Ontario Court of Justice

Date: 2023 09 21 Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

LLOYD SILLS

Before: Justice Newton-Smith

Heard on: July 24, 27, 28 and August 14, 15, 2023 Reasons for Judgment released on: September 21, 2023

Counsel: A. Cox, counsel for the Crown R. Wellington, counsel for the accused Lloyd Sills

Reasons for Judgment

Charter Application

NEWTON-SMITH J.:

[1] On October 23, 2022 a search warrant was executed at 2139 Gerrard Street East in Toronto. 2139 Gerrard is a multi-unit dwelling house. The target of the warrant was Mr. Fisher. Mr. Fisher resided in unit 4. The Applicant/accused before the court, Mr. Sills, resided in unit 5. When the warrant was executed Mr. Sills’ unit was searched. In it was found a handgun, a rifle and ammunition.

[2] Mr. Sills is charged with various firearms related offences. He has brought an application alleging violations of his section 8, 9 and 10(b) Charter rights and seeking exclusion of the evidence seized pursuant to section 24(2).

I. Overview

[3] On its face the warrant authorised a search of the dwelling at 2139 Gerrard Street. It was known to the affiant and the issuing justice that 2139 Gerrard was a multi-unit dwelling. In the ITO the affiant undertook to confine the search to only those areas for which the target Mr. Fisher had reasonable access as part of his residency and tenancy.

(i) The Position of the Applicant Mr. Sills

[4] The Applicant, Mr. Sills, attacks the warrant as being overbroad. Alternatively, he argues that the search of his unit was not authorised by the warrant and was warrantless.

[5] He also argues that the warrant should not have issued because the police did not sufficiently corroborate the CI information.

[6] The alleged section 9 breach arises from the warrantless search. With respect to section 10(b) the Applicant argues that the police failed to implement his rights to counsel “without delay”.

(ii) The Garofoli Procedure

[7] There were two search warrants issued, a Criminal Code and a Controlled Drugs and Substance Act (CDSA) warrant. Both warrants relied on a single Information to Obtain (“ITO”) authored by DC Jaswal of the Toronto Police Guns and Gangs Task Force. The ITO relied upon information from three confidential sources (“CS1”, “CS2” and “CS3”). As a result, portions of the ITO were redacted. The Crown conceded that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant and sought resort to the six-step procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[8] In accordance with that procedure the defence was provided with a redacted version of the ITO and a draft judicial summary of the redactions prepared by the Crown.

[9] The defence sought to cross-examine the affiant in two areas, only one of which involved his evidence qua affiant and required leave. I did not allow the cross-examination sought with respect to DC Jaswal’s role as affiant.

[10] The Crown and I entered into in camera ex parte proceedings with respect to the judicial summary. During those proceedings I questioned the need for some of the redactions. In most instances the Crown agreed to un-redact the portion in question. Similarly I made suggestions with respect to areas in which greater detail could be provided in the judicial summary, most of which were accepted by the Crown.

[11] Where reference is made in these reasons to the judicial summary, the summary will be italicised. Where it is necessary for me to refer to the redacted portions in these reasons in order to fully explain my conclusions, I have referenced them in the form of endnotes. A copy of these reasons with all of the endnotes redacted will be provided to the Applicant and the public. An unredacted version will be sealed and placed in the court file, and a copy provided to the Crown.

II. The Facts

(i) The Investigation and Surveillance

[12] Acting on information from confidential informants, members of the Toronto Guns and Gangs Task Force entered into a firearm and drug trafficking investigation. The investigation had one target, Mr. Fisher, who police believed was an armed drug dealer. The target address associated to Mr. Fisher was 2139 Gerrard Street East. 2139 Gerrard was a house. The police were aware that it was a multi-unit dwelling but did not have specific evidence with respect to the exact layout and set up of the dwelling.

[13] The information provided by the confidential sources was that Mr. Fisher was a white male who was an armed drug dealer. Information was also provided that he had a “runner” who was a white male with long hair.

[14] The police investigation comprised two days of surveillance, October 21 and 22, 2022. The warrant was issued on October 23, 2022 and executed later that day.

