Court File and Parties

Court File No.: Hamilton 17-511 Date: 2019-05-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kirk McKinney

Before: Justice J.P.P. Fiorucci

Heard on: September 11th, 13th and 14th, 2018

Ruling on Charter Application and Judgment released on: May 3rd, 2019

Counsel:

• J. Razaqpur — counsel for the Crown (Federal Prosecutor)
• B. Bromberg — counsel for the accused Kirk McKinney

FIORUCCI J.:

INTRODUCTION

[1] At some point in December of 2016, a confidential informant (CI) provided information to Detective Constable Ryan Smutnicki of the Hamilton Police Service. On December 20th, 2016, based on the information the CI had provided, Det. Cst. Smutnicki and another police officer conducted surveillance on Mr. Kirk McKinney. Mr. McKinney was arrested that same day.

[2] The arrest was based on grounds formulated by Det. Cst. Smutnicki. The officer testified that his grounds included the information he had received from the CI.

[3] The police searched the motor vehicle Mr. McKinney was driving at the time of his arrest. On the front passenger seat, the police located 27.96 grams of fentanyl.

[4] Mr. McKinney entered a not guilty plea to the charge of possession of fentanyl for the purpose of trafficking. He alleged violations of his Charter rights and sought exclusion of the drug evidence on the basis of those violations. Specifically, Mr. McKinney asserted that there were no reasonable and probable grounds for his arrest and that, therefore, his arrest was arbitrary and the warrantless search incident to arrest was unlawful. Mr. McKinney also alleged that the police violated his Charter rights to counsel when he was arrested.

[5] If I find the drug evidence to be admissible, Mr. McKinney submits that the Crown has not proven beyond a reasonable doubt that he had knowledge and control of the seized drugs.

[6] A blended hearing was conducted to determine the Charter issues and the trial proper. The Crown called three witnesses. Mr. McKinney did not testify, nor did the Defence call any other witnesses.

ANALYSIS AND ISSUES

Did the Police Have Reasonable and Probable Grounds to Arrest Mr. McKinney?

(a) Overview

[7] The use of confidential informants by the police is a necessary and effective tool to combat the proliferation of controlled substances in our communities. It is a long standing rule that information which might identify an informant must not be disclosed, unless the innocence at stake exception is engaged. Concealing the identity of the informant serves the dual purpose of protecting the informant and encouraging others to provide the police with information about criminal activity.

[8] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. To arrest a person without a warrant, the police must have reasonable grounds to believe that the person has committed or is about to commit an indictable offence. In R. v. Storrey, the Supreme Court of Canada described the reasonable grounds required for a lawful arrest:

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

[9] Where the police rely on information provided by a CI to arrest an accused, and the accused challenges the validity of his arrest, "the issue turns on the quality of the anonymous information and the nature of the police investigation prior to the arrest". The factors to be considered in assessing confidential information as the basis for reasonable grounds were reviewed in R. v. Debot.

[10] Where CI information is relied on "[t]he court must ask whether the source was credible, whether the information was compelling and whether the information was corroborated by police investigation". 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.

[11] The testimony of the arresting officer and other officers involved in the investigation of an accused provide the facts upon which a Court must assess the lawfulness of the arrest. In cases involving CI information, in order to protect a confidential source, police witnesses may not be able to reveal all of the information a CI provided, which is understandable.

[12] However, where the Crown proceeds to support the existence of reasonable grounds on the basis of redacted information, "it cannot purport to rely upon a submission that the police in fact had more grounds in the undisclosed material". The Ontario Court of Appeal has confirmed the requirement of a proper evidentiary record to support the existence of reasonable grounds:

However, sufficient information must be revealed to justify the granting of a search warrant or to justify a warrantless search on the basis of reasonable and probable grounds. A warrantless search can never be justified on the basis of unrevealed information. When there has been a possible breach of a person's Charter rights, it is small consolation for that person to be told by the police: "We have reasonable and probable grounds but we cannot tell you what they are because we have to protect our confidential source".

(b) Det. Cst. Smutnicki's Training and Experience

[13] In December of 2016, Det. Cst. Smutnicki was part of the High Enforcement Action Team (HEAT), a plainclothes unit of the Hamilton Police Service (HPS) that focuses on street level drug dealers, street workers, and other criminal activity in the east end of the city.

[14] Det. Cst. Smutnicki testified that, prior to working in the HEAT unit, he had only been involved in simple possession drug cases. In his five or six years as a uniform patrol officer, he did not deal with anyone involved in drug trafficking or possession of controlled substances for the purpose of trafficking.

[15] Det. Cst. Smutnicki was assigned to the HEAT unit in January of 2015. As a HEAT officer, prior to this investigation involving Mr. McKinney, Det. Cst. Smutnicki had been involved in ten to fifteen drug investigations involving either drug trafficking or possession of controlled substances for the purpose of trafficking.

[16] Det. Cst. Smutnicki estimated that, between January of 2015 and December of 2016, he had sworn three affidavits seeking Controlled Drugs and Substances Act (CDSA) search warrants. He testified that HEAT was not a drug unit. HEAT dealt mostly with simple possession of drugs and not higher level drug dealers "where it was necessary to draft a search warrant to enter a building".

[17] According to Det. Cst. Smutnicki, HEAT dealt mainly with people who were dealing on the streets, and with section 4(1) CDSA offences. When asked whether he also dealt with possession for the purpose of trafficking offences, Det. Cst. Smutnicki referred to the three warrants he wrote during his tenure in the HEAT unit. He estimated that he had been involved in five or six investigations where people were charged with section 5(2) CDSA offences without a warrant.

[18] Prior to this investigation involving Mr. McKinney, Det. Cst. Smutnicki had acted as a surveillance officer on probably 30 to 40 cases. Those cases were not all drug cases, but also "property related offences where surveillance was required". Det. Cst. Smutnicki estimated that he was involved in surveillance three to five times where the end result was warrantless searches for drug trafficking.

