and not mindful of his duty to make full and frank disclosure, the conduct can fall at the serious end of the spectrum, as can an "improvidently and carelessly drafted" ITO.

[221] I find that the police conduct falls at the serious end of the spectrum with respect to the application for a warrant for both the Residence and the Motor Vehicle.

[222] Firstly, the affiant committed serious breaches by drafting an ITO that provided insufficient indicia of the credibility and reliability of certain informants relied upon for the search of both the Residence and the Motor Vehicle. He failed to do so in the face of well-established legal authority requiring full disclosure of the criminal antecedents of informants.

[223] The ITO was carelessly and improvidently drafted in many respects. With respect to redacted CI information this resulted in instances where the source of the information provided was unclear.

[224] Furthermore, the affiant failed in his duty to guard against making statements that were likely to mislead the issuing Justice. Most troubling is his admission that it was his intention to portray to the issuing Justice that Mr. Sodhi had entered the Residence on January 31st when that was not observed by police. This is an example of an affiant failing in his duty of candour by exaggerating the information upon which he is relying to establish reasonable and probable grounds for the issuance of a search warrant. This is conduct that a court must dissociate itself from.

[225] The affiant made a similar admission with respect to the police observations from February 8th, which provides another example of misleading information and material omissions in the ITO, pertaining to the affiant's request for a search warrant for the Residence.

[226] I make a finding in this case similar to Schreck J. in R. v. Woo:

I am also troubled by the affiant's apparent willingness to exaggerate and draw unwarranted conclusions.

[227] In our case, Det. Cst. Bishop exaggerated and drew unwarranted conclusions from the police observations as outlined above in the section dealing with corroboration. In doing so, he relied heavily on the CI information, rather than seeking independent confirmation of the information police had received.

[228] The deficient and misleading ITO did not establish the credibly based probability necessary for the search of the Residence. The search of the Residence was based on an insufficient warrant when misleading or incorrect information was excised, which places the conduct at the more serious end of the spectrum.

[229] The misleading information contained in the ITO regarding the April 26th police surveillance is particularly troubling. As stated above, this is the only date on which observations were made of the Motor Vehicle. Those observations were very limited.

[230] In the face of what I have found to be minimal CI information about the Motor Vehicle, the affiant misstates the police observations pertaining to this vehicle by repeatedly referring to Sean Bixby "using" the Motor Vehicle and by describing him as the "operator" and "driver" of the Motor Vehicle in two different parts of the ITO when the observations are clearly that he was a passenger.

[231] At a minimum, the affiant was reckless or negligent in doing so, especially in light of the very limited information he had to rely upon for the issuance of the warrant for the Motor Vehicle. He was not summarizing lengthy complex information. He was summarizing short notes of two police officers which were clear and simple to restate for the ITO. This was a serious error which may have been a deliberate attempt to mislead the issuing Justice.

[232] I find that the repute of the administration of justice would "be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy" as the search of the Residence, and also the search of the Motor Vehicle. The first prong of the Grant analysis strongly favours exclusion of the evidence.

The Impact of the Breach on the Charter-protected Rights of the Accused

[233] All four accused were charged jointly in these proceedings for the items seized in the Residence. Adam Carroll, Sean Bixby and Jason Bixby were charged jointly for the drug evidence seized in the Motor Vehicle.

[234] The Crown conceded throughout the proceedings that all four accused had standing to challenge the issuance of the search warrant for the Residence based on the Crown theory that all four accused resided at the Residence. Of the four accused, only Sean Bixby was named as a target in the police investigation.

[235] The Crown did not dispute that both Adam Carroll and Sean Bixby had standing to challenge the issuance of the warrant for the Motor Vehicle. Jason Bixby did not seek standing with respect to the Motor Vehicle.

[236] Recently, the Supreme Court of Canada in R. v. Jones held that "an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire."

[237] In written submissions, the Crown argued that, notwithstanding its concession that all four accused had standing with respect to the section 8 Charter challenge for the Residence, if I found a Charter violation, the section 24(2) analysis should be conducted individually for each of the accused on the second branch of the Grant analysis.

