ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000148-0000
DATE: 20120321

BETWEEN:

HER MAJESTY THE QUEEN – and – RICHARD WATTS Applicant

Paul Leishman, for the Crown
Maija Martin, for Richard Watts

HEARD: March 19, 2012

backhouse j.

reasons for decision Released March 21, 2012

[ 1 ] The applicant is charged with a number of firearm offences, possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He seeks to exclude evidence seized during the execution of the search warrant on the basis that there were insufficient grounds in the Information to Obtain (“ITO”) to justify its issuance.

[ 2 ] On September 28, 2008, Detective Constable Frederick of the Toronto Police Service swore an affidavit forming the ITO. The Crown produced a redacted ITO to protect the identify of a confidential informer and subsequently produced some additional information. The Crown submits that the redacted ITO with the additional information is sufficient to support the issuance of the search warrant. Paragraphs 2 to 13 of Appendix C of the ITO are reproduced below:

“2) POLICE INVESTIGATION

On Saturday the 10 th day of October 2009, the affiant spoke with a Confidential Source of the Toronto Police Service. The source provided information to the affiant detailing a male that was in possession of a 9mm Glock firearm. Officers began an extensive investigation in an effort to corroborate the information including computer checks and static surveillance of the address.

3. DESCRIPTION OF THE PREMISES OF 3827 LAWRENCE AVE UNIT 507, TORONTO

The premise of 20 Brockwell Drive #3, in Toronto is an older townhouse complex situated in a residential neighbourhood on the north/west corner of Sentinel Ave and Brockwell Drive in the City of Toronto. The building is a white bricked building with 2 stories.

4. CONFIDENTIAL SOURCE INFORMATION

(i) The source of the information leading to the application for this search warrant is a Carded Confidential informer with the Toronto Police Service. Their Information provided is of such detail and timing in this investigation that it goes beyond mere chance and has been corroborated, forming Reasonable grounds to believe.

(ii) As such the CI enjoys informer privilege and I am obligated to present the information he/she has given to me in a way that makes full, frank and fair disclosure while being mindful of the duty to protect the CI’s identity.

(iii) In order to accomplish this I have presented relevant and material elements as provided to me of the CI’s background but have avoided specifics which might tend to identify him/her.

(iv) The CI has a criminal record but no convictions for Perjury, Obstruct Justice, Obstruct Police or Public Mischief.

(v) The CI is █████████████

(vi) The CI is motivated to provide reliable and accurate information in this investigation and any other that they give. In hope they will receive consideration for the charges that he/she is presently facing.

(vii) The CI known that giving false or bad information would not help his/her situation in getting court consideration.

(viii) The CI acknowledges that he/she will face criminal charges for making false reports to police regarding information on past, present and future investigations. The CI understands that their assistance is only “eyes and ears” and they are not to participate in any criminal activity whatsoever as a CI.

(ix) The source of this information has been proven reliable in two separate incidents (1)████████████████████████████████████████████ █████████████████████████████████████████████ █████████████████████████████████████████████

The information provided by the Source should be considered extremely reliable.

On Saturday the 10 th day of October 2009, the source provided the following information to the affiant:

• The source advised that he/she knows a male that is a street level cocaine dealer that is in possession of a black baby Glock 9 mm handgun.

• The source advised that this male hides the firearm █████████████ of his grey 1992 Honda Civic 4 door when he is in the vehicle and on his person when he is not in the vehicle.

• The source advised that this male has had this firearm in his possession for a long time (██████████

• The source advised that this male name is Richard Watts and that he goes by Richie on the street.

• The source advised that Richie carries this firearm for protection ██████████████████████████

• The source describes Richie as Male/black, 32 yrs old, 6’2”-6’3”, 170 lbs, medium build, light complexion, short hair and a moustache.

• The source advised that Richie ████████████████████████

• The source provided a cell phone number for Richie (647)886-7431.

• The source advised that Richie lives at 20 Brockwell drive in the Sheppard Ave and Sentinel Road.

• The source also advised that Richie’s ████████████████████ █████████████address.

• The source advised that ████████ drives a burgundy civic that is always parked in the driveway of 20 Brockwell Drive.

• The source advises that Richie keeps his drugs █████████████ in his Civic.