[15] On October 21st surveillance officers saw Mr. Fisher enter the front door of 2139 Gerrard in the company of another man. This man was unknown to police.

[16] DC Shufman was in charge of the investigation and was one of the surveillance officers. He did not see Mr. Fisher enter the residence with the unknown male, but information was conveyed to him that the unknown male was white, 40 years old with a heavy build, long scraggy hair and wearing dark pants, a hat and a dark hoody.

[17] About an hour and a half after Mr. Fisher was seen entering 2139 with the unknown male DC Shufman saw a man leaving the house and walking up to a car waiting on the street. The man had a brief interaction with the occupants of the vehicle during which he reached into the vehicle before walking back to the house and in the front door.

[18] Based on the description given to him from the earlier surveillance DC Shufman believed this to be the same unknown male who had been seen entering the house earlier with Mr. Fisher.

[19] A few minutes later DC Shufman saw the same man exiting the front door and smoking a cigarette on the porch. While the man was on the porch another car pulled up to the curb. Again, the man approached the car had a brief interaction with the occupants and reached into the car before returning to the house.

[20] DC Shufman testified that based on his experience as an officer, combined with the surveillance observation of the unknown male entering the residence with Mr. Fisher and the CI information about a runner, he believed that these were drug transactions. He designated the unknown male “associate 1”.

[21] The next day, October 22, surveillance was again conducted outside of 2139 Gerrard.

[22] Mr. Fisher was seen leaving the residence with an unknown female. He was followed and seen frequently touching his waistband, adjusting it and looking around.

[23] DC Shufman testified that in his experience this behaviour was common for a person who was armed with a firearm.

[24] Mr. Fisher later returned to the residence. The unknown male designated as associate 1 was not seen that day.

(ii) The First Application for a Search Warrant

[25] On October 22, 2023 the affiant, DC Jaswal, applied for a search warrant for 2139 Gerrard Street East.

[26] The target of the warrant was Mr. Fisher and the offences to which the warrant related were unlawful possession of a firearm and possession of cocaine for the purpose of trafficking. The request to search was worded as follows:

In this application I am requesting judicial authorisation to enter and search the following place(s) associated to the suspect John Fisher, born on June 1st 1987, Residence: 2139 Gerrard Street East, in the City of Toronto, Ontario

[27] In the ITO under the heading “Information from CS2” there was reference to the target Mr. Fisher having a “runner”:

The CS2 advised that [ name CS2 knows Fisher as ] also uses a guy who is his runner to sell his drugs. [ a detail about how familiar CS2 is with this person ] he is a white guy, with long hair. CS2 advised that this guy is big and [ a detail of the relationship between this person and Fisher ].

[28] The information contained in the ITO revealed to the issuing justice that 2139 Gerrard was a multi-unit dwelling. The affiant did not set out any grounds, or make a request, to conduct any searches in relation to the residence of anyone other than Mr. Fisher.

[29] The application was denied by Justice of the Peace Hewitt. Five areas of concern with identified by Justice Hewitt, the last of which being:

Information to suggest that there is more than 1 unit at 2139 Gerrard Street East but you want to search the entire residence. Your request is overbroad, and is denied.

(iii) The Second Application for a Search Warrant

[30] The next day the affiant returned to Justice of the Peace Hewitt with a revised ITO in which answers were provided to her five concerns.

[31] The request remained the same, to search the residence associated to Mr. Fisher described as “Residence: 2139 Gerrard Street East”.

[32] In responding to one of the concerns of Hewitt JP, the concern being that “There is also very little surveillance that has been conducted on the suspect”, the affiant made reference to “a suspected associate of John Fisher” stating:

In the course of two days surveillance, the suspect was observed entering and exiting the associated address by entering and accessing the ground floor area using the front door. Further while covertly following the suspect during several hours of mobile surveillance, members made observations on the suspect, also members observed what they believe to be suspected drug trafficking transactions conducted by a suspected associate of John Fisher outside of the associated address where they were both seen entering together.