[19] According to Det. Cst. Smutnicki, he had done surveillance to try to corroborate "source" information maybe two or three times. He included in his definition of "source" information tips received from Crime Stoppers, criminal informant information, and information from a criminal intelligence report. He testified that 95% of his investigations are "source led".

[20] At the time of this investigation involving Mr. McKinney, Det. Cst. Smutnicki had not yet taken the two week drug course at the Ontario Police College, which according to the officer, dealt with what is required in drug investigations, such as "surveillance, grounds, what to include in a search warrant".

[21] However, in November of 2016, approximately one month before this investigation, Det. Cst. Smutnicki took the one week gang course at the Ontario Police College. The gang course included topics relevant to drug related investigations, including surveillance. At the gang course, Det. Cst. Smutnicki received surveillance training on "what to look for …behaviours of a drug dealer…where the drugs are being dealt".

(c) Was the Information Compelling?

[22] 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".

[23] As Code J. observed in R. v. Greaves-Bissesarsingh, "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"".

[24] What were the details of the CI's tip to Det. Cst. Smutnicki? The details matter. Det. Cst. Smutnicki failed to give clear, convincing and cogent evidence on this point. I found him to be an unreliable witness on the issue of the nature of the tip he received from the CI, and on other matters.

[25] Det. Cst. Smutnicki testified that he received information from only one CI. The officer prepared a General Report less than an hour after Mr. McKinney's arrest on December 20th, 2016. This General Report was provided to the Crown and disclosed to the Defence shortly before the trial commenced in September 2018. In this General Report, Det. Cst. Smutnicki wrote, "[p]olice received information that McKINNEY was trafficking heroin throughout the City of Hamilton using a Black Ford Pick-up truck".

[26] A year and a half after the arrest, the Crown asked Det. Cst. Smutnicki to prepare a statement detailing the grounds for the arrest, including the information the CI had provided. The Crown made this request before it had received a copy of the General Report.

[27] Det. Cst. Smutnicki submitted two witness statements in response to the Crown's request. One witness statement was dated June 27th, 2018, and the second was dated August 4th, 2018. These statements were identical regarding the information the CI purportedly provided to Det. Cst. Smutnicki. According to the officer, in December 2016, the CI provided the following information:

(1) "Red" is Kirk McKinney; (2) "Red" is dealing for Tim Lodge; (3) "Red" lives at 1032 Beach Blvd.; (4) He deals "popcorn" and will deal from the store across the street from his house; (5) "Red" drives a black truck.

[28] Det. Cst. Smutnicki testified that he prepared his June 27th and August 4th statements using his CI notebook and his police issued notebook. He stated that he transcribed the tip the CI had provided verbatim into these Witness Statements.

[29] Defence counsel cross-examined Det. Cst. Smutnicki about discrepancies between the tip he detailed in his General Report in December 2016 and his 2018 witness statements.

[30] At one point in the cross-examination, Det. Cst. Smutnicki testified that he had received information from the CI that Mr. McKinney drives a "black truck". The officer could not recall receiving any specific details from the CI about the truck, such as the make or model. At a later point in the cross-examination, Det. Cst. Smutnicki agreed that his testimony at trial on this point was different from what was contained in his General Report, which included a reference to receiving information about a "Black Ford Pick-up truck".

[31] The explanation offered by Det. Cst. Smutnicki for this discrepancy was confusing, inconsistent, and offered little assistance in determining what information the CI actually provided. The following exchange occurred between Defence counsel and Det. Cst. Smutnicki:

Q. ….That Red drives a black truck. I take it you agree with me that that's pretty different than he's dealing-using a black Ford pickup truck.

A. I agree, but I also agree that a black truck could be a black pickup truck.

Q. It could be, but that-and on one hand, in June and August of 2018, what you're asking us to believe is that informant said he drives a black pickup truck and deals from the store across the street from his house.

A. Yes.

Q. You're asking us in December, the day of the arrest, to believe that he's dealing throughout the city of Hamilton using a black Ford pickup truck.

A. The black Ford pickup truck information must have been provided from the criminal informant or I would not have included that in the report.

Q. Okay, but you already told us that what you have in June and August of 2018 statements is everything that the informant told you and that doesn't include any make and model of the truck.

A. Sorry, I didn't….

Q. You already told us that that was the whole tip, the June-in June and August of 2018 includes what you said was the entire tip, correct?

A. Well, to protect the identity of the informant, I don't include every specific detail that was provided on Mr. McKinney from that informant.

Q. But you could find out that he drives a black Ford pickup truck by driving by his driveway, correct?

A. Correct.

Q. And if the informant had told you that he drove a black Ford pickup truck, wouldn't you have put that in your list of information you received from the CI?

A. Not necessarily. When I draft a warrant, I don't include detail- if it's a black Ford F150. If that's the information that I'm provided by a source, then I will simply say a black Ford truck.

Q. Okay. But you understand your job was to corroborate the information that you got from your informant, right?

A. Yes.

[32] It is not at all clear whether the CI provided information that Mr. McKinney drives "a black truck" or provided information that Mr. McKinney "uses a black Ford Pick-up Truck" to traffic heroin throughout the City of Hamilton. The officer's testimony on this point is troubling when viewed in the context of the rest of his evidence.

[33] Det. Cst. Smutnicki was confronted in cross-examination with the difference between the tip he described in the General Report that Mr. McKinney is trafficking heroin throughout the City of Hamilton and the tip set out in the later witness statements that Mr. McKinney deals "popcorn" from the store across the street from his house. Again, Det. Cst. Smutnicki agreed that there was a difference.