5. SURVEILLANCE

• On Sunday 11 th of October 2009 members of the Gun and Gang Task set-up in the area of 20 Brockwell Drive to conduct surveillance. Shortly after setting-up WATTS was seen exiting 20 Brockwell #3 and getting into a grey 4 door Honda Civic parked on the street. The licence plate on the vehicle was BCEB 194. A check of the vehicle on CPIC showed the registered owner to be Watts. Richard Anthony 3-20 Brockwell Drive Toronto. The vehicle was followed to a plaza at Keele Street and Wilson Ave. WATTS sat in the vehicle for 20 minutes as if he was waiting for someone. After 25 minutes WATTS exited the plaza and travelled southbound on Keele Street towards the 401 surveillance was discontinued shortly after.

6. INVESTIGATIVE CHECKS – Richard Anthony WATTS 1975.12.26

On Sunday the 11 th day of October 2009, the affiant began investigative checks using the following police data banks: CPIC, CNI, MTO, CFRO, MANIX, CIPS, COPS, ECOPS and R.I.C.I. The following information was retrieved regarding the male known as Richard Anthony WATTS 1975.12.26 residing at 3-20 Brockwell Drive, Toronto,

ECOPS – has 1 entry for WATTS where he is listed as a witness of an assault.

MANIX – has 10 entries for WATTS where he is listed as being investigated by the police. On October 04 th 2007 WATTS is investigated by the police driving a Grey HONDA Civic 4 door licence BCBE 194. That vehicle is registered to a Richard Anthony WATTS 1975.12.26. On February 17 th 2007 WATTS is investigated at 155 Neptune Drive #111 where police are called for him to get his belongings from his girlfriend Claudia VARAS. WATTS give his name as Richie Anthony WATTS with an address of 20 Brockwell Drive #3 Toronto.

RICI – has 1 entry for Richard Anthony WATTS where he is listed as being charged by the police. On December 26 th 1995 WATTS is charged with carry concealed weapon, weapons dangerous to the public. This photo depicts a male black, light skin, moustache and beard, moles on face, hair curly, dreadlocks and side burn. In the descriptive section the author describes WATTS as 6’3”, 155 lbs medium build brown eyes light complexion. WATTS lists ██████████ as his mother when he is fingerprinted for this charges.

CPIC – has one entry for Richard Anthony WATTS 1975.12.26 where he is listed as a G licence driver with the licence number of █████████████ WATTS list 20 Brockwell Drive #3 Toronto as his home address.

CRIMINAL RECORD – no conviction listed for WATTS but there is two Dismissed cases in 1996 where WATTS is charged with carry concealed weapon and possession of a weapon.

CFRO – The writer check CFRO to see if Richard WATTS with a date of birth of 1975.12.26 is legally registered to own a firearm – response negative. The writer checked CFRO to see if anyone at 20 Brockwell Drive #3 is registered to own a firearm – response negative.

7. GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED

Based on the foregoing paragraphs, I believe that Richard WATTS is in possession of one unregistered restricted weapons, namely a black 9mm Glock handgun. To summarize, I base my belief on:

a) The source is strongly entrenched in the criminal life that the community of West end of Toronto. The source has provided this information in exchange for █████ consideration.

b) The source provided the proper name of Richard WATTS. The source provided the address which was confirmed by police through investigative checks and surveillance.

c) The accurate description of the firearms by the source, lends credibility to the information.

d) The source has no motivation to lie and provided the information on own his peril. There is no doubt in the affiant’s mind that if the source was identified as a “RAT”, he/she would be in great danger.

e) It is the affiant’s experience that street level drug dealers need these firearms for protection. Firearms such as these are kept close to ensure easy access.

f) The source observed the said firearms in the possession of WATTS, in the city of Toronto █████████████

g) Lastly through my experience at the Gun and gang Task Force and by speaking with numerous parties who have been arrested and found to be in possession of firearms, I believe that criminals who are illegally in possession of guns tend to have them for long periods of time. Firearms are expensive to purchase and are kept to provide the criminal (particularly drug dealers) with protection against rival drug dealers. They are also used to threaten and intimidate members of the community and as such are a precious commodity that is not easily given up.

