ONTARIO COURT OF JUSTICE DATE: 2024 09 25 COURT FILE No.: Hamilton 998 24 47101268
BETWEEN:
HIS MAJESTY THE KING (Respondent)
— AND —
DANIEL MACKENZIE (Applicant)
Before: Justice Davin M.K. Garg
Heard on: July 30-31, August 26, and September 5, 2024 Reasons on Charter Application (ss. 8 and 24(2)) released on: September 25, 2024
Counsel: Steve Kim...................................................................... counsel for the respondent Crown Ashley Audet............................................... counsel for the applicant Daniel MacKenzie
GARG J.:
I Overview
[1] The investigation of crime can sometimes deviate from normal court procedures. Search warrants are one example. The application occurs ex parte and in camera. Stripping out the Latin legalese elucidates the point: the application is a one-sided, secret process where only the police present information to the authorizing justice. To protect this process, the police must present information that both supports and undermines the issuance of the warrant. We call this the obligation to be “full, fair, and frank”.
[2] The police breached that obligation in this case. The police relied heavily on a single source yet failed to present crucial information that seriously undermined the credibility and reliability of that source. Even though I find no intent to deceive the authorizing justice, the reckless and negligent approach to presenting relevant information subverted the pre-authorization process. I use my residual discretion to set aside the warrant and then exclude the evidence from the search.
[3] That evidence includes a handgun. Gun violence has gripped the City of Hamilton this year. Media reports decry the alarming rates of shootings in our community. Excluding the evidence will deprive society of a trial in a case with significant public interest. But exclusion is necessary to protect the long-term integrity of the justice system, which includes the search warrant application process.
II Material omissions in the warrant application
[4] The affiant’s legal obligation when seeking an ex parte authorization is the full, fair, and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65 at para. 46. In the context of a search warrant, the affiant must include all material information that could undermine: (a) the probability that the offence occurred; (b) the probability that evidence will be found at the place of the search; and (c) the reliability and credibility of the information establishing grounds for the warrant: R. v. Booth, 2019 ONCA 970 at para. 56.
[5] The applicant argues that the record put before the issuing justice did not accurately reflect the true state of what the affiant knew or ought to have known when seeking the warrants. I must decide whether the corrected record supplies information, reasonably capable of belief, that could have supported the authorization. The onus is on the applicant to show that the warrants could not have issued: R. v. Paryniuk, 2017 ONCA 87 at para. 43.
Facts
[6] The applicant is charged with multiple firearms and weapons offences. On February 27, 2024, the police obtained warrants to search his pickup truck and a detached garage that he was said to be renting. The affiant set out her grounds in the information to obtain (ITO) to believe that there were things (e.g., firearms) in those locations that would afford evidence of the offences. The police began executing the warrants in the evening of February 27. No firearms were found in the truck. The police eventually located a handgun, a conducted energy weapon, and two sets of brass knuckles in the garage.
[7] The ITO relies on two main sources to establish the belief that a search would afford evidence: interviews with Ms. Colleen Hunter (the applicant’s former domestic partner) and utterances attributed to the applicant as he left the courthouse one day. Some background is necessary before outlining the information from these sources.
Background
[8] On December 4, 2023, the police arrested Ms. Hunter and charged her with assaulting the applicant. She was released on an undertaking with terms not to communicate with or be within a certain radius of the applicant.
[9] On February 4, 2024, the applicant’s neighbour reported to the police that the applicant had offered to sell him a handgun. The police arrested the applicant. They executed search warrants on February 5 for his truck and an apartment that he apparently shared with Ms. Hunter. The police did not find any firearms. The applicant was released without charge. The affiant who drafted the ITO in support of these initial warrants also drafted the ITO at issue in this case.
[10] On February 27, 2024, the police again attended the apartment for a domestic incident. The police arrested Ms. Hunter and charged her with breaching her undertaking. Now in police custody, Ms. Hunter indicated that she wished to provide information that would incriminate the applicant. This information led the police to once again obtaining warrants to search the applicant’s property.
Ms. Hunter’s interviews on February 27, 2024
[11] The ITO outlines the three interviews that Ms. Colleen Hunter gave to the police after her arrest on February 27. Two of the interviews were recorded “K.G.B.” statements, while the other was a short unrecorded conversation that occurred in between. [1]
[12] First interview: After the search on February 5, Ms. Hunter said that the applicant returned to the apartment, reached into her grandmother’s chair, and pulled out what she believed to be a tiny firearm. The applicant took it with him. He laughed about how the police would never catch him or find the gun. The applicant would also brag all the time about having weapons. Ms. Hunter explained that she was unfamiliar with firearms.
[13] During this same interview, Ms. Hunter shared another incident where she saw the applicant with the same firearm. The applicant was driving his truck sometime before December 4, 2023. During a road rage incident, the applicant reached into the glove compartment, pulled out the firearm, and pointed it out the window at the other driver.
[14] Ms. Hunter also shared that she saw the applicant go from his truck to the garage with what she believed were two shotguns. This event had also occurred before December 4.
[15] Second interview: Ms. Hunter then disclosed additional details off camera. She said that she had not been forthcoming about the dates for the road rage and shotgun incidents. Rather than occurring before December 4, Ms. Hunter shared that the road rage incident took place a few weeks prior and that the shotgun incident took place one to two weeks prior. The affiant believed that Ms. Hunter initially lied about the dates because she did not wish to admit to breaching her undertaking.
[16] Third interview: The police assured Ms. Hunter that additional disclosures would not result in further breach charges. Ms. Hunter again corrected the date of the road rage incident to say that it occurred after December 4, 2024. As for the shotgun incident, Ms. Hunter indicated that it occurred at the end of January or the beginning of February 2024.
[17] Ms. Hunter also shared that the applicant held a knife to her throat one week prior and said that she should be worried about his gun. She did not see a firearm during this incident.
[18] Finally, Ms. Hunter shared that the applicant showed her ammunition in his truck within the past couple weeks. Ms. Hunter described the ammunition’s colour and as it not being spent.
Applicant’s utterances at the courthouse
[19] The ITO also includes utterances that the applicant is said to have made on February 7, 2024. The applicant exited the courthouse and made the following remarks to a special constable: “Cops came looking for my guns, you guys couldn’t find my guns, you don't know where my guns are hidden, I am going to be suing you guys again for this”.
Ms. Hunter’s prior statement
[20] Ms. Hunter gave a statement to the police on February 4, 2024. This statement is not referenced in the ITO. Ms. Hunter gave this statement after the police had secured the apartment but before executing the initial search warrant. Ms. Hunter said that there was no reason for guns or ammunition to be in the apartment. She was adamant on this point. She did not believe that the applicant had any property left in the apartment. When asked if the applicant drove a car, Ms. Hunter responded, “I’m not sure, really. … He used to have one”. When asked if he drove or what car he drove, she responded, “I have no idea”. Ms. Hunter also seemed to say that the applicant never spoke to her about firearms because he knew that she was a teacher. [2]
Analysis of the failings in the ITO
[21] The applicant alleges that the ITO fails to include material information, especially details that were essential for the authorizing justice to properly assess Ms. Hunter’s reliability and credibility.
[22] In my view, the most significant omission from the ITO is the absence of any disclosure of Ms. Hunter’s initial statement to the police on February 4. The affiant was aware of this statement but did not think to review it when drafting the ITO. What Ms. Hunter said on February 4 was relevant in its own right. But its importance was heightened given how Ms. Hunter incriminated the applicant on February 27. She gave the later statement after she had been arrested for breaching her undertaking. She had an apparent motive to incriminate the applicant to gain favour with the police. The authorizing justice needed to be aware of the earlier statement that was made when Ms. Hunter did not have this motive.
[23] The following paragraphs outline the material omissions in the ITO, including the omissions with respect to Ms. Hunter’s earlier statement.
Ms. Hunter did not believe there was a gun in the apartment
[24] The mere fact that Ms. Hunter did not believe there was a gun in the apartment on February 4 is not inconsistent with what she told the police on February 27. From the totality of her statements, Ms. Hunter did not see a gun in the apartment until after February 4, when she saw the applicant pull one out of a chair on February 5.
[25] However, Ms. Hunter’s assertions on February 4 were material to assessing the reliability of her claims on February 27: see Booth at para. 56. First, her claim of having seen the gun on February 5 needed to be assessed alongside her belief on February 4 that no guns were present and her assertion that the applicant had removed his property from the apartment. Second, Ms. Hunter was adamant that the police would not find guns in the apartment but did not volunteer any information about the earlier road rage or shotgun incidents. [3] While it was Ms. Hunter’s prerogative to confine her answers to the questions posed to her, her decision not to volunteer these incidents was relevant to evaluating her eventual disclosures. She knew at the time of the February 4 statement that the police were investigating the applicant’s connection to firearms. It was relevant that she said nothing about these incidents until she had a motive to curry favour with the police. Third, Ms. Hunter’s assertion on February 27 that the applicant was always bragging about weapons was inconsistent with her suggestion on February 4 that he never spoke to her about firearms because she was a teacher.