[34] Det. Cst. Smutnicki's testimony regarding this discrepancy also lacked clarity and left me with the impression that he did not understand the distinction between communicating the details of the tip he had received and the conclusions he drew from his own observations:

Q. …Throughout the city of Hamilton-your tip did not say that he was trafficking heroin throughout the city of Hamilton, did it? Your tip is that he will deal from the store across the street from his house. That's not the same thing, is it?

A. No.

Q. So, which is it? Which one did the confidential informant tell you?

A. Well, it's- in a general report, I don't put specific details that he's dealing from 1032 Beach Boulevard. That's not the information that I had. The fact that he was dealing drugs and was dealing to people in Hamilton, I think it's safe to say that he's dealing throughout the city of Hamilton.

Q. But that's not what your tip said. Your tip-you tell me-was that he was dealing from the store across the street from his house. We'll ignore the fact that that's in a non-existent store.

A. Okay.

Q. But the tip is that it's from across the street from his house. Not that he's dealing throughout the city of Hamilton from his truck, is that right?

A. That's correct.

Q. Okay. We established earlier on that you're not expected in your notes or report to put things that are untrue, correct?

A. Correct.

Q. Okay. You prepared this report on December the 20th, the day of the arrest, correct?

A. Yes.

Q. Okay. Wasn't it fresher in your mind on December the 20th?

A. Yes.

Q. Okay. Could it be then that what was in your mind on December 20th is exactly what you wrote in your general report? That he was trafficking heroin throughout the city of Hamilton using a black Ford pickup?

A. I think it's safe to say that I could put that, seeing as how I believe that there was a drug transaction that took place at a convenience store and then-my belief that there was another transaction that took place at 70 Glenburn. Those facts and observations would leave me to believe that those two occurred in the city of Hamilton.

Q. But that's not what you said. This says police received information that McKinney was trafficking heroin throughout the city of Hamilton. Did you receive information that he was trafficking throughout the city of Hamilton? Is that true? Or is it true that you received information that he was trafficking from the store across the street from his house? Which is the truth?

A. I'd have to refer back to a-like, criminal intelligence-my criminal informant book is where I write exact details. I'm certain that Kirk McKinney was not just dealing from this store that didn't exist, that doesn't exist from across the street because I never seen Kirk deal from this location across …..

Q. You never saw him…

A….. the street.

Q…deal from anywhere, did you? You never saw a hand-to-hand ever.

A. Correct.

[35] Det. Cst. Smutnicki's testimony suggests that he would have to refer back to his criminal informant notebook to provide the exact details of the tip he had received. This is inconsistent with his testimony that he had transcribed the details of the tip verbatim into his witness statements. This leaves me with little confidence that he accurately communicated, in his trial testimony, the information the CI had given him.

[36] P.C. Robert Monteforte's evidence did not assist in clarifying the details of the tip. P.C. Monteforte was the officer who conducted surveillance with Det. Cst. Smutnicki. Det. Cst. Smutnicki testified that, on December 20th, 2016, he communicated to P.C. Monteforte the five items of information the CI had provided, which were set out in Det. Cst. Smutnicki's June 27th and August 4th, 2018 witness statements.

[37] However, P.C. Monteforte testified that the details Det. Cst. Smutnicki provided to him were that Mr. McKinney was said to be operating a 2005 black Ford Pickup bearing Ontario Licence Plate AP88846 and that he was trafficking popcorn from a "nearby" convenience store; a convenience store that was "close to his house". P.C. Monteforte stated that this was the "bare bones" information he received from Det. Cst. Smutnicki.

[38] According to P.C. Monteforte, there was no discussion between the two officers about any place that Mr. McKinney might be selling drugs from, other than the convenience store. P.C. Monteforte testified that, if Det. Cst. Smutnicki had advised him that the CI provided information about Mr. McKinney trafficking popcorn from a convenience store "across the street" from his house, he would have told Det. Cst. Smutnicki that there is no convenience store there because he knows the area quite well.

[39] What then were the details of the information the CI provided to Det. Cst. Smutnicki? Due to my concerns regarding the reliability of the officer's evidence on this point, I find on a balance of probabilities that the CI advised Det. Cst. Smutnicki that:

(1) Mr. McKinney was involved in the trafficking of controlled substances, possibly heroin or "popcorn", in the City of Hamilton; (2) Mr. McKinney is known as "Red"; (3) Mr. McKinney lives at 1032 Beach Boulevard; and (4) Mr. McKinney drives a black truck.

[40] I am unable to find, on a balance of probabilities, that the CI tip was specific in terms of the location from which Mr. McKinney was trafficking controlled substances. It may be that the CI provided information about Mr. McKinney trafficking from a convenience store, either across the street or close to his home, but I cannot make such a finding based on the evidence presented. As I will explain in the section dealing with corroboration, the testimony of Det. Cst. Smutnicki and P.C. Monteforte regarding the significance of a convenience store in the investigation is inconsistent and irreconcilable.

[41] Furthermore, I am not prepared to find, on a balance of probabilities, that the CI advised Det. Cst. Smutnicki that Mr. McKinney was dealing for Tim Lodge. Det. Cst. Smutnicki testified that Tim Lodge was associated to an apartment building at 70 Glenburn Drive. On December 20th, 2016, Det. Cst. Smutnicki and P.C. Monteforte observed Mr. McKinney attend at this apartment building for a short period of time.

[42] According to Det. Cst. Smutnicki, this short attendance at 70 Glenburn Drive corroborated the CI information that Mr. McKinney was dealing for Tim Lodge. He advised P.C. Monteforte immediately after this attendance at 70 Glenburn Drive that there were grounds to arrest Mr. McKinney. Det. Cst. Smutnicki claimed that P.C. Monteforte agreed with his assessment that grounds existed to make the arrest at that point.