8. GROUNDS TO BELIEVE THAT THE ITEMS SEIZED WILL AFFORD EVIDENCE OF THE STATED OFFENCES:

9. The Glock 9mm is a prohibited weapon due to its anticipated length as described by the informant. The source advises that WATTS keeps this firearm insecure and loaded with 9mm caliber ammunition contrary to firearm storage regulations ███████████ of his vehicle when he is not driving it and on him when he is not in the vehicle.

10. Any firearm licences or documentation, or lack thereof, will show if WATTS is properly licensed for a firearm.

11. Any receipts or documentation for firearm paraphernalia will show that WATTS knowing illegally possesses firearms.

12. Grounds to Believe Items Sought at Place to be searched

I believe on reasonable grounds that the items listed in Appendix ‘A’, will be located inside 20 Brockwell Drive #3 in the City of Toronto or WATTS grey 4 door Honda Civic bearing licence plate BCEB 194 for the following reasons:

i) The source has provided police with detailed and specific information relating to the male known to him/her from 20 Brockwell Drive #3 in the City of Toronto.

ii) This specific and detailed information stems from ██████████████████ █████████ the source has cultivated.

iii) Physical surveillance performed by members of the Gun & Gang Task Force have verified that a male matching the source description is an occupant of the apartment at 20 Brockwell Drive #3 in the City of Toronto.

iv) Since the source last saw WATTS in possession of this handgun, the circumstances surrounding him have not changed. No records exist in the Toronto Police Service database, indicating that a resident of, Toronto, Ontario has been arrested or charged with any firearm related offences whereby a weapon would have been seized or otherwise come into the possession of any police service in Canada.

Further Information :

10. CONCLUSION

I am asking that this search warrant be granted for both 20 Brockwell Drive # 3 and WATTS grey 4 door Honda civic Licence plate BCEB 194 to facilitate the search and seizure of evidence to facilitate the prosecution of Richard WATTS. I believe that the information of all involved witnesses is truthful and accurate. The Toronto Police Service commenced an extensive investigation based on the information of the source and corroborated every possible detail. There can be no doubt that WATTS has been and is currently involved in serious drug dealing and has a 9mm Glock handgun for his protection. ███████████████████ ██████████████████████████████████ This supports the fact that WATTS has this firearm for personal protection.

11. SEALING ORDER :

Sealing Order

I believe that due to the nature and the circumstances of the investigation concerned and the probable consequences to the investigation and to the personnel involved in it, of the public access to or knowledge of the contents of this information and the resultant Warrant, overriding circumstances exists to justify granting an application, which is hereby made, for an Order sealing the said information and any copy of the warrant retained by the Court.

The grounds for requesting such an order are as follows:

If this male or any associate should ascertain the identity of the Confidential Source who provided the information contained in this Warrant, their personal safety is at great risk.

The potential of injury or serious bodily harm to the Confidential Source is true and real. The health and safety of the Confidential Source in this investigation is of the utmost concern and must be protected.

As a result I hereby request this said application and its contents are sealed.

12. Unannounced Entry

By its nature, a firearm has the ability to cause serious injury or death to any person in the immediate vicinity of it. Providing the members of the Toronto Police Service who will be executing a warrant to search the dwelling located at 20 Brockwell Drive #3, Toronto, Ontario, with unannounced entry will ensure the safety of the officers entering the premise. Allowing an opportunity for the residents 20 Brockwell Drive #3, Toronto, Ontario to retrieve and potentially use a firearm during the execution of a warrant to search, could result in serious bodily harm or death to a police officer, the residents inside the residence or a member of the community who could be struck by a stray bullet.

13. Request for Extended Entry Period

Should this Criminal Code Search Warrant be granted, I request it be authorized to allow me to enter and search the said dwelling-house on one occasion only, for a period of 4 days and during night-time hours so that it may be executed at a time when the male will be present in the area of 20 Brockwell Drive #3, Toronto.

My grounds for belief are as follows;

Extended authorization to enter and search the said dwelling-house for a period of 4 days but on one occasion only will allow police a window to execute the said warrant when they can verify that the male is physically present in the area and will be able to be arrested. This extended period will further allow police to secure evidence for a criminal prosecution against the unknown male.

I believe that the male is an active, large-scale drug dealer; specifically in Marihuana and that the male has immediate access to a black-coloured, revolver style handgun.