Ms. Hunter’s inconsistency regarding the applicant’s driving
[26] Ms. Hunter’s earlier statement contains a significant inconsistency when examined against the later disclosures. On February 4, Ms. Hunter seemed to have no idea about anything related to the applicant driving a motor vehicle. She did not know if he drove and, if so, what kind of vehicle. But on February 27, Ms. Hunter knew specifically that the applicant drove a Ford F-150. Furthermore, Ms. Hunter shared the applicant’s road rage incident where she saw him remove a gun from the glove compartment of his pickup truck. Based on the timelines provided by Ms. Hunter across her three statements, this road rage incident may have occurred before February 4. It was highly relevant that Ms. Hunter had disavowed any knowledge on February 4 of the applicant driving a motor vehicle. This same concern applies to Ms. Hunter’s claim that she saw the applicant moving shotguns from his truck to his garage.
Ms. Hunter’s outstanding charges
[27] The ITO fails to properly outline the nature and circumstances of Ms. Hunter’s outstanding charges. The ITO only says that Ms. Hunter had been arrested for breaching her conditions with respect to the applicant. It does not disclose how those conditions arose (e.g., from a probation order, release order, or peace bond). The ITO also does not reveal Ms. Hunter’s outstanding charge of assault against the applicant. Although the authorizing justice could infer that the breach arrest meant that Ms. Hunter had allegedly committed an offence against the administration of justice, the failure to include the assault charge deprived the authorizing justice of information showing an acrimonious relationship and potential animus towards the applicant: see R. v. Reeves, 2017 ONCA 365 at para. 86.
Prior search of the applicant’s truck
[28] The ITO fails to mention that the police had previously searched the applicant’s truck on February 5 and did not find anything of evidentiary value. It was essential for the affiant to include this information in the ITO. The absence of firearms about three weeks prior was relevant to assessing the grounds for the current warrants—especially since the police were seeking to search the truck again: see Booth at para. 110. The ITO does mention that the police did not locate any firearms during the previous search of the apartment. The ITO also mentions (before Appendix C) that no firearms were found during the previous execution of a warrant without specifying the locations that were searched.
The remaining claims
[29] I find that the remaining claims are less significant, either alone or in combination with each other, and did not violate the duty to be full, fair, and frank: [4]
(1) The ITO does not highlight the inconsistency between Ms. Hunter saying that she is unfamiliar with guns but then saying she is a shooter (comment I). This inconsistency comes from her interviews on February 27. The applicant argues that the ITO does not capture how Ms. Hunter was distancing herself from firearms—the very subject matter of the criminal activity in question. I find that the gist of the inconsistency was already before the authorizing justice. The ITO discloses how Ms. Hunter said she was unfamiliar with guns yet somehow familiar with ammunition.
(2) The applicant claims that the ITO fails to outline or capture the uncertainties in Ms. Hunter’s recollections (part of comment E). I agree that the affiant could have done more to highlight the uncertainties. But the affiant is required to synthesize the information before her. An ITO that simply repeats the source materials misses the mark of being clear and concise: Araujo at para. 46. Importantly, the ITO captures Ms. Hunter’s uncertainty with respect to the dates of the incidents. It shows how, for some of the incidents, Ms. Hunter changed the dates in each of her three interviews on February 27.
(3) The ITO does not include Ms. Hunter’s assertion that the applicant and his family were constantly moving things around (comment J). This information would be relevant to the grounds to believe that a search would locate a firearm in the places to be searched. It will be added to the ITO. But the omission is relatively minor, because the ITO makes plain that the applicant was moving the firearm around. The apartment and shotgun incidents involved the applicant moving the firearm from one location to another.
(4) The applicant claims that the ITO wrongly asserts that Ms. Hunter, during the third interview on February 27, stated that the road rage incident occurred sometime after December 4 (comment H). I disagree with the claim. As I read the interview at page 30, Ms. Hunter was correcting the officer’s belief that the road rage incident had occurred within the past couple weeks and clarifying that it had occurred more recently than December 4. Ms. Hunter was in effect recommitting to that timeframe during the interview. I agree that the ITO fails to mention that Ms. Hunter, during this same interview at page 22, also placed the road rage incident as occurring before December 5 in “November, December-ish”. But this omission is not material given how the ITO already makes plain that Ms. Hunter changed the date of this incident multiple times.
(5) When summarizing her grounds to believe that evidence would be present in the places to be searched, the affiant states that Ms. Hunter saw the applicant “carry two sawed off shotguns into the garage”. The applicant claimed in his initial factum that this statement significantly overstates the certainty of Ms. Hunter’s assertions. But the ITO must be read as a whole. When summarizing the interview, the affiant states that Ms. Hunter saw the applicant “with what she believed to be two shotguns”.
(6) The applicant seeks to excise the note where the affiant shares her belief for why Ms. Hunter changed the dates of the road rage and shotgun incidents (comment F). Excision is not required. The note is clearly indicated to be the affiant’s belief and not something said by Ms. Hunter. The affiant’s belief was reasonable in the circumstances.
