R. v. Reid

Court Information

Date: January 17, 2020

Court: Ontario Court of Justice

Before: Justice John North

Reasons for Judgment Released: January 17, 2020

Parties

Between:

Her Majesty the Queen

— and —

Adrian Reid

Counsel

Ms. M. MacKinnon — counsel for the Crown

Mr. C. Zeeh — counsel for the Defence

I. INTRODUCTION

[1] On January 30, 2018, Toronto Police Service (TPS) officers executed Controlled Drugs and Substances Act (CDSA) search warrants on three apartments and one motor vehicle. Inside one of the apartments officers seized a number of items including a loaded handgun, ammunition, drug paraphernalia and a little over 6 grams of powder cocaine. The police located no evidence at the other two apartments and found no contraband in the motor vehicle.

[2] Earlier that day, Adrian Reid had been arrested for the offence of possession of a Schedule I substance for the purpose of trafficking. Mr. Reid was the target of this investigation. After the police executed two of the search warrants, Mr. Reid was charged with a number of additional offences.

[3] Mr. Reid challenged the admissibility of the evidence seized during the execution of the search warrant at the apartment. He brought an application pursuant to ss. 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (Charter) to exclude the seized evidence.

[4] The Crown argued that there was no violation of Mr. Reid's Charter rights. It was the position of the Crown that if the court concluded the police violated one or more of Mr. Reid's Charter rights, the evidence should not be excluded under s. 24(2).

[5] I have concluded that:

• Mr. Reid's rights under s. 9 were not infringed. The police had reasonable and probable grounds to arrest Mr. Reid.

• Mr. Reid's rights under s. 8 were infringed. The issuing justice could not have issued the search warrant for the apartment where the evidence was found because the information to obtain (ITO), as amplified on review, failed to disclose reasonable and probable grounds to believe that evidence of a CDSA offence would be found at that location.

• Mr. Reid's rights under s. 10(b) were infringed. The specific circumstances of this case justified some delay in providing Mr. Reid access to counsel. However, the police did not take all reasonably available steps that could have reduced the length of the delay.

• The admission of the evidence seized at the apartment would bring the administration of justice into disrepute.

[6] My reasons for these conclusions follow.

II. OVERVIEW OF THE INVESTIGATION

[7] After receiving information from two confidential informants (CIs) about Mr. Reid's alleged drug trafficking activities, officers with the Guns and Gangs Task Force of the TPS commenced an investigation into Mr. Reid. During the course of this investigation, the officers obtained information from various police data bases. Prior to obtaining the search warrants, the officers conducted surveillance on Mr. Reid for a number of hours over a three-day period.

[8] On January 30, 2018, search warrants were issued for the following locations:

• Unit 407-60 Annie Craig Drive, Toronto;
• Basement apartment, 754 Broadview Avenue, Toronto;
• Unit 1408-6 Eva Road, Toronto; and
• a 2012 BMW with licence plate CCSE 159 (the "BMW").

[9] The first three locations were apartments. The police executed all of the warrants on January 30th.

[10] The ITO was common to the four search warrants.

[11] On January 30th, Mr. Reid (while shopping at a Mississauga aquarium store) was arrested for the offence of possession of a Schedule I substance for the purpose of trafficking. In keeping with the police investigative plan, Mr. Reid was arrested before the police executed any of the search warrants. No controlled substances were found on Mr. Reid during a search incident to arrest.

[12] Moments after his arrest, Mr. Reid was advised of his rights to counsel by Detective Robert Stolf. Detective Stolf was the supervising officer of the police team investigating Mr. Reid. Mr. Reid responded that he wanted to speak with a lawyer. Detective Stolf told Mr. Reid that he would be given access to a phone to speak with a lawyer when he arrived at 22 Division.

[13] During the execution of the search warrant at unit 407-60 Annie Craig Drive, police officers found a quantity of controlled substances, a loaded Smith and Wesson handgun, ammunition, cash and drug paraphernalia. The officers also located documents belonging to Mr. Reid and Sarah Lentinello. Some of these documents were addressed to Mr. Reid and Ms. Lentinello (jointly) at unit 407-60 Annie Craig Drive. Mr. Reid was subsequently charged with various firearms and drug charges. No controlled substances or weapons were located by the police at any of the other search locations.

[14] The police first attempted to contact duty counsel on behalf of Mr. Reid approximately three and a half hours after he was arrested. A telephone message was left for duty counsel after the police secured the last apartment for which a search warrant had been issued. During this three and a half hour period Mr. Reid was not told why he was not being given an opportunity to speak with a lawyer. He was also not told when he would be able to speak with a lawyer. Duty counsel returned the message left by the police about four hours after Mr. Reid had been arrested.

III. THE APPLICATION

[15] The four search warrants were based, in large part, on information provided by the two CIs. To protect the identities of the CIs, a significant amount of information contained in the ITO was redacted before it was provided to defence counsel.

[16] At the outset of the Charter application, Crown counsel conceded that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant. The Crown brought a "step six" application to have the court consider the redacted portions of the ITO in relation to the Charter challenge: R. v. Garofoli, [1990] 2 SCR 1421, at 1461; R. v. Crevier, 2015 ONCA 619.

[17] I was provided a copy of the unredacted ITO and it was made a sealed exhibit on the application. Crown counsel prepared a draft judicial summary of the redacted portions of the ITO. Over the course of a process that took several days, I had a number of questions for Crown counsel about the need for some of the proposed redactions. I also made suggestions about how greater detail could be provided in the judicial summary. On a number of occasions, Crown counsel agreed to provide additional information to the defence. During this process, Crown counsel and I communicated in writing. Those written communications were sealed and made part of the record.

[18] Ultimately, counsel for Mr. Reid was provided with a judicial summary. After reviewing it, he made submissions on why, in his view, it was insufficient to allow for a meaningful challenge. After considering these submissions, I had some additional comments and questions for Crown counsel. Crown counsel agreed that additional information could be provided to the defence. That exchange with Crown counsel was also in writing. Those communications were sealed and made part of the record.

[19] Crown counsel consented to a limited cross-examination of Detective Constable Robert Black, who was the affiant of the ITO. Crown counsel also agreed to answer some additional questions posed by defence counsel regarding the redacted material.

[20] In the end, counsel for Mr. Reid conceded that the defence had sufficient information to meaningfully challenge the search warrant: R. v. Rocha, 2012 ONCA 707, at para. 55; R. v. Reid, 2016 ONCA 524, at paras. 91-96.

[21] There were parts of the ITO which could not be summarized without compromising CI privilege. Both counsel agreed that in assessing the Charter arguments the court should not rely on the portions of the ITO which could not be summarized: Crevier, at para. 87; R. v. Muhammad, 2018 ONCJ 468, at para. 30. Where the contents of the ITO could be summarized, I have relied on the unredacted ITO.

[22] Crown counsel conceded that Mr. Reid had standing to make a s. 8 claim in relation to unit 407-60 Annie Craig Drive.

[23] In response to Mr. Reid's claim that his rights under s. 10(b) of the Charter had been violated, the Crown called Detective Robert Stolf as a witness.

[24] Mr. Reid did not testify on this application.

IV. THE CONTENTS OF THE ITO

A. ITO: Appendices A and B

[25] In Appendix A of the ITO, Detective Constable Black described the items to be searched for, which included controlled substances, debt lists, cell phones, scales, drug packaging, drug paraphernalia, proceeds of crime, documents or other items "in relation to recent ownership, occupation, possession and association with both the search location and the property found within the search location."

[26] In Appendix B, Detective Constable Black stated that the search warrants were being sought in relation to an investigation into Adrian Reid being in possession of a Schedule I substance for the purpose of trafficking.

B. ITO: Appendix C

[27] In Appendix C, Detective Constable Black provided an overview of the investigation, a description of the evidence to be searched for, background information about the target addresses and a description of his background and qualifications. Detective Constable Black stated that in preparing the ITO he relied on information obtained from a number of sources, including other police officers, police computer reports and other database systems.

[28] Detective Constable Black stated that two CIs had provided information to police about a man who was trafficking cocaine. TPS investigators identified Adrian Reid as the target of the investigation.

[29] Detective Constable Black stated it was his belief that evidence of the offence of possession of a Schedule I substance for the purpose of trafficking was currently located at the target locations.

(i) "Database checks and information from other police forces"

[30] Under the heading "database checks and information from other police forces", Detective Constable Black summarized information that he obtained as a result of database checks and certain other investigative methods. This summary included the following information:

• Adrian Reid, "currently has a criminal record with police dating back to 1999 with 20 convictions of uttering threats x2, assault x 3, break and enter with intent, failing to comply with undertaking x 2, trespassing at night, failing to comply with probation order x3, theft under $5000 x 2, fail to comply with recognizance, fail to attend court x2, causing a disturbance, traffic in schedule I x2 and assault with a weapon."

• Adrian Reid is subject to a lifetime firearms prohibition following a trafficking cocaine conviction.

• Adrian Reid, "has a G2 class Ontario Driver's Licence with an address of 6 Eva Road unit 1408 as a home address. His licence has been suspended since December 15, 2016, for medical reasons and unpaid fines."

• Six Versadex reports involving Mr. Reid were submitted by TPS from July 24, 2014 to February 7, 2017. Detective Constable Black's summary of the Versadex reports included the following information:

  a. On October 24, 2014, Mr. Reid was with a male who was wanted for attempt murder. An off-duty police officer called 911. Uniform officers attended and placed the male under arrest for the warrant. The male was found in possession of a firearm and a quantity of narcotics. Mr. Reid was arrested but released upon further investigation at the station. Mr. Reid advised police that he had no fixed address.

  b. On May 21, 2015, Mr. Reid was issued a speeding ticket. Mr. Reid advised police that his address was unit 1809, 7 Capri Road, Toronto.

  c. On February 12, 2016, Mr. Reid was issued a warning for failing to yield to a pedestrian. He was driving a silver BMW with Ontario licence plate BSND 247. Mr. Reid advised police that his address was unit 1809, 7 Capri Road, Toronto.

  d. On July 19, 2016, Mr. Reid was issued a warning for speeding. He was driving a silver BMW with Ontario licence plate BSND 247. Mr. Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto.

  e. On December 2, 2016, Mr. Reid was investigated by TPS for driving while impaired by drug at Lakeshore Boulevard and Parkside Drive. Mr. Reid was transported by police to the hospital. Upon further investigation, Mr. Reid was released and was not charged. Mr. Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto.

  f. On February 7, 2017, Mr. Reid was stopped by police while driving a silver BMW with Ontario licence plate BSND 247. His driver's licence was suspended at the time. The registered owner of the BMW, Sarah Lentinello, was notified of the stop. Mr. Reid advised police that his home address was unit 1408, 6 Eva Road, Toronto.