The protection of the public requires that criminals not be in possession of firearms at any time. Members of the Gun & Gang Task Force will be conducting physical surveillance in the area and will execute the said warrant, if granted, as soon as the male is verified to be in the area of, 20 Brockwell Drive #3, Toronto.

There has been an unprecedented increase in firearm violence in the City of Toronto. There have been countless homicides committed with firearms in the City, especially in the last two (2) years. The public must be protected from criminals being in possession of firearms at all times.

I have reasonable grounds to believe that the male has access to a firearm at this location and the opportunity and necessity to enter and to secure it will be immediate as soon as police can substantiate that the male is present.”

Evidence of D.C. Frederick

[ 3 ] D.C.Frederick testified as follows. No effort was made to call the cellphone number the confidential informer gave as belonging to Mr. Watts or to check whether it was registered to him. This was because this was a gun investigation, not a drug investigation where the police were trying to lure Mr. Watts into selling drugs to them. D.C Frederick did not know Mr. Watts’ voice so calling the number would not have assisted in verifying that this was his cellphone. Usually drugdealers’ cellphones are not registered to the person using the phone.

[ 4 ] In addition to the police surveillance on October 11, 2009, D.C. Frederick drove by Mr. Watts’ address twice on October 12, 2009. Mr. Watts’ car was not there. D.C. Frederick did not disclose this in the ITO because he did not see any evidence in it.

[ 5 ] D.C. Frederick received the information from the confidential informer over the telephone. He had previously met the confidential informer 7 or 8 times in other investigations.

[ 6 ] D.C.Frederick received the information from the confidential informer on October 10, 2009 after 5 p.m. He made no effort to verify the information that night. On October 11, 2009, he reported to duty at 5 p.m. and conducted various computer searches. The searches showed that Mr. Watts had no criminal record, no outstanding charges and was not on bail. The searches corroborated the confidential informer’s information regarding Mr. Watts’ address, vehicle and physical description and provided the unit number of his residence. Surveillance was conducted on October 11, 2009. It corroborated that a male answering Mr. Watts’ description was seen leaving 20 Brookwell Unit 3 and getting into the vehicle identified by the confidential informer as Mr. Watts’ vehicle and confirmed to be registered to Mr. Watts. No hand to hand transactions were observed. Surveillance was terminated because there were insufficient officers and there was concern that he would figure out that he was under surveillance. D.C. Frederick applied for the telewarrant on October 13, 2009 and it was granted on October 14, 2009.

[ 7 ] D.C. Frederick was cross-examined on the statement in the ITO’s Conclusion (Appendix C, paragraph 10) that the Toronto Police Service commenced an “extensive investigation” based on the information of the source and “corroborated every possible detail.” He disagreed that the investigation was not extensive and agreed that the police had not been able to corroborate that Mr. Watts was a street level cocaine dealer carrying a gun which is why he said every “possible” detail.

[ 8 ] In the fax to the telewarrant centre, D.C. Frederick stated that the application was urgent, the reason being that it was a “firearms investigation”. There were insufficient officers for the warrant to be executed on October 13, 2009. The warrant was executed on October 14, 2009.

[ 9 ] The confidential informer had provided information to the police on 2 prior occasions that led to arrests, charges, prosecutions and convictions. D.C. Frederick testified that as a result, he had confidence in him/her. Nothing cast doubt on the information provided by the confidential informer. Had the informer provided information for the first time, extensive measures would have been required to make sure that he/she had identified the right person and that the informer was not motivated out of malice.

Errors in the ITO

[ 10 ] The ITO incorrectly stated in Appendix C, paragraph 9(i) that the unit number that Mr. Watts lived in was provided by the confidential informer when this information came from police surveillance.

[ 11 ] The heading of the ITO’s Paragraph 3 of Appendix C referred in error to 3827 Lawrence Ave Unit #507, Toronto instead of 20 Brookwell Drive. The Lawrence Avenue address had nothing to do with Mr. Watts.

[ 12 ] Paragraph 13 of Appendix C of the ITO requested extended authorization to enter and search on one occasion only for 4 days and during night-time hours “so that it may be executed at a time when the male will be present.” In support of this, the 4 th subparagraph of Paragraph 13 wrongly referred to the male as “an active, large-scale drug dealer; specifically in Marihuana and that the male has immediate access to a black-coloured revolver style handgun.” It should have said that the male was a street level cocaine dealer with immediate access to a 9 mm. handgun. These mistakes were caused by not inserting the information relevant to Mr. Watts into the template and not having the ITO proofread because the police were shorthanded. In response to whether this could have misled a justice of the peace reading this, D.C. Frederick testified that in the 20 to 30 ITOs he has drafted, he has always applied for a search warrant to be executed at night and for an extended entry to ensure that the target is there.

[ 13 ] Mr. Watts’ address in the ITO was incorrectly referred to as “Brockwell” rather than “Brookwell” although the actual telewarrant referred to the correct street name.

Submissions

[ 14 ] It is submitted on Mr. Watts’ behalf that the warrant should be quashed for the following reasons. The confidential informer’s information was not compelling in that there were not details such as specific drug deals or weapons being transferred. It is submitted that there was very little surveillance done and that the police failed to corroborate anything more than the innocent aspects of the tip. It is further submitted that the ITO contained careless errors and misleading information on material points such as the need for extended hours which would have misled the justice of the peace.

[ 15 ] The Crown submits that there is a record of evidence that might reasonably be believed such that the warrant could have issued and accordingly its issuance was proper.

Analysis

[ 16 ] Two issues arise in this application: 1) Should the telewarrant be quashed because on its face, it does not meet the required standard of reasonable and probable grounds; 2) if there was a

breach of Section 8 of the Charter , would the admission of the evidence obtained bring the administration of justice into disrepute.

[ 17 ] The burden of proof is on Mr. Watts on a balance of probabilities both with respect to whether the warrant should be set aside and if so, with respect to whether the evidence should be excluded under Section 24(2) of the Charter .

Issue #1 Did the ITO disclose reasonable grounds to believe?

[ 18 ] At the outset, it is important to recognize the limited role of a reviewing judge. I am not conducting an appeal. The reviewing judge’s role has been variously described and summarized in R. v. Dos Santos [2007] O.J.No.5563, paragraphs 4-7 as follows:

“4. In R. v. Garofoli , 1990 52 (SCC) , [1990] 2 S.C.R.1421, the Supreme Court of Canada states starting at paragraph 56:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

5. Paragraph 62 [of Garofoli , supra]:

The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

6. In R. v. Durette , 1994 123 (SCC) , [1994] 1 S.C.R.469, the Supreme Court of Canada states at paragraph 36:

The validity of a wiretap authorization turns upon whether the affidavit put before the issuing judge as amplified by any evidence taken on review, provides a basis upon which that judge could have been satisfied that the pre-conditions for granting the authorization exist. The validity of the authorization is heavily dependent upon the contents of the affidavit.

7. And back to Garofoli at paragraph 79 , the Supreme Court of Canada states in part:

8. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

9. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization.”

[ 19 ] In evaluating the weight to be attached to an informer’s tip about criminal activity, the guiding principles are set out by Wilson, J. in R. v. Debot (1989) 2 S.C.R.1140 at para.53:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weakness in one area, may to some extent, be compensated by strengths in the other two.

[ 20 ] In R. v. Garofoli , supra, at para.68, the Supreme Court of Canada considered the matter further and defined the following criteria for reviewing the issuance of a warrant involving confidential informers:

i)Hearsay statements of an informer can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

ii)The reliability of the tip is to be addressed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the “tip”;

(b) the informer’s source of knowledge;

(c) indicia of the informer’s reliability such as past performance or confirmation form other investigative sources.

iii)The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[ 21 ] The ITO stated that a confidential informer strongly entrenched in the criminal life in the west end of Toronto advised the police that Mr. Watts, a street level cocaine dealer, had a Glock 9 mm. handgun in his possession which he kept in his grey 1992 Honda Civic 4 door vehicle when he was in the vehicle and on his person when he was not in the vehicle. The CI knew Mr. Watt’s proper name, his street name, a detailed physical description, his address (but not the unit number) and his cellphone number. The CI advised that he had observed the firearm in Mr. Watt’s possession, knew that he had had it in his possession for a long time and that he kept it loaded with 9 mm. caliber ammunition.

[ 22 ] The ITO was amplified by the Crown advising that the confidential informer had provided information to the police on 2 prior occasions that led to arrests, charges, prosecutions and convictions. D.C. Frederick received the information from the CI over the telephone but estimated that he had met with him/her on 7 or 8 prior occasions. The CI has a criminal record but no convictions for perjury, obstruct justice, obstruct police or public mischief. He/she was motivated to provide reliable and accurate information in the hope that he/she will receive consideration for the charges that he/she is presently facing. The CI knew that giving false or bad information would not help in getting court consideration and was warned about facing criminal charges for making false reports to the police.

[ 23 ] I find that the information provided by the CI was compelling, particularly in regard to Mr. Watt being a street level cocaine dealer, the make of the handgun, where it was located, the fact that it was loaded and the fact that Mr. Watt had had it in his possession for a long time.

[ 24 ] I find that the “tip” was quite detailed and that the CI’s source of knowledge as someone “strongly entrenched in the criminal life in the west end of Toronto” was disclosed. Further, I find that there were indicia of the CI’s reliability (as amplified at the hearing) including his/her past performance and the cautions given to him/her of the consequences of false information. The fact that D.C. Frederick had met 7 or 8 times with the CI in the past lends credibility to the source. Nothing in the police investigation or surveillance casts doubt on the CI’s information. I find that the CI was credible.

[ 25 ] The police attempted to confirm the truthfulness of the information received. The police confirmed that there were no firearm licenses or permits registered to Mr. Watts or his residence. The police confirmed the address provided by the CI, obtained the unit number and corroborated the physical description provided. They conducted surveillance which corroborated where Mr. Watt lived and the vehicle he drove. The police made efforts but were unable to corroborate the street trafficking. I accept that there is a risk of tipping the target off through protracted surveillance. It is obviously not possible to confirm that a gun was in Mr. Watt’s residence or vehicle without conducting a search. The failure to confirm these criminal facts is not a defect. A conclusion of reliability can still be justified even where there is only some corroboration of the information supplied by the CI and only some limited verification of credibility.( R. v. Shoghi-Baloo , [1999] O.J. NO.325 (C.A.) ) I find that in the circumstances, the CI’s information was reasonably corroborated.

[ 26 ] The investigations conducted by the police were accurately set out in the ITO. The fact that D.C. Frederick drove by Mr. Watts’ address twice on October 12, 2009 and did not locate his car is not probative. The fact that this was not disclosed in the ITO is irrelevant. While it may have been better drafting when describing the police investigation as “extensive” to add the words “as detailed herein”, and to leave out that the police had “corroborated every possible detail”, in my view, these statements would not have misled the issuing judge. Nor, in my opinion, would the issuing judge have been misled by the careless errors. I accept that it is standard when requesting drug and gun related search warrants to request extended entry and execution at night and that there is urgency in relation to firearms. I find that it was an inadvertent error that the target was described in the paragraph in support of this as an active large-scale marijuana drug dealer rather than a street level cocaine dealer and that the correct information would nevertheless have supported the issuance of the extended entry and execution at night.

[ 27 ] The manner in which the search was conducted was reasonable, given that the police were executing a judicially authorized search warrant for a loaded firearm and that officer safety was engaged.

[ 28 ] In the result, I conclude that the totality of the circumstances meets the standard of reasonableness. There was sufficient evidence of the reliability of the confidential informer’s statements to make the conclusion of the issuing judge one that as a reviewing judge, I cannot disregard. In other words, there was a sufficient evidentiary foundation to support the conclusion that there were reasonable grounds to believe that an illegal weapon was in Mr. Watt’s vehicle or residence. I would go further and find that it would have been unreasonable in these circumstances not to issue the warrant.

Section 24(2) of the Charter

[ 29 ] Having concluded that the warrant should not be quashed, it is unnecessary for me to go on to consider S.24(2) of the Charter . Suffice to say, had I reached a different conclusion on the quashing of the warrant, given the good faith efforts of the police and the nature of the evidence seized, I am satisfied that it would be a clear case to admit the evidence pursuant to S.24(2).

Released March 21, 2012 ______________________
Backhouse, J.

COURT FILE NO.: 11-40000148-0000
DATE: 20120321
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – RICHARD WATTS

REASONS FOR decision Backhouse J.

Released: March 21, 2012