ONTARIO COURT OF JUSTICE
CITATION: R. v. Getfield, 2022 ONCJ 615
DATE: 2022 12 21
COURT FILE No.: Metro East, Toronto Region 4813-998-21- 35001938-02, 4813-998-21-35001938-91
BETWEEN:
HIS MAJESTY THE KING
— AND —
Shakur GETFIELD and Cordell McLAUGHLIN
Before: The Honourable Justice M. Speyer
Heard on: August 18, 28, September 29, October 20 and November 7, 2022
Ruling on s. 8 of the Charter: Released on December 21, 2022
Counsel:
L Eplett .................................................................................................. counsel for the Crown
Counsel L. Shemesh .................................................. for the defendant Shakur Getfield
Counsel J. Collins ................................................. for the defendant Cordell McLaughlin
M. SPEYER J.:
Introduction:
[1] The Applicants, Shakur Getfield and Cordell McLaughlin are charged with robbery of a firearm and other firearm possession offences related to a robbery and shooting that occurred on March 10, 2021 in the parking lot of 1250 Brimley Road, Toronto. Following an investigation into this shooting, police applied for and were granted search warrants pursuant to s. 487(1) of the Criminal Code to search residences at 30 Saltspring Drive, Markham and 66 Tremblant Cr. in Kleinburg. They also applied for and were granted warrants to search two vehicles: a 2014 Toyota with plate number BLNZ227 (the “Toyota”) and a 2008 Acura with plate number BYSS674 (the “Acura”). DC Farhaan Mian swore one Information to Obtain (“ITO’) in support of his application for all four warrants.
[2] The warrants were granted on May 26, 2021 and executed at both residences the next day. At 66 Tremblant Cr., police found a Glock 9mm handgun and a quantity of ammunition along with clothing believed to be worn by one of the robbers. Shakur Getfield was found and arrested at this address. At 30 Saltspring Dr., police found a Glock 9mm handgun and a quantity of ammunition. Cordell McLaughlin was found and arrested at this address.
[3] Mr. Getfield and Mr. Mclaughlin challenge the facial and sub-facial validity of the ITO the warrants. They submit that the warrants on the residences could not have been issued and seek an order excluding all evidence obtained from those searches on the basis that their rights under s. 8 of the Charter of Rights and Freedoms were violated.
[4] With respect to the sub-facial challenge, I previously granted leave to cross examine the affiant, DC Mien, and sub-affiants, in relation to the lack of officer notes documenting observations of the Acura at 66 Tremblant Cr. on April 27, 2021 and of the Toyota at 30 Saltspring Dr. on March 21, April 27 and May 22, 2021. Counsel for the Applicants submit that any reference to sightings of the cars on those dates should be excised from the ITO as unreliable or not credible. Crown counsel resists this and submits that evidence from the cross examination of the officers confirm that the cars were observed on the dates stated in the ITO. The lack of notes, while unfortunate and sloppy, should not lead me to conclude that the cars were not seen at those addresses on those dates, or that DC Mien misled the issuing justice about those observations.
[5] Mr. Getfield also challenges the warrantless use of a public view camera to continuously record the front porch and driveway of 66 Tremblant Cr, between May 11 and 25, 2021, during which the Acura was observed coming and going from this address daily. The affiant included this evidence in the ITO to support a search of 66 Tremblant Cr. Mr. Getfield submits that this is a violation of his right to privacy as guaranteed by s. 8 of the Charter of Rights and Freedoms and must be excised from the ITO. The Crown submits that that no prior judicial authorization was required because Mr. Getfield could have no reasonable expectation of privacy in the area surveilled by the camera. The camera did not capture any of the interior of the house or areas shielded from public view. The camera’s view was limited to the front porch and driveway of the house, which were in plain view of the public.
