ONTARIO COURT OF JUSTICE
DATE: 2025-02-26
COURT FILE No.: Brampton 23-31108721/23-31108595
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN ARRUDA
Before Justice D.F. McLeod
Heard on October 21, 22, 2024 and January 8 and February 7, 2025
Reasons for Judgment released on February 26, 2025
Persad-Ford — counsel for the Crown
S. Bhangal — counsel for the accused Kevin Arruda
D. F. McLeod, J.:
I. Introduction
[1] This judgment arises from an application challenging the validity of a search warrant executed at the residence of the accused, Mr. Kevin Arruda. The application alleges that the warrant was obtained in breach of section 8 of the Canadian Charter of Rights and Freedoms, due to material omissions and misstatements in the Information to Obtain (ITO) submitted by the affiant. The Court is tasked with determining whether the warrant was lawfully issued, whether the affiant fulfilled the duty of full, fair, and frank disclosure, and whether any resulting breach of the Charter warrants the exclusion of evidence under section 24(2). The analysis that follows is grounded in the evidentiary record, the applicable legal principles, and the submissions of both parties.
II. Relevant Facts
[2] In support of an application for a search warrant under section 487 of the Criminal Code, the affiant relied on a series of facts suggesting a connection between the Applicant, Kevin Arruda, and a pattern of harassing conduct involving both physical and electronic communications. The investigation began after letters signed “Pedro” were left at the residence of TS’s family. These letters were temporally associated with messages sent from social media accounts—bearing names similar to “Peter Smith”—that were linked to the Applicant. The messages, which were directed at TS, were described as unwanted and fraudulent, and the letters contained references to TS, her parents, and threats of future sexual violence involving TS and MS.
[3] Additional information was provided by a neighbor, Pa., who reported receiving an email from “peterpedro@ [...]” stating “I know where you live.” This communication was viewed as potentially connecting the alias “Pedro” used in the letters with the name “Peter” used in the electronic messages. Pa. also received emails from individuals purporting to be TS’s father and MS, referencing the earlier messages and asking about communications from “Pedro Peter.”
[4] Statements were obtained from TS, MS, and DS. None of the individuals were able to definitively identify the person responsible for the communications. While several individuals were considered persons of interest, the investigation did not yield evidence implicating them, with the exception of the Applicant.
[5] Following the issuance of the warrant, police conducted a search of the Applicant’s residence. During the search, they located a loaded restricted firearm under a blanket on a bed. Additional items found included four prohibited devices (two shortened barrels and two over-capacity magazines), multiple firearm components (including 12 barrels and 20 slides), an unserialized firearm receiver frame that could be assembled into a functional handgun, and a modified bag containing two large knives, multiple zip ties, and an interior holster.
III. Position of Parties
Applicant’s Position
[6] Counsel for the Applicant, Ms. Savena Bhangal, argues that the search warrant issued under section 487 of the Criminal Code was obtained in violation of section 8 of the Charter. She submits that the Information to Obtain (ITO) was materially misleading due to deliberate omissions, misstatements, and unsupported assertions by the affiant, Detective Constable McHenry.
[7] Ms. Bhangal contends that the affiant failed to disclose alternative suspects, omitted exculpatory facts such as negative surveillance results, and mischaracterized witness statements. These actions, she argues, misled the issuing justice and subverted the integrity of the warrant process. ex parte
[8] She further asserts that even if the ITO, once corrected through excision and amplification, could support the issuance of the warrant, the process was so tainted by bad faith that the warrant must be quashed. Upholding it, she argues, would undermine the foundational principle that judicial authorizations must be obtained through full, fair, and frank disclosure.
[9] Under section 24(2) of the Charter, Ms. Bhangal submits that the evidence obtained from the search should be excluded. The breach was serious, the intrusion into the home was significant, and the long-term integrity of the justice system outweighs the short-term interest in prosecuting the offence.
Respondent’s Position
[10] Counsel for the Crown, Ms. Amita Persad-Ford, maintains that the warrant was lawfully issued, and that the ITO provided sufficient grounds for the issuing justice to find reasonable and probable grounds. While acknowledging that some errors were made, she characterizes them as minor, technical, and made in good faith.
[11] Ms. Persad-Ford emphasizes that the affiant was credible and cooperative during cross-examination and that there is no evidence of deliberate misconduct. She argues that the core facts linking the Applicant to the online harassment and threatening letters remain intact, even after excision.