[31] Detective Constable Black conducted a "Legacy Data" search on Adrian Reid, and summarized the information that he obtained as follows:

• "On August 26, 2007, police investigated Reid at 7 Capri Road apartment 1809 for a domestic incident. It was advised to police [sic] that Reid's girlfriend and baby's mother Kelly Dam born June 11, 1984 for constantly calling Reid's cell phone and filling up his voicemail."

[32] Detective Constable Black conducted a Ministry of Transportation (MTO) query on Kelly Dam and obtained the following information:

• Ms. Dam has a G class licence.
• Ms. Dam has a home address of unit 1408, 6 Eva Road.
• Ms. Dam has one car registered in her name: a 2010 TSX with an Ontario licence plate CCYP 684.

[33] Detective Constable Black conducted an MTO query on Ontario Licence Plate BSND 247 (which was attached to the silver BMW that Mr. Reid was driving when investigated by police in 2016 and 2017) and summarized the information that he obtained as follows:

• The vehicle was registered to Sarah Lentinello born July 21, 1987.

[34] Detective Constable Black conducted an MTO query on Sarah Lentinello and obtained the following information:

• Ms. Lentinello has a home address of 107 McCraney Street West, Oakville. She has a G class licence. Ms. Lentinello has two vehicles registered in her name:

  a. A 2012 blue BMW 5 series with an Ontario Licence plate CCSE 159.

  b. A 1998 Chevrolet Cavalier with an Ontario Licence plate BDDX 951 (expired in 2010).

[35] Detective Constable Black stated that another officer "conducted an investigative check where three parking tags were issued at 60 Annie Craig Drive in the late-night hours." The ITO does not state the date when these tags were issued, which vehicle received the tags or when the officer conducted the "investigative check."

[36] Detective Constable Black stated that on January 29, 2018 he attended 59 Annie Craig Drive and spoke with "building management." He also reviewed CCTV recordings. Detective Constable Black watched a CCTV recording in which Mr. Reid and Ms. Dam, at approximately 10:07 p.m., entered an elevator from "P5" and walked off the elevator together on the fourth floor. Detective Constable Black did not state in this paragraph whether this elevator was in 59 Annie Craig Drive or in another building. He also did not indicate the date when this recording was made.

[37] Detective Constable Black stated that on January 29, 2018 Detective Constable Cory Dunk attended 6 Eva Road and spoke with "building management." Detective Constable Dunk told Detective Constable Black that "Kelly Dam is registered to 6 Eva Road unit 1408."

(ii) Surveillance and Investigative Observations

[38] Under the heading, "Surveillance and Investigative Observations", Detective Constable Black summarized the observations that the police made over four days (January 26-29, 2018).

[39] On Friday, January 26, 2018, a police officer attended an underground parking that was used by the occupants of the condominium buildings at 59 and 60 Annie Craig Drive. The officer located a blue BMW 5 series car with the licence plate CCSE 159 in "spot p5 spot 24".

[40] On Saturday, January 27, 2018, members of the Guns and Gangs Task Force "set up in the area of 60 Annie Craig Drive to conduct surveillance." The ITO describes the police surveillance on January 27th as follows:

• The blue BMW with Ontario marker CCSE 159 was located in the area.

• The vehicle was followed the downtown area [sic] where the vehicle stops at 37 Winchester.

• The driver is confirmed by members as Adrian Reid.

• Reid was north into a laneway that runs north from Winchester Street, west of Parliament Street.

• ** the affiant speaks to building management of 59 and 60 Annie Craig Drive **. It was advised that the parking spot of P5 spot 24 is registered to Sarah Lentinello, 60 Annie Craig Drive unit 407 who is on the lease for the unit. The unit also has a storage locker registered to it with # 94.

• A short time later Reid exits the laneway and gets into the BMW and drives away with members following.

• At 19:14 hours Reid is observed driving into a parking lot on the southwest corner of Bay Street and Elm Street. Member observed what is believed to be a drug hand to hand exchange with an unknown male black.

• The unknown male black is observed walking away from the car and opening the door to a Hyundai, reaching into the vehicle and closes the door.

• The unknown male black proceeds to get into the front passenger [sic] of the BMW with Reid.

• The BMW then exits the parking lot and drives to a Green P underground parking lot at Dundas Square.

• Members attend the underground and locate the BMW unoccupied in the P4 level.

• Approximately a half hour later the BMW exits the garage and drives to Bay Street and Elm where an unknown male black exits out of the rear passenger [sic] of the BMW.

• The BMW leaves the area and is followed to 50 St. Joseph Street (St. Basil's Church) parking lot.

• A few minutes later the BMW exits the lot.

• The vehicle is misplaced at Wellesley Street and located ten minutes later at a gas station at 505 Jarvis Street.

• Reid is observed by members sitting in the driver seat with an unknown male black in the passenger seat.

• The BMW exits the gas station and is followed back to the St. Basil's Church.

• Two minutes later the BMW is out of the lot and followed to Blue Jay way [sic].

• The vehicle is misplaced near Blue Jay way [sic] but located fifteen minutes later in a parking lot at Wellington Street and Blue Jay way [sic] unoccupied.

• At 21:42 Reid is observed by members standing out front of 318 Wellington Street Soho Metropolitan Hotel with a female Asian, believed to be Kelly Dam and an unknown male black smoking.

• Members observe Reid and possible Dam walk towards the lot where the BMW is parked.

• They are both observed entering into the BMW and exiting the lot.

• The BMW is followed to 60 Annie Craig Drive where the BMW drives down into the underground of the building.

• Members check the underground a short time later and observe the BMW parked in P5 spot 24.

[41] On Sunday, January 28, 2019, members of the Guns and Gangs Task Force attended 60 Annie Craig Drive and 6 Eva Road to locate Mr. Reid and conduct surveillance. The ITO describes the police surveillance on January 28th as follows:

• The BMW with Ontario marker CCSE is located at 6 Eva Road in visitors' lot spot V23.

• At 18:49 the BMW exits the lot and is followed to 60 Annie Craig where the BMW pulls into the roundabout. The vehicle sits there; no one approaches or exits the vehicle.

• The BMW sits there for six minutes and pulls away and drives to 2200 Lakeshore Blvd.

• The BMW sits in the front of a Starbucks running, no one approaches and no one exits the vehicle.

• The BMW exits five minutes later and drives to the rear of 59 Annie Craig Drive.

• The BMW parks next to a dodge ram pickup truck still running.

• One minute later the BMW pulls out and drives around the corner and goes into the underground of 60 Annie Craig.

• Approximately one hour later the BMW exits the underground and is followed to Danforth Avenue and Broadview Avenue.

• The BMW is observed by members driving down a laneway between 752 and 754 Broadview.

• Two minutes later Reid is observed wearing a backpack going into the A & W at 752 Broadview.

• Reid is out a minute later with an A & W bag and walks down the same laneway and is out of sight.

• Approximately two and a half hours later Reid is observed walking from 754 Broadview basement apartment and gets into the BMW and exits the laneway.

• The BMW is followed back to Annie Craig Drive.

• Surveillance was discontinued.

[42] On Monday, January 29, 2019, members of the Guns and Gang Task Force attended 6 Eva Road and located the BMW. The ITO describes the police surveillance on January 29th as follows:

• At approximately 17:00 the BMW is located and is observed exiting a short time later.

• The BMW is followed to a barber shop locate [sic] at 1878 Danforth "barber Lounge".

• Reid is observed exiting the shop and getting into the BMW.

• The BMW is followed to 51 Winchester where Reid is observed exiting the vehicle and walking out of sight.

• Reid was seen walking back to the BMW and placing a bag in the trunk.

• Reid gets into the BMW and is followed to the underground of 60 Annie Craig Drive.

• The BMW is parked in the visitor parking unoccupied.

• Members observed Reid with an unknown male black, afro pulled back, heavy build and black parka jacket with fur walking back towards the BMW.

• Reid gets into his vehicle and the unknown male gets into a grey BMW.

• Both vehicles roll out in tandem.

• The grey BMW is misplaced.

• Reid is followed to 754 Broadview Avenue where the BMW drives up the laneway and out of sight.

• Members locate the BMW parked in the rear unoccupied.

• Members observe Reid exiting out of the basement apartment of 754 Broadview Avenue and getting into the BMW.

• Reid was followed back to 60 Annie Craig where he pulled into the underground parking.

[43] Detective Constable Black included additional information in Appendix C, some of which he obtained during the course of this investigation and some was based on his experience as a police officer. This additional information included the following:

• "Reid has been observed driving in matter which not to be followed [sic] by unknown parties or police. Reid is also not driving a vehicle registered to his name and staying at one address registered to a female."

• "Stash houses are commonly used by drug traffickers to avoid police arrest and rival drug traffickers stealing or robbing their supply. The houses commonly are kept secret from police so search warrants cannot be obtained. They are used as safe places to keep money, drugs, guns and places to 'lay low' (avoid arrest or unwanted attention). Stash houses are used as well to avoid rival drug traffickers stealing their full supply of narcotics and money. Based on my experience on wire projects high end drug traffickers keep several stash houses and do not commonly keep any illegal substances in residences that police are aware of…Many drug traffickers will not keep anything in their name of fear [sic] of police finding them and seizing the items."

• "It is my opinion, based on my personal experience and in conversation with other officers, that narcotics are typically kept close to those who possess them and they seek to maintain control over them at all times. This includes storage of the narcotics in areas directly controlled by the individual, such as homes, motor vehicles and storage lockers. For those reasons I believe the controlled substances to be in the possession of Adrian Reid that evidence of the possession of the narcotics, such as the narcotics itself, and the tools needed to assist them with their trafficking, such a scales, packaging, debt lists and cell phones will be found in the residences."

• "Adrian Reid has nothing registered to his name which makes me believe he does not want to be detected by police or rival drug dealers. Officers have source(s) corroborating each other that Adrian Reid [redacted] trafficker." The judicial summary of the redacted portion of this sentence states that this descriptive detail relates to the level at which Mr. Reid was trafficking.

• "I believe that Adrian Reid is a mid-level drug trafficker and has stash houses where he is keeping his narcotics. Adrian Reid has convictions of drug possession in the past and I believe he is currently doing so for his source of income. At no time have members seen Adrian Reid attend any form of work or employment during surveillance."

C. ITO: Appendix D

[44] In Appendix D, Detective Constable Black summarized the information provided by the CIs and provided background information about the CIs.

(i) CI 1

[45] Detective Constable Black set out CI 1's motivation for providing information to the police.

[46] CI 1 was told that he or she would be charged with a criminal offence if they provided false or misleading information that resulted in a criminal investigation.

[47] Under the heading "Reliability of the Confidential Source", Detective Constable Black stated that CI 1 was a registered Confidential Human Source with the TPS. Information provided by CI 1 had been "successfully used in the recent past."

[48] Detective Constable Black stated that information provided by CI 1 in the past was "proven to be very accurate and has been corroborated by police investigation." In relation to one redacted part of the ITO, the judicial summary states, "this section contains details of an occasion within the previous year when the CS [CI] provided information that resulted in the seizure of contraband."