[43] However, P.C. Monteforte was specifically asked whether the apartment building at 70 Glenburn Drive had any special significance to him at the time of the arrest, and he stated that it did not. I find it implausible that Det. Cst. Smutnicki would not have communicated the fact that the attendance at 70 Glenburn Drive had special significance because of Tim Lodge's association to that address, and the CI information that Mr. McKinney was dealing for Tim Lodge. Furthermore, as I stated earlier, P.C. Monteforte made no mention of having received information from Det. Cst. Smutnicki that the CI had said Mr. McKinney was dealing for Tim Lodge. This is inconsistent with Det. Cst. Smutnicki's testimony that he advised P.C. Monteforte of this aspect of the tip.

[44] Due to the concerns I have with Det. Cst. Smutnicki's evidence, and his inability to effectively communicate the details provided by the CI, I cannot find on a balance of probabilities that the CI information included the detail that Mr. McKinney was dealing for Tim Lodge.

[45] I have considered whether or not "the information predicting the commission of a criminal offence" was compelling. I find that the CI information provided to Det. Cst. Smutnicki was minimally compelling for the following reasons.

[46] Firstly, unlike the cases of Omar and Stockton relied on by the Crown, there is no evidence that the CI was providing Det. Cst. Smutnicki with information based on first-hand knowledge or observations. For instance, there is no evidence that the CI had purchased drugs from Mr. McKinney, had witnessed Mr. McKinney sell drugs to others, or had seen Mr. McKinney in possession of drugs.

[47] Furthermore, this case is distinguishable from the case of Amare, also relied on by the Crown. In Amare, the CI provided detailed and precise information predicting a drug deal on a particular day, involving specific vehicles that would be travelling in a particular area. The CI in Amare was also providing "incremental updating" of the information which the Court found reasonably supported the inference "that he or she was speaking from a position of real-time and direct sourcing not rumour or gossip or fabrication".

[48] To the contrary, in Mr. McKinney's case, the CI information was not of such a detailed and precise nature as to support the inference that it was the product of first hand observations, as opposed to rumour or gossip.

[49] The CI provided a nickname by which Mr. McKinney was known, which was specific. However, Mr. McKinney driving a black truck and residing at 1032 Beach Boulevard is very general information that is capable of being known by anyone familiar with Mr. McKinney.

[50] The CI did not provide information that Mr. McKinney would be involved in a drug transaction on a specific date, at a specific time, and at a specific place. Rather, I have found, for the reasons outlined above, that the CI merely advised Det. Cst. Smutnicki that Mr. McKinney was carrying on criminal activity, specifically drug trafficking, in the City of Hamilton, possibly involving heroin or popcorn. This is a conclusory statement that Mr. McKinney is carrying on criminal activity, without evidence before me regarding the CI's source or means of knowledge. There is no evidence as to whether the CI purported to have first-hand knowledge of the information, or was reporting what he or she had been told by others.

(d) Was the Source Credible?

[51] 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.

[52] There is no evidence about the CI's motive for providing the information to Det. Cst. Smutnicki. There is also no evidence on the issue of whether the CI had a criminal record, outstanding charges, or any pending investigations against him or her.

[53] Det. Cst. Smutnicki testified that, at the time he received the information, he knew whether or not the CI had a criminal record and considered that when evaluating the reliability of the information he had received. However, Det. Cst. Smutnicki testified that, in order to protect the CI's identity, he could not provide further information about the CI.

[54] Det. Cst. Smutnicki testified that the CI has "been deemed credible" and that "information from this source has led to tens of thousands of drugs, cash seized and arrests". The officer testified that information from this source "had and has led to multiple arrests in persons who were in possession of a controlled substance".

[55] The CI was described as a registered criminal informant with the Hamilton Police Service "who is past-proven reliable". When asked to describe what "past-proven reliable" meant to him, Det. Cst. Smutnicki stated, "to me it means this source has provided me with information in which I investigated and that information has led to arrests and drug seizures as a result of the information that was provided".

[56] Det. Cst. Smutnicki testified that the CI had previously provided him with "some wrong minor details", but on every occasion the CI provided information, it led to a seizure. In summary, Det. Cst. Smutnicki testified that there was nothing that would cause him to be concerned about the reliability of the CI. In his words, "I've never been misled by this criminal informant, which led me to believe all the information that I was given in this instance was deemed to be true".

[57] Det. Cst. Smutnicki did not state how many occasion the CI had provided him with information prior to receiving the information about Mr. McKinney. When he testified that a seizure resulted on "every occasion" that the CI provided him with information, does this mean one prior occasion or more, and if so, how many? Were the multiple arrests that resulted from the information all made in relation to one seizure? There were also no details provided about the types of seizures and arrests that were made on the prior occasions.

[58] Although the information about the CI's credibility is lacking in details, this is a case, like Omar, where there is some evidence about the credibility of the source.

(e) Was the Information Corroborated?

[59] 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".

[60] 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.

[61] 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.

[62] On December 20th, 2016, Det. Cst. Smutnicki and P.C. Monteforte were communicating by radio when they were conducting surveillance on Mr. McKinney. Their respective testimony was inconsistent on significant points regarding the tip they were investigating, and the significance of their observations.

[63] Det. Cst. Smutnicki portrayed the CI information as including the facts that Mr. McKinney was dealing "popcorn" from the store across the street from his house and was dealing for Tim Lodge. As I indicated above, I am unable to find that these two items of information were included in the CI tip.

[64] Firstly, with respect to the convenience store, I find that Det. Cst. Smutnicki's trial testimony was misleading and contrived, which is one of the reasons I am unable to accept his evidence about the details of the tip he received. In an attempt to support his version of the tip, he testified in examination-in-chief as follows:

There was a building across the street from Mr. McKinney. I don't believe it was a store but it was a restaurant, small bar-type building….that I guess easily could have been mistaken as a store.

[65] In cross-examination, Det. Cst. Smutnicki continued to maintain that there was an establishment across the street from Mr. McKinney's house that could have been mistaken for a convenience store:

Well, it still-I didn't rule it out as the store was-and I believe that the information provided may have been that the source believed that there was a store across the street. I mean, I've seen the restaurant or pub, whatever it is, that I believe that source was referring to …and it could be mistaken as a store.