[238] The Crown argued that only Autumn Carroll had established a sufficient connection to the Residence, and that the remaining accused failed to call evidence on the voir dire regarding their connection to the Residence, and their individual expectations of privacy in the Residence. The Crown submits that the absence of such evidence must be taken into account in assessing the second branch of Grant. The Crown conceded that it could not point me to any authority for its position on this point.

[239] The Crown submits that Jones changed the law with respect to standing by obviating the need for the accused to lead evidence to establish his or her reasonable expectation of privacy through an assessment of the factors set out in R. v. Edwards. However, the Crown submits that Jones is silent on how this affects the inquiry on the second stage of the Grant analysis. The Crown argues that, without the accused calling specific evidence of his or her connection to the Residence, the Court cannot assume that the impact of the Charter-infringing state conduct is at the highest level which attaches to the search of a private residence.

[240] Notwithstanding the able arguments of Mr. McLean on behalf of the Crown on this point, I find that the Crown position is untenable. The Crown acknowledged at the outset of the proceedings that its concession on standing with respect to the Residence was based on the Crown theory that each of the four accused resided at the Residence.

[241] In doing so, the Crown conceded that each of the four accused had a reasonable expectation of privacy in the premises which is protected by section 8 of the Charter. In Edwards, the question was whether or not Edwards could challenge the admission of evidence obtained as a result of a search of his girlfriend's premises. This required an assessment of whether he had a reasonable expectation of privacy in this third party's residence. Edwards' girlfriend was not required to establish this reasonable expectation of privacy to the premises because she was a resident.

[242] Each of the accused in these proceedings have been placed in the same position by the Crown's concession at the outset of the proceedings. Their reasonable expectation of privacy in a private residence was conceded. This is the only interpretation that is consistent with the following statement made by the Supreme Court of Canada in Jones:

The Crown is right to argue that it is the accused's s. 8 motion. But that motion arises within the Crown's prosecution. And it is the Crown, as a quasi-minister of justice, that is charged with ensuring the overall fairness of that prosecution. Therefore, as between the accused and the Crown, it is more fitting that the Crown be restrained from adopting inconsistent positions.

[243] Section 8 of the Charter protects everyone's right to be secure against unreasonable search or seizure.

[244] Section 24(1) of the Charter states:

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

[245] Adam Carroll applied for such a remedy on the basis of violations of his section 8 Charter rights. The remedy he sought was the exclusion of evidence obtained in the Residence and in the Motor Vehicle, pursuant to Section 24(2) of the Charter which states:

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

[246] Even if I am wrong in finding that each accused is placed in the same position as residents of the home, I have found that Adam Carroll, the Applicant in this Charter application, has established a breach of his section 8 Charter rights.

[247] If Adam Carroll establishes that the admission of the evidence in the proceedings would bring the administration of justice into disrepute, the evidence is excluded from the proceedings, which makes that evidence unavailable to the Crown as against the jointly charged accused, without consideration of the impact of the breach on Autumn Carroll, Jason Bixby, and Sean Bixby. In spite of this finding, and to ensure completeness in my analysis, I will consider the impact on these other accused as well.

[248] I will first address the impact of the breach on the Charter-protected interests of Adam Carroll. When the affiant sought a warrant for the Residence, the police suspected that individuals other than Sean Bixby resided in the Residence. These other individuals were not targets of the police investigation. Mr. Carroll was one such person, although it is unclear whether the police had identified him by name.

[249] One's personal residence carries with it a significant expectation of privacy. The Supreme Court of Canada has described the "unauthorized presence of agents of the state in a home" as "the ultimate invasion of privacy". As Mitchell J. stated in R. v. Kofman, "[a]side from an individual's physical person, there is no place of privacy which one might protect more fiercely than one's home".

[250] The police searched the private dwelling of Adam Carroll, an individual who was not suspected of being involved in criminal activity. The impact on his liberty and privacy interests is significant.

[251] Therefore, with respect to the Applicant, Adam Carroll, the second branch of the Grant analysis also strongly favours exclusion of the evidence discovered in the Residence.