[49] According to Detective Constable Black, CI 1 was "vividly aware" of people who were involved in drug trafficking.

[50] Detective Constable Black described the information provided by CI 1 at pages 37 and 38 of the ITO. He also indicated how some of CI 1's information was corroborated by police.

[51] The judicial summary states that CI 1 provided information to the police within two months of January 30, 2018. The actual date was contained in the unredacted ITO.

[52] CI 1 provided the police with information about a male by the name of "Adrian." The introductory paragraph for this section of the judicial summary states, "whether or not the details provided by the CS [CI] are first-hand or second-hand are set out in the bullets below." Additional details provided by CI 1 regarding Adrian are contained in the unredacted version of this paragraph in the ITO.

[53] CI 1 stated that "Adrian [redacted]" was a "male black, 6'2, medium build, beard with a round face." Detective Constable Black corroborated this information by viewing an "Intellibook photo."

[54] CI 1 told police that "Adrian [redacted] BMW with tints". Additional details regarding the BMW are contained in the in the unredacted ITO. Detective Constable Black stated that at least one aspect of this information was corroborated by police surveillance.

[55] CI 1 told police that, "Adrian sells cocaine [redacted]". An additional detail regarding this information is contained in the unredacted ITO. The judicial summary states that the redacted information involves a detail with respect to the quantity of drugs sold by Adrian.

[56] CI 1 provided police with personal information regarding "Adrian". This information is contained in the first two paragraphs on page 38 of the ITO. Detective Constable Black stated that some of this information was corroborated during the course of the investigation. Much of this information, and the precise means by which some of the information was corroborated, has been redacted.

[57] CI 1 provided police with a number of details regarding Adrian's drug trafficking. Much of that information was redacted. The judicial summary states that some of this information relates to "details about the manner in which he deals and the subject matter." Detective Constable Black stated that some of this information was corroborated. Some of CI 1's information regarding Adrian's drug trafficking was not corroborated. The means by which the police corroborated information provided by CI 1 was, in some cases, redacted.

[58] CI 1 told police how long he or she had known Adrian. That information was redacted. Detective Constable Black did not state that the police had been able to corroborate that information.

[59] Under the following three headings, Detective Constable Black provided an assessment of the information provided CI 1: (i) compelling nature of the information provided by the confidential source; (ii) confirmation; and (iii) concluding overview in relation to the confidential source. One paragraph in this section of the ITO begins as follows: "the information provided is compelling". The rest of the paragraph has been redacted. The judicial summary for the redacted portion of this paragraph states that:

"The word 'compelling' as used in this paragraph does not relate to the factors a court is to consider as part of the Debot analysis. In this section, the affiant was providing his opinion as to why this investigation is important for the community."

(ii) CI 2

[60] Detective Constable Black set out CI 2's motivation for providing information to the police.

[61] CI 2 was told that he or she would be charged with a criminal offence if they provided false or misleading information that resulted in a criminal investigation.

[62] Detective Constable Black stated that CI 2 was a registered Confidential Human Source with the TPS and that information provided by CI 2 had been "successfully used in the recent past."

[63] Detective Constable Black stated that information provided by CI 2 in the past was "proven to be very accurate and has been corroborated by police investigation." In relation to one redacted part of the ITO, the judicial summary states that as a result of information provided by CI 2, "there have been seizures, charges and arrests on more than one occasion."

[64] According to Detective Constable Black, CI 2 was "vividly aware of members of the community involved in the drug trafficking element in the downtown area of the City of Toronto, and other areas in Ontario."

[65] The judicial summary states that CI 2 provided information to the police within two months of January 30, 2018. The actual date was contained in the unredacted ITO.

[66] Detective Constable Black described how some of CI 2's information was corroborated by the police investigation.

[67] CI 2 was shown an "Intellibook photo" of Adrian Reid by investigators. CI 2 said that the person in the photo was "Adrian."

[68] CI 2 told police that Adrian "deals in the downtown area." Detective Constable Black stated that this information was corroborated by CI 1.

[69] The judicial summary states that redacted parts of the ITO contain details about whether the certain information provided by CI 2 was first-hand or second-hand.

[70] Detective Constable Black described CI 2's knowledge of "Adrian's cocaine dealing." Much of this information has been redacted. According to Detective Constable Black, at least one detail provided by CI 2 was corroborated by police surveillance.

(iii) Judicial Summary

[71] I have already referred to portions of the judicial summary. The judicial summary also includes the following information:

• The CIs did not tell the police that drugs could be found at unit 407-60 Annie Craig Drive or any other named address.

• Both CIs said that they had observed Adrian Reid conducting drug deals.

• The ITO discloses whether the CIs have a criminal record or outstanding charges.

V. THE TESTIMONY OF THE WITNESSES

A. Detective Constable Robert Black

[72] Detective Constable Black testified that during the course of the investigation he received information from Detective Constable Allan Racette that three parking tags were issued at 60 Annie Craig Drive for the BMW that was named in the ITO. In the ITO he did not state that the parking tickets were issued for the BMW. Instead, the ITO states that Detective Constable Racette "conducted an investigative check where three parking tags were issued at 60 Annie Craig Drive in the late-night hours." Detective Constable Black did not know the dates when the tickets were issued.

[73] The ITO did not indicate when or where the BMW was first seen by police on January 27th (other than it was observed "in the area" of 60 Annie Craig Drive). In cross-examination, Detective Constable Black testified that on January 27th his team arrived at 60 Annie Craig Drive at 4:00 p.m. However, they could not find the BMW.

[74] At 4:31 p.m. Detective Constable Black saw the BMW at an Esso gas station located at 2189 Lakeshore Boulevard West. Detective Constable Black testified that this gas station was approximately 500 metres to 1000 metres from 60 Annie Craig Drive. Defence counsel asked Detective Constable Black why he did not indicate in the ITO that the BMW was not found by police at 60 Annie Craig Drive. Detective Constable Black provided the following answer:

"I believe that the area of the gas station is one and the same area as 60 Annie Craig. That's my opinion. If you want to talk about this building [Old City Hall] I would say this building is in the area of the Eaton Centre Mall. Is it the actual or same address? No, but it is in the same area. That's my interpretation of area."

[75] Detective Constable Black testified that if a person was within "a walking distance" of a property he would describe that person to be "in the area" of that property.

[76] Detective Constable Black testified that on January 27th he spoke to the building manager for 60 Annie Craig Drive. Detective Constable Black asked the building manager for the apartment number and name of the person "associated to" parking spot P5-24. This was the parking spot where the BMW was observed on January 26th. The building manager told Detective Constable Black that this parking spot was connected to unit 407-60 Annie Craig Drive and that Ms. Lentinello was "on the lease for the unit." Detective Constable Black asked the building manager if a male was living in unit 407. Detective Constable Black initially testified that the manager replied, "no". However, Detective Constable Black later testified that he believed that the manager did not answer his question and, instead, said that the police would need a warrant to obtain this information. Detective Constable Black explained that he could not remember exactly what the building manager said because he had not taken detailed notes about this conversation. The ITO does not mention that Detective Constable Black asked the building manager if a male lived in unit 407-60 Annie Craig Drive.

B. Detective Robert Stolf

[77] Detective Stolf testified that on January 30, 2018 it was the objective of the police to arrest Mr. Reid and then execute the four search warrants.

[78] Including himself, there were seven police officers on Detective Stolf's team. As there were three apartments to search, he obtained the assistance of another team from the Guns and Gang Task Force. Detective Johnston was in charge of the second team. In total, including Detective Stolf and Detective Johnston, there were thirteen detectives or detective constables who were actively working on this investigation on January 30, 2018.

[79] Detective Stolf testified that at approximately 4:33 p.m. he received information that the BMW had been located at 6 Eva Road. After receiving this information, the two teams conducted surveillance around that location. Detective Stolf testified that at approximately 5:20 p.m. the BMW left 6 Eva Road and the police followed it to a store located at 850 Dundas Street East in Mississauga. The police did not identify the driver of the BMW until approximately 5:31 p.m., when Mr. Reid exited the car and entered the store. Police officers from both teams entered the store and arrested Mr. Reid. No contraband was located by police during a search of Mr. Reid incident to arrest.

[80] Officers escorted Mr. Reid to a police vehicle located outside of the store. Detective Stolf told Mr. Reid that he was under arrest for possession of a Schedule I substance for the purpose of trafficking. Shortly after 5:31 p.m. Detective Stolf advised Mr. Reid of his s. 10(b) rights. Mr. Reid indicated that he wanted to speak to a lawyer. Detective Stolf told Mr. Reid that when he arrived at the police station he would be given access to a telephone to speak with a lawyer. Detective Stolf then provided Mr. Reid with a statement caution. Mr. Reid indicated that he understood the caution.

[81] Another officer provided Detective Stolf with a set of keys that had been located on Mr. Reid during the search incident to arrest. Detective Stolf showed Mr. Reid a copy of the search warrants and advised him about the scope of the investigation. Mr. Reid was taken to 22 Division by two uniformed officers.

[82] At approximately 5:43 p.m. police officers began to search the BMW. They completed the search of the car at about 6:00 p.m.

[83] Detective Johnston's team was assigned the responsibility of executing the search warrant at unit 1408-6 Eva Road. Detective Stolf's team was responsible for executing the search warrant at unit 407-60 Annie Craig Drive. The search warrants for the first two apartments were to be executed simultaneously.

[84] Detective Stolf testified that the search warrants could not be executed simultaneously on all three apartments. He believed that thirteen officers would not be able to properly execute the three warrants simultaneously. He explained that as the investigative plan called for Mr. Reid to be arrested before any of the search warrants were executed, and since he did not know how long it would take to find Mr. Reid, he could not have three police teams on stand-by for an unknown period of time.

[85] Detective Stolf testified there were no other Guns and Gangs Task Force teams working that day. He testified that there is a process within the TPS for the supervisor of a team to request the assistance of additional officers for a specific purpose. However, Detective Stolf did not make a request for additional officers. He testified that as he did not know when search warrants would be executed, it would have been a "big ask" to have a third team of officers on stand-by for an extended period of time.

[86] Detective Stolf testified that had the police executed the search warrants prior to Mr. Reid's arrest, Mr. Reid could have become aware of the investigation and discarded controlled substances that were on his person.

[87] At 6:02 p.m. Detective Stolf left the Mississauga store where Mr. Reid had been arrested. He arrived at 60 Annie Craig Road at 6:23 p.m. There were three other police officers with him. At 6:29 p.m. Detective Stolf unlocked the door to unit 407 using the key that was found on Mr. Reid during the search incident to arrest.

[88] The officers entered the one-bedroom apartment and found no one inside. The officers searched the apartment and located the evidence that was previously mentioned. After the officers completed the search of this apartment Detective Stolf called Detective Johnston who advised that his team had completed the search of unit 1408-6 Eva Road.