(7) The applicant seeks to add that Ms. Hunter’s final statement on February 27 was induced (comment G). The ITO is sufficient. It discloses how the police informed Ms. Hunter that she would not face additional charges. “Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor”: R. v. Green, 2015 ONCA 579 at para. 18.
Consequences of the failings in the ITO
[30] I find that the ITO fails to include material information. I must correct the ITO by adding that information to achieve full and frank disclosure: Booth at para. 57. As Paciocco J.A. explained in Booth at para. 59: “Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information”. I will describe this process as “addition” instead of “amplification” to distinguish between the expansive defence tool of adding material information to the ITO and the narrow Crown tool of amplifying it: see Booth at paras. 59-63; Hasan, Nader, et al. Search and Seizure. Toronto: Emond Montgomery, 2021 at 608-609, 621-623.
[31] The following material information must be added to the ITO:
(1) In her statement on February 4, Ms. Hunter asserted that the police would not find a gun in the apartment (comment C). (2) In her statement on February 4, Ms. Hunter asserted that the applicant had removed all his property from the apartment (comment C). (3) In her statement on February 4, Ms. Hunter suggested that the applicant did not speak to her about firearms because he knew she was a teacher (comments C and E). (4) In her statement on February 4, Ms. Hunter did not disclose the road rage or shotgun incidents (comments C and E). (5) In her statement on February 4, Ms. Hunter denied any knowledge of what vehicle the applicant drove and whether he even drove at all (comments C and E). (6) In her interviews on February 27, Ms. Hunter stated that the applicant’s family was constantly moving things around (comment J). (7) Ms. Hunter was arrested on February 27 for specifically breaching an undertaking that arose from criminal charges. She was facing an outstanding charge of assault where the applicant was the alleged victim (comment B). (8) The police had searched the applicant’s truck on February 5 and did not find any firearms (comment A).
Whether the warrants still could have issued
[32] After correcting the ITO, I find that the search warrants still could have issued. The question is not whether I would issue the warrants but whether the authorizing justice could have issued them on the corrected record: R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 8 (3); R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1452. I must take a common sense approach and consider the corrected ITO as a whole: R. v. Maric, 2024 ONCA 665 at para. 163. As LaForme J.A. explained in Reeves at para. 82:
Where the adversarial process reveals the ITO contained significant misleading information, the reviewing judge should not be placed in a straightjacket of absolute, unyielding deference to the hypothetical possibility of the authorizing judge still granting an ex parte authorization. The standard is whether the authorizing justice reasonably could still have granted the authorization, not whether there is a slight chance or theoretical possibility that he or she could have done so.
[33] The ITO supplies reasonable grounds to believe that an offence had been committed and that evidence of the offence would be found in the places to be searched. The reasonable grounds to believe standard is met when “credibly-based probability” replaces suspicion: R. v. Dhillon, 2016 ONCA 308 at para. 25. The standard relates to legitimate factually based expectations and does not require proof on a balance of probabilities: R. v. Ha, 2018 ABCA 233 at para. 63; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114. To be reasonable, the belief must be grounded in information that is sufficiently credible and compelling: R. v. Beaver, 2022 SCC 54 at para. 72 (6).
[34] The corrected ITO presents Ms. Hunter’s significant credibility and reliability concerns. Some of her essential assertions could not be true. As the Crown recognized, it cannot be that Ms. Hunter did not know whether the applicant drove a vehicle but also knew that he pulled a gun from the glovebox of his Ford F-150.
[35] Nonetheless, I find that the warrants still could have issued because Ms. Hunter’s statements provided direct evidence of the applicant in possession of a firearm in the locations to be searched, notwithstanding that she waited to incriminate the applicant until the moment suited her. Importantly, Ms. Hunter’s assertions were corroborated by the applicant’s own admission to the special constable that he possessed firearms.
[36] The applicant argues that his utterances to the special constables provided insufficient corroboration in the context of Ms. Hunter’s deficiencies. [5] He acknowledges that his utterances corroborated Ms. Hunter’s assertion that he possessed firearms generally. But he argues that his utterances did nothing to corroborate that firearms would be found in the locations to be searched. I disagree. Demanding this level of corroboration surpasses the governing standard of reasonable grounds to believe.