[6] The Applicants submit that even if none of the disputed sightings of the cars are excised from the ITO, the warrants to search the residences should never have been issued. They submit that on all of the evidence put before the issuing justice, there was no objectively reasonable grounds to believe that evidence of the robbery would be found at the 30 Saltspring Dr. or 66 Tremblant Cr. The Crown argues that the connection between the shooting, the vehicles and the residences are fairly set out in the ITO. Crown counsel submits that on the totality of the evidence presented to the issuing justice, it was reasonable for him to conclude that evidence of the robbery on March 11, 2021 would be found in the cars and in the residences associated with the cars.
[7] I agree with the Applicants that even if none of the disputed evidence is excised from the ITO, the warrants to search 66 Tremblant Cr. and 30 Saltspring Dr. could not have been issued. The ITO could not provide the issuing justice with the requisite reasonable grounds to believe that evidence related to the robbery of March 10, 2021 would be found at those residences. Evidence obtained from the search of those homes was obtained in a manner that breached the Applicants’ rights under s. 8 of the Charter. For reasons that follow, the evidence will be excluded from the trial pursuant to s. 24(2) of the Charter.
Evidence contained in the ITO:
[8] The ITO sets out the circumstances of the robbery and ensuing shooting. The incident was captured on surveillance video and still photos from that video were included in the ITO. The evidence demonstrates that at approximately 4:17 p.m. on March 10, 2021, the Toyota and Acura drove into the parking lot of a housing complex located at 1250 Brimley Rd. The vehicles drove in together and parked side by side. At approximately 4:43 p.m., a person identified as Javon Cain-Allen approached the two vehicles on foot and engaged the occupants in conversation. A person described as suspect #2 exited from the passenger side of the Acura and tackled Cain-Allen, who pulled a firearm from his front pocket. The driver of the Toyota, suspect #1, came out of the car to help suspect #2 disarm Cain-Allen. The driver of the Acura, suspect #3, came out his car and pointed a firearm at Cain-Allen. Suspect # 2 took Cain-Allen’s firearm and put it in his right pocket. Cain-Allen gave up the fight and suspect #2 and #3 returned to the Acura, each in possession of a firearm. Suspect #1 returned to the Toyota and both cars left the parking lot. As they were leaving, Cain-Allen ran to a nearby area, retrieved another firearm, and fired multiple shots at the Toyota and Acura. Cain-Allen then returned to his vehicle, a Honda Civic, and left the area.
[9] In the ITO, the suspects are described as follows: suspect #1 is a black male, thin build, wearing a grey hoodie with logo on upper left chest, black track pants with log on upper left thigh and white letters on bottom left leg, Nike air force shoes, black toque, and short black hair. Suspect #2 is a black male, thin build, wearing a black hoodie, black pants, white shoes, and a white tuque. Suspect #3 is a male black, thin build, wearing a grey hoodie with logo on top left chest, grey track pants with logo on left thigh, and black high-tops. The police do not identify any of the suspects.
[10] From ministry of transport records and the surveillance video, police were able to identify the vehicles used by the suspects. The car driven by suspect #1 was a 2014 Toyota Corolla registered to Sheryl Taylor with an address of 30 Saltspring Drive in Markham. From police records, they learned that the accused Cordell McLaughlin was on parole with an address of 30 Saltspring Drive, Markham. He had been convicted of firearm possession offences and released on parole on March 27th, 2020. The vehicle used by suspects #2 and #3 was a 2008 Acura registered to Bernard Boreland with an address of 66 Tremblant Crescent, Kleinburg. There was no record of either vehicle being sold or stolen as of March 10, 2021.
[11] Between March 11 and May 25, 2021, police conducted surveillance on both addresses. The homes are described as two-story houses. With respect to the house at 30 Saltspring Dr., there was no sighting of the Toyota at that address on March 11 and 16, 2021. The car was seen at that address on March 21, March 27, April 27 and May 22, 2021. There is no information in the ITO about anyone operating the Toyota during these sightings. Det. Gouthro advised the affiant of the ITO that on March 27, 2021 he had seen a black male on the sidewalk near the house who resembled Cordell McLaughlin. Det. Gouthro described this male as over 6 ft tall and over 200 lb. There is no evidence in the ITO that Det. Gouthro saw this male operate or approach the Toyota.