[89] Detective Stolf told his team that they would attend 754 Broadview to execute the final search warrant. Detective Stolf and his team left 60 Annie Craig Drive at 7:43 p.m.

[90] At approximately 8:40 p.m. Detective Stolf and his team arrived at 754 Broadview. The entrance to the apartment was located in a rear laneway. There was a locked steel gate located in front of the door. Before attempting to break through the steel gate, the police contacted a female occupant of the apartment by phone. The occupant opened the door and the officers entered the apartment at 8:45 p.m. Detective Stolf took a series of entry photos of the premises. He testified that it took about a minute to take these photographs. Detective Stolf then instructed his team to search the apartment.

[91] At approximately 8:51 p.m. Detective Stolf made a telephone call to Detective Constable Dunk, who was at 22 Division. Detective Stolf told Detective Constable Dunk that Mr. Reid should be advised that he would be facing additional charges for the controlled substances, firearm and ammunition located at unit 407-60 Annie Craig. Detective Stolf told Detective Constable Dunk that he could "go ahead and facilitate the phone calls that Mr. Reid had requested."

[92] At 8:53 p.m. Detective Constable Dunk told Mr. Reid about his new charges. At 8:58 p.m. Detective Constable Dunk called duty counsel on behalf of Mr. Reid and left a message.

[93] Detective Stolf testified he decided to delay Mr. Reid's contact with counsel until the last apartment had been secured. When Mr. Reid was arrested, he was not told that his s. 10(b) rights were going to be suspended.

[94] Detective Stolf testified that the decision to delay the implementation of Mr. Reid's s. 10(b) rights was based on concerns about officer safety and the potential destruction of evidence. As this was a drug investigation there was a concern that evidence might be destroyed if occupants of the three apartments received advance information that the police were going to execute search warrants. He also testified that, given the nature of this investigation, there was a heightened concern about officer safety and noted that officers could be placed in harm's way if the occupants of any of these locations knew that police officers were about to execute search warrants.

[95] Detective Stolf testified that, based on developments in the law since January 2018, he would now advise an accused person at the time of arrest that his or her s. 10(b) rights were going to be suspended.

[96] Detective Stolf testified that the number of officers that are required to execute a search warrant is a case-specific issue. He testified that the fact that this was a drug trafficking investigation was a consideration in assessing how many officers would be required to execute these warrants.

[97] Detective Stolf believed that, given the circumstances of this case, there was a reasonable basis to suspend Mr. Reid's right to speak to counsel until all three apartments had been secured by police.

[98] Detective Stolf testified that there was no "general policy" within the TPS to suspend an accused's right to speak to counsel in circumstances where there are an insufficient number of police officers to simultaneously execute multiple search warrants. Instead, the decision is made on a case-by-case basis.

VI. SECTION 9

A. Introduction

[99] Mr. Reid argued that his s. 9 rights were violated because the police did not have reasonable and probable grounds to arrest him on January 30, 2018.

B. The Relevant Law

[100] Section 9 of the Charter provides that "everyone has the right not to be arbitrarily detained or imprisoned." A detention that is not authorized by law is arbitrary: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, at para. 54; R. v. Gerson-Foster, 2019 ONCA 405, at para. 74.

[101] Pursuant to s. 495(1)(a) of the Criminal Code, a police officer is authorized to arrest a person without a warrant where the officer believes on reasonable grounds that the person has committed or is about to commit an indictable offence.

[102] An arresting officer must subjectively have reasonable grounds on which to base the arrest and those grounds must be justifiable from an objective point of view: R. v. Storrey, [1990] 1 SCR 241, at p. 251; Gerson-Foster, at paras. 77-78. An arrest can be "justified only on the officer's subjective purpose for the arrest": Gerson-Foster, at para. 78; R. v. Caslake, [1998] 1 SCR 51, at para. 21.

[103] A court can take into account an officer's training and experience in assessing whether the officer had reasonable grounds to arrest: R. v. Wu, 2015 ONCA 667, at paras. 50-52.

[104] When the grounds to arrest are based, at least in part, on information from a confidential informant, a court must consider "the totality of circumstances to determine if the confidential information is sufficiently credible, compelling and corroborated to support the arrest": R. v. Chioros, 2019 ONCA 388, at para. 17; R. v. Debot, [1989] 2 SCR 1140, at p. 1168. Weaknesses in one of these areas may be compensated by strengths in the other two: Debot, at p. 1168; Chioros, at para. 17.

[105] When the police arrest a person under s. 495(1)(a) for possession of a controlled substance for the purpose of trafficking, there must be reasonable and probable grounds to believe that the person had committed or was about to commit this offence. However, there is no requirement to establish reasonable and probable grounds to believe that the accused was in possession of drugs at the time of his or her arrest: R. v. Muller, 2014 ONCA 780, at para. 37.

C. Discussion

[106] Detective Stolf had reasonable and probable grounds to believe that Mr. Reid had committed the offence of possession of a controlled substance for the purpose of trafficking.

[107] In arriving at this conclusion, I have considered the information provided by the CIs together with the investigation conducted by the police and applied the guidance provided by the Supreme Court in Debot. See also R. v. Richards, 2015 ONCA 348, at para. 43; R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.).

[108] The information that Mr. Reid was selling drugs was compelling. In assessing whether information is compelling a court must consider factors such as the degree of detail provided, the means of knowledge and whether the information that the CI provided was based on first-hand observations or second-hand observations.

[109] In this case, the CIs told the police that they saw Adrian Reid sell controlled substances. This was first-hand knowledge. Both provided additional information about Mr. Reid's drug trafficking. This information contained sufficient detail to support the conclusion that it was not based on mere gossip or rumor. Much of the information was specific and did not involve conclusory allegations. The CIs' information was not dated.

[110] There was sufficient information in the ITO to conclude that the CIs were credible. Both CIs were registered human sources with the TPS. Both had a history of providing reliable information to the police. The ITO contained a detailed review of that history. The ITO revealed whether the CIs had a criminal record. The motivation of both CIs was also disclosed in the ITO. Both CIs were warned that if they would be charged criminally if they provided false information that resulted in a criminal investigation being commenced.

[111] There was some independent corroboration of the CIs' information that Mr. Reid was dealing drugs. On January 27, 2018, the police observed Mr. Reid involved in what appeared to be a hand-to-hand drug transaction. The police also corroborated other information that was provided by the CIs. Some of the investigative steps taken by the police to corroborate the CIs' information about Mr. Reid is set out in the unredacted ITO. Mr. Reid's previous drug convictions, while dated, also provided some independent confirmation of the CIs' information: R. v. MacDonald, 2012 ONCA 244, at para. 22.

[112] I am satisfied that the information provided by the CIs, who were reasonably credible sources, about Mr. Reid's drug dealing was sufficiently compelling and corroborated to support the conclusion that there were reasonable and probable grounds to believe that Mr. Reid had committed the offence of possession of a controlled substance for the purpose of trafficking.

[113] Mr. Reid's arrest was lawful and there was no violation of his rights under s. 9 of the Charter.

VII. SECTION 8

A. Introduction

[114] Counsel for Mr. Reid argued that the issuing justice could not have concluded, based on the amplified record, that there were reasonable and probable grounds to believe that evidence of Mr. Reid's alleged drug trafficking would be found at any of the apartments. In advancing this argument, counsel for Mr. Reid took the position that the ITO contained incorrect or misleading information.

[115] Crown counsel argued that the ITO did not contain misleading information and that the issuing justice could have concluded that there were reasonable grounds to believe that evidence regarding drug trafficking would be found at unit 407-60 Annie Craig Drive.

B. The Relevant Law

(i) Issuance of a Search Warrant

[116] Section 8 of the Charter provides that, "everyone has the right to be secure against unreasonable search or seizure."

[117] Before a search warrant may be granted the police must provide a justice with "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search": Hunter v. Southam Inc., [1984] 2 SCR 145, at p. 168. As Hill J. stated at para. 20 in R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), an ITO must contain sufficient facts to establish reasonable grounds to believe three things:

"…that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specified place."

[118] In determining whether an ITO contains sufficient facts to establish reasonable and probable grounds, the issuing justice must consider the ITO as a whole, not one piece at a time because:

"…each piece of evidence colours other pieces of evidence revealing a fuller and truer picture only through consideration of the evidence as a whole": R. v. Prosser, 2016 ONCA 467, at para. 16.

[119] The issuing justice must conduct this examination "in a practical, non-technical and common-sense basis": Prosser, at para. 16. See also R. v. Sadikov, 2014 ONCA 72, at paras. 81-84.

(ii) Reasonable and Probable Grounds

[120] The reasonable and probable grounds standard is one of reasonable probability or credibly-based probability: Hunter v. Southam Inc., at p. 167. While more than a reasonable suspicion must be established, this standard does not require a prima facie case: Debot, at p. 1166. To meet this standard, in the context of an application for a search warrant, there is no requirement to prove beyond a reasonable doubt, or even on a balance of probabilities, that an offence has been committed and that evidence of that offence would be found at the time and place of the search: R. v. Beauchamp, 2015 ONCA 260, at para. 92; Sadikov, at paras. 81-84.

[121] While information received from a confidential informant may be relied upon to establish reasonable grounds to obtain a search warrant, a confidential informant does not have "to shoulder the entire burden" of establishing a reasonably grounded belief that evidence will be found in the place proposed to be searched: Prosser, at paras. 13 and 17.

[122] As I previously mentioned when dealing with the s. 9 claim, in deciding whether information provided by a confidential informant gives rise to reasonable grounds, a court must consider whether: 1) the information was compelling; 2) the source was credible; and 3) the information was corroborated by police investigation: Debot, at p. 1168. Weaknesses in one of these areas may, to some extent, be compensated by strengths in the other two areas: Debot, at p. 1168; Rocha, at para. 16.

[123] It is not necessary for the police to confirm every detail in an informant's tip. While confirmation of "innocent" details is not as strongly corroborative of an informant's information as confirmation respecting the targeted criminality itself, there need not be corroboration of the very criminal act in issue for a confirmative detail to have probative value respecting the accuracy of an informant's information: Lewis, at p. 490; Rocha, at para. 22; R. v. Nero, 2016 ONCA 160, at para. 76. Indeed, "it is often impossible for the police to obtain such confirmatory information about the 'very criminality' of what the CI has witnessed or knows": R. v. Herta, 2018 ONCA 927, at para. 38.

[124] A target's criminal record can be used to corroborate confidential information, particularly where it is recent and similar to the criminal activity alleged by the confidential informant: R. v. MacDonald, 2012 ONCA 244 at paras. 22-24; Beauchamp, at para. 113.

[125] Officer training and experience may play an important role in establishing the existence of reasonable and probable grounds: R. v. MacKenzie, 2013 SCC 50, [2013] 3 SCR 250, at paras. 62-63. An issuing justice and a reviewing justice are entitled to rely on the opinion of an affiant about "the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia": Prosser, at para. 18. However, courts are not required to uncritically accept or defer to a police officer's conclusion that is grounded in his or her experience and training: MacKenzie, at para. 64.