[66] At a later point in the cross-examination, Det. Cst. Smutnicki again maintained that there was a restaurant or bar across the street which could have been mistaken for a convenience store:

Q. …….Did you have concerns about the lack of matching between the top (sic) and the physical geography?

A. Not necessarily. I believed that the source may have mistaken the bar or restaurant across the street as a store. It looked similar in nature to a store. I didn't rule that out.

Q. Okay. So, in your mind, you were thinking, well, there is something that could be a convenience store across the street or could look like it.

A. And I included that information as that's what I was told.

[67] Defence counsel then showed Det. Cst. Smutnicki a photograph of Harry's Pub and the address at which the pub is located. Det. Cst. Smutnicki confirmed that this was the pub he was referring to in his evidence.

[68] At this point in the cross-examination, the officer's evidence changed to "it's not directly across the street, but it is on the opposite side of the street within close proximity to Mr. McKinney's residence".

[69] Defence counsel also showed Det. Cst. Smutnicki a photograph of what was in fact directly across the street from Mr. McKinney's residence, which was other houses that could not have been mistaken for a convenience store.

[70] Ultimately, when pressed further in cross-examination, Det. Cst. Smutnicki was forced to concede that he would not have mistaken Harry's Pub as being a convenience store, and he would not have mistaken it as being across the street, since it was almost a kilometre away from Mr. McKinney's residence.

[71] This shift in Det. Cst. Smutnicki's evidence is troubling. At first, he tried to portray this portion of the tip as reliable because there was a pub across the street which could have been mistaken for a convenience store. He was only prepared to admit that this portion of the tip was blatantly wrong when he was presented with incontrovertible evidence that such an establishment did not exist.

[72] Det. Cst. Smutnicki's carelessness with the truth on this point calls into question the credibility and reliability of his other evidence regarding the details of the CI information he received, the observations he made of Mr. McKinney on December 20th, 2016, and his purported subjective grounds to arrest Mr. McKinney.

[73] I also note that P.C. Monteforte, who was partnered with Det. Cst. Smutnicki to make observations of Mr. McKinney, testified that his observations at the Hamilton Beach convenience store were in line with the tip Det. Cst. Smutnicki communicated to him, since it was a nearby convenience store. This is in direct contrast to Det. Cst. Smutnicki's testimony that he did not believe the Hamilton Beach convenience store was the store the CI had talked about.

[74] I find it difficult to reconcile the testimony of these two officers, who were communicating by radio during the surveillance of Mr. McKinney. How could they have different views of the tip they were investigating and the significance of the observations made at the Hamilton Beach convenience store? This is one of the reasons that I found on a balance of probabilities that the CI information provided was limited to Mr. McKinney being involved in the trafficking of controlled substances, possibly heroin or popcorn, in the City of Hamilton.

[75] Were the police observations corroborative of the CI information? The police were able to confirm the neutral facts that Mr. McKinney drove a black truck and lived at 1032 Beach Boulevard. As I have stated, this is information capable of being known by anyone familiar with Mr. McKinney. They are "routine or commonly available facts". There was no corroboration of the information that Mr. McKinney's nickname was "Red", but this was a portion of the tip that would be difficult, if not impossible, to corroborate by police observations.

[76] Mr. McKinney had no prior convictions for drug trafficking. Neither Det. Cst. Smutnicki nor P.C. Monteforte had any prior personal interaction or dealings with Mr. McKinney before December 20th, 2016.

[77] The purported corroboration of the CI information that Mr. McKinney was involved in trafficking of controlled substances was limited to the two short visits, one to the Hamilton Beach convenience store and the other to 70 Glenburn Drive.

[78] The two officers gave generally consistent testimony about the observations of Mr. McKinney at the convenience store. They both testified that he arrived at the convenience store in his truck and had a brief verbal exchange with another unidentified male outside the convenience store before the two men went into the store. The interaction outside the store was very brief; a "couple seconds" according to Det. Cst. Smutnicki. Mr. McKinney and the other male appeared to know each other.

[79] Both officers testified that Mr. McKinney was in the store less than a minute. He was not seen entering the store with anything in his hands, and had nothing in his hands when he left. Neither officer could see what happened inside the store.

[80] The evidence of the two officers diverged on one point. According to Det. Cst. Smutnicki, the other male came out of the store at the same time as Mr. McKinney, got into his vehicle and travelled eastbound, while Mr. McKinney got into his truck and travelled westbound back to his residence. Det. Cst. Smutnicki testified that Mr. McKinney and the other male left "very close to one another".

[81] P.C. Monteforte, on the other hand, testified that after being in the store for less than a minute, Mr. McKinney exited the store got into his truck and travelled back to his residence followed by both officers. P.C. Monteforte did not observe the other male come out of the store and testified that Det. Cst. Smutnicki would have left before him to follow Mr. McKinney back to his residence. According to P.C. Monteforte, he had the eye the entire time at the convenience store and remained there until Mr. McKinney departed, followed by Det. Cst. Smutnicki, at which point he followed as well. Up to this point, according to P.C. Monteforte, the other male had not yet exited the store.

[82] I find that little significance can be attached to the testimony of Det. Cst. Smutnicki and P.C. Monteforte regarding a possible drug transaction at the convenience store. Their observations "are highly speculative and of little probative value". There was no evidence that the convenience store was in a high crime area known for drugs. There was no evidence regarding the identity of the other male, and whether he was known to police as being part of the drug subculture for instance. There was no evidence about what happened inside the convenience store.

[83] I pause to note that I have some concerns about whether Det. Cst. Smutnicki understood his duty to seek independent confirmation of the CI information, and not to draw conclusions from his observations based on his belief that Mr. McKinney was a drug trafficker.

