WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 26, 2019

Court File No.: Brampton 18-13747

Between:

Her Majesty the Queen

— and —

Clayton Williams

Before: Justice N. S. Kastner

Heard on: March 11, 12, 13, 14, 15, 21, 28, and June 21, 2019

Reasons for Ruling on Search released on: August 26, 2019

Counsel:

Ms. Cindy Nadler — counsel for the Crown/Respondent

Ms. Paula Rochman — counsel for the accused/Applicant Clayton Williams

KASTNER, J.:

Overview

[1] The Peel Regional Police were granted a search warrant by a Justice of the Peace on the 16th day of November 2018 to search the dwelling house at 34 Gatwick Lane in the City of Brampton, where the Applicant was living at the time. On its face, the warrant renders the search of the residence lawful.

[2] The warrant was sought to recover evidence from residential break-ins on Jubilee Court and on Massey Street, where the alleged sexual assault occurred. It covered any evidence that would identify the perpetrator(s).

[3] The warrant was executed that same date (November 16, 2018) at 4:38 p.m. Among the items seized, were the stolen items from 18 Jubilee Court, identified by serial numbers. This included two iPads and a speaker which was set up by the Applicant's nightstand in his bedroom. Police also seized some clothing items, and running shoes or sneakers resembling those the Massey Street perpetrator wore as shown on nearby home surveillance videos (black sneakers with white soles). They also observed a bag containing numerous pieces of jewellery and other items.

[4] Ms. Rochman brings an application alleging a violation of s. 8 of the Canadian Charter of Rights and Freedoms (Charter). Counsel asserts that the search warrant granted to Peel Regional Police is flawed, applying a subfacial analysis, and ought not to have been issued on any redacted warrant. If the search of the Applicant's home was thereby warrantless, it follows that a Charter breach has been established, and she submits the evidence obtained as a result of the search of the dwelling should be excluded pursuant to s. 24(2) of the Charter.

[5] Ms. Nadler for the Crown responds that the search warrant is valid on both a facial and subfacial analysis, and that the resulting search is lawfully executed, with no Charter breach.

The Application

[6] The evidence on this application was heard in a voir dire.

[7] Peel Regional Police had what they believed to be a sexual predator and break-in bandit in north Brampton with two offences in the early morning hours of September 2, 2018. They focused in on sexual offenders in their system, using the Violent Crime Linkage Analysis system. The basis for that report was the description provided by the alleged victim of the sexual assault, images captured by security cameras, and the method in which the two offences were committed.

[8] In addition to the evidence as above, surveillance of the Applicant was conducted, both visually and by two separate tracking warrants; one to track the Applicant's cellphone and one to track the Applicant's vehicle, obtained on earlier dates and after the offence date.

[9] The affiant of the Information to Obtain (ITO) the warrant outlined the basis for his belief that the perpetrator of the two offences was the Applicant. He set out the basis for his belief that the Applicant lived at the dwelling subject to the warrant, which included both surveillance on multiple dates, and the tracking warrants. He also listed the property he was looking for, and that he reasonably believed it to be at the premises to be searched.

[10] The threshold issue is whether the police had sufficient grounds to obtain a search warrant at the material time.

[11] The Applicant's position is that certain inaccuracies and/or omissions by the affiant invalidate the warrant.

[12] The Applicant did not seek to cross-examine the affiant or adduce any evidence on the voir dire.

[13] The Applicant does not allege any subversive police conduct or bad faith.

[14] The Respondent's position is that any inaccuracies or omissions in the ITO, if any, on a hindsight analysis, does not affect the validity of the warrant in this case. They should be corrected based on what the affiant did know or should reasonably have known at the time the affidavit was sworn and then adding anything that should have been included but was not and removing anything that was included but should not have been.

The Warrant

[15] In order to make this ruling clear, I have annexed the Information to Obtain the search warrant in question as Appendix I to the ruling.

[16] No issue is taken with Appendix A (the list of items sought) and Appendix B (the itemized Criminal Code offences that it is believed these items will afford evidence). The warrant is challenged on Appendix C, the grounds for belief of the affiant.

