Ontario Court of Justice

Date: 2021 12 23 Court File No.: Lindsay 20-0760

Between: Her Majesty the Queen — And — Randy Laughlin, Sabrina McIsaac & Tristram Robertson-Lee

Before: Justice S. W. Konyer

Heard on: November 8, 10, 12, December 3, 15, 21, 2021 Reasons for Judgment released on: December 23, 2021

Counsel: Ms. S. Repka, counsel for the Crown Mr. P. Affleck, counsel for the accused Randy Laughlin Mr. B. Jeffries, counsel for the accused Sabrina McIsaac Mr. R. Chartier, counsel for the accused Tristram Robertson-Lee

KONYER J.:

Decision on Section 24(2)

[1] Mr. Laughlin, Ms. McIsaac and Mr. Robertson-Lee are jointly charged with firearms offences. The charges were laid following the execution of a s.487 general warrant and the seizure of a firearm from the residence of Mr. Laughlin and Ms. McIsaac at 20 Queen Street in the town of Lindsay on July 26, 2020. Mr. Robertson-Lee brought a Garofoli application to review the warrant. On December 21, 2021 I ruled that the warrant was invalid and that the resulting search constituted an infringement of Mr. Robertson-Lee’s right to be secure from unreasonable search and seizure, as guaranteed by s.8 of the Canadian Charter of Rights and Freedoms. What follow are my reasons for finding that admission of the evidence would bring the administration of justice into disrepute.

[2] There is no dispute in this case that the evidence in question was obtained in a manner which infringed Mr. Robertson-Lee’s s.8 Charter right. In order to decide whether admitting the evidence would bring the administration of justice into disrepute, I must consider the three factors identified by the Supreme Court in R. v. Grant, [2009] 2 S.C.R. 253, namely:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach on Mr. Robertson-Lee’s Charter-protected interests; and,
• Society’s interest in adjudicating the case on its merits.

[3] Typically, the first two lines of inquiry pull towards exclusion of the evidence to some degree, while the third generally favours inclusion. I must assess the degree to which each factor favours exclusion or inclusion of the evidence, and then balance the results. Where the sum of the first two factors pull strongly towards exclusion, it will be rare that balancing will not result in the exclusion of the evidence. However, where a combination of the first two factors results in a weak case for exclusion, the balance may tip in favour of inclusion, particularly where the evidence is reliable and exclusion would gut the prosecution case: R. v. McGuffie, 2016 ONCA 365, at paras. 62-3, R. v. Reilly, 2020 BCCA 369, [2020] B.C.J. No. 2095, at para. 118, aff’d 2021 SCC 38, [2021] S.C.J. No. 38. I will consider each line of inquiry, and then conduct the required balancing at the end.

The seriousness of the Charter-infringing state conduct

[4] I must consider all of the state conduct here that infringed the Charter. This includes the police conduct in entering the residence without a warrant for the purpose of clearing it, conduct which I previously ruled was unconstitutional. The police did not operate under their authority to search incident to arrest, nor were the circumstances exigent. The requirement for judicial authorization to enter a private residence is well-known and the police disregard for that requirement was serious. While the police may not have acted in bad faith in entering the home to conduct a clearing search without a warrant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”: R. v. Grant, supra, at para. 75.

[5] I have also found that the police obtained the subsequent search warrant by providing the issuing justice with an ITO that was littered with false or misleading information, including that Mr. Laughlin was facing an outstanding firearms charge at the time, that he had recently been showing a firearm to several people in the area, and that he was suspected of discharging a firearm into an apartment earlier the same day. It is difficult to accept that all of these misleading statements, each of which strengthened the case for the issuance of the warrant, were the product of simple drafting errors. Bad faith on the part of the police is notoriously difficult to establish, and in this case the affiant was insulated from cross-examination on most of these areas out of concern that any questioning could compromise informer privilege.

[6] At a minimum, I am satisfied that the totality of the misleading information included in this short ITO demonstrates gross negligence on the part of the affiant towards his duty to make full, fair and frank disclosure, a duty he swore that he understood and attempted to fulfil. This duty was described by the Ontario Court of Appeal in R. v. Booth, 2019 ONCA 970 in the following terms at para. 54: “as a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly.” This is a burden that the affiant in this case fell far short of meeting.

[7] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court considered the impact of an affiant’s indifference to the duty to make full, fair and frank disclosure in a general warrant authorizing the search of a home and seizure of a personal computer on the first branch of the Grant analysis, at paras. 102-3:

102 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.

103 We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.

[8] In my view those comments apply here. I am unable to positively find that the affiant in this case deliberately misled the issuing justice. Nevertheless, his indifference to his duty to make full, fair and frank disclosure situates the Charter-infringing state conduct in this case at the serious end of the scale.