[37] First, the applicant’s utterances served to fix the timeframe. Ms. Hunter’s account provided direct evidence of the applicant having firearms in his truck and garage. But her accounts were shifting, uncertain, and unclear on the dates. She only incriminated the applicant when she was motivated to do so. The applicant’s utterances on February 7 sufficiently resolved these concerns. They corroborated Ms. Hunter’s assertion that the applicant possessed firearms and that he possessed them after February 4. A different source, the owner of the garage, also linked the applicant to the garage and thereby provided some corroboration of Ms. Hunter’s assertion that the applicant was using the garage. [6]
[38] Second, the applicant’s utterances corroborated specific words attributed by Ms. Hunter to the applicant. The ITO at paragraph 9(e) outlines how Ms. Hunter recounted the applicant pulling out a gun, laughing at the police, and saying that the police would never find the gun. These comments are notably consistent with the applicant’s utterances to the special constables saying that the police could not find his guns and that they do not know where the guns are hidden. Even the act of making these utterances to a special constable is consistent with the theme of laughing at the police.
[39] The corroboration also addresses whether the information sourced to Ms. Hunter was stale-dated. There is no rule as to how recent the information must be to be relevant: R. v. James, 2019 ONCA 288 per Nordheimer J.A. at para. 55. [7] The length of time is only one factor: R. v. Fuller, 2021 ONCA 411 at paras. 9-10. Of note in this case is that Ms. Hunter described a pattern of the applicant handling firearms. And on her telling, the applicant pulled a gun out of the apartment chair after the initial warrant was executed on February 5. The three weeks that passed between February 5 and February 27—with the applicant’s utterances on February 7—did not stale-date the information. The garage, in particular, is a place where people store their belongings and where things tend to stay for a longer period of time.
[40] A final point about the applicant’s utterances. The applicant claimed in his initial factum that the ITO fails to specify how the special constable identified the applicant. I do not give effect to this claim. No further identification evidence was required in the ITO. Moreover, the content of the utterances supported the identification of the applicant, since he would have known that the police had executed a search warrant on his property two days prior and not found any guns.
III Residual discretion to set aside the warrants
[41] Even though the warrants could have issued, the court retains a common law authority to set them aside. This residual discretion is not contingent on finding a Charter breach. Rather, the residual discretion can be used when the police conduct was so subversive of the authorization process that the warrant must be set aside to protect the court’s process: Araujo at para. 54; R. v. Nyadu, 2024 ONSC 4092 at para. 273. This authority has been referenced in Ontario for some time but is commonly linked to Watt J.A.’s decision in Paryniuk at para. 69:
… previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like …
[42] The standard to use this discretion is high: R. v. Phan, 2020 ONCA 298 at para. 56. It has been described as conduct that amounts to an abuse of process: R. v. Vivar, 2009 ONCA 433 at para. 2. The applicant must demonstrate that the police “subverted” the authorization process. “In plain terms, an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like”: Paryniuk at para. 74.
Deliberate non-disclosure
[43] Courts usually base the residual discretion to set aside a warrant on a finding of deliberate non-disclosure: see Nyadu at para. 54; R. v. Velauther, 2024 ONSC 1273 at para. 30.
[44] The applicant does not argue that the affiant sought to deliberately mislead the issuing justice. I agree with this concession. The affiant understood conceptually the need to be full, frank, and fair in the ITO. The material non-disclosure arose from a combination of negligence and inexperience. The February 27 application was only the second time that the affiant had applied for a search warrant. She was unfamiliar with relevant terminology (e.g., the meaning of “affidavit” or “ex parte application”). She failed to turn her mind to relevant issues but did not seek to deliberately withhold material information. For example, when asked why she omitted Ms. Hunter’s February 4 statement from the ITO, she agreed that she simply gave no thought to reviewing it: “I didn’t think to”.
Negligent non-disclosure
[45] These factual findings do not end the analysis because deliberate deception is not the only basis for invoking the residual discretion.
Legal principles
[46] The residual discretion rests on “subversion” of the pre-authorization process. The word “subversion” would seem to denote intentional conduct. But the jurisprudence suggests that the residual discretion is available when the affiant’s negligence has the effect of subverting the pre-authorization process. “Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process”: Paryniuk at para. 74.
[47] Highly negligent conduct can undermine or disrupt the pre-authorization process to the same degree as intentional conduct. The effect on the process is the same. An affiant, extremely careless in their approach to including information in the ITO, has undermined the process by depriving the issuing justice from ever being able to make an informed decision about whether to issue the warrant. Allowing claims of incompetence to immunize the warrant would not provide the necessary counterweight to the secret and one-sided process.