[84] Det. Cst. Smutnicki testified that his experience led him to believe that a drug transaction occurred inside the convenience store. This was based on his knowledge and training that "drug dealers will typically deal away from their residence to take that pressure away from the residence and allow police to believe that they're not dealing from their home".

[85] Det. Cst. Smutnicki's belief that a drug transaction occurred inside the convenience store was also based on both parties walking in the store at the same time and both parties walking out of the store at the same time. He testified that he didn't believe both Mr. McKinney and the other male could complete separate short purchases inside the store with one cashier in the time they were in the store. He assumed that there was one cashier in the store although he made no observations of the inside of the store.

[86] When asked whether he considered any alternative explanations for Mr. McKinney's short attendance at the convenience store, Det. Cst. Smutnicki's response was telling:

Of course there could be an alternative for them to meet in a store, but based on my experience, I believe that, you know, people would meet in a place like that for once (sic) specific reason and that is to deal drugs. Like, if someone's going to trade baseball cards, I mean, I would suspect they'd probably do that in a parking lot, any parking lot. Not inside a store where they're not in the view of a police officer.

[87] Det. Cst. Smutnicki's response demonstrates that he was unwilling to consider any explanation for the short attendance at the convenience store other than it being a drug transaction. Even if I accept Det. Cst. Smutnicki's evidence that the other male left the store at the same time as Mr. McKinney, this brief attendance at the convenience store with nothing more than a brief verbal interaction between the two men outside the store, and no evidence about the identity of the other male, makes Det. Cst. Smutnicki's belief that this was "drug deal number one" highly speculative.

[88] I rejected Det. Cst. Smutnicki's evidence that the CI tip included the fact that Mr. McKinney was dealing for Tim Lodge. I outlined my reasons for rejecting his evidence above. Det. Cst. Smutnicki testified that Mr. McKinney's short attendance at 70 Glenburn Drive was corroboration for the CI information that Mr. McKinney was dealing for Tim Lodge.

[89] Mr. McKinney entered the south entrance of 70 Glenburn Drive, which is a multi-level apartment building. P.C. Monteforte observed Mr. McKinney exit through the same south door of the building three minutes later. Neither Det. Cst. Smutnicki nor P.C. Monteforte could see inside the building. There is no evidence that Mr. McKinney met with Tim Lodge or anyone else inside the building.

[90] Det. Cst. Smutnicki testified that he had conducted a database check the week of the investigation which showed that Tim Lodge still lived at 70 Glenburn Drive, although he could not say what unit in the apartment building Tim Lodge was associated to. He relayed in his testimony a prior incident involving a home invasion at Tim Lodge's apartment in 70 Glenburn Drive, which be believed "was involving a drug related matter". Det. Cst. Smutnicki knew Tim Lodge to be a high level drug dealer.

[91] Det. Cst. Smutnicki testified that "after seeing Mr. McKinney attend the building, which we deemed associated to Tim Lodge, that gave us -it corroborated information from the source". Det. Cst. Smutnicki's evidence was that P.C. Monteforte was comfortable, and in agreement, that there were grounds to arrest Mr. McKinney at that point.

[92] However, P.C. Monteforte testified that Det. Cst. Smutnicki formed grounds to arrest Mr. McKinney for possession of a controlled substance just based on the observations of two short in and outs; one at the store where the CI said Mr. McKinney goes to deal "and then going into this building and out in three minutes, you know, going to an apartment building that's a pretty short period of time". P.C. Monteforte made no mention of the grounds including Tim Lodge's association to 70 Glenburn Drive. He merely testified that, "like any high-rise in Hamilton, you get –there's drugs everywhere, right, so". P.C. Monteforte radioed for patrol to arrest Mr. McKinney based on the direction of Det. Cst. Smutnicki.

[93] I find that, on a balance of probabilities, Det. Cst. Smutnicki's decision to arrest Mr. McKinney following his attendance at 70 Glenburn Drive was based, as P.C. Monteforte testified, on the fact that it was a second short attendance at a building, rather than any association between that building and Tim Lodge.

(f) Conclusions Respecting the Sufficiency of the Grounds

[94] Having assessed the totality of the circumstances, I conclude that there did not exist the reasonable and probable grounds necessary to arrest Mr. McKinney. I find that the unlawful arrest was arbitrary, in violation of section 9 of the Charter, resulting in an unlawful search incident to the arrest, which violated section 8 of the Charter.

[95] At the time of Mr. McKinney's arrest, Det. Cst. Smutnicki was relatively inexperienced in drug investigations. He had not yet taken the drug course. It may have been this lack of experience that caused him to arrest Mr. McKinney before he had reasonable grounds to do so. It may be that he subjectively believed that he had grounds to arrest Mr. McKinney, but objectively I find that those grounds did not exist.

[96] In cross-examination, when Defence counsel asked Det. Cst. Smutnicki why police had not tried to identify the other male at the convenience store, the officer testified that the plan that day was to arrest Mr. McKinney, and therefore the police did not have "the opportunity to start identifying people in which he had interactions with". This response demonstrates that Det. Cst. Smutnicki did not fully appreciate his duty to seek independent corroboration of the CI information before effecting the arrest.

[97] Unlike the Omar case, there is no evidence that the CI information provided to Det. Cst. Smutnicki was based on first-hand knowledge. The source or means of knowledge of the CI is unknown. I have found that the information provided was minimally compelling and amounted to a conclusory statement that Mr. McKinney was involved in the trafficking of controlled substances. Although there was some evidence about the credibility of the source, this is a case in which I have found that the information provided lacked compelling details. It falls into the category of cases where "the level of verification required may be higher", especially in light of the fact that Mr. McKinney had no prior convictions for trafficking in controlled substances.