[12] DC Mian included in the ITO the dates and times that police conducted surveillance on 66 Tremblant Cr[^1] in search of the Acura. The car was not there on March 11, 14 and 27, 2021. The vehicle was observed there on April 27, 2021. There is no evidence that anyone operated the vehicle on this date. From the public view camera video, DC Mian observed the Acura at this address daily between May 11 and 25, 2021. From ministry of transport records he was able to identify the registered owner, Bernard Boreland, as one of two people who operated the vehicle. A younger male black, approximately in his 20’s, muscular build, with short black hair was observed to be the primary driver of the Acura. No one else was observed driving the Acura.
[13] In the ITO, the affiant sets out why he believes that the three suspects planned to rob Cain-Allen of a firearm on March 10, 2021. He then makes the following statements:
It is reasonable to believe that the driver of the vehicles would most likely be at the addresses corresponding to the registered addresses for the vehicles. Further to this belief both vehicles (Acura and Toyota) were registered to their respected owners and addresses long before the robbery / shooting that occurred on March 10th, 2021, this would indicate that the vehicles were not sold prior to the incident.
It also reasonable to believe that the driver and passenger of the 2 vehicles would keep their firearms either in their vehicle or in their home as illegal firearms are hot commodities and are protected and kept close to whomever owns them. This belief is from my experience dealing with shootings and people who possess these illegal firearms.
Although Suspect # 1 the driver of the Toyota Corolla does not have a gun or take the gun from CAIN-ALLEN, I believe that he may still be in possession of a gun. The reason for my belief is that this robbery appeared to be set up to acquire a gun which the 3 suspects were able to do. All three suspects assaulted Javon CAIN-ALLEN and participated in robbing him. Although suspect # 2 was the one who left in the Acura with the firearm stolen from Javon CAIN-ALLEN he could have easily transferred to the gun to Suspect # 1 (driver of Toyota). Further to this, the person of interest Cordell MCLAUGHLIN who resides at 30 Saltspring Drive, Markham was convicted of unauthorized possession of a prohibited or restricted firearm on his most recent conviction.
[14] The Applicants do not take issue with whether there is sufficient evidence to support the inference that a robbery had been committed on March 10, 2021. The issue is whether the evidence supports the issuing justice’s conclusion that evidence of that robbery would be found at the two residences on May 26, 2021.
Applicable Legal Principles:
[15] The principles that apply when reviewing the sufficiency of a warrant are summarized in the recent Court of Appeal decision in R. v. Kalonji, 2022 ONCA 415 at paragraph 19:
[19] To begin, the principles that apply when reviewing a warrant are well settled. The question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. The test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: Araujo, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: Morelli, at para. 40.
[16] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at p. 250. The reasonable and probable grounds standard does not require proof on a balance of probabilities. The affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched for are at the location to be searched: Kalonji, para 29.
[17] As summarized by Justice Fairburn, as she then was, in R. v. Herta 2018 ONCA 927, paras 20 and 21, the question is whether there are reasonable grounds to believe – constitutionally defined as credibly-based probability – that there is evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-8. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. In considering whether this threshold has been met, a reviewing judge is required to take a common-sense and holistic approach.
[18] Direct evidence is not required to draw a link between evidence of an offence and the premises to be searched. Reasonable inferences can be relied upon in the absence of direct evidence. The question for the reviewing judge is whether there was reliable evidence on the basis of which the authorization could have issued. In applying this test, the reviewing judge must consider that authorizing justices may draw reasonable inferences from the evidence in the ITO and the affiant need not underline the obvious: Kalonji, para 25, R. v. Vu, 2013 SCC 60, para 16. The affiant may rely on training and experience in coming to their reasonable and probable grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds: R. v. Wu, at paras. 55-57 and 64.