(iii) Reviewing the Validity of a Search Warrant

[126] The review of the validity of a search warrant begins from a presumption that the warrant is valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343, at para. 30; Beauchamp, at para. 85. The presumption is rebuttable: Nero, at para. 68. The onus is on the accused to establish that the ITO is insufficient: R. v. Campbell, 2011 SCC 32, [2011] 2 SCR 549, at para. 14; Sadikov, at para. 83.

[127] A review of a search warrant is not an "exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions": R. v. Nguyen, 2011 ONCA 465, at para. 57. The draftspersons of ITOs are police officers, not lawyers. An ITO is not held to the same standard as is applied to documents prepared by counsel: R. v. Adansi, 2008 ONCJ 144 at para. 33; R. v. Baldwin, at para. 38; R. v. Brown, 2011 ONSC 6223, at para. 15. To be clear, "perfection in drafting an ITO is not a constitutional standard": Baldwin, at para. 38. Perfection is not the standard against which I have evaluated the ITO.

[128] In this case, the defence advanced a sub-facial challenge to the warrant. In R. v. Paryniuk, 2017 ONCA 87 at para. 77, Watt J.A. stated that a sub-facial challenge, " turns on what the affiant knew or ought to have known when the ITO was sworn." In R. v. Lakan, 2018 ONSC 3649, at para. 71, Hill J. observed that a sub-facial challenge, " is for the accused to go behind the ITO to attack the reliability of its content."

[129] The role of a judge reviewing the validity of a search warrant is limited. The review is not a hearing de novo and the reviewing court cannot substitute its own view for that of the issuing justice: Nero, at para. 69. The narrow scope of a reviewing judge's task was described by Watt J.A. in Sadikov, at para. 88:

"The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued."

[130] Even where it has been established that information in an ITO is inaccurate or omits material facts, "it does not follow that the statutory requirements have not been met": Beauchamp, at para. 88. Errors or omissions in an ITO, whether fraudulent or inadvertent, are, on their own, not a sufficient basis to find bad faith or set aside a warrant: Nero, at para. 72; Sadikov, at para. 87.

[131] While the existence of fraud, non-disclosure, misleading evidence and new evidence are relevant to the review of the search warrant, their impact is to determine whether – after the offending portions of the ITO are excised and after relevant amplification – there continues to be any basis for the decision of the issuing judge: R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992, at paras. 51-60; Garofoli, at p. 1452; R. v. Hafizi, 2016 ONCA 933, at para. 44.

[132] A reviewing judge must "exclude erroneous information" from an ITO: Araujo, at paras. 56-58.

[133] Where the police fail to discharge their duty to fully and frankly disclose material facts, a reviewing judge must use the evidence adduced at the voir dire "to fill the gaps in the original ITO": R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 60. See also R. v. Booth, 2019 ONCA 970, at para. 59.

[134] An issuing justice and a reviewing justice are entitled to draw reasonable inferences from the contents of an ITO: Nero, at para. 71. An affiant need not underline the obvious: R. v. Vu, 2013 SCC 60, [2013] 3 SCR 657, at para. 16.

[135] A reviewing court must conduct the review on "a contextual analysis, not a piecemeal approach to individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences": Nero, at para. 68. A reviewing judge must remember that " if the inferences of criminal conduct and recovery of evidence are reasonable on the facts as disclosed in the ITO, the warrant could be issued": Sadikov, at para. 81.

(iv) Duty to Make Full, Frank and Fair Disclosure

[136] It is "imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer": Booth, at para. 54. To ensure accuracy, there is a legal obligation on an affiant to an ITO to make "full and frank disclosure of material facts": Araujo, at para. 46. See also Booth, at para. 54.

[137] An affiant must present all material facts, favourable or not: Morelli, at para. 58. Indeed, "a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides ": Booth, at para. 54.

[138] An affiant must "avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed": Morelli, at para. 58. See also Booth, at para. 55.

[139] An ITO should "never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not 'pick and choose' among the relevant facts in order to achieve a desired outcome": Booth, at para. 55. See also Morelli, at para. 58.

[140] An incomplete or unclear statement should not be included in an ITO "when a clearer statement could easily have been drafted": Rocha, at para 35. In Rocha, at para. 35, the Court concluded that an unnecessarily unclear statement in an ITO which had the potential to, even unintentionally, mislead the justice of the peace was a "serious matter" because it "effectively deprives the judicial officer of the ability to independently assess the sufficiency of the ITO."

[141] In R. v. Nguyen, 2017 ONSC 1341, at para. 49, Fairburn J. (as she then was) noted that an affiant is under an obligation to disclose "material facts", and stated, "material non-disclosure involves that which bears on the substance of a warrant application."

[142] In Booth, the Court of Appeal recently addressed the question of what is "the frame of material information required to achieve full and frank disclosure?" At para. 56 Paciocco J.A. stated that it includes:

"…all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search ; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant."

[143] As previously noted, when "material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it": Booth, at para. 5 9. See also Morelli, at para. 60; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 SCR 207, at paras. 121-122. The reviewing court must then " determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made": Booth, at para. 57.

C. Discussion

(i) The Omitted Information Was Material

[144] The ITO did not disclose that the first time the police saw the BMW on January 27th was at 4:31 pm at a gas station located up to one kilometer from 60 Annie Craig Drive.

[145] In my view, the omission of this information made the grounds appear stronger than they actually were. The time and location of this observation was important in determining whether there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive. To this point in the investigation, Mr. Reid had never been seen at 60 Annie Craig Drive. Without this information, the issuing justice would not have known that the BMW was up to a kilometer from 60 Annie Craig Drive when the police found it. Without this information, the issuing justice would not have known that close to three hours elapsed from the time the police first located the BMW at the Esso gas station to the time of Mr. Reid's involvement in what appeared to be a hand-to-hand drug transaction. While the ITO provides very little information about what occurred between 4:31 p.m. and 7:14 p.m., it is clear at some point during this period, Mr. Reid entered a laneway and, it appears, the police lost sight of him for an unknown period of time.

[146] In my view, the omitted information was material and undercut the probability that evidence would be found at unit 407-60 Annie Craig Drive.

(ii) Corrected ITO

[147] Having heard the affiant testify, I am of the view that the deficiencies in the ITO were not intentional. It would not be appropriate to remedy the ITO's deficiencies by relying on the court's residual discretion to set aside the warrant, as there was no deliberate non-disclosure, bad faith, deliberate deception or fraudulent misrepresentation.

[148] In determining whether the warrant could have issued, the ITO must be corrected to include the omitted material information.

(iii) Review of Selected Cases

[149] Whether an ITO contained reasonable grounds upon which a court could have issued a search warrant is a "fact-specific determination in each case": R. v. Ngo, 2011 ONSC 6676, at para. 35. Nonetheless, it might be helpful to review some selected cases.

[150] Crown counsel argued that R. v. Soto, 2010 ONSC 1734 (Ont. S.C.J.) affirmed 2011 ONCA 828, provided support for the argument that the ITO, as amplified on review, contained sufficient facts to establish reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive. In my view, the factual circumstances in Soto are fundamentally different from the facts in this case.

[151] In Soto, a confidential informant told the police that the accused was trafficking cocaine. The confidential informant also provided the police with the accused's address. The police set up surveillance on the accused's apartment building. The police watched the accused leave the apartment building and enter the passenger side of the car. The police followed the car after it pulled away from the apartment building. A few minutes later, the car pulled over on two occasions and the police saw what they believed to be hand-to-hand drug transactions on the passenger side of the car. The police maintained constant surveillance on the accused from the time he left his apartment building until the second suspected hand-to-hand drug transaction. The police relied upon the information provided by the CI and the police surveillance to obtain a search warrant for the accused's apartment.

[152] In finding that there were reasonable and probable grounds to believe that evidence would be found at the accused's apartment, the trial judge concluded:

"Officer Taylor's information was that Mr. Soto was dealing cocaine. He saw Mr. Soto leave the building, get into the car, and then, as the ITO sets out, he and Officer Fitkin each observed what they believed to have been two hand-to-hand drug transactions. (That is, they each saw one.) As Mr. Soto had not stopped anywhere else along the way before these transactions, it is reasonable to believe that he would have had the drugs on his person when he left the apartment."

[153] The Court of Appeal cited the above passage from the trial judge's reasons and stated as follows at para. 5:

"In our view, this reasoning is sound. In particular, the emphasized passage speaks to an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence."

[154] The Court of Appeal also adopted the following reasoning of the trial judge at para. 10:

"At the end of the day, the point is that there were reasonable and probable grounds in the circumstances to think that Mr. Soto had drugs on his person when he left 11 Catford Road and got into the Lincoln, and a reasonable inference that, as a dealer, he would have a supply in his apartment."

[155] In the case at bar, the police did not see the target of this investigation engage in a suspected drug transaction immediately after leaving his apartment building. There is no reasonable basis to conclude Mr. Reid left 60 Annie Craig Drive and drove directly to the gas station. Finally, unlike the facts in Soto, it appears that the police lost sight of Mr. Reid before the suspected drug transaction. The facts in this case are clearly distinguishable from the facts in Soto.

[156] Crown counsel also relied on R. v. Chin, 2015 ONSC 4323. In Chin, the accused argued that there was an insufficient basis in the ITO to authorize a search of his residence. As a result of intercepted conversations, police believed that the accused was a supplier of drugs to another drug trafficker. Information in the ITO suggested that the accused had supplied cocaine to a middleman on two specific occasions and, on both occasions, returned home after the drug transactions occurred. McKelvey J. concluded that it was reasonable to believe that evidence of a CDSA offence would be located at the accused's residence. This conclusion was based, at least in part, on the fact that the intercepted conversations and surveillance established reasonable and probable grounds to believe that the accused had, on two occasions, trafficked cocaine and, after completing the transactions, drove back to his "known residence."

[157] The facts in the case at bar differ from the facts in Chin. For at least two and a half hours after the suspected drug transaction, and prior to driving to 60 Annie Craig Drive, Mr. Reid attended a number of locations. During this period, the police lost contact with the BMW and Mr. Reid. In Chin, the search warrant was issued for Chin's "known residence." In the case at bar, while there was evidence in the ITO that could support the conclusion that Mr. Reid was residing at unit 407-60 Annie Craig Drive, in my view, it would be an overstatement to describe this apartment as Mr. Reid's "known residence."

[158] Some guidance regarding the central question on the s. 8 application may be found in R. v. Le, 2014 BCCA 166 and R. v. Prosser, 2016 ONCA 467. In both cases, the issue was whether an ITO contained a sufficient basis to conclude that there were reasonable and probable grounds to believe that evidence would be found at a specific location.