[33] This was the only further reference to the suspected associate in the second application. Again the affiant did not set out any grounds or make any request to conduct searches related to this suspected associate or anyone other than Mr. Fisher.

[34] In response to the 5th area of concern, wherein Hewitt JP had found that the request was overbroad and therefore denied, the affiant wrote:

It is very difficult for the affiant to confirm the layout and specifics within the residence. In the affiant’s experience it is quite common for residence that involve multiple units [ an issue with respect to the layout of the house ] to have common shared areas.

Furthermore, it is also difficult to confirm specifically what if any specific area of the home the suspect would reasonably have access and control to.

Also, it was noted that the suspect was observed entering and exiting the front of the residence which is on the ground floor [ an issue with respect to fisher’s access to the building ].

If the application is subsequently granted, officers would make every effort to ensure that areas to be searched would be only those for which the suspect would have reasonable access to as part of his residence and tenancy.

[35] This second application was granted by JP Hewitt.

[36] The warrant that was issued stated that there were “reasonable grounds to believe that there are to be found in Dwelling House at 2139 Gerrard Street East, in the City of Toronto, Ontario” the items listed in Appendix A.

(iv) The Execution of the Warrant

[37] The warrant was executed on October 23, 2022. Prior to the execution of the warrant DC Shufman held a briefing with his Guns and Gangs team.

[38] DC Shufman testified that at the briefing the unknown male who had been seen with Mr. Fisher was briefly discussed and referred to as being “unknown1/associate1”. He testified that at that time the unknown male was not a target and they had “no idea” who he was or where he lived. It was DC Shufman’s evidence that they were “trying to determine the nature of the association” and had beliefs that were not strong enough to add the unknown male as a party to the warrant.

[39] Shortly after 4pm the officers arrived on scene and set up surveillance of 2139 Gerrard. Several unknown parties were seen coming and going from the address. At around 7:40 pm Mr. Fisher left the house with an unknown female. He was arrested a short distance away and officers took a set of keys from him. Two officers stayed with Mr. Fisher and the female. The remaining 4 officers took the keys and went to 2139 Gerrard to execute the warrant.

[40] At 7:52 pm the officers entered 2139 Gerrard through the front door. Upon entering the main door officers could see that the house was divided into units with no apparent common areas.

[41] On the main floor there were 1 or 2 closed doors that were numbered. The officers made no attempt to search on the first floor and proceeded directly up the stairs. On the second floor there was a landing and three doors marked 3, 4 and 5. Unit 3 was at the top of the stairs and the door was open. Officers could see that it was a small one room unit with a black male inside lifting weights. Units 4 and 5 were to the right of the stairs.

[42] The officers announced their presence and that they were executing a warrant. They immediately concluded that the male in unit 3 was not Mr. Fisher and that it was not Mr. Fisher’s unit. Other than a quick visual scan of the room for safety the police did not search unit 3 and the occupant was left in the room undisturbed.

[43] The doors to units 4 and 5 were closed and no one responded to the police announcement and knocking. Both doors were locked. The keys seized from Mr. Fisher were tried but did not work in either door.

[44] As DC Perilli began attempting to breach the door to unit 4 the officers heard a noise coming from unit 5. DC Perilli turned his efforts from unit 4 to unit 5 and breached the door. Mr. Sills came to the door of unit 5 and stepped into the hallway. The officers could see that unit 5, like unit 3, was a small one room unit.

[45] At this point DC Shufman was called away to an unrelated emergency and left.

[46] One of the three remaining officers, DC Fardell, told Mr. Sills that they were looking for Mr. Fisher’s unit. In response Mr. Sills directed the officers to unit 4. DC Fardell testified that the interaction with Mr. Sills was brief and that Mr. Sills was not detained.

[47] The officers then turned their attention away from Mr. Sills, breached the door to unit 4 and went into the unit to search. Shortly thereafter the officers on scene were joined by DC Jaswal, the affiant.

[48] Inside of unit 4 the officers found evidence connecting the unit to Mr. Fisher and were satisfied that it was in fact his unit. They continued to search the unit but did not find any guns, drugs or other contraband.