[19] The reviewing justice must consider whether the inferences drawn by the affiant in the ITO are logically reasonable, as opposed to mere conjecture. The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[20] Similarly, courts have cautioned police against relying on unsubstantiated stereotypical assumptions, unsupported by any case specific evidence, about how people may behave. Bald, conclusionary statements cannot support reasonable and probable grounds: see R. v. Morelli, 2010 SCC 8, paras 81-82; R. v. Coluccio, 2019 ONSC 4559, para 61; R. v. Herdsman 2012 ONCJ 739 para 70.
Analysis:
[21] With these legal principles in mind, I find that the ITO fell short of establishing objectively reasonable grounds to believe that firearms and other evidence of the robbery would be located at either 30 Saltspring Dr. or 66 Tremblant Cr.
[22] In paragraph 94 of the ITO, the affiant submitted to the issuing justice that it was reasonable to believe that the drivers of the Toyota and Acura would most likely be at the addresses corresponding to the registered addresses for the vehicles. This conclusion is based on flawed logic that the driver of a vehicle will have the same residence as the registered owner. While it is reasonable to believe that the registered owner of a vehicle will reside at that address, it is speculative to conclude that anyone who drives the vehicle would be a resident or occupant of that residence; or that they would still be there over two months after the commission of the offence; or that they would keep firearms and other evidence from the offence at that address. There is absolutely no evidence in the ITO to support these series of beliefs.
[23] It is significant that in the period between March 11, 2021 and May 26, 2021 during which the police had the two target addresses under surveillance, they did not find any evidence to link the occupants of the target addresses to the three males who had occupied the target vehicles on the day of the robbery. There is also no evidence that anyone from the robbery was a resident of the target addresses. While there is evidence that Mr. McLaughlin resided at 30 Saltspring Rd, there is nothing to link him to the robbery. To the contrary, he did not fit the description of suspect #1, who is described in the ITO as having a thin build, whereas Mr. McLaughlin was described by Det. Gouthro as being over 6 ft tall and over 200 pounds. Nor is there any evidence that Mr. McLaughlin ever drove the Toyota.
[24] Similarly, there is no link between the persons who are observed to have driven the Acura between May 11 and 25, 2021 at 66 Tremblant Cr. and the occupants of the Acura during the robbery. The description of suspects #2 and #3 are different from the description of the drivers of the Acura in paragraph 86 of the ITO. There is no suggestion in the ITO that the registered owner of the vehicle, Bernard Boreland, was one of the suspects. Nor is there any suggestion that the primary driver, the young black male with muscular build, is either suspect #2 or # 3. Indeed, DC Mian did nothing to try to compare the identities of the suspects seen on the video to any of the occupants or residents of the target addresses.
[25] The surveillance in this case resulted in nothing more than two vehicles associated with two residences. I am not prepared to find that because a vehicle associated with a home is used in the commission of an offence, there exist grounds to believe that evidence of the offence will be located in that home over two months later. In such a scenario, the registered owner of any car that is used in the commission of an offence could be subject to a search. To grant a warrant on this basis would be similar to the “roving grounds to believe” scenario identified in R. v Herta, supra, at para 50-51 and R. v. Coluccio, supra, para 79. In order to support a reasonable belief that evidence of an offence will be located in a residence, there must be some case specific evidence linking the occupants of the vehicle to the residence to be searched. This missing link in the ITO is fatal.
[26] This is not the only baseless conclusion relied on by the affiant. In paragraph 96 of the ITO, DC Mian states that although suspect # 1 (the driver of the Toyota) is not observed on video to have a gun or take the gun from Cain-Allen, it is reasonable for him to believe that suspect #1 may still be in possession of a gun. In coming to this conclusion, the officer relies on his belief that this was a planned robbery of a gun, that suspect #1 was a party to the robbery and that suspect #2 could easily have given stolen gun stolen to suspect #1. He then goes on to implicate the applicant McLaughlin because of his criminal record for firearm offences and the fact that he resides at 30 Saltspring Dr.