[252] My finding regarding the second branch of Grant is equally applicable to the privacy and liberty interests of Autumn Carroll, Jason Bixby, and Sean Bixby.

[253] Again, arguably, the impact on the Charter-protected interests of Autumn Carroll and Jason Bixby is elevated by the fact that they were not targets of the police investigation, yet were subjected to the same intrusive search. Their privacy interests are not mere windfall as they resided at this Residence. They had real privacy interests in a search of their joint home.

[254] With respect to the search of the Motor Vehicle, the Applicant, Adam Carroll has established a breach of his section 8 Charter rights. If Adam Carroll establishes that the admission of the evidence seized from the Motor Vehicle would bring the administration of justice into disrepute, the evidence is excluded from the proceedings, which makes that evidence unavailable to the Crown as against the jointly charged accused, Sean Bixby and Jason Bixby.

[255] Adam Carroll and Sean Bixby were detained, arrested, and searched on the strength of a warrant to search the Motor Vehicle. This warrant was obtained with insufficient credible and reliable evidence to support its issuance. Aside from the judicial authorization, there existed no basis to conduct the traffic stop of the vehicle, to detain the individuals within that vehicle and to conduct a thorough search of the vehicle.

[256] The impact of the Charter-infringing state conduct was the detention and arrest of these individuals, notwithstanding the complete absence of grounds for their detention and arrest, and the subsequent search of the Motor Vehicle.

[257] The Crown argues that the police had grounds to arrest Sean Bixby for drug trafficking or being in possession of drugs for the purpose of trafficking and that, therefore, the drugs would have been discovered in any event. This is not the basis on which the police conducted the traffic stop and search of the vehicle.

[258] The police applied for and were granted judicial authorization to search the Motor Vehicle. They set out the grounds upon which they relied to search the Motor Vehicle. Those grounds did not establish a credibly based probability that cocaine would be found in the Motor Vehicle. Therefore, the traffic stop, detention and ensuing search of the Motor Vehicle were all unlawful and resulted in a significant impact on the privacy and liberty interests of Adam Carroll and Sean Bixby.

[259] The second prong of the Grant analysis strongly favours exclusion of the evidence discovered in the Motor Vehicle.

Society's Interest in the Adjudication of the Case on Its Merits

[260] Within the Residence the police seized ammunition, a loaded restricted handgun with a 30 round extended magazine and 27 pounds of packaged marihuana. The items seized are reliable evidence that is indispensable to the Crown's case. This factor favours admission of the evidence.

[261] Within the Motor Vehicle, the police found Cannabis resin. This too is reliable evidence that is indispensable to the Crown's case. The police found a Schedule II substance as opposed to cocaine, a "far more destructive and addictive substance" contained in Schedule I. An argument could be made that this factor does not weigh as heavily in favour of admission. However, I find that this factor does nonetheless weigh in favour of admission of the evidence found in the Motor Vehicle.

Balancing

[262] The accused are charged with very serious offences, especially with respect to the items seized within the Residence.

[263] In this case, the first two Grant factors strongly favour exclusion of the evidence seized from both the Residence and the Motor Vehicle, while the third factor favours admission for both the Residence and the Motor Vehicle. In R. v. McGuffie, the Ontario Court of Appeal stated:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[264] As the Supreme Court of Canada noted in Grant:

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus

….. The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

DISPOSITION

[265] For the reasons set out above, I have found that the first and second inquiries in Grant push strongly toward exclusion of the evidence found in both the Residence and the Motor Vehicle. The third inquiry favours admission of the evidence for both but does not tip the balance in favour of admissibility. I find that the evidence must be excluded to preserve the long-term repute of the administration of justice.

[266] The application is granted and the items seized during the search of the Residence at 6335 Airport Road, Glanbrook, and the search of the 2005 Chrysler Motor Vehicle (Ontario Licence Plate CBRX732) are excluded from evidence in the proceedings.

Released: December 20, 2018

Signed: Justice J.P.P. Fiorucci