[48] The jurisprudence establishes that negligent conduct can suffice to use the residual discretion. The Ontario Court of Appeal held in R. v. Kesselring, 145 C.C.C. (3d) 119 at para. 32 that “[t]here may be cases where a lack of care will be sufficiently serious that an otherwise valid warrant should be set aside. Police officers should attempt to be scrupulously accurate in preparing and swearing informations used to obtain warrants”. But the Court reiterated that the carelessness must be “sufficiently serious” to justify setting aside the warrant: para. 33. The errors must go beyond how the ITO was “drawn and organized”: see Green at para. 18. As Nakatsuru J. explained in R. v. Majeed, 2017 ONSC 2963 at para. 10:
Deliberate and fraudulent errors are obviously important. A pattern of conduct may be more destructive than isolated mistakes. However, this list is not foreclosed. I accept the applicant’s submission that serious errors committed even without the intention to mislead or deceive the issuing justice may be relevant. Nor do they have to be deliberate. Even negligent or careless errors depending on their nature and gravity may be subversive. Key in the contextual analysis is their effect upon the integrity of the process. [8]
[49] One issue that arose during argument is the effect of the “good faith or bad faith” dichotomy that is referenced in Booth at para. 121. Police conduct does not normally need to be divided into either good faith or bad faith. There exists a middle ground where the conduct would neither be characterized as good faith nor bad faith. A common refrain from the s. 24(2) jurisprudence is that the absence of bad faith does not equate to a positive finding of good faith: R. v. Le, 2019 SCC 34 at para. 147. But Booth could be read as suggesting that the affiant’s conduct must be labelled as either good faith or bad faith when it comes to the residual discretion:
It is true that when it comes to evaluating whether a failure to make full and frank disclosure violates the Charter, the law employs a simple, binary “good faith or bad faith” analysis relating to whether amplification will be available or whether the residual discretion to set aside a warrant is triggered. However, the law of s. 24(2) is different. To properly judge the seriousness of the violation, police conduct must be placed on this “fault line” or “spectrum” between good faith and bad faith.
[50] Based on this passage, defence counsel wondered whether she could ask me to use my residual discretion without also asking me to find that the affiant acted in bad faith. And without a finding of deliberate non-disclosure, could the affiant really be said to have acted in bad faith? I will address the implications of Booth at the end of the analysis that follows.
Analysis
[51] Counsel could not provide a case where a court used their residual discretion to set aside a warrant without a finding of deliberate non-disclosure. Courts have refrained from using their residual discretion in situations of negligence or carelessness:
- In Majeed at paras. 28-30, Nakatsuru J. found that the ITO was neither full nor fair. The affiant withheld material information in the ITO, did not fairly structure the information, and might have led the issuing justice to erroneously interpret the facts. Nakatsuru J. declined to use his residual discretion. He accepted the affiant’s reasonable explanations for the shortfalls, which included a lack of care and thought. He found that the affiant did not deliberately deceive or try to mislead the issuing justice, make fraudulent misrepresentations, or act in bad faith.
- In Velauther at para. 30, Rahman J. found that the affiant was negligent. But he could not find that the misstatements in the ITO were intentionally misleading such that they amounted to subversion of the authorization process. “Respectfully, my impression is that the affiant simply did not know what he was doing. He was not sophisticated enough to have been able to mislead the court”.
[52] Notwithstanding the results reached on the facts of those cases, I find that the non-disclosure here is sufficiently serious to use my residual discretion. I am cognizant that it is exceptional to use this discretion. The threshold is akin to the “clearest of cases” test required to stay proceedings for an abuse of process. The discretion exists to prevent subversion of the authorization process and not to punish the police or send them a message: R. v. Sismey, [1990] B.C.J. No. 757 (C.A.) at para. 8; Velauther at para. 30.
[53] The non-disclosure in the ITO primarily relates to: (a) Ms. Hunter’s prior statement on February 4, which was vital to assessing her incriminatory claims on February 27; (b) Ms. Hunter’s outstanding charges, which included an assault against the applicant; and (c) the prior search of the applicant’s truck on February 5 that uncovered no evidence. [9]
[54] The affiant’s knowledge of Ms. Hunter’s prior statement on February 4 underpins the seriousness of the non-disclosure. This is not a case where the affiant simply neglected to review a statement that was available within police files. Nor was the affiant a newcomer to the investigation. Rather, she had reviewed Ms. Hunter’s prior statement when she drafted the first ITO to search the applicant’s property on February 4. She had watched and listened to the prior statement and noted the key points in her memo book. Only three weeks had passed between drafting the first and second ITOs. The affiant continued to have access to her notes and a recording of the statement. It is unacceptable that the affiant either forgot about the prior statement, did not think the prior statement was relevant, did not think to review her own notes on the statement, or some combination of the above.
[55] The non-disclosure is aggravated by the simplicity of the investigation. The ITO relied almost entirely on Ms. Hunter’s assertions. She was the clear focus. The affiant acknowledged that Ms. Hunter was the only source with respect to the applicant having firearms. There is no good explanation for failing to include highly relevant information from and about the primary source. It is not as though the affiant forgot about Ms. Hunter’s statement after a lengthy investigation filled with multiple interviews that relied on a complex web of evidence.