[12] In her section 24(2) analysis, Ms. Persad-Ford highlights the seriousness of the offences—possession of a loaded restricted firearm and controlled substances—and society’s strong interest in prosecuting such crimes. She contends that the evidence is reliable, probative, and essential to the Crown’s case.
[13] She submits that the police acted appropriately by seeking judicial authorization and that any breach, if found, does not warrant exclusion. Ms. Persad-Ford urges the court to admit the evidence and allow the matter to proceed on its merits, emphasizing the need to balance individual rights with the public interest in effective law enforcement.
III. Relevant Evidence
[14] Detective Constable Luke McHenry was the affiant who prepared the Information to Obtain (ITO) that supported the issuance of a search warrant executed on Mr. Kevin Arruda’s residence. During the Garofoli voir dire, McHenry testified that the ITO contained certain factual inaccuracies. These included a statement that the threatening letters were addressed to TS, when they were addressed to her parents, and a reference to the alias “Peter Smith” instead of “Peter.” McHenry stated that these inaccuracies were the result of oversight and reliance on information from police occurrence reports.
[15] McHenry also testified that the ITO did not include certain facts known to police at the time of the application. These included the results of surveillance footage from the S residence and surrounding area, which did not show Mr. Arruda or his vehicle, and the fact that IP addresses associated with suspicious email accounts were traced to Kitchener and Australia. McHenry also confirmed that the ITO did not mention that police were awaiting results from a Bell Canada production order related to the impersonation email accounts.
[16] In his testimony, McHenry stated that he believed the ITO provided a fair summary of the relevant facts. When asked about the omissions, he indicated that they were not included because they were not considered material at the time. He did not provide further detail on the decision-making process regarding the selection of facts included in the ITO.
[17] The testimony addressed the process by which the ITO was prepared and the information that was relied upon. The evidence included both the content of the ITO and the affiant’s explanations for the inclusion and exclusion of specific facts. The court heard that the ITO emphasized certain elements of the investigation and did not include others that were known to police at the time.
A. Duty to Provide Full, Fair, and Frank Disclosure
Legal Framework and Case Law
[19] An officer applying for a search warrant has a legal duty to provide full, fair, and frank disclosure of all material facts. This principle is firmly established in Canadian jurisprudence. In R. v. Araujo, 2000 SCC 65 at para 46, the Supreme Court of Canada held that an affiant must present all material facts, including those that may be unfavourable to the Crown’s position. This duty is heightened in ex parte proceedings, where the subject of the warrant has no opportunity to respond. Similarly, in R. v. Morelli, 2010 SCC 8 at paras 50–55, the Court emphasized that omissions or misleading statements in an Information to Obtain (ITO) can distort the evidentiary matrix and affect the range of inferences available to the issuing justice.
[20] The duty is not limited to avoiding falsehoods; it extends to ensuring that the ITO does not omit material facts that could impact the issuing justice’s assessment of whether the statutory preconditions for a warrant have been met. As noted in R. v. Nyadu, 2024 ONSC 4092 at para 2, deliberate or reckless omissions that subvert the integrity of the pre-authorization process may justify setting aside the warrant and excluding the evidence obtained.
Evidence from the Officer and Supporting Materials
[21] Detective Constable McHenry testified that he relied on police occurrence reports and statements from TS in preparing the ITO. He acknowledged that the ITO incorrectly stated that the threatening letters were addressed to TS, and that it referred to the alias “Peter Smith” instead of “Peter.” He also confirmed that the ITO did not include the results of surveillance, or the geographic origin of the IP addresses linked to the email accounts. McHenry stated that these omissions were not intentional and that he believed the ITO fairly summarized the relevant facts.
[22] The Defence’s factum further points to internal police memos and production order results that were available to the affiant at the time but not disclosed in the ITO. These documents, according to the Defence, would have provided important context and may have led the issuing justice to a different conclusion regarding the existence of reasonable and probable grounds.
Counsel Submissions
[23] In the present case, both the Crown and Defence acknowledge the existence of this duty, though they differ in its application. The Defence submits that the affiant, Detective Constable Luke McHenry, failed to meet this obligation by omitting several material facts from the ITO. These include the absence of surveillance evidence linking Mr. Arruda to the scene, the lack of connection between Mr. Arruda and the IP addresses associated with the impersonation emails, and the pending results of a Bell Canada production order. The Defence argues that these omissions were significant and deprived the issuing justice of the ability to properly assess the reliability of the affiant’s belief.