[49] At 8:14 pm, after the officers had been searching Mr. Fisher’s unit to no avail for approximately 20 minutes, DC Fardell received a call from DC Shufman. DC Shufman told DC Fardell that the man in unit 4 was unknown associate 1 and directed the officers to detain Mr. Sills and search his unit. DC Fardell immediately went out to the hallway and detained Mr. Sills. The officers then entered Mr. Sills’ unit and began to search it.

[50] DC Shufman testified that he instructed the officers to search Mr. Sills’ unit because he believed Mr. Sills to be unknown male/associate 1.

[51] DC Shufman expressed surprise that Mr. Sills had not been detained while the officers searched Mr. Fisher’s unit and testified that at the time that he left he understood Mr. Sills to be detained and expected him to remain so. According to DC Shufman, Mr. Sills’ door had been breached, the investigation was ongoing in the area that they had a warrant for and Mr. Sills was not free to leave.

[52] DC Fardell testified that he understood that they had a warrant for the entire house and that Mr. Sills’ unit was to be searched pursuant to that warrant.

[53] DC Jaswal, the affiant, was asked why he did not secure Mr. Sills’ unit and get a warrant to search it. DC Jaswal responded that they had a warrant that authorised a search of the entire premises and therefore he did not consider getting a warrant for unit 5. He also testified that there was an “obvious association” between Mr. Fisher and unit 5. DC Jaswal agreed that it would have been possible for them to secure Mr. Sills’ unit while they attempted to get another warrant. However, he testified that it was “unnecessary” because he believed that the warrant they had also authorised the search of Mr. Sills’ unit.

(v) The Detention and Arrest of Mr. Sills

[54] When DC Fardell took custody of Mr. Sills at 8:15 pm he advised Mr. Sills that they were searching his unit pursuant to a search warrant and read him his rights to counsel. Mr. Sills responded that he did not have a lawyer and did not wish to speak with duty counsel unless he was being charged.

[55] While Mr. Sills was detained the officers conducted a thorough search of his unit.

[56] In a dresser drawer the officers found a loaded handgun and ammunition. There was also a bag on the floor sticking out from under the bed, inside of which was a rifle, a magazine and ammunition.

[57] Shortly thereafter at 8:20 pm Mr. Sills was arrested and again read his rights to counsel. This time he asked to speak with duty counsel. DC Fardell advised Mr. Sills that he could make a call to duty counsel there at the scene but that he would not have privacy until they were at the station. Mr. Sills said that he would wait until they were at the station and he could have a private call.

[58] At 8:48 pm Mr. Sills was turned over to uniform officers for transport to the station. They left for the station just before 9 pm and arrived in the parking lot of 55 division a few minutes later. There was a transport wagon ahead of them in the sally port. They waited almost an hour and a half before being able to proceed into the station to parade and book Mr. Sills at 10:32 pm. The booking concluded at 10:35 pm at which time PC Gill, one of the transporting officers, put Mr. Sills in the privacy booth so that he could speak with duty counsel.

[59] PC Ciciretto was the booking officer that evening. He testified that after Mr. Sills was placed in the privacy booth he was advised by the booking Sergeant that someone from Guns and Gangs would place the call to duty counsel for Mr. Sills.

[60] At 10:38 pm PC Ciciretto moved Mr. Sills from the privacy booth to a cell to wait for duty counsel to call. He testified that the privacy booth was small and it was more comfortable for Mr. Sills to wait for the call in a cell.

[61] At 11:07 pm a call came in from duty counsel at which time PC Ciciretto escorted Mr. Sills to the privacy booth so he that he could speak with duty counsel.

II. Law and Analysis

[62] Mr. Sills’ primary Charter challenge is to the search of his residence, which he alleges violated his section 8 right to be free from unreasonable search. The alleged violations of section 9 and 10(b) of the Charter are argued not as stand alone grounds but as part of a pattern of Charter infringing conduct going to the section 24(2) analysis.