[159] In Le, the British Columbia Court of Appeal concluded that while the ITO raised a suspicion that a link existed between drug trafficking and the appellants' apartment, it did not establish that there were reasonable and probable grounds to believe that evidence would be found at this apartment.

[160] In Prosser, the Ontario Court of Appeal found that the facts in Le were distinguishable and concluded that the ITO established a credibly based probability that evidence would be found in an apartment occupied by the appellant.

[161] In my view, the ITO in this case (as amplified on review) is more similar to the Le ITO than the Prosser ITO.

[162] In Le, the appellants were convicted at trial of possession of a controlled substance for the purpose of trafficking. In the Le ITO, the affiant deposed that there were reasonable and probable grounds to believe that the two appellants (Le and Liu) and Petros Soiles were trafficking controlled substances. Four CIs told the police that Soiles was trafficking drugs on behalf of Le. One CI told police that Le and Liu and were providing cocaine to Soiles for the purposes of trafficking. An anonymous phone caller told police that a Vietnamese man named Michael and an Asian woman named Coco were selling cocaine at the kilogram level. The anonymous caller also indicated that Le and Liu lived in an apartment building that police later identified as "McKay Avenue". Police saw Soiles meet with four known street-level drug dealers. The affiant deposed that these meetings were consistent with drug trafficking activity. Soiles was also observed to frequently enter and exit his apartment at "Regiment Square", in a manner that the affiant deposed was consistent with drug trafficking activity.

[163] Over a four-week period, on nine occasions, police observed one or both of the appellants drive into the Regiment Square parking garage (using a fob associated with Soiles' apartment) and enter Soiles' apartment. Each time, they only stayed a short while.

[164] Police obtained search warrants for Soiles' apartment at Regiment Square and the appellants' apartment on McKay Avenue. The search of the McKay Avenue apartment resulted in the seizure of a significant amount of drugs.

[165] The British Columbia Court of Appeal stated at para. 41:

"… there was overwhelming information that Soiles was trafficking in drugs; there was also information from which, without difficulty, the police could conclude that there were reasonable grounds to believe that Le and Liu were trafficking in drugs with Soiles. The more difficult question is whether there existed a reasonable basis to believe that evidence of drug trafficking would be found at Le and Liu 's residence on McKay Avenue."

[166] The Crown argued that the ITO provided a reasonable basis to infer that the appellants used their home to store drugs. The Crown acknowledged that "reliable information that an individual is trafficking in drugs is not, without more, sufficient to justify a search of his or her home." However, the Crown argued that "by the process of elimination the drugs had to be" at the appellants' residence.

[167] The Court of Appeal found it was significant that, despite frequent surveillance of the appellants and tracking devices on their vehicles, the appellants were never observed travelling directly from their McKay Avenue apartment to Soiles' apartment on Regiment Square.

[168] In concluding that the trial judge erred in holding that the search warrant for the McKay Avenue apartment had been properly issued, the Court of Appeal found, at paragraph 45, that the totality of circumstances, including the number of times the appellants attended at the Regiment Square apartment, "does not lead to a credibly based probability that the drugs were coming from McKay Avenue."

[169] The Court of Appeal observed, at paragraph 45, that there was "a gap in the information as to the appellants' point of origin prior to their alleged delivery of drugs to Regiment Square." In the end, the Court of Appeal concluded, at para. 45, that the amplified ITO contained "nothing more… than supposition that the drugs were originating from McKay Avenue."

[170] In Prosser, the appellant was convicted at trial of firearm, proceeds of crime and drug offences. Guns, money and drugs were found by police during the execution of a search warrant at an apartment occupied by the appellant. On appeal, counsel for the appellant argued that the Ontario Court of Appeal should "follow the lead of the British Columbia Court of Appeal in R. v. Le " and find that the trial judge erred in concluding that the ITO provided a proper evidentiary basis upon which the court could conclude that there were reasonable and probable grounds to believe that evidence would be found at the appellant's residence.

[171] In dismissing the appeal, the Court of Appeal acknowledged that while there was a factual similarity between the two cases, the cases were factually distinguishable. In Prosser, two CIs provided information to the police that the appellant was in possession of a firearm and drugs at his apartment building. The CIs provided the address of the apartment building to the police but did not tell the police the exact apartment in which the appellant resided. The police were able to determine the appellant's apartment based on further investigation. During the Charter application, it became clear that neither CI had provided first-hand information about drug dealing or firearms in the appellant's apartment.

[172] The Ontario Court of Appeal, at paragraph 17, found that the CI information, when considered with the rest of the ITO, "…was sufficient to establish a reasonably grounded belief that the evidence sought would be found in place of the proposed search."

[173] Significantly, the ITO in Prosser contained information that connected the alleged drug trafficking to the premises that the police sought to search. In addressing the CI information in the Prosser ITO, the Court of Appeal at paragraph 17 concluded as follows:

"This information distinguishes this case from Le where the ITO contained no information that linked the drug dealing to the address of the accused, the premises police sought to search under the warrant."

[174] In the case at bar, the CIs did not tell the police that Mr. Reid was in possession of drugs at his apartment building. There was no clear connection between unit 407-60 Annie Craig Drive, Mr. Reid and the commission of the suspected offence on January 27th.

[175] The ITO in Prosser included opinion evidence from the affiant regarding practices of drug traffickers in relation to the storage of drugs and related evidence. The Court of Appeal concluded, at paragraph 18, that the issuing justice and the reviewing justice were entitled to rely upon this evidence.

[176] In the case at bar, the ITO included Detective Constable Black's opinion that he believes evidence of Mr. Reid's drug offences would be found in the locations named in the ITO because, in his experience, drugs are often stored in "areas directly controlled by the individual, such as homes, motor vehicles and storage lockers."

[177] As previously noted, officer training and experience can play an important role in determining whether the reasonable grounds to believe standard has been met: MacKenzie, at para. 62. In some circumstances, it would be open to a court to find based on opinion evidence of this nature, considered together with other information in an ITO, that there were reasonable and probable grounds to believe that evidence would be found in the premises to be searched.

[178] However, in my view, this is not such a case. Reasonable grounds to believe is an objective standard that must "stand up to independent scrutiny": MacKenzie, at para. 64.

[179] In R. v. Aboukhamis, 2015 ONSC 2860, the police obtained a CDSA search warrant for a residence. Inside and around the residence police found controlled substances and a digital scale. The accused was charged with possession of a controlled substance for the purpose of trafficking. The accused brought an application to exclude the evidence based on a s. 8 breach. The ITO contained a police officer's opinion that drug dealers often "keep their drugs with them in their vehicles and their residences or the residences they use to sell the drugs." Grace J. found that the search warrant was invalid as it failed to establish reasonable grounds to believe that evidence would be found in the residence. In my view, the following conclusions of Grace J., at paras. 36, regarding the opinion evidence in that case apply with equal force to Detective Constable Black's opinion evidence:

"The paragraph contains a generalized statement about the propensity of those engaged in drug trafficking. Without some case-specific evidentiary support, it seems to me to be of little, if any, value."

(iv) Conclusion

[180] As I previously noted, an ITO must state investigative facts sufficient to establish reasonable grounds to believe three things: 1) that an offence has been committed; 2) that the things to be searched for will afford evidence; and 3) that the things in question will be found at the place of the proposed search.

[181] I will quickly deal with the first and second requirements. In addressing the s. 9 claim, I concluded that the police had reasonable and probable grounds to believe that Mr. Reid had committed the offence of possession of a controlled substance for the purpose of trafficking. The factual basis for that conclusion was contained in the ITO, as amplified on review.

[182] Turning to the second requirement, based on Appendix A, there can be no doubt that the items the police were searching for would have afforded evidence in this case.

[183] The first and second requirements have been satisfied.

[184] Turning to the third requirement. In deciding whether the issuing justice could have concluded that there were reasonable and probable grounds to believe that evidence of a CDSA offence would be located at unit 407-60 Annie Craig Drive, I must consider the ITO, as amplified on review, as a whole.

[185] It may be helpful at this point to briefly review what was and was not in the ITO, as amplified on review:

• The CIs did not tell the police that drugs or other evidence of a drug offence would be found at unit 407-60 Annie Craig Drive.

• On January 27th, prior to the suspected hand-to-hand drug transaction, the police did not see Mr. Reid or the BMW at 60 Annie Craig Drive.

• The BMW was first seen by police, at 4:31 p.m. at a gas station located up to one kilometer away from 60 Annie Craig Drive. Mr. Reid was later seen driving the BMW.

• There is no way of knowing whether Mr. Reid was at 60 Annie Craig Drive on January 27th before the suspected hand-to-hand drug transaction. The first time the police saw Mr. Reid at 60 Annie Craig Drive on January 27th was when he drove the BMW into the underground parking area (many hours after the suspected drug transaction).

• The ITO contained very little information about what Mr. Reid did between the time the police located the BMW at the gas station until the suspected drug transaction. While affiants are not required to include every detail regarding observations made by police, in this case the absence of information about what occurred during the two hours and forty-five minutes between the police finding the BMW and the suspected drug transaction is a relevant consideration in deciding whether the ITO contained a sufficient basis to conclude that there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive.

• The ITO did not state what happened when Mr. Reid walked into the laneway by Winchester Street on January 27th. Mr. Reid entered the laneway before the suspected hand-to-hand drug transaction. The ITO did not indicate what was in that laneway. There was no indication of when Mr. Reid entered or exited the laneway. The statement in the ITO that Mr. Reid walked out of the laneway "a short time" after entering it is, without more information, almost meaningless. Given this vague description, it is not possible to say whether Mr. Reid exited the laneway ten seconds or twenty minutes after entering it. Based on the ITO, it is not possible to know whether Mr. Reid had time to meet someone after walking into the laneway. It is not possible to know whether Mr. Reid had time to enter a car or a building after he walked into the laneway. It is not possible to know whether Mr. Reid had time to have been involved in a transaction or otherwise acquire or leave something after he entered the laneway.

• Mr. Reid was not seen by police at 60 Annie Craig Drive until at least two and a half hours after the suspected drug transaction. From the time of the suspected drug transaction until Mr. Reid arrived at 60 Annie Craig Drive, the police lost sight of the BMW and Mr. Reid on at least a couple of occasions. During this period, the BMW was "misplaced" for a total of approximately 25 minutes. Even when the police knew where the BMW was during this period, they did not always know where Mr. Reid was located (as he was out of the vehicle).

• There is no indication in the ITO when the police discontinued surveillance on the BMW and Mr. Reid on January 27th.

• Although there was evidence that connected Mr. Reid to unit 407-60 Annie Craig Drive, Mr. Reid was never seen entering or leaving that apartment. Police surveillance did not establish that that Mr. Reid actually stayed overnight at 60 Annie Craig Drive.