[24] The Crown, in contrast, maintains that McHenry acted in good faith and that any errors or omissions were minor and technical. It argues that the affiant provided explanations for the inaccuracies during cross-examination and that the ITO, when read as a whole, presented a reasonable basis for the issuance of the warrant. The Crown emphasizes that the affiant’s conduct did not amount to bad faith and that the core investigative theory remained supported by the evidence available at the time.
Conclusion
[25] While the legal standard for full, fair, and frank disclosure is clear and undisputed, its application in this case raises concerns. The omissions identified—particularly the absence of surveillance evidence, the lack of connection to the IP addresses, and the pending production order—were not peripheral. They were directly relevant to the reliability of the affiant’s belief and the strength of the investigative theory. Although the affiant may not have acted with deliberate intent to mislead, the cumulative effect of the omissions materially impacted the completeness of the ITO.
[26] In light of the case law and the factual record, it is difficult to conclude that the duty of full, fair, and frank disclosure was fully satisfied. The omissions, whether due to oversight or investigative tunnel vision, undermined the integrity of the pre-authorization process and compromised the issuing justice’s ability to make an informed decision. Accordingly, the warrant’s validity must be carefully scrutinized in light of these deficiencies.
B. Did the Officer Act in Good Faith?
Legal Framework and Case Law
[27] The concept of good faith in the context of search warrant applications is closely tied to the affiant’s duty to provide full, fair, and frank disclosure. While courts recognize that affiants may make errors, the distinction between honest mistakes and conduct that undermines the integrity of the warrant process is critical. In R. v. Araujo, 2000 SCC 65 at para 46, the Supreme Court emphasized that affiants must not omit material facts or mislead the issuing justice. In R. v. Morelli, 2010 SCC 8 at para 49, the Court held that false statements or omissions in an ITO may contravene this duty, even if not made with deliberate intent. However, where deliberate deception is found, as in R. v. Nyadu, 2024 ONSC 4092 at para 118, the court may conclude that the affiant did not act in good faith, and the warrant may be set aside.
Evidence from the Officer and Supporting Materials
[28] Detective Constable McHenry testified that he relied on police occurrence reports and witness statements in preparing the ITO. He acknowledged that the ITO incorrectly stated that the threatening letters were addressed to TS and that it referred to the alias “Peter Smith” instead of “Peter.” He also confirmed that the ITO did not include the results of surveillance or the geographic origin of the IP addresses linked to the email accounts. McHenry stated that these omissions were not intentional and that he believed the ITO fairly summarized the relevant facts. No internal police memos or notes were produced to show how the affiant evaluated the materiality of the omitted information.
Submissions from Counsel
[29] The Defence submits that the affiant, Detective Constable Luke McHenry, failed to act in good faith by omitting material facts from the ITO and presenting a narrative that overstated the strength of the evidence linking Mr. Arruda to the alleged offences. These omissions included the lack of surveillance evidence, the absence of any known connection between Mr. Arruda and the IP addresses associated with the impersonation emails, and the pending results of a Bell Canada production order. The Defence argues that these omissions were not minor and that their cumulative effect distorted the evidentiary matrix presented to the issuing justice.
[30] The Crown, by contrast, maintains that McHenry acted in good faith throughout the warrant application process. It submits that the affiant acknowledged and explained the errors in the ITO during cross-examination and that there is no evidence of deliberate intent to mislead. The Crown emphasizes that the affiant relied on information available at the time, including statements from TS and production order results, and that the ITO reflected a reasonable interpretation of the evidence. The Crown further argues that the affiant’s conduct does not rise to the level of bad faith as contemplated in cases such as Nyadu or Maton.
Conclusion
[31] While there is no direct evidence that Detective Constable McHenry acted with deliberate intent to mislead, the omissions identified in the ITO raise concerns about the thoroughness and objectivity of the warrant application. The affiant’s failure to include known facts that were directly relevant to the reliability of the investigative theory suggests a lack of diligence in meeting the standard of full, fair, and frank disclosure. Although the Crown characterizes the errors as minor, their cumulative effect was to present a narrative that may have overstated the strength of the case against Mr. Arruda.
[32] In the absence of clear evidence of intentional deception, it may be concluded that the affiant did not act in bad faith in the strictest legal sense. However, the record supports a finding that the affiant did not fully discharge his duty to act with the care and candor required in an ex parte proceeding. The omissions, whether the result of tunnel vision or investigative bias, undermined the completeness of the ITO and compromised the issuing justice’s ability to assess the existence of reasonable and probable grounds. As such, the affiant’s conduct falls short of the standard expected in the preparation of a judicial authorization.