[98] The corroboration in Mr. McKinney's case is again distinguishable from the Omar decision. In Omar, an experienced drug officer, investigated a tip from a CI with first-hand knowledge. Mr. Omar made a short attendance at an apartment building in a "high crime area for prostitution and drugs". One officer testified that he had conducted "hundreds" of drug investigations at this apartment building. Mr. Omar then made a short stop at a housing complex nearby, followed by a short stop at a motel in a known drug area. The lead investigating officer testified that he had conducted three to four such drug investigations at the motel in question. When Mr. Omar left the motel, he was talking on a phone, which suggested to the experienced drug officers that he was arranging for another delivery and would have drugs in his possession.

[99] In Mr. McKinney's case, the police observed a short stop at a convenience store, which is a place where, by its very nature, persons routinely attend for short periods of time. Mr. McKinney did not thereafter immediately attend at 70 Glenburn Drive, but returned home for thirty-five minutes before leaving in his truck to attend at the apartment building. I find that the short attendance at 70 Glenburn Drive, coupled with the earlier attendance at the convenience store, did not provide adequate corroboration of the information received. Objectively reasonable grounds for the arrest of Mr. McKinney did not exist in these circumstances.

Did the Police violate Mr. McKinney's section 10(b) rights to counsel?

[100] I find that Mr. McKinney has not established, on a balance of probabilities, that his section 10(b) Charter rights to counsel were infringed. P.C. Boris Iveljic gave clear, convincing and cogent evidence regarding the traffic stop of Mr. McKinney, which was followed by his arrest of Mr. McKinney for possession of a controlled substance for the purpose of trafficking.

[101] I accept P.C. Iveljic's evidence that he arrested Mr. McKinney, searched him, put handcuffs on him, and placed him in the rear of his police cruiser. This was followed by P.C. Iveljic reading Mr. McKinney the rights to counsel from his notebook. Mr. McKinney stated that he wished to call his counsel, Beth Bromberg. This was followed by P.C. Iveljic reading Mr. McKinney a caution, advising him that he was not obliged to say anything unless he wished to do so, and that whatever he chose to say may be given in evidence against him. Mr. McKinney indicated that he understood this caution, and I accept P.C. Iveljic's evidence that Mr. McKinney declined to say anything.

[102] I accept P.C. Iveljic's testimony that he believed he was alone when he read Mr. McKinney his rights to counsel and caution. P.C. Iveljic had a clear recollection and notes of the time at which he arrested Mr. McKinney (11:48 a.m.), and the time at which he read Mr. McKinney his rights to counsel (11:50 a.m.). P.C. Iveljic also gave clear testimony that, in response to Mr. McKinney's request, he contacted Ms. Bromberg's office, and then contacted Duty Counsel, at the request of Mr. McKinney, when Ms. Bromberg was not available.

[103] P.C. Iveljic's clear and cogent evidence is in direct contrast to the muddled and inconsistent evidence of Det. Cst. Smutnicki on this point.

[104] Det. Cst. Smutnicki testified that, when he approached Mr. McKinney's vehicle after the traffic stop, he could not remember whether P.C. Iveljic was out of his police cruiser yet, but he "would assume that he was". Det. Cst. Smutnicki claimed that when he arrived, Mr. McKinney was still in his truck, and that he (Smutnicki) removed Mr. McKinney from his truck, handcuffed him and placed him in the rear of P.C. Iveljic's cruiser.

[105] Det. Cst. Smutnicki claimed that he was the one who told Mr. McKinney, at 11:48 a.m., that he was under arrest for possession of a controlled substance for the purpose of trafficking. He further claimed that he read Mr. McKinney his rights to counsel at 11:49 a.m.

[106] Det. Cst. Smutnicki testified that he also read Mr. McKinney a caution at that time, which Mr. McKinney understood. According to Det. Cst. Smutnicki, after the caution was read, Mr. McKinney made an utterance to him, which I will deal with below.

[107] Det. Cst. Smutnicki stated that he could not recall whether Mr. McKinney said he wanted to speak with a lawyer at the time of his arrest. Det. Cst. Smutnicki used a phrase that he repeated many times throughout his evidence, "not noted and I don't recall".

[108] Det. Cst. Smutnicki testified that he usually writes down the name of the lawyer that an accused requests at the time of the reading of rights to counsel, but in this instance he did not. He went on to say that Mr. McKinney did not indicate at the time of his arrest that he wanted to speak with a specific lawyer, or else he would have noted it. When he was asked whether Mr. McKinney requested to speak with a specific lawyer at the time of his arrest, Det. Cst. Smutnicki replied, "not at that time do I recall".

[109] Det. Cst. Smutnicki testified that there would not have been an opportunity for P.C. Iveljic to arrest and caution Mr. McKinney before he (Smutnicki) arrived at the truck.

[110] When asked in examination-in-chief whether Mr. McKinney requested to speak with a lawyer, Det. Cst. Smutnicki replied, "I'm assuming he did, as he did speak to a lawyer, I believe, as soon as we got back to the station". However, at a later point in his examination-in-chief, when he was asked whether Mr. McKinney did in fact speak with a lawyer at any point, Det. Cst. Smutnicki replied, "not noted and I don't recall".

[111] When he was asked whether Mr. McKinney indicated that he wanted to speak with Duty Counsel, Det. Cst. Smutnicki replied, "once again, I don't have that noted and I don't recall".

[112] I reject Det. Cst. Smutnicki's evidence that he arrested Mr. McKinney, read him his rights to counsel, and cautioned him because his evidence is confusing, internally inconsistent and externally inconsistent with the clear and cogent evidence of P.C. Iveljic on this point. My rejection of Det. Cst. Smutnicki's evidence in this area bolsters my rejection of his evidence in other areas. His unsatisfactory evidence in this area offers further support for my finding that his other evidence is unreliable.

[113] Det. Cst. Smutnicki claimed that after he cautioned Mr. McKinney, Mr. McKinney immediately made a spontaneous, unsolicited utterance to him that there was a bag of drugs on the passenger seat. Det. Cst. Smutnicki could not recall whether he told anyone else that Mr. McKinney made this utterance.