[56] The affiant also displayed a pattern of negligent conduct. She failed to make basic checks into Ms. Hunter before relying on her as the primary source in the ITO. For example, she made no checks into Ms. Hunter’s involvement with the criminal justice system. Making these checks would have revealed Ms. Hunter’s outstanding charges for assault and breach of undertaking. The only reason that the ITO contains a vague reference to Ms. Hunter’s arrest for “breaching her conditions” is because she shared this information with the affiant. Yet knowing that Ms. Hunter was on conditions did not trigger the affiant to check CPIC or police databases for further information. The affiant did not check what the conditions related to—they could have been from a release order, undertaking, probation order, or peace bond. The failure to make any checks into Ms. Hunter’s involvement with the criminal justice system is the same type of conduct that led the affiant to not review her notes or police files on Ms. Hunter. There was a positive obligation on the police to conduct this minimum level of due diligence.
[57] The affiant also failed to disclose the prior search of the applicant’s truck that turned up no evidence. The points about the short three-week timeframe, the simplicity of the investigation, and the affiant’s role within the investigation apply here too. The affiant had written the previous ITO on February 4 and knew about the negative results of the search. About three weeks later, the affiant was once again applying to search the same location for the same type of evidence. It would have been simple and expected for the affiant to reference the prior search in the ITO.
[58] In arguing against the residual discretion, the Crown points to information that the affiant omitted from the ITO that could have strengthened the grounds to issue the warrants. I accept that this evidence has some relevance in showing that the affiant had not engaged in deliberate deception by only including information that would bolster her grounds. But it does not assist on the issue of setting aside the warrant for negligent conduct. The subversion here does not rest on the affiant’s intent. It rests on the reckless approach to including crucial information, which ultimately painted a picture in the ITO that was dramatically different than the true state of affairs.
[59] The affiant testified credibly. She took ownership for her mistakes. She agreed with reasonable suggestions. She recognized how the non-disclosure breached her obligation to be full, fair, and frank. But the affiant’s inexperience and good intentions cannot bar the residual discretion. While the affiant was new to the search warrant process, the Hamilton Police Service was not. Whether the non-disclosure resulted from inadequate training, mentorship, supervision, or some other cause, I am satisfied that it makes out the requisite degree of negligence to set aside the warrant. There is no set of stock factors that will always prevail to make the residual discretion appropriate: see Majeed at para. 9. But I hope to know the appropriate cases when I see them. I see it appropriate to use my residual discretion in this case.
[60] I return to the “good faith or bad faith” conundrum raised by Booth at para. 121. I hesitate to frame the analysis on that passage since Booth was not fundamentally a case about the residual discretion. [10] But assuming that I must classify the affiant’s conduct as either good faith or bad faith, then I have no hesitation calling it bad faith. The “bad faith” label is not merely a synonym for “the wilful violation of Charter rights”. Blatant disregard for Charter-compliant standards ought to make out bad faith as well. The degree of negligence here was severe. The mistakes were easily avoidable. There was a pattern of conduct. Consequently, I am prepared to find that the affiant acted in bad faith for the purposes of the residual discretion.
[61] Without the warrant, the resulting searches were unauthorized and breached section 8 of the Charter.
IV Remaining Charter claims
[62] The applicant abandoned his claims that the police also breached section 8 by seizing his truck before the warrants had issued and by obtaining telewarrants instead of personally appearing before a justice.
V Exclusion of the evidence
[63] The applicant applies under section 24(2) of the Charter to exclude the evidence obtained from searching the garage. The search yielded a handgun, a conducted energy weapon, and two sets of brass knuckles. The applicant must convince the court that admitting the evidence would bring the administration of justice into disrepute. Section 24(2) is focused on maintaining the long-term integrity of the justice system. Exclusion of evidence is not directed at punishing police misconduct but at systemic and institutional concerns: R. v. McColman, 2023 SCC 8 at paras. 53-54; R. v. Grant, 2009 SCC 32 at paras. 68-70.
[64] I am satisfied that the evidence must be excluded after considering the three lines of the Grant analysis.
The seriousness of the Charter-infringing conduct
[65] The first line of inquiry focuses on the extent to which the Charter-infringing conduct deviates from the rule of law. In evaluating the gravity of the infringement, the court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15 at para. 43. I find that the disregard for Charter rights in this case would inevitably have a negative effect on public confidence in the rule of law: see Grant at para. 74.
[66] The mere fact of a Charter breach does not mean that the breach was serious. In this case, however, my route to finding a breach inexorably leads to the conclusion that it was serious. I found that the affiant was sufficiently negligent that it met the very high standard to set aside the warrant. The elevated degree of negligence subverted the pre-authorization process. It is hard to conceptualize how the police could subvert the warrant process in a non-serious manner.