The Challenged Portions of the Information to Obtain (ITO)

[17] The Applicant challenges three main portions of the affiant's grounds in the ITO: first, in non-disclosure of information relevant to the decision of the issuing justice; second, the misdescription or omission of descriptors in the identification evidence at the scene of the alleged sexual assault; and third, the grounds to believe the items are at the place to be searched.

Standard of Review

[18] A warrant, once issued, is presumed to be valid. The party challenging the warrant bears the burden of demonstrating its invalidity: R. v. Cusick, 2019 ONCA 524, at para. 43.

[19] To successfully attack the search warrant on a subfacial analysis, the Applicant must demonstrate that there is no remaining basis upon which the warrant could have been issued. As LeBel J. stated, writing for the Supreme Court of Canada:

…[I]t is the task of the applicant, on review, to demolish the appearance of validity. If that attempt fails, the authorization will be upheld.

[20] The ultimate question for a reviewing judge on such an application is whether, based on the ITO and any other evidence adduced on the review, the authorizing justice could have issued the warrant: see the appellate cases of Reid, Araujo, and Bennett.

[21] It is not my view as to whether the warrant should have been issued that is determinative. It is whether there is at least some evidence upon which the issuing justice could have issued the warrant: "at least some evidence that might reasonably be believed on the basis of which the authorization could have issued".

[22] What matters on a subfacial challenge is what the affiant knew, or ought to have known, in applying for the warrant – the affiant's reasonable belief when the affidavit was sworn.

Overview of Evidence

[23] Much of the evidence on the application derives from photographs, and video surveillance. In addition, the Court heard from a number of civilian witnesses. One police witness was called, and some of the photographic evidence is from their surveillance of the Applicant after the two sets of offences are alleged to have occurred.

[24] The affiant did not testify, nor did the Applicant.

[25] For the purposes of this ruling, the evidence is summarized. In the early morning of September 2, 2018, two residences, 900 metres apart, were broken into. One of the homes was 18 Jubilee Court, and the other at 34 Massey Street in Brampton.

[26] Jubilee Court is a small residential street, with very few houses. The mother at 18 Jubilee Court is a homemaker, home-schooling all of her six children. She knows all her neighbours, and their families and friends. A home surveillance video at nearby 2 Jubilee Court showed an unknown male walking across the lawn at 01:08:42, in the direction of 18 Jubilee Court, and no one leaving the street thereafter. It appeared that male may have been wearing gloves.

[27] The home on Jubilee Court was entered from the rear of the house by cutting a screened window in the kitchen and entering the nearby back door. The door had been locked but was able to be unlocked if someone put their arm through the screened window to do so. A number of electronic items were taken from the ground floor, including two new iPads, and a Bose Bluetooth Speaker. That home had no window coverings and would be highly visible when lit from within. The family was up late, past midnight, and the parents and 15-year-old daughter were in the kitchen getting ready for a party to be held later that day. The five younger children were in bed. The rest of the family went to bed between midnight and one o'clock in the morning, likely close to one a.m., and the mother stayed up doing laundry upstairs until 1:40 a.m.

[28] The home had recently been renovated, and the mother was particular about keeping it clean, especially the white walls. She noticed what appeared to be dirty handprints on the wall at the top of the stairs, leading to the bedrooms. They were not there when the family went upstairs that night.

[29] A chair had been placed by the fence in the backyard, which would never normally be there. It would afford an exit onto North Park Drive.

[30] Across North Park Drive to the northwest, just behind the Jubilee Court residences, was Massey Street. The home at 34 Massey Street was a corner lot, heavily hedged for privacy. Much evidence was led about the back patio doors at this address, and the window of the ground floor bedroom of the 13-year-old girl living there. There was an overturned large plastic bucket right under her window. None of the residents recognized it, and it did not belong there. The older teenage brother occupying the bedroom right over his sister's room was talking to his girlfriend using headphones. He could not hear noises, but his girlfriend alerted him to noises she heard in the background. He looked out and saw a man by his sister's window. He presumed it to be his father because police had been called to a ruckus on the street, and he thought his father may have called. He described the man as bald. That man was not involved in the street noise, which involved two people fighting. The police incident on the nearby street corner had occurred at approximately 2:35 a.m., and the police had arrived at 2:37 a.m. and spoke to the man and woman involved. Both were intoxicated and loud, but not arguing when police were there. They left the area in a taxi at 2:48 a.m.

[31] Only later did the brother agree with his sister's assertion that her attacker was black, that the man by her window could be black.

[32] The sexual assault is alleged to have occurred around 3:30 a.m., or about 45 minutes after the police left. The home video surveillance from the outside of the homes a few doors down at 30, 28 and 26 Massey Street were taken at about 3:26 a.m. They depict the unknown male crossing the lawns at the garage level of the homes, looking over his shoulder at one point.

[33] During the time the sexual assault was alleged, the father was in a heavy sleep in a chair in the living room. He did not wake to the fight on the street, the police attendance, his daughters scolding the dog, or placing the dog in his crate nearby in the living room. It was difficult for his daughter to wake him.

[34] There were three sets of doors to enter from the patio. One was a sliding screen. The others were glass doors. The outer glass door was broken and very hard to open. It was quite noisy. The inner door slid easily. The father said he believed the doors to be locked. The daughter, whose bedroom was on that level, testified that she and her sister always left the outer door open and the inner door unlocked. Her brother said the doors are usually never locked. This was the door for the dog to access the backyard.

[35] The daughter alleged that an unknown male assailant came into her bedroom at about "3:30 a.m.(ish)". He was holding onto her bedroom door and massaging his penis. She did not hear the door open. It could easily be pushed, as it is unlocked. She always slept with the door closed. He yanked off her blanket and touched her vaginal area. She was clothed in nightwear. He had his pants on but his penis out, masturbating. He is described as bald, black (solid brown – not really dark or light, in the video statement), ("kind of light kind of skin", in her 9-1-1 call to police), moustache and tiny beard on chin (on the video "a little bit of facial hair here and there… just on his chin"), average size, belly (bigger than the interviewing officer), black zip-up sweater and jeans.

[36] The complainant daughter ended up calling the police because her father was not doing it. He was taking the dog to sniff around the yard.

[37] The location of the Applicant's home was uncovered by investigation of the police. He had not reported his address as he was obliged to do pursuant to his sexual offender identification registration order.

Analysis

[38] The onus is upon the Applicant in an attack on the sufficiency of the ITO. I remind myself that I am not to substitute my view of the situation for that of the issuing justice. The issue is whether based on the information provided whether the warrant could have been issued: see R. v. Morelli, 2010 SCC 8 and R. v. Sadikov, 2014 ONCA 72.

[39] As a matter of law, the validity of the search warrant does not depend on tying the Applicant to the offence. The search warrant could have issued if there were reasonable grounds for discovering evidence of the offence at the Applicant's residence, even if the Applicant was not the offender.

Non-Disclosure

[40] Some of the complaints of non-disclosure were made before the Applicant had an opportunity to view some of the video evidence.

[41] The description in paragraph 6, the video from Jubilee Court, is reasonably accurate.

[42] The Applicant also complains that the timeframe for the break-in on Jubilee Court is not the same as for Massey Street, and the location differs. Ms. Rochman says no information was provided to show a nexus between the male seen on both streets.

[43] The Respondent submits that at the time the ITO was written, the police believed both break-ins to be related. They provided clothing description from Jubilee Court consistent with that on Massey Street.

[44] While the affiant did not take the issuing justice through all of the inferences sought to be drawn between the two incidents, he did reasonably relate them. In particular, he described and put a map into paragraph 1 of the Background section of the warrant, which illustrated the temporality of the two events, and the video evidence they believed linked the two events. The map showed the location of each of the occurrences, the distance between them and the walking time of approximately 11 minutes without cutting through yards or hopping fences.