[27] DC Mian’s conclusion in paragraph 96 is based on nothing more than speculation and conjecture. First, there is no evidence that suspect #2 gave the stolen gun (or any other gun) to suspect #1. Second, the theory that suspect #2 gave the gun to suspect #1 is contrary to the other premise relied on in the ITO: that illegal guns are valuable commodities and are protected and kept close to whomever owns them. Assuming this to be true, why then would suspect #2 give the gun to suspect #1? Third, as already stated, suspect #1 does not fit the description of the accused McLaughlin. To suggest that Mr. McLaughlin could be suspect #1 because of his record and that he lives at 30 Saltspring Rd is unfair and misleading.
[28] There is also no reliable evidence from which a justice could conclude that a firearm or other evidence of an offence will be located at 66 Tremblant as stated by the affiant in paragraph 95. As already discussed, there is no evidence that anyone associated with the robbery resides at or is an occupant of either residence. The conclusion that the driver and passenger of the vehicles would keep their firearms either in their vehicles or in their homes is based on a broad generalization of how people behave. I appreciate that an officer is entitled to rely on their experience when drawing inferences, but those inferences must be reasonable and based on the available evidence. As was pointed out by Justice Fish of the Supreme Court of Canada in R. v. Morelli at para 81:
Still, it is not the role of courts to establish by judicial fiat broad generalizations regarding the “proclivities” of certain “types” of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard — in this case, reasonable and probable grounds for belief. As suggested earlier, moreover, courts must be particularly wary of endorsing such generalizations when, as in this case, the crime alleged is the subject of intense emotional responses and widespread condemnation, and the temptation to rely on stereotype rather that evidence is therefore especially dangerous and strong.
[29] Broad generalizations and conclusionary statements about where people keep or hide illegal firearms, without case specific evidence to support this opinion, have been rejected by the courts. See for example R. v. Herdsman, 2012 ONCJ 739, R. v. Coluccio, supra, R. Aboukhamis, 2015 ONSC 2860; and R. v. Herta, supra. DC Mian’s unsupported opinion about where people keep illegal firearms is layered on top of his other unsupported belief: that the perpetrators of the robbery are residents of the target homes. Yet, as discussed, there is simply no evidence to support this belief.
[30] On the evidentiary record contained in the ITO, I conclude that the justice could not have issued a warrant to search 30 Saltspring Rd. or 66 Tremblant Cr. for firearms or other evidence related to the robbery of March 10, 2021. I find that the affiant’s assertion relating to the presence of these items in the residences is based on false logic and bald statements, unsupported by the evidentiary record. I find that the accused’s rights pursuant to s. 8 have been breached and the warrants to search the two residences is quashed.
[31] Having come to this conclusion, it is not necessary to address whether the use of the public view camera violated Mr. Getfield’s s. 8 rights. It is also not necessary to determine whether the various sightings of the Toyota and Acura at the two target addresses should be excised from the ITO.
24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):
[32] The applicant bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.
[33] The analytical framework in s. 24(2) to determine the admissibility of impugned evidence following a breach is set out in R. v. Grant, [2009] S.C.R. 353 at paras. 67 – 71. The phrase “bring the administration of justice into disrepute” means whether the admission of the evidence will cause long‑term damage to the integrity of, and public confidence in, the justice system. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The analysis is prospective in nature since the state’s breach of the accused’s Charter rights have already damaged the administration of justice. The issue is whether further damage to the long-term reputation of the justice system will be occasioned by the admission of the evidence at trial. The analysis is objective. It asks whether a reasonable person informed of Charter values would find that the admission of the evidence in question would bring the administration of justice into disrepute, having regard to three 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 matter on its merits. The role of the court is to assess whether on balance, the admission of the evidence would bring the administration of justice into disrepute.
(a) Seriousness of the state’s conduct:
[34] This factor looks at the police’s conduct in gathering the evidence that is the subject of the application to exclude. The court must assess whether admitting the evidence would send a message to the public that the courts condone state deviation from the rule of law by failing to disassociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public’s confidence in the rule of law: Grant, para 72.
[35] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute: Grant, para. 74.