[114] Although my findings on the Charter application result in the exclusion of the drug evidence, if I am in error regarding my Charter findings, I reject outright Det. Cst. Smutnicki's evidence that Mr. McKinney made the impugned utterance to him. Det. Cst. Smutnicki's evidence regarding what happened at the time of the traffic stop and arrest of Mr. McKinney was confusing and unreliable. I accept P.C. Iveljic's evidence that Mr. McKinney declined to say anything when the caution was read to him.

SECTION 24(2) OF THE CHARTER

[115] I have found that Mr. McKinney was arrested without reasonable and probable grounds in violation of his section 9 Charter right not to be arbitrarily detained or imprisoned and that the resulting search incidental to the unlawful arrest violated his section 8 Charter rights. 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

[116] 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".

[117] 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".

[118] I find that the police conduct falls at the serious end of the spectrum in this case.

[119] Firstly, I wish to address my concerns regarding the evidence in this case. The police have a duty to make "meaningful contemporaneous notes of their involvement in a criminal investigation". As Burstein J. recently noted, "[t]he Supreme Court of Canada has also recognized the constitutional importance of affording individuals an opportunity to seek meaningful judicial review of intrusive police conduct".

[120] An arrest is "a serious intrusion on the personal autonomy of the person arrested". When the police arrest a person, and purport to do so based on reasonable and probable grounds, it is incumbent on the police to keep a sufficient record of "the objective and ascertainable facts" upon which they rely, to permit "an independent after-the-fact review by the court". This requirement to properly document and give evidence regarding the objective facts upon which the police relied "protects against arbitrary state action".

[121] Det. Cst. Smutnicki's evidence regarding the specific details of the CI tip lacked clarity and lead me to doubt the credibility and reliability of his evidence on this point. He had difficulty explaining inconsistencies between his initial General Report and his subsequent witness statements regarding the details of the CI tip. At one point, he appeared unsure what the exact details of the tip were ("trafficking heroin throughout the City of Hamilton using a black Ford Pick-up truck" vs. "dealing popcorn from the store across the street from his house").

[122] I had difficulty reconciling Det. Cst. Smutnicki's inconsistent accounts regarding the specifics of the tip, which were also externally inconsistent with P.C. Monteforte's evidence about the details of the CI tip he received from Det. Cst. Smutnicki.

[123] The deficiencies in Det. Cst. Smutnicki's evidence on this point may have been the product of a lack of experience and/or training, or may have been a deliberate attempt to buttress CI information that he received that was unspecific. Whatever the reason for the deficiencies, the police failed in their obligation to provide the objective and ascertainable facts upon which Mr. McKinney was arrested, which made it more difficult for me to conduct the independent judicial review of the purported grounds.

[124] On the evidentiary record presented, I find that Det. Cst. Smutnicki did not fully appreciate what was required to effect a lawful arrest based on reasonable and probable grounds. There was minimal investigation into the CI claim that Mr. McKinney was involved in trafficking controlled substances.

[125] Det. Cst. Smutnicki's stated goal on December 20th, 2016 was to arrest Mr. McKinney. Rather than conducting a thorough investigation to seek independent corroboration of the CI information, the police acted hastily to arrest Mr. McKinney relying heavily upon the CI information that he was involved in drug trafficking. The grounds for arrest in this case were grossly deficient- it was not a close case.

[126] Furthermore, I found that Det. Cst. Smutnicki gave misleading and contrived in-court testimony in an attempt to substantiate his version of the CI information he received. The seriousness of the police misconduct was aggravated by what I have characterized as Det. Cst. Smutnicki's carelessness with the truth.

[127] Although misleading in-court testimony is not part of the Charter breach itself, the Supreme Court of Canada has stated that it is a factor to consider when assessing the first Grant factor:

I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority".

[128] The first prong of the Grant analysis strongly favours exclusion of the evidence. The court must dissociate itself from this serious state misconduct, and must not "condone ignorance of Charter standards and a casual approach to the protection of Charter values".

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

[129] An arrest is a significant infringement on a person's freedom. The impact of the breach on Mr. McKinney's Charter-protected rights also supports exclusion of the evidence.

[130] As in R. v. Brown, "[t]he police interference caused by his arrest was neither fleeting nor technical". The police conducted a traffic stop of Mr. McKinney's vehicle just before noon, in the parking lot of a business. Mr. McKinney was removed from his vehicle, handcuffed, searched, and placed in the back of the police cruiser by a uniformed police officer who was joined shortly thereafter by two plainclothes police officers. The arrest was highly intrusive of Mr. McKinney's liberty and privacy interests. Mr. McKinney was physically restrained by the police who had insufficient grounds to do so.

[131] Therefore, the second branch of the Grant analysis also favours exclusion of the evidence.

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

[132] Within the vehicle, the police seized 27.96 grams of fentanyl, a destructive and lethal substance. The police seized reliable evidence that is indispensable to the Crown's case. This factor strongly favours admission of the evidence.

Balancing

[133] In R. v. McGuffie, the Ontario Court of Appeal stated the following regarding the balancing of the Grant factors:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

[134] In this case, Mr. McKinney was charged with a very serious offence, involving a very dangerous controlled substance. However, based on the totality of the circumstances, I find that the first two Grant factors pull strongly in favour of exclusion of the evidence seized.

[135] 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

[136] For the reasons set out above, I find that the first and second inquiries in Grant push strongly toward exclusion of the evidence. The third inquiry strongly favours admission of the evidence 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.

[137] The application is granted and the fentanyl seized is excluded from evidence in the proceedings. Mr. McKinney is found not guilty of possession of fentanyl for the purpose of trafficking.

Released: May 3, 2019

Signed: Justice J.P.P. Fiorucci