[45] Additionally, the affiant swears in paragraph 12 that he reviewed the video surveillance from the security camera at 2 Jubilee Court, and also that from 28 Massey Street, and saw a male matching the description of the suspect by the young complainant on Massey Street. He believed the male in both videos to be the same person. He also stated he believed this was the same male the complainant's brother saw outside her window an hour or so earlier.

[46] The affiant also appears to relate the prior occurrences on the Applicant's criminal record in September 2015 of two incidents on the same night which involved escalating behaviours involving young girls and women culminating in a sexual assault. While not explicitly relating this to the relation between the incidents on Jubilee Court and Massey Street, it is clear that inference is being offered to the issuing justice, since the grounds outline the handprints at the top of the Jubilee Court stairs.

[47] Counsel also submits that it was not disclosed if the Applicant's phone was located for September 2, 2018, and the police had the telephone number. By the time the motion was argued, it was an agreed fact that the Applicant's phone was not used between 2:00 a.m. and 4:00 a.m. that early morning.

Omissions or Misstatements

[48] Inaccuracies and omissions by the affiant are not sufficient to affect the validity of the authorization by themselves. They may be corrected based on what the affiant did know or should have reasonably known at the time the affidavit was sworn, and then adding anything that should have been included but was not and removing anything that was included but should not have been: R. v. Paryniuk.

[49] Ms. Rochman asserts that the affiant did not provide any descriptors of the Massey Street assailant inconsistent with the Applicant. The police surveillance was not inconsistent with the complainant's description. The photographs show the Applicant with a slight belly, and a skin colour that is neither too light nor too dark, and that he is a black man. The hair, which is visible under his cap, is close-cropped, giving a bald appearance. It is difficult to see whether there is any light facial hair or not after the offence date.

[50] The Crown concedes that the Applicant did not have a moustache or tiny beard on August 23 or September 4 in photos of surveillance in the probation office and police surveillance, but submits facial hair can be easily changed.

[51] It should be noted that the police later acquired a still shot from the Applicant's probation office from an appointment on August 23, 2018, about one week before the break-ins. The descriptors of the complainant are consistent with his appearance at that time. This was not mentioned in the warrant, as it was acquired after that date. However, information from the probation officer is included in the Grounds to Believe section, and that the probation officer had reviewed the video from that night and found the male depicted to be consistent with the appearance of her client as to hairstyle, build and walk.

[52] The Applicant also says that the affiant misstated the evidence of the teenage brother who made observations from his bedroom window above the complainant's bedroom window. Paragraph 10 reviews that witness' statement and said, "he also saw a black male with a bald head and dark coloured zip-up hoodie standing outside [her] window". Ms. Rochman correctly indicates that the witness' first description did not mention skin colour of the male. He described the man as bald, and that he did not have a good angle. He thought after the police left, his sister complained about twenty minutes or forty-five minutes later. He then concluded it was not his father.

[53] When asked if he could describe the male any other way, the brother replied that he was pretty sure he was wearing a zip-up hoodie and it was unzipped, but he could not really see anything because of the angle. The hoodie was dark, navy blue or black or something. According to the brother, his size was a bit over average, his height about 5'10", he was not young, and he was bald.

[54] He also said in his police video statement that it was too dark, but when his sister mentioned the man was black "I was, like, okay, that kinda makes sense. I could see that".

[55] The Crown also submits that even if the word "black" is omitted from the brother's description, this would make no difference with respect to the issuing justice's decision.

[56] At its highest, the affiant misstated the brother's description to insert "black male". This may also be a conflation of the original description with the adoption by the witness of what his sister claimed. In either case, it is problematic, but the latter slightly less so. If that was redacted from this ITO, the issuing justice could have still issued the search warrant. The other information sworn by the affiant would be sufficient in all the circumstances.

[57] It is clear that the affiant was really relying for identification of the sexual predator that night on the video taken on Massey Street near to the involved house of the male suspect, the timing of the incident and the video times, the direction and the manner in which the figure was travelling. Further, the officer's own opinion of identity, and the probation officer's evidence of consistency was evidence upon which the issuing justice could have been satisfied there were reasonable grounds to believe the Applicant committed this offence.