[36] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach. Similarly, “good faith” on the part of the police may reduce the need for the court to disassociate itself from the police conduct. However, the Court pointed out that ignorance of Charter standards cannot be rewarded or encouraged and negligence. Nor can wilful blindness be equated with good faith: Grant, para 75.
[37] In this case, the police sought a prior judicial authorization to search the two residences. The ITO may have supported a warrant to search the vehicles, but it did not come close to providing any basis to search the residences. The conclusions relied on by DC Mien were based on false logic, unsupported conjecture, and generalized supposition about how people behave. DC Mien is an experienced officer who is aware of his obligation to make full, fair and frank disclosure in the ITO. Although I cannot conclude that he deliberately set out to breach the accused’s s. 8 rights, I do find that he did not comply with long settled standards that must be met to obtain a warrant.
[38] This was more than a minor violation of the accused’s s. 8 rights. There are no extenuating circumstances that would justify the police obtaining a warrant on such thin grounds. The police should have gathered some evidence to link the occupants of the Toyota and Acura to the target residences before obtaining a warrant to search a private home. In failing to do so, they tried to take an unacceptable shortcut. This factor favours exclusion of the evidence.
(b) Impact on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests of the Accused:
[39] This factor looks to the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The court must assess the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the Applicants’ protected interests, the greater the risk that admission of the evidence will signal to the public that Charter rights will not be protected, thus breeding public cynicism, and bring the administration of justice into disrepute: Grant, para 76.
[40] Courts have long recognized that people have a high expectation of privacy in their homes. An unreasonable search of someone’s home will have a significant impact on this protected privacy interest and is a serious breach: Grant, para 78.
[41] The Crown concedes that an unconstitutional search of the Applicants’ residences is a serious intrusion of their privacy rights. The accused and their families were detained while the police searched their homes. This was a serious intrusion into a place which attracts the highest expectation of privacy. This factor strongly supports the exclusion of evidence from the trial.
(c) Society’s interest in adjudication on the merits:
[42] The third line of inquiry under Grant considers society’s interest in the adjudication of criminal charges on their merits. Guns pose a lethal threat to the safety of the community. There is a strong public interest in ensuring that people who are charged with gun crimes are bought to trial. Relevant factors to consider in this prong of the analysis are the reliability of the evidence, the importance of that evidence to the prosecution’s case and the seriousness of the offence. As observed in Grant at para 81, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
[43] On the other hand, the reliability of the evidence and its impact on the truth-seeking function of the court must be weighed against factors pointing to exclusion, in order to balance the interests of truth with the integrity of the justice system. The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: Grant, para 82.
[44] The evidence obtained from the searches of the residences is reliable, but not conclusive. The Crown would still be required to prove that the Applicants had knowledge and control of the items within the home. Other than the surveillance video, I am not aware of any other evidence that the Crown will adduce to prove the charges against the Applicants. Exclusion of the evidence will likely weaken the Crown’s case against them and impair the truth-seeking function of this court. The third prong of this inquiry favors inclusion of the evidence.
Balancing the three Grant factors:
[45] The balancing of the various factors mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision: Grant, para 140.
[46] While the conduct of the police in this case was not deliberately wrong, it was sloppy. It approaches the more serious end of the spectrum. This favours excluding the evidence. The unconstitutional search of the two residences had a significant impact on the Applicants’ right to privacy. This second factor also favours exclusion. Society’s interest in having an adjudication of this case on the merits is important, but so is society’s interest in ensuring that extensive searches of private residences are justified and that warrants meet requisite legal standards. Balancing these three factors I conclude that the evidence obtained from the searches of 30 Saltspring Dr. and 66 Tremblant Cr. must be excluded to preserve the long-term reputation of the justice system.
[47] The application is granted. The evidence from the two residences is excluded from trial.
Released: December 21, 2022
Signed: Justice M. Speyer
[^1]: Police also conducted surveillance on 66 Tremblant Cr. on April 9 and May 6, 2021 and did not see the car. This information was not included in the ITO.