C. Have there been any material omissions?
Counsel Submissions
[33] In the present case, the Defence has identified several omissions in the ITO that it characterizes as material. These include the failure to disclose that surveillance footage from the S.’s residence and surrounding area did not show Mr. Arruda or his vehicle. The ITO also did not mention that IP addresses associated with the impersonation email accounts traced to Kitchener and Australia—locations with which Mr. Arruda had no known connection. Additionally, the ITO did not disclose that police were awaiting the results of a Bell Canada production order that could have provided subscriber information for the IP addresses in question.
[34] Another omission raised by the Defence concerns the attribution of online accounts. While two accounts were linked to Mr. Arruda through production order results, the ITO referenced several others without distinguishing which were supported by evidence and which were not. The Defence submits that this presentation may have led the issuing justice to infer a broader connection than the evidence warranted. Furthermore, the ITO did not include information from witness statements suggesting that other individuals may have had access to the personal details referenced in the letters, including a former personal support worker who had previously interacted with the S family.
[35] The Crown, in response, acknowledges that certain facts were not included in the ITO but maintains that these omissions were not material. It argues that the affiant, Detective Constable McHenry, acted in good faith and that the ITO, when read as a whole, provided a sufficient basis for the issuance of the warrant. The Crown emphasizes that the affiant relied on information available at the time, including statements from TS and production order results, and that the omissions did not significantly alter the overall reliability of the investigative theory.
Legal Framework
[36] The legal standard for assessing material omissions in an ITO is well established. As stated in R. v. Morelli, 2010 SCC 8 at paras 50–55, omissions that affect the range of inferences available to the issuing justice may undermine the validity of a warrant. The affiant is required to present all material facts known at the time of the application, including those that may weaken the investigative theory. This principle is reinforced in R. v. Araujo, 2000 SCC 65 at para 46, and R. v. Nyadu, 2024 ONSC 4092 at para 2, which emphasize the importance of full, fair, and frank disclosure in ex parte proceedings.
Conclusion
[37] While the Crown characterizes the omissions as minor, the nature and number of the excluded facts suggest that they were directly relevant to the reliability of the affiant’s belief and the strength of the investigative theory. The absence of surveillance evidence, the lack of connection to the IP addresses, and the pending production order results were all facts known to police at the time of the application. Their omission limited the issuing justice’s ability to fully assess whether the statutory preconditions for the warrant were met.
[38] Taken individually, each omission may be viewed as a matter of judgment. However, when considered cumulatively, they present a pattern of selective disclosure that may have affected the issuing justice’s assessment of the evidence. These omissions were not peripheral; they related to the core question of whether there were reasonable and probable grounds to believe that evidence of an offence would be found at Mr. Arruda’s residence. As such, they are properly characterized as material and warrant close scrutiny in the context of the Charter challenge.
D. Analysis of Online Attribution of accounts
Counsel Submissions
[39] The attribution of various online accounts to Mr. Arruda was a central component of the investigative theory presented in the Information to Obtain (ITO). The ITO referenced multiple email and social media accounts, including those used to send threatening messages and impersonate individuals connected to the complainants. According to the Crown’s submissions, two of these accounts were linked to Mr. Arruda through production order results that identified subscriber information or IP address usage consistent with his known identifiers. The Crown argues that this evidence, combined with contextual factors such as the use of the alias “Peter” and the timing of the messages, provided a reasonable basis to believe that Mr. Arruda was responsible for the online activity.
[40] The Defence, however, challenges the sufficiency and clarity of the attribution. It submits that the ITO failed to distinguish between accounts that were supported by production order evidence and those that were not. The Defence argues that the ITO presented the accounts collectively, creating the impression that all were linked to Mr. Arruda when, in fact, only two had any evidentiary connection. The remaining accounts, according to the Defence, were included without disclosing that no subscriber information or IP data tied them to the Applicant. This, the Defence contends, amounted to a material omission that may have misled the issuing justice regarding the strength of the digital evidence.
[41] Further, the Defence points to the absence of information in the ITO regarding the geographic origin of the IP addresses associated with the unlinked accounts. Some of these addresses were traced to locations such as Kitchener and Australia, with which Mr. Arruda had no known connection. The Defence submits that this information, known to police at the time, should have been disclosed to allow the issuing justice to assess whether the accounts could reasonably be attributed to the Applicant. The Defence also notes that the ITO did not clarify whether the police had ruled out other potential users or whether the accounts had been accessed from devices or networks associated with Mr. Arruda.