(i) Section 8 – The Search of Mr. Sills’ Unit

The Standard of Review

[63] The issuance of a search warrant requires, “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; R. v. Campbell, 2011 SCC 32, [2011] 2 SCR 549, at para. 14. The standard of reasonable and probable grounds means a “credibly based probability”, not proof beyond a reasonable doubt, or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, at paras. 127-128; R. v. Debot, [1989] 2 S.C.R. 1140, at p.1166.

[64] A review of the issuance of a search warrant begins with the presumption that the warrant is valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para.30. The burden is on the applicant challenging the warrant to demonstrate that the minimum standard of reasonable and probable grounds has not been met: R. v. Crevier, 2015 ONCA 619, at para.66.

[65] As the reviewing justice, the question that I must determine is whether or not the warrant could have issued, and not whether or not I would have issued the warrant.

The Debot Criteria

[66] Where, as here, the ITO relies on information from confidential sources a review of the grounds for the issuance of the warrant requires consideration of what is commonly referred to as the Debot Criteria, or the “three Cs”. Was the source information credible, compelling and corroborated? In assessing the extent to which the information provided by the sources meets the Debot criteria, the totality of the circumstances must be considered. No one factor is determinative, weaknesses in one area may be compensated for by strength in other areas: R. v. Rocha, 2012 ONCA 707, [2012] O.J. No.4991 (C.A.) at para.16.

[67] Mr. Sills argues that the source information here was not sufficiently corroborated to meet the Debot criteria. He submits that further database checks could have been conducted with respect to the address of 2139 Gerrard that would have assisted the police in better determining the set-up of the dwelling and where Mr. Fisher’s unit was. He also submits that two days of surveillance was insufficient to corroborate the CI information.

[68] This was a short investigation and the surveillance was minimal. It did however provide some corroboration of the source information.

[69] There was source information that Mr. Fisher used a runner to sell drugs and the runner was a white male with long hair who was big. During the course of surveillance Mr. Fisher was seen entering the 2139 Gerrard address with an unknown white male with long hair. Later that unknown male was seen leaving the address and conducting two suspect drug transactions out front.

[70] There was source information that Mr. Fisher was armed and in possession of firearms. During the course of surveillance he was seen walking in a way that was consistent with someone carrying a firearm.

[71] The surveillance connected Mr. Fisher to the target address.

[72] The database checks were consistent with the source information about Mr. Fisher and his criminal activity.

[73] There were three confidential sources each of whom provided sufficiently compelling information that was consistent without raising concerns about collusion.

[74] Any issues with respect to the credibility of the sources were clearly set out in the ITO.

[75] I am satisfied that the Debot criteria have been satisfied.

Overbreadth

[76] A warrant must describe the place to be searched with precision. As stated by Justice Miller speaking for the Ontario Court of Appeal in R. v. Ting, 2016 ONCA 57, [2016] O.J. No.307 (C.A.) at para 48, “an adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated.” In elaborating further Justice Miller wrote:

Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorisation, or and authorisation without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorisation for those searching their premises.

Ting, at para 49.

[77] Precision in describing the place to be searched is particularly important when it comes to multi-unit dwellings:

Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building form others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling.

Ting, at para 51.

[78] Here the search warrant on its face authorised a search of the dwelling house at 2139 Gerrard Street East in Toronto. 2139 Gerrard is a multi-unit dwelling. This was known in advance to the affiant, the issuing justice and the officers executing the warrant.

[79] The affiant was unsuccessful in his first attempt to obtain a warrant because of the multi-unit nature of the dwelling. The first request to search related only to Mr. Fisher and the information provided supported a search only as it related to Mr. Fisher. The Justice of the Peace found the request to be overbroad because Mr. Fisher resided in a multi-unit dwelling and the request was to search the entire address.

[80] The Justice of the Peace’s denial of the first warrant application was reasonable and in my view correct.

[81] In the body of the ITO information had been provided to the effect that 2139 was a multi-unit dwelling with some further detail [i]. In the second request the affiant explained that he was unable to confirm the layout and specifics within the residence. He stated that it was “quite common for residence that involve multiple units … to have shared common areas. Furthermore it is also difficult to confirm specifically what if any specific area of the home the suspect would reasonably have access and control to.” The affiant followed this with an undertaking:

If the application is subsequently granted, officers, would make every effort to ensure that areas to be searched would be only those for which the suspect would have reasonable access to as part of his residence and tenancy.