[186] The amplified ITO does not establish a reasonable nexus between Mr. Reid, a drug offence and unit 407-60 Annie Craig Road. The record does not provide a reasonable basis to infer that on January 27th Mr. Reid took evidence of a CDSA offence to, or kept evidence of a CDSA offence at, unit 407-60 Annie Craig Drive.

[187] When viewed through the lens of a reasonable person (with the experience and training of Detective Constable Black), the ITO, as amplified on review, considered as a whole, fails to satisfy the reasonable and probable grounds to believe standard. At most, it establishes that there may have been grounds to suspect that evidence of a CDSA offence would be found at unit 407-60 Annie Craig Drive.

[188] I am not satisfied that based on the amplified ITO the issuing justice could have concluded that there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive.

[189] Mr. Reid's s. 8 rights were violated as a result of the issuance and execution of an invalid warrant to search unit 407-60 Annie Craig Drive.

VIII. SECTION 10(b)

A. Introduction

[190] Before turning to the substance of the s. 10(b) claim, I must first address a preliminary matter. There was no causal connection between the alleged s. 10(b) breach and the seizure of any evidence by the police. However, that does not mean that Mr. Reid is foreclosed from seeking Charter relief as a result of the alleged s. 10(b) infringement.

[191] Section 24(2) of the Charter provides that where a court concludes that evidence was "obtained in a manner" that violated a Charter right, the evidence shall be excluded if the admission of it would bring the administration of justice into disrepute. As long as there is a casual, temporal or contextual connection between a Charter violation and the evidence seized (that is not too remote or tenuous) an accused may seek a remedy under s. 24(2): R. v. Pino, 2016 ONCA 389, at para. 72.

[192] In this case, I am satisfied that there is a temporal and contextual connection between the alleged s. 10(b) violation and the evidence. That connection is neither remote nor tenuous. I find that the "obtained in a manner" requirement has been met in relation to the alleged s. 10(b) breach.

B. The Relevant Law

[193] Section 10(b) of the Charter provides that, "everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."

[194] An accused person has the evidentiary burden, on a balance of probabilities, to establish that his or her s. 10(b) rights were infringed: R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3 at para. 30.

[195] In R. v. Bartle, [1994] 3 SCR 173, at p. 192, Lamer C.J.C. concluded that s. 10(b) imposes the following duties on the police after arresting or detaining a person:

"(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)."

[196] The implementational duties of the police under s. 10(b) can be delayed or suspended in exceptional circumstances.

[197] A delay or suspension of s. 10(b) rights may be justified where there are safety concerns or where there is a risk of destruction of evidence: R. v. Wu, 2017 ONSC 1003, at para. 78. In deciding whether there are circumstances that justify delaying or suspending the right to counsel, police officers must:

"…conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate."

[198] In other words, to justify delaying access to counsel, police must have concerns that are grounded in the specific circumstances of a case:

"…concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel."

[199] Even where the initial decision to delay access to counsel is justified, the police must "take reasonable steps to minimize the delay in granting access to counsel": R. v. Rover, 2018 ONCA 745, at para. 27. The suspension of a detainee's s. 10(b) rights "must be only for as long as is reasonably necessary" and "the longer the delay, the greater the need for justification": Wu, (Sup. Ct.) at para. 78.

[200] In determining whether the delay is justified, a court must consider whether the police turned their minds to whether it was necessary to arrest an accused before executing a search warrant. Police officers cannot delay access to counsel "by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant": Rover, at para. 33.

C. Discussion

[201] In my view, based on all of the circumstances, including the nature of the investigation and Mr. Reid's criminal record, the decision to arrest Mr. Reid before executing the search warrants was reasonable.

[202] I am satisfied that Detective Stolf turned his mind to the specific circumstances of this case. This was not a situation where the police made the decision to delay access to counsel based on a police practice or policy.

[203] Detective Stolf was concerned about both officer safety and the potential loss of evidence. These were legitimate concerns. This decision was informed by the information the police had regarding Mr. Reid's criminal history and other information obtained during the course of this investigation.

[204] However, while the initial decision to delay was reasonable, I am not satisfied that the police took all steps that were reasonably available to them to minimize the length of the delay.

[205] There were ways that the police could have reduced the delay in implementing the right to counsel. For example, the police could have simultaneously entered and cleared both of the apartments located in the west-end of Toronto. After that, one of the teams (after securing the apartment by leaving one or more uniformed officers at the scene) could have proceeded to the third apartment. After entering the third apartment, Detective Stolf could have contacted 22 Division to instruct them to contact counsel on behalf of Mr. Reid. One of the two teams could have returned to the apartment that had been previously secured and searched it. If the police had followed this approach, the delay in contacting counsel could have been reduced by up to an hour (the approximate length of the time it took to search each of the first two apartments).

[206] Alternatively, the delay could have been reduced somewhat by changing the sequence of the execution of the search warrants in another way. Based on the locations of the three apartments, the length of time it took the police to complete the searches of the first two apartments, and the amount of time it took Constable Stolf's team to drive to 754 Broadview Avenue from 60 Annie Craig Drive, it is reasonable to conclude that Mr. Reid could have spoken with counsel as much as 30 minutes sooner if the basement apartment at 754 Broadview Avenue had been one of the first two apartments searched.

[207] I find that Mr. Reid's rights under s. 10(b) were infringed.

IX. SECTION 24(2)

A. Introduction

[208] Having found that Mr. Reid's ss. 8 and s. 10(b) rights were violated, I turn to the question of whether the evidence should be excluded under s. 24(2) of the Charter.

[209] Section 24(2) of the Charter provides that evidence obtained in a manner that infringed Charter rights "shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

[210] Evidence is prima facie admissible, even when that evidence was obtained in a manner that violated the Charter: R. v. Yu, 2019 ONCA 942, at para. 136. Mr. Reid has the onus of proving, on a balance of probabilities, that the admission of the seized evidence would bring the administration of justice into disrepute: R. v. Fearon, [2014] SCR 621, at para. 89; Yu, at para. 136.

[211] A court's s. 24(2) analysis must consider the long-term impact of the admission or exclusion of evidence on the administration of justice: Grant, at para. 68; R. v. Le, 2019 SCC 34, at para. 140. Section 24(2) is "premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter ": R. v. McGuffie, 2016 ONCA 365, at para. 60. See also Le, at para. 140.

[212] The exclusion of evidence under s. 24(2) is not meant to punish police. Instead, exclusion is necessary to maintain the "integrity of, and public confidence in, the justice system": Grant, at para. 68. See also Le, at para. 139.

[213] In determining whether evidence should be excluded under s. 24(2), a court must balance the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits: Grant, at para. 71.

B. The Seriousness of the Charter-Infringing State Conduct

[214] The first Grant inquiry involves an assessment of the seriousness of the state conduct that led to the Charter violation. When determining the seriousness of the Charter-infringing conduct, a court must "situate that conduct on a scale of culpability": R. v. Paterson, 2017 SCC 15, [2017] 1 SCR 202, at para. 43.

[215] A finding of willful or flagrant disregard of the Charter will increase the seriousness of the conduct. Likewise, a pattern of Charter-infringing behavior by the police will aggravate the seriousness of the conduct: Grant, at para. 75. Minor or technical violations impact less upon the rule of law than "wilful or reckless disregard of Charter rights": Le, at para. 143. A court must consider whether the Charter violation involved police conduct from which the court should dissociate itself: Yu, at para. 144.

[216] Good faith and bad faith are "not binary states": R. v. Sunner, 2017 BCSC 2444, at para. 13. An absence of bad faith does not necessarily lead to a conclusion that the police acted in good faith: Le, at para. 147.

[217] In Booth, at para. 121, Paciocco J.A. observed that, " willful blindness, negligence, and 'ignorance of Charter standards' can all underpin a finding that a breach is serious."

[218] In this case, the police conducted the search based on what they believed was a valid search warrant. Where a search warrant has been granted, the "starting point" is recognition that an attempt to obtain a search warrant is "the antithesis of willful disregard for Charter rights": Booth, at para. 122.

[219] Generally speaking, absent a finding that the police obtained a warrant through false or deliberately misleading information, or that the ITO was drafted in a manner that otherwise subverted the warrant process, the obtaining of a warrant "tells in favour of admitting the evidence": Rocha, at para. 28. See also R. v. Blake, 2010 ONCA 1, at paras. 24-27; Morelli, at para. 99.

[220] However, the first inquiry under Grant does not always favour admission of the evidence where a search warrant was granted: Rocha, at para. 29. The ITO itself must be considered: Booth, at para. 122. As Doherty J.A. stated in Rocha, at para. 29:

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

[221] When considering where a misleading statement or material omission lies on this continuum, it is important to remember that police officers are not "legal draftsmen": Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at pp. 190-191.

[222] In Booth, at para. 123, Paciocco J.A. considered how to situate police conduct on a fault line or spectrum where a s. 8 violation was connected to errors committed by an affiant in drafting an ITO or authorization:

"In R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, where innocent errors occurred because of sloppy work, the case fell in the middle of the good faith to bad faith spectrum: at paras. 64, 74. In Rocha, there was no bad faith, but there was blameworthy "inattention to constitutional standards": at para. 43. Similarly, in Morelli, the breach was serious notwithstanding that a warrant had been obtained by officers believing they were acting under lawful authority. Fish J. remarked for the majority, at paras. 100, 102:

The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and carelessly drafted. Not only did the ITO fail to specify the correct offence (accessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds.

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

[223] In this case, I do not believe that the affiant deliberately omitted material information. Detective Constable Black did not attempt to mislead the issuing justice. The police conduct was not "egregious". The police conduct that resulted in the material omissions in the ITO could not reasonably be situated at the extreme end of the spectrum of Charter breaches.

[224] However, non-deliberate misleading or false statements can still be serious Charter-infringing state conduct: Morelli, at paras. 100-103; R. v. Muhammad, 2018 ONCJ 626, at para. 16. As Rahman J. concluded in R. v. Owen, 2017 ONCJ 729, at para. 166:

"Negligence, carelessness, or inattention to constitutional standards in obtaining the warrant can 'tip the scales in favour of exclusion' even where there is no impropriety or bad faith. Although the foregoing problems did not by themselves, result in breaches of s. 8, in my view they remain relevant to the seriousness of the breaches that did occur because they are directly related to the police's conduct in the prior authorization process."

[225] In Muhammad, (OCJ) at para. 16, Pringle J. provided the following guidance about what a court might consider when assessing the seriousness of an omission or misstatement in an ITO:

"Clearly, each case must turn on its unique facts. In my respectful view, assessing whether misstatements or omissions fall on the extreme end of the seriousness spectrum may include consideration of:

1. the intent underlying the affiant's misstatements or omissions;

2. the affiant's adherence to his or her duty of fairness in an ex parte hearing, and;

3. the materiality of the misstatements/omissions to the ITO's thesis."