[58] The Applicant also submits that the surveillance showing him with an iPad after the occurrences held no evidentiary value because of their commonality. This is to be determined in final submissions. It does not detract from the ITO because it is just one of several outlined "grounds to believe" the Applicant committed the offence(s).

[59] The next submission is that the affiant left out the information provided by the complainant's father. Counsel asked the Court to essentially weigh the father's opinion as to whether an offence had occurred. The Respondent submits that suspicion held by the father is irrelevant to the issuance of the warrant. Significantly, this opinion was not held either at the time of trial, or after he had viewed his neighbour's surveillance. Thus, the Respondent points out that before the affiant set out to write the ITO in November, the father had changed his view of all the circumstances. This would not be appropriate to put before the issuing justice.

[60] Should the affiant have indicated how noisy the back patio door was and the fact it was closed when the father, still waking from a heavy sleep, went down to look after his daughter had come up distraught and making the complaint? Given the complainant's statement the back patio door was unlocked, and the exterior door opened, it was reasonable for the affiant to discard inapplicable information. The complainant's brother had also said the door was unlocked.

[61] The Applicant also complains that the affiant did not outline the usual behaviour of the family dog and if it would make noise if a stranger came. The dog had been scolded that night and placed into his crate or cage on the level above the area said to be broken into. That occurred while the father was sleeping, and he did not wake up. The father also indicates that the dog would be unlikely to disturb him if he was crated for bad behaviour, and he was still being trained.

Staleness

[62] This ground relates to the fact the break-in to the Jubilee Court residence and theft of electronic equipment and iPads occurred in the early morning hours of September 2, 2018. It is argued that it is not reasonable to believe the evidence would remain at the Gatwick address on November 16, 2018, some 2½ months later.

[63] The Court must give deference to the affiant's ability to draw inferences and make deductions as a police officer: R. v. Cusick, at paras. 85 ff.

[64] The standard is whether the authorizing Justice of the Peace, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched:

…The standard to be met is determined qualitatively by applying reason to the evidence, not quantitatively by attempting to apply notions based on the probability branch of mathematics. As Deschamps J. said in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. at para. 129: "[d]etermining whether evidence gives rise to a 'credibly-based probability' does not involve parsing the facts or assessing them mathematically". [Emphasis in original.]

[65] In the recent decision of R. v. James, 2019 ONCA 288, at para. 12, the Court cited the trial judge's reasons which concluded that he was not satisfied that the information set out in the ITO was sufficient to ground a credibly based probability that evidence would be found in the Lexus when the warrant was sought:

The police made no attempt to update their information vis-à-vis Mr. James between February 3rd and February 25th. As was pointed out in argument, a drug dealer makes no profit in holding his inventory. He must sell it. Drugs are transitory and there was no pattern demonstrated in the ITO.

This was a 23 day delay. The Crown could not point me to any authority that said this was reasonable under the circumstances.

To the contrary all the authority points to the proposition that a warrant should be executed within a reasonable time of issuance so that the information would remain fresh and relevant.

Here, while the warrant was executed within a reasonable time there was no evidence before the Justice of the Peace that the information was current.

[66] In reversing this decision, the Appellate Court stated at para. 54 and following:

Third, and most importantly, the trial judge erred in concluding that the information in support of the search warrant was stale-dated. In reaching this conclusion, the trial judge said, in part:

As was pointed out in argument, a drug dealer makes no profit in holding his inventory. He must sell it. Drugs are transitory and there was no pattern demonstrated in the ITO.

There is no rule as to how recent information has to be in order to be relevant: R. v. Dionisi, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view, the trial judge fundamentally misunderstood the nature of the offences being investigated and the respondent's possible involvement in them. The information from the investigation showed that Primo was not some low level drug dealer operating in small quantities that might be sold on a street corner or in a back alley. Rather, the information showed that Primo was dealing in much larger quantities of cocaine, up to the kilogram level. The activities of large scale drug dealers are not transitory.