[9] And that is not all. The police failed to conduct any meaningful investigation to confirm the anonymous or confidential information they received connecting Mr. Laughlin to a firearm. In R. v. Gayle, [2015] O.J. No. 5217 (S.C.J.), it was held that the failure of the police to conduct a proper investigation before seeking a warrant to enter a private residence “puts the police conduct on the more serious end of the spectrum”: para. 106. I agree with this conclusion.

[10] Further, the ITO contained several conclusory statements by the affiant in an attempt to link Mr. Laughlin and the residence to a firearm. The affiant told the issuing justice that “drug traffickers generally carry or keep close a firearm”, that “individuals in the criminal subculture are generally known to keep their firearms on their person, or hidden in a readily accessible place within their residence”, and that Mr. Laughlin fit into these categories of persons. These bald conclusory statements were unsupported by any evidence, but were made by an experienced officer who outlined his law enforcement history in the first two paragraphs of the ITO. The Crown argues that the issuing justice would have appreciated that these unsubstantiated comments added nothing to the grounds for the issuance of the warrant. I do not agree that these statements were harmless. In R. v. Aboukhamis, [2015] O.J. 2300 (S.C.J.), the court held at para. 47 that “[s]trongly worded but unsubstantiated conclusory pronouncements can be as misleading and as persuasive as an inaccurate or incomplete statement of fact.” I agree with that conclusion also.

[11] For all of these reasons, I am of the view that the Charter-infringing conduct of the police in this case was extremely serious. Accordingly, the first Grant factor pulls very strongly toward exclusion of the evidence.

The impact of the breach on Mr. Robertson-Lee’s Charter-protected interests

[12] Mr. Robertson-Lee’s expectation of privacy is the Charter-protected interest that was infringed by the police. As a general rule, everyone enjoys a high expectation of privacy within their own home. The Crown conceded at the outset of this application that Mr. Robertson-Lee had standing, which constitutes a concession that he had a reasonable expectation of privacy. However, the Crown says that he did not enjoy a high expectation of privacy in the Queen Street address as there is no evidence before me that this was his home. I agree that Mr. Robertson-Lee, as the Charter claimant, bears the onus of establishing that he enjoyed anything beyond the reasonable expectation of privacy which was conceded by the Crown. As there is no evidence before me as to his connection with this address, I can only proceed on the basis that he had a reasonable, but not a heightened, expectation of privacy. What I must assess is the impact of the state conduct on that interest.

[13] In my view, the infringement of Mr. Robertson-Lee’s privacy interests here was significant. Whether it was his residence or not, he had a reasonable expectation of privacy. Even absent bad faith, “entry into a dwelling-house without a warrant is a very serious Charter breach”: R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689, at para. 40. Again, the police conducted two unlawful entries into the residence in which Mr. Robertson-Lee enjoyed a reasonable expectation of privacy – the clearing search and the search authorized by the warrant which I have since ruled was invalid. If he were a resident of the address the breaches here would have constituted a massive intrusion on his privacy interests, and this factor would have strongly pulled towards exclusion of the evidence. As a result of his lessened privacy interest, I find that for Mr. Robertson-Lee this factor favours exclusion of the evidence only to a moderate degree.

Society’s interest in adjudicating the case on its merits

[14] The exclusion of reliable and relevant evidence undermines the truth-seeking function of the trial. As the Crown rightly points out, the impugned evidence in this case is reliable, the allegations are serious, and exclusion would gut the Crown’s case. This factor therefore pulls strongly towards inclusion of the evidence.

[15] That being said, the seriousness of the offences cuts both ways, as the Supreme Court recognized in Grant, supra, at para. 84: “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.”

Balancing the Grant factors

[16] The balancing of the factors occurs at the end of the analysis. I must balance the sum of the first two factors, which I have found pull very strongly and moderately towards exclusion of the evidence against the third factor, which pulls strongly towards inclusion. The balancing of these factors compels me to conclude that admission of the evidence would bring the administration of justice into disrepute.

[17] It is the long-term repute of the administration of justice that I am concerned with here. As the Supreme Court cautioned in Grant, supra, at para. 84, “[t]he short term public clamour for a conviction in a particular case must not deafen the s.24(2) judge to the longer term repute of the administration of justice.”

[18] Further, as the Supreme Court stated in R. v. Morelli, supra, at para. 110, “justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practice.” For the reasons I have already set out, the police conduct in this case was unacceptable. Admission of the reliable and crucial evidence at issue in this case would cause harm to the administration of justice in the long term. The evidence is therefore excluded.

[19] With respect to Mr. Laughlin and Ms. McIsaac, I understand that the parties agreed to be bound by whatever ruling I made on this application. Therefore the evidence is also excluded against them.

Released: December 23, 2021 Signed: Justice S. W. Konyer