[226] In this case, the following exchange occurred during the cross-examination of Detective Constable Black:

Q. Why didn't you, as you did in many other areas of the ITO, why didn't you provide the address that the vehicle was found in, which is in the surveillance report of 2189 Lakeshore Boulevard West. Why didn't you put that into the ITO instead of 'in the area'?

A. I didn't find it relevant.

[227] While I accept that Detective Constable Black may have thought it was not necessary to include the time and location of this observation, these omissions were clearly material to the ITO's thesis. The omitted information was important in assessing whether there were reasonable grounds to believe evidence would be found at unit 407-60 Annie Craig Drive.

[228] Detective Constable Black had a duty to include these material facts in the ITO. Given the inference s that the issuing justice was being invited to draw, t he importance of including the omitted information in the ITO should not have been lost on the affiant.

[229] A clearer and more complete description of the police observations on January 27th could easily have been drafted: Rocha, at para. 35; Morelli, at paras. 99-103. This makes the breach more serious.

[230] In my view, these omissions were more than just "sloppy work": Herta, at para. 64. The ITO invited "inferences that would not have been drawn or a conclusion that would not have been reached if the omitted facts were disclosed": Booth, at para. 55. The omissions effectively deprived the issuing justice of the ability to independently assess the sufficiency of the ITO: Rocha, at para. 35. This makes the Charter-infringing state conduct more serious.

[231] It is necessary to raise one additional concern that I have with the ITO. Detective Constable Black asserted in the ITO that he believed Mr. Reid supported himself by selling drugs. In the same paragraph of the ITO, apparently in support of the conclusion that Mr. Reid was a drug dealer, Detective Constable Black stated "at no time have members seen Adrian Reid attend any form of work or employment during surveillance." A review of the amplified ITO reveals that the police conducted surveillance on Mr. Reid on only three evenings. Objectively, the fact that the police did not see Mr. Reid attend "any form of work or employment" on a Saturday, Sunday or Monday evening said little about whether Mr. Reid was lawfully employed. Affiants have a duty "to guard against making statements that are likely to mislead the issuing justice": Morelli, at para. 102. Given the manner in which this information was presented in the ITO (including the failure to disclose when the police first saw Mr. Reid on January 27th), there was a risk that the issuing justice could have been misled about the strength of the evidence that supported Detective Constable Black's belief.

[232] I view the state-infringing conduct which resulted in the s. 8 infringement as serious. The reputation of the administration of justice "requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards": Le, at para. 143.

[233] Turning to the s. 10(b) violation. I have concluded that the decision to delay Mr. Reid's access to counsel was initially reasonable.

[234] The decision to delay was, in part, the result of police resource limitations. In assessing the seriousness of police conduct, courts must not ignore the reality that police resources are not limitless.

[235] It is also important to recognize that the police officers took some steps to mitigate the delay in Mr. Reid contacting counsel. The police obtained the search warrants before arresting Mr. Reid. The police contacted duty counsel on behalf of Mr. Reid as soon as the third apartment was secured.

[236] The fact that the police did not attempt to question Mr. Reid before he spoke to counsel does not attenuate the seriousness of the breach: R. v. Noel, 2019 ONCA 860, at paras. 17-19.

[237] Mr. Reid should have been told, when he was arrested, that he would not be allowed to contact counsel until the police had secured all of the search locations. At the time of this investigation the police had not yet received the clear guidance provided by the Court of Appeal in Rover about the importance of an accused person being told why he or she was not being given an opportunity to speak with counsel. In my view, the failure to provide this information to Mr. Reid slightly increases the seriousness of the Charter-infringing police conduct.

[238] After considering all of the circumstances, including the steps taken by the police to mitigate the delay, I would situate the s. 10(b) violation at the low end of the seriousness spectrum.

[239] Overall, I view the state-infringing conduct which resulted in the ss. 8 and 10(b) violations to be sufficiently serious to militate in favour of exclusion of the evidence.

C. The Impact on Mr. Reid's Charter-Protected Interests

[240] The second Grant inquiry requires a court to conduct "an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed": Grant, [2009] at para. 76.

[241] The impact of a Charter breach may range from "fleeting" to "profoundly intrusive": Yu, at para. 150. The more serious the impact on an accused's Charter protected-interests, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, at para. 76; Yu, at para. 150.

[242] I will start by addressing the impact of the search on Mr. Reid's Charter-protected privacy interests. The Crown has conceded that Mr. Reid had a reasonable expectation of privacy at unit 407-60 Annie Craig Drive. Based on the evidence seized by the police during the execution of the search warrant, I am satisfied that (at the very least) Mr. Reid occasionally resided at this apartment.

[243] The search of this apartment involved a significant intrusion into a place in which Mr. Reid enjoys a very high expectation of privacy: Grant, at para. 78; Paterson, at paras. 46-50; Rocha, at para. 38. As the Court noted in R. v. Silveira, [1995] 2 SCR 297, at para. 140, "there is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house.'"

[244] The impact of the s. 8 breach was very serious: Booth, at para. 125.

[245] Turning to the impact of the s. 10(b) breach on Mr. Reid's Charter-protected interests. The right to counsel without delay, "exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention": Noel, at para. 23. The fact that an accused's right to consult counsel was delayed, but ultimately not denied, does not neutralize the loss of this right: Noel, at para. 22.

[246] The right to counsel protects more than access to legal advice. The right to counsel is also, "important in providing 'reassurance' and advice, on such questions as how long the detention is apt to last and what can or should be done to regain liberty": Noel, at para. 26. See also Rover, at paras. 45-46.

[247] In this case, Mr. Reid was held without an explanation as to why he was not allowed to call a lawyer. He was not told when he would be given an opportunity to speak with someone. This made the impact of the breach more serious.

[248] The impact of the s. 10(b) breach was not as serious as it would have been had there been a causal connection between the infringement and the obtaining of the evidence by the police: Rover, at para. 47.

[249] When assessing the extent to which the breach actually undermined the interests protected by s. 10(b), I have taken into account that the initial decision to delay implementing Mr. Reid's right to counsel was reasonable. In my view, at most, an hour of the delay was not justifiable.

[250] The impact of the s. 10(b) breach had a moderate impact on Mr. Reid's Charter-protected interests.

[251] Overall, I view the impact on Mr. Reid's Charter protected interests under ss. 8 and 10(b) as serious. This factor favours exclusion of the evidence.

D. Society's Interest in the Adjudication of the Case on its Merits

[252] The third Grant inquiry looks to society's interest in an adjudication of the case on the merits.

[253] At this stage, a court must consider "factors such as the reliability of the evidence and its importance to the Crown's case": R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, at para. 33. While the seriousness of the offence is a relevant consideration, this factor can cut both ways in the analysis.

[254] The Ontario Court of Appeal in Yu, at para. 153 recently provided the following guidance regarding this line of the Grant inquiry:

"The underlying principle here is the truth-seeking function of the criminal trial process and whether the criminal justice system would be better served by admission or by exclusion, considering the seriousness of the offence. While these are important factors to be weighed in the balance, they cannot be skewed in such a way that they overwhelm the s. 24(2) analysis. To do this would be to "deprive those charged with serious crimes the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of criminal law 'the ends justify the means.'"

[255] The third line of inquiry usually pulls towards inclusion of the evidence. However, as the majority noted in Le, at para. 158 "not all considerations will pull in this direction." In the same paragraph, the majority also observed that:

"An "adjudication on the merits", in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms."

[256] This line of inquiry "becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence": Le, at para. 142. However, "if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility": McGuffie, at para. 63.

[257] In this case, as a result of the execution of the search warrant at unit 407-60 Annie Craig Drive, the police seized reliable evidence that was crucial to the prosecution's case. The exclusion of this evidence would gut the Crown's case. The exclusion of reliable and relevant evidence that is important to a Crown's case can undermine the truth-seeking function of the justice system: Herta, at para. 72.

[258] Mr. Reid was charged with firearm and drug offences. These are very serious offences that involve the safety of the community: R. v. Omar, 2018 ONCA 975, at para. 138. Brown J.A.'s analysis was subsequently affirmed by the Supreme Court of Canada in R. v. Omar, 2019 SCC 32. See also R. v. James, 2019 ONCA 288, at para. 87. Society has a strong interest in an adjudication on the merits of cases involving a loaded handgun: R. v. Bashir, 2012 ONCA 793, at para. 7.

[259] Having said that, as Di Luca J. concluded in R. v. Coluccio, 2019 ONSC 4559, at para. 87, "there is no special or categorical s. 24(2) rule when it comes to guns." In R. v. Thompson, 2013 ONSC 1527, at para. 196, Hill J. observed that while "'trends' may emerge over time respecting the admission of unconstitutionally seized firearms, there is no interpretive presumption, divorced from the facts of a particular case, mandating admission." See also R. v. Dunkley, 2016 ONCA 597, at para. 53; R. v. Fountain, 2015 ONCA 354, at para. 55.

[260] The third line of inquiry favours the admission of the evidence.

E. Overall Balancing of Factors

[261] After considering the three Grant factors, a court is required to determine whether, on balance, the admission of the impugned evidence would bring the administration of justice into disrepute: Grant, at paras. 85, 140.

[262] There is no overarching rule governing how the balance is to be struck – it is a "qualitative exercise, not capable of mathematical precision": Grant, at para. 86. Ultimately, a court must decide whether "a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": Grant, at para. 68.

[263] Given my conclusions regarding the seriousness of the state conduct involved in the s. 10(b) violation and the actual impact of this breach on Mr. Reid's Charter-protected interests, the s. 10(b) violation does not weigh heavily in favour of exclusion.

[264] The impact of the s. 8 breach on the Charter-protected interests of Mr. Reid was significant. The police entered Mr. Reid's residence based on a search warrant which I found was invalid. The warrant was invalid because the amplified ITO did not provide reasonable and probable grounds to believe that evidence would be found inside the apartment. A clearer and more complete description in the ITO of the police observations on January 27th (which included the material facts that were omitted from the ITO that was before the issuing justice) would have revealed that the ITO did not provide a sufficient basis for the issuance of the search warrant. In the circumstances of this case, these are important considerations when balancing the Grant factors: Blake, at para. 33; Booth, at para. 127.

[265] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause by an affiant who has discharged his or her "special duties of candour and full disclosure": Morelli, at paras. 102 and 111.

[266] The repute of the administration of justice would be eroded if courts routinely admitted evidence obtained as a result of unconstitutional searches involving ITOs that were (even unintentionally) incomplete and misleading.

[267] There is obviously a strong public interest in having this kind of case adjudicated on its own merits. However, while the public reasonably expects that people who are alleged to have been unlawfully in possession of loaded firearms will be prosecuted, "it also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their authority": R. v. Caron, 2011 BCCA 56, at para. 66.

[268] After balancing all of the relevant factors, I have concluded that the exclusion of the evidence would best serve the long-term repute of the administration of justice.

F. Conclusion

[269] The evidence is excluded.

[270] I am grateful to both counsel for their helpful submissions.

NORTH J.