[42] The Crown maintains that the affiant acted in good faith and that the ITO, when read as a whole, provided a fair summary of the evidence. It argues that the inclusion of multiple accounts was necessary to illustrate the pattern of conduct under investigation and that the affiant’s belief in Mr. Arruda’s involvement was based on a cumulative assessment of the digital and circumstantial evidence. The Crown further submits that any lack of specificity in the attribution did not materially affect the sufficiency of the grounds for the warrant.
Legal Framework/Conclusion
[43] When considered in light of the legal standard requiring full, fair, and frank disclosure, the manner in which the online accounts were presented in the Information to Obtain (ITO) raises concerns about the adequacy of the attribution. While the inclusion of multiple accounts may have been intended to illustrate a broader pattern of conduct, the ITO did not clearly differentiate between accounts that were supported by production order evidence and those that were not. This lack of specificity may have led the issuing justice to infer that all referenced accounts were linked to Mr. Arruda, when in fact only two had any evidentiary connection. The Defence submits that this presentation created a misleading impression of the strength of the digital evidence, particularly in the absence of clarifying language or evidentiary breakdowns.
[44] Additionally, the ITO did not disclose that some of the IP addresses associated with the unlinked accounts were traced to geographic locations such as Kitchener and Australia—places with no known connection to Mr. Arruda. Nor did it clarify whether police had ruled out other potential users or whether the accounts had been accessed from devices or networks associated with the Applicant. These omissions, while not necessarily deliberate, limited the issuing justice’s ability to assess the reliability of the affiant’s belief. Although there is no direct evidence of bad faith, the cumulative effect of these omissions and ambiguities undermines the transparency of the ITO. As a result, the attribution of the online accounts, as presented, may not have met the standard of disclosure required in an ex parte warrant application.
D. Were there Strategic Omissions
Legal Framework
[45] The jurisprudence establishes that affiants must provide full, fair, and frank disclosure in ex parte warrant applications. Strategic omissions—particularly those that obscure weaknesses in the investigative theory or conceal exculpatory information—can invalidate a warrant, even if the remaining content could support its issuance.
The key legal takeaways are:
- (i) Materiality matters: Omissions must be assessed for their impact on the issuing justice’s ability to evaluate reasonable grounds.
- (ii) Good faith is not a shield: Even if omissions are not overtly malicious, a pattern of selective disclosure may still amount to subversion.
- (iii) The process must be protected: Courts have a residual discretion to quash a warrant where the integrity of the authorization process is compromised, as affirmed in Paryniuk and Maton.
- (iv) The standard is not perfection, but candor: As Araujo and George make clear, affiants are not expected to be flawless, but they must be honest and balanced.
[46] Ultimately, the court must determine whether the omissions in this case were so significant and deliberate that they undermined the fairness and reliability of the warrant process. If so, exclusion of the evidence may be required to preserve the integrity of the justice system.
Counsel Submissions
[47] Ms. Bhangal submits that the affiant, Detective Constable McHenry, engaged in strategic omissions that materially misled the issuing justice. She argues that the affiant failed to disclose key exculpatory facts, including the absence of any direct evidence linking Mr. Arruda to the threatening letters, the lack of surveillance or eyewitness evidence, and the existence of alternative suspects. These omissions, she contends, distorted the evidentiary matrix and undermined the issuing justice’s ability to assess the existence of reasonable and probable grounds.
[48] In support of her position, Ms. Bhangal relies on the Supreme Court’s decision in R. v. Morelli, 2010 SCC 8, where the Court emphasized that affiants must not “pick and choose” among facts and must avoid incomplete recitations that invite misleading inferences (para 58). She also cites R. v. Maton, 2005 BCSC, where a warrant was quashed due to the affiant’s failure to disclose that the residence had no basement, contradicting a key claim in the ITO. Additionally, she references R. v. Nyadu, 2024 ONSC 4092, where the court found that deliberate omissions and misstatements by experienced officers subverted the warrant process and justified exclusion of the evidence.
[49] Ms. Bhangal argues that even if the ITO could support the warrant after excision, the deliberate nature of the omissions requires the court to quash the warrant to protect the integrity of the prior authorization process.
[50] Ms. Persad-Ford, for the Crown, maintains that while there were omissions in the ITO, they were not material and did not mislead the issuing justice. She argues that the affiant’s conduct did not rise to the level of bad faith or deliberate deception. The omissions, in her view, were the result of reasonable judgment calls about what was relevant, and the ITO, when read as a whole, provided sufficient grounds for the warrant.