[82] With this undertaking the same Justice of the Peace then granted the request for a warrant. However, the issuing Justice did not amend the face of the warrant to accord with this new request/undertaking. The warrant which issued on its face granted authorisation to search 2139 Gerrard, with no further specification.

[83] It is the position of the Crown that the warrant was not overbroad because it was limited by the undertaking in the ITO.

[84] The fact that the ITO contained an undertaking not reflected on the face of the warrant cannot validate an otherwise invalid warrant:

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched.

Ting, at para 59.

[85] A warrant that does not adequately describe the place to be searched is invalid.

[86] Here the warrant on its face authorised a search of the entire multi-unit dwelling at 2139 Gerrard. The building contained the private dwellings of five people, including Mr. Fisher and Mr. Sills. Each unit had a number on the door and a door with a lock. There were grounds in the ITO to search the areas that Mr. Fisher would have reasonable access to as part of his residence and tenancy. No grounds existed to search the private dwellings of any other persons [ii]. The warrant as issued was facially invalid.

[87] Even if the description of the place to be searched contained in the ITO could validate the warrant, the search that was conducted exceeded the limits of that undertaking.

[88] The undertaking limited the search to areas “for which [Mr. Fisher] would have reasonable access to as part of his residence and tenancy”. If there were “common shared areas” to which Mr. Fisher had access those areas were not searched. The officers searched the unit which they believed to be Mr. Fisher’s. Their search confirmed that it was indeed Mr. Fisher’s unit. They then searched Mr. Sills’ unit. There was no suggestion that Mr. Sills’ unit could be characterised as a “common shared area”. It had a locked door with a number on it and was clearly a private dwelling.

[89] The ITO contained grounds to search Mr. Fisher’s residence, and any “common shared areas” to which he had “reasonable access as part of his residence and tenancy”. It did not contain grounds to search the entirety of 2139 Gerrard Street which included the private dwellings of multiple people including Mr. Sills. The warrant authorised was, on its face, overbroad. The search as executed violated Mr. Sills’ section 8 right to be free from unreasonable search and seizure.

Section 11(7) of the CDSA – Exigent Circumstances

[90] It is the position of the Crown that, even if the officers did not have a warrant to search Mr. Sills’ unit, the search was justified as an exercise of their powers under section 11(7) of the CDSA.

[91] Section 11(7) authorises police to exercise search powers without a warrant in exigent circumstances. A search can be justified pursuant to section 11(7) where the conditions for obtaining a warrant exist and it is impracticable to obtain one by reason of the exigent circumstances. Impracticality alone does not create exigent circumstances, rather it is the exigent circumstances that create impracticality: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 34.

[92] The requirements of section 11(7) will be satisfied where the Crown can show:

That the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

Paterson, at para 37.

[93] The potential for evidence to be destroyed does not in and of itself create exigent circumstances. The police have the power to secure a unit in order to guard against the destruction of evidence while a warrant is sought. In some circumstances the powers under section 11(7) can be used to enter and conduct a brief safety search pending a warrant: R. v. Goorahoo and Menjivar, 2020 ONSC 6088 at para 59, R. v. Hobeika, 2020 ONCA 750 at para 62.

[94] There was no urgency here calling for immediate police action. There was no reason why the police could not have secured Mr. Sills’ unit while a warrant was sought. Indeed, the affiant DC Jaswal testified that they could have done this. The reason that the officers chose not to secure the unit and seek a warrant was not because of any urgency, but rather because they did not think that they had to.

[95] The search of Mr. Sills’ unit cannot be justified pursuant to section 11(7) of the CDSA.

(ii) Section 9

[96] Mr. Sills was detained while his unit was searched. The search was warrantless. The police may have had grounds to detain Mr. Sills’ while they sought a warrant but that is not what occurred here.