[67] There is little, if anything, that could be said to attenuate the seriousness of the breach. The affiant was inexperienced. However, the police service would have known about her inexperience yet did not provide additional oversight. Furthermore, the process of applying for a warrant is distinguishable from circumstances where the police must make rapid decisions in the field. While the decision to seek judicial authorization shows respect for Charter rights, the conduct in seeking the warrant showed disrespect for the authorization process: R. v. Morelli, 2010 SCC 8 at paras. 99-100, 102.
[68] The first line of inquiry pulls strongly in favour of exclusion.
The impact of the breach on the applicant’s Charter-protected interests
[69] The second line of inquiry is aimed at the concern that admitting the evidence may send a message that Charter rights are nothing more than high-minded principles. The scale of impact on the individual ranges from fleeting and technical on one end to profoundly intrusive on the other: Grant at para. 76.
[70] Having set aside the warrants, the warrantless searches were intrusive in their cumulative effect. The applicant enjoyed an expectation of privacy in his truck—albeit reduced—and a moderate expectation of privacy in the detached garage where he stored his belongings: R. v. Belnavis, [1997] 3 S.C.R. 341 at para. 38. The searches impacted the applicant’s protected privacy interests even though the locations were less private than a residence, office, or digital device. The search of the garage was also extensive and required the police to be present for multiple days.
[71] The second line of inquiry pulls in favour of exclusion.
Society’s interest in the adjudication of the case on its merits
[72] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. Courts should consider such factors as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offences.
[73] Excluding the evidence would undermine the truth-seeking function of the trial. The evidence is reliable and vital to the Crown’s case. And the applicant faces multiple serious charges. The people of Hamilton are suffering from a spate of shootings and other incidents of gun violence. Society’s interest in a trial on the merits is exceedingly high: “Canadians rightly expect that persons who commit serious offences and imperil our safety and security will be brought to justice … The effect of a decision to exclude evidence of serious criminal misconduct may be to return a dangerous individual to the streets, without any legal sanctions or conditions, thereby putting at risk the safety and security of community members”: R. v. Le, 2019 SCC 34 per Moldaver J. (dissenting) at para. 301.
[74] The third line of inquiry pulls strongly in favour of admission.
Balancing the Grant factors
[75] Excluding the evidence is necessary for the court to adequately disassociate the justice system from the Charter breach and to reinforce the community's commitment to individual rights: see R. v. McGuffie, 2016 ONCA 365 at para. 83. The charges are serious. The evidence is reliable. But the strong societal interest in continuing this prosecution cannot overcome the cumulative effect of the first two lines of the inquiry: see R. v. Gonzales, 2017 ONCA 543 at para. 172. Admitting the evidence obtained after conduct that had the effect of subverting the pre-authorization process “would exact too heavy a toll on the administration of justice”: Nyadu at para. 281.
VI Conclusion
[76] The Charter application under sections 8 and 24(2) is granted. The evidence obtained pursuant to the search warrants is excluded.
Released: September 25, 2024 Signed: Justice Davin M.K. Garg
[1] I will refer to the middle conversation as an “interview” even though counsel did not describe it that way.
[2] The statement is uncertain about what exactly the applicant did not speak to Ms. Hunter about. She repeats the word “that” without defining it: “… I’m not involved in anything like that … I don’t accept anything like that, so he’s never spoken about anything like that” [emphasis added]. From context it seems like Ms. Hunter was referring to firearms.
[3] While it is possible that neither the road rage nor shotgun incidents had occurred by February 4, they had already occurred based on how the ITO summarized Ms. Hunter’s first and third interviews on February 27. Per the first interview, the incidents had occurred before December 4. Per the third interview, the road rage incident occurred after December 4 and the shotgun incidents at the end of January or the beginning of February 2024.
[4] The comments in parentheses refer to the applicant’s list of corrections in a helpfully annotated ITO.
[5] Based on how the applicant framed it, the issue of whether Ms. Hunter made compelling disclosures would be relevant to both her credibility and reliability.
[6] I find that nothing material turns on whether the owner said that the applicant was the only person who possessed a key to the garage or the only person that she knew of with a key.
[7] Nordheimer J.A. was writing in dissent at the Court of Appeal, but his decision was adopted by the majority at the Supreme Court: 2019 SCC 52.
[8] See also Hasan, Nader, et al. Search and Seizure. Toronto: Emond Montgomery, 2021 at 654 (“The reviewing judge has residual discretion to quash a warrant … because the affiant has deliberately or recklessly misled the issuing justice”).
[9] See paragraphs 21-31 of these reasons for more detail on the non-disclosure.
[10] Booth at para. 84: “there is no need to consider the discretion to set aside the warrant because of a dishonest subversion of the warrant process”.