Further, contrary to the trial judge's conclusion, with which my colleague agrees, in my view there was a sufficient pattern of drug dealing on the information gathered to establish reasonable and probable grounds to believe that drugs or drug paraphernalia would be found in the respondent's car or residence. It was clear that Primo was MD's cocaine supplier, or at least one of them. MD identified Primo as supplying him with cocaine on December 18 and then again, about six weeks later, on February 3. MD consistently referenced Primo as the person who would supply him with the cocaine that the police agent, in turn, was trying to purchase from MD. In that context, there was every reason to believe that Primo would be in possession of evidence of his drug activities a scant three weeks later when the search warrant was executed. Primo was engaged in a continuing pattern of supplying MD with cocaine. As I have stated, the evidence establishing that the respondent was Primo was substantial.

Not only do these events support this conclusion, so too does the criminal record of the respondent. Prior criminal activity – including prior involvement in the drug trade – is a relevant factor in determining whether there are reasonable and probable grounds for a search: R. v. Pasian, 2017 ONCA 451, 349 C.C.C. (3d) 144, at para. 6.

[67] This case illustrates that the totality of circumstances must be considered in determining whether there are grounds to believe there is evidence in the place to be searched.

[68] It is essential that the grounds for believing there is evidence in the place to be searched are "based on the operation of reason and not on mere suspicion".

[69] Other examples are illustrated by the Ontario Court of Appeal as to the approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization, at paras. 64 and 65.

[The approach] … must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:

[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance. [Emphasis in original.]

[70] The many appellate cases discussing recency devolve that each decision is very fact-driven.

[71] In this case, the police believed the Applicant broke into the Jubilee Court address. Visual surveillance confirmed his appearance, build and hairstyle was similar to the male figure seen in the both the home video surveillance of houses on Jubilee Court at 1:08 a.m., and on neighbouring properties on Massey Street at about 3:26 a.m.

[72] The houses were only 900 metres apart backyard to backyard.

[73] Police camera surveillance on September 7, 2018, five days after the Jubilee Court break-in, showed the Applicant carrying a black iPad similar to the one stolen on Jubilee Court. The stolen iPad was brand new, and it is one reasonable inference that the thief may have been interested in keeping it for more than a short time.

[74] The tracking devices on the Applicant's car and cellphone showed that he was parked on Jubilee Court, a very small cul-de-sac, for about 35 minutes on October 13, 2018, about six weeks after the break-in. He was parked two to three houses east of 18 Jubilee Court. Home video surveillance at 2 Jubilee Court showed a car entering the street at 9:30:17, and at 9:32 a person was walking cutting across the lawn. At 10:04:57, a person walked across the lawn at 2 Jubilee Court toward North Park Drive. The vehicle was seen leaving at 10:06:26. These times coincided with the tracking data. An officer made visual contact with the driver, identified as the Applicant, at a secondary school between Jubilee Court and Gatwick Lane. The vehicle was not followed. The officer returned to Jubilee Court and noticed a light on in the garage and the gate was open.

[75] The Applicant's residence is about 3.5 kilometres away from Jubilee Court. The incident on October 13 appears to show his continuing interest in this small street, which is not a through street, or on the way to his home.

[76] Considering all the circumstances, the issuing justice could have accorded the passage of time less weight.

Conclusion

[77] Based on the entirety of the record on the application, the issuing justice could have properly granted the warrant. The Applicant has failed to meet their burden of establishing on a balance of probabilities that the warrant could not have been issued on the basis of even a redacted ITO to omit the brother's description of skin colour of the unknown male by his sister's window, if necessary.

[78] The validity of the search warrant is confirmed. Consequently, no Charter s. 8 breach is found, and it is not necessary to consider the s. 24(2) remedy requested.

[79] The results of the search on Gatwick Lane, believed to be the residence of the Applicant, are admitted into evidence.

Released: August 26, 2019

Signed: Justice N. S. Kastner