[51] She relies on R. v. Araujo, 2000 SCC 65, where the Court acknowledged that ITOs are not expected to be perfect and that minor errors or omissions do not automatically invalidate a warrant. Ms. Persad-Ford also cites R. v. George, 2003 OJ No 4825 (SCJ), where the court cautioned against dissecting ITOs with 20/20 hindsight and emphasized the need for a practical, common-sense approach. She further references R. v. Paryniuk, 2017 ONCA 87, to argue that the residual discretion to quash a warrant should only be exercised in cases of clear subversion of the process, which she submits is not present here.
[52] Ms. Persad-Ford contends that the affiant acted in good faith, and that the omissions did not affect the core facts supporting the warrant. Therefore, the warrant should be upheld and the evidence admitted.
Conclusion
[53] The judicial authorization process is a cornerstone of the constitutional protection against unreasonable search and seizure. It is designed to ensure that intrusions into privacy—particularly into the sanctity of one’s home—are justified by objective, credible, and complete information. The issuing justice must be equipped with all material facts, both inculpatory and exculpatory, in order to make a fully informed and impartial decision. Anything less undermines the very purpose of the ex parte process, which relies entirely on the affiant’s duty of candor.
[54] In this case, the court was not presented with a balanced and transparent account. The omissions and misstatements in the Information to Obtain (ITO) deprived the issuing justice of the ability to properly assess the reliability and sufficiency of the grounds. This failure is not merely procedural—it strikes at the heart of the Charter’s protection and the legitimacy of the warrant process itself.
[55] The integrity of the pre-authorization process is of paramount importance. It is not enough that a warrant could have issued; it must be shown that it did issue through a process that was fair, honest, and faithful to the law. Where that process is compromised, the court must act to preserve public confidence in the administration of justice. Upholding the warrant in such circumstances would send the wrong message—that shortcuts and selective disclosure are tolerable in pursuit of investigative goals.
[56] Accordingly, the court must reaffirm that the rule of law demands more. The justice system must not only be effective but also principled. Protecting the integrity of the warrant process ensures that the rights of all individuals are respected—not just in this case, but in every case that follows.
III. 24(2) Analysis
[57] The Applicant respectfully submits that although the offences in question—namely, possession of a loaded restricted firearm and a controlled substance—are serious under the Criminal Code and engage strong societal interests in prosecution, these interests must be weighed against the foundational principles that govern the issuance of search warrants. The integrity of the pre-authorization process is paramount. The evidence in this case was obtained through a warrant issued under section 487 of the Criminal Code, but the process by which that warrant was obtained was fundamentally flawed.
[58] The affiant, Detective Constable McHenry, engaged in a pattern of conduct that included deliberate omissions, misleading statements, and bald assertions unsupported by evidence. These actions were not mere technical errors or oversights; they were strategic and calculated, designed to mislead the issuing justice and secure a warrant on the basis of a distorted evidentiary record. The affiant failed to disclose material facts, including the absence of any connection between the Applicant and key digital evidence, the lack of surveillance or eyewitness evidence, and the existence of alternative suspects. This conduct subverted the ex parte nature of the warrant process, which relies on the affiant’s duty to be full, fair, and frank.
[59] Under the framework established in R. v. Grant, the seriousness of the Charter-infringing conduct weighs heavily in favour of exclusion. The affiant’s actions reflect a disregard for the constitutional safeguards that protect against unreasonable search and seizure. The second Grant factor—the impact on the accused’s Charter-protected interests—is also significant. The search intruded upon the Applicant’s home, a space that attracts the highest expectation of privacy. The third factor, society’s interest in adjudication on the merits, must be considered in light of the long-term repute of the justice system. While the offences are serious, the justice system cannot be seen to condone unlawful conduct by admitting evidence obtained through a corrupted process.
Conclusion
[60] Even if, after excision of the misleading and erroneous information, the remaining content of the ITO could support the issuance of the warrant, the warrant should still be quashed. Courts have recognized a residual discretion to invalidate a warrant where the conduct of the police subverts the prior authorization process. Upholding the warrant in this case would send a message that the ends justify the means, undermining public confidence in the fairness and integrity of the judicial process. The Charter is designed to prevent unreasonable intrusions before they occur, not to retroactively justify them.
[61] Accordingly, the Applicant submits that the evidence obtained through the search should be excluded pursuant to section 24(2) of the Charter. The long-term integrity of the justice system demands no less.
Released: February 26, 2025
Signed: Justice D.F. McLeod