(iii) Section 10(b)

[97] Mr. Sills requested to speak with duty counsel when he was arrested at 8:20 pm. There was no practical way for Mr. Sills to have a private conversation with counsel while he was at 2139 Gerrard. Uniform officers arrived to transport Mr. Sills to the station within a half hour of his arrest and he arrived at the station a few minutes after 9 pm.

[98] Unfortunately, when Mr. Sills arrived at 55 division there was a transport wagon ahead of them in the sally port and there was a wait of an hour and a half before Mr. Sills could be brought into the booking hall.

[99] No attempts were made to elicit evidence from Mr. Sills during this time and there was nothing that the officers could have done to expedite the process.

[100] It was 10:35 pm when Mr. Sills was booked into the station and able to speak with duty counsel. The booking officer received a call for Mr. Sills from duty counsel at 11:07 pm at which time Mr. Sills was immediately brought to the privacy booth to consult with counsel.

[101] There was no evidence of who made the call to duty counsel and when. The Crown concedes that because there is no evidence as to when the police first attempted to contact duty counsel for Mr. Sills a breach of his section 10(b) rights has been made out in the half hour between the conclusion of his booking and the call from duty counsel.

[102] Accepting the Crown’s concession, I find a minimal breach of Mr. Sills’ section 10(b) rights.

(iv) Section 24(2)

Seriousness of the Charter-Infringing State Conduct

[103] When the police first sought a warrant to search the entire premises of 2139 Gerrard it was denied. They then returned with an undertaking to search only the areas to which Mr. Fisher had reasonable access as part of his residence and tenancy including “shared common areas”. Yet after searching Mr. Fisher’s unit they searched Mr. Sills’ private unit resting their authority for this upon the grounds that they had a warrant to search “the entire premises”. This cannot be described as good faith.

[104] As in Paterson, these officers were not operating in “unknown legal territory”. Even if the police conduct here was not deliberate or the product of systemic or institutional abuse, clear violations of well-established rules governing state conduct are serious.

[105] This breach was sufficiently serious to favour exclusion of the evidence obtained as a result.

Impact on the Charter-Protected Interests of the Accused

[106] Mr. Sills was entitled to a high expectation of privacy in his home. A man’s house is his castle, even if his castle is a small cramped rented room in a house with other similar units. It had a door with a lock on it and it was his home.

[107] The warrantless entry and search of his home was a serious intrusion that strongly favours exclusion of the evidence.

Society’s Interest in an Adjudication of the Case on Its Merits

[108] As stated by Tulloch J.A, as he then was, in R. v. Brewster, 2019 ONCA 942, [2019] O.J. No.6098 at para 153, “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.”

[109] Recently in R. v. McColman, 2021 ONCA 383, where the evidence in question was real evidence essential to the Crown’s case, Tulloch J.A., again addressing the third branch of the Grant analysis, stated:

While there is no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, society has a vital interest in having a justice system that is above reproach. As I alluded to above, officers are not above the law, and conduct that tests the limits of their authority should not be condoned by this court. On balance, I agree with the summary conviction appeal judge that inclusion of the evidence would bring the administration of justice into disrepute.

McColman, at para 91.

[110] The Supreme Court of Canada affirmed in Paterson at para 56 that, “it is important not to allow the third Grant 2009 factor of society’s interest in adjudicating case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant’s Charter right.”

[111] In considering the reliability of the evidence and its importance to the Crown’s case, it is clear that this is real evidence essential to the Crown’s case. Charges involving the possession of loaded firearms are extremely serious. However, I find that, in the particular circumstances of this case, to allow this factor to outweigh the clear disregard for the rights of people living in lower income housing and the impact upon their privacy rights would, on balance, adversely affect the repute of the justice system.

III. Conclusion

[112] All of the evidence seized pursuant to the warrantless search of Mr. Sills’ residence will be excluded.

Released: September 21, 2023 Signed: Justice Newton-Smith

[i] In the body of the ITO, under the heading “Information provided by CS2”, the following information was provided: [redacted].

[ii] The information which the police had was [redacted].