St. Catharines Court File No. 1776/11

Date: July 4, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

HER MAJESTY THE QUEEN ) Paul H. Heinan,

) for the Crown/respondent

Respondent )

• and - )

DAMON ATHELSTON ) J. Ronald Charlebois and

BROWNE ) John Bothwell, for the

) accused/applicant

Applicant )

) HEARD: at St. Catharines,

) May 22 and 23, 2012

J.W. Quinn J.: ─

I INTRODUCTION

[1] Damon Athelston Browne (“Browne”) was arrested after the execution of a search warrant at his St. Catharines residence revealed 30 grams of cocaine. He is charged with possession of cocaine for the purpose of trafficking[^1] and with possession of property (money) obtained by crime.[^2] This is a pre-trial application by him challenging the validity of the search warrant.

[2] At issue is whether Browne’s rights under s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”)[^3], to be secure against an unreasonable search and seizure, were violated and, if so, whether relief should be granted under s. 24(2) of the Charter. The specific questions for the court are these: (1) Is the search warrant invalid? If the answer is “no,” the application must be dismissed. (2) If the search warrant is invalid, was the search carried out by the police, pursuant to that warrant, unreasonable as contemplated by s. 8 of the Charter? If the answer is “no,” the application must be dismissed. (3) If both the first and second questions are answered “yes,” should the evidence thereby obtained be excluded pursuant to s. 24(2) of the Charter?

[3] There are two primary complaints raised by Browne. It is argued that the Information to Obtain (“ITO”), upon which the search warrant was issued, suffered from material non-disclosure and material misrepresentation. The non-disclosure flows from the failure of the police officer who swore the ITO to explain that, in using the term “hand-to-hand transaction,” when describing contact between Browne and “a white male,” he does not know if “anything was transferred” and that the two of them “could have shaken hands.” The misrepresentation consists of the ITO stating that Browne had a 2005 conviction for “possession of a Schedule I substance” when, in fact, he did not have a criminal record of any kind.

[4] Although Crown counsel has not said so, I expect that, if the defence is successful on this application, the Crown will have no choice but to withdraw all charges against Browne.

[5] In these Reasons, I will outline some of the evidentiary and other legal principles to be applied under s. 8 and s. 24(2) of the Charter and to be considered when determining the sufficiency of an ITO. Thereafter, I will discuss the ITO in this case and the evidence with those principles in mind.

II THE SECTION 8 INQUIRY

1. General

[6] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.”

[7] Section 8 is deceptively vague. From the wording, it is not identifiable as a protection of privacy; however, this has been its effect since Hunter v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.). In that historic decision, the Court reached these conclusions regarding s. 8:

(a) s. 8 offers a broad protection against unreasonable search and seizure;

(b) s. 8 is engaged where there is a reasonable expectation of privacy;

(c) a warrantless search is presumptively unreasonable; and,

(d) to avoid infringing s. 8, any interference with a reasonable expectation of privacy either must be pursuant to a warrant or must fall within some exceptional circumstance.

[8] Section 8 of the Charter is triggered where it is established that a “search” or “seizure” has occurred. If a search warrant was not properly issued, the court must determine whether the search or seizure was unreasonable under s. 8 and, where unreasonable, decide if evidence should be excluded pursuant to s. 24(2). Breach of s. 8 does not automatically mean that evidence must be excluded from a trial.

[9] The purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy. Section 8 does not guarantee individual privacy as inviolable. Instead, it protects one’s reasonable expectation of privacy and it does so only to the point where the right to privacy must yield to proper and effective law enforcement. Section 8 protects people, not places: see Hunter v. Southam Inc., supra, at p. 108.

[10] Determining whether there has been a breach of s. 8, a triggering of s. 24(2) and the need for an exclusion of evidence pursuant to the latter, is a complex, multi-faceted and fact-driven exercise.

2. Search warrants

[11] A search warrant is a fundamental tool of law enforcement. It allows police to discover and preserve relevant evidence: see Canadianoxy Chemicals Ltd. v. Canada (A.-G.) (1999), 1999 CanLII 680 (SCC), 133 C.C.C. (3d) 426 at para. 22 (S.C.C.). However, the fact that warrants are important to police investigation must be balanced with a recognition of the conflicting privacy interests of individuals. Such a balance is achieved by means of the prior judicial authorization required before search warrants are issued. It was put this way in Hunter v. Southam Inc., supra, at p. 110:

The purpose of the requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are demonstrably superior.

[12] A Justice of the Peace who issues a search warrant is performing a judicial act: see A.-G.(N.S.) v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 C.C.C. (2d) 129 at 141 (S.C.C.).

[13] A search warrant will stand or fall on the supporting ITO as amplified on the pre-trial application, including testimony from the preliminary hearing.

3. Presumptive validity

[14] A search warrant is considered to be presumptively valid. The Crown need not prove validity. It is for the defence to challenge the warrant and demonstrate its deficiencies. This is done by means of a Charter application: see R. v. Feldman (1995), 1994 CanLII 37 (SCC), 93 C.C.C. (3d) 575 (S.C.C.).

4. Some legal principles

(a) R. v. Edwards

[15] In R. v. Edwards (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136 at 150-51 (S.C.C.) we find the proper general framework for a s. 8 inquiry: (Emphasis added)

(a) A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

(b) Like all Charter rights, s. 8 is a personal right. It protects people and not places.

(c) The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

(d) As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

(e) A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

(f) The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or the place searched;

(iii) ownership of the property or item;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

(g) If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

(b) reasonable expectation of privacy

[16] The search here being in respect of a private residence, there is no issue as to the reasonable expectation of privacy.

(c) reasonable search

[17] A search or seizure is reasonable, “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”: see Collins v. The Queen (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 at 14 (S.C.C.).

(d) evidence obtained by breach eligible to be excluded

[18] Only evidence obtained by the breach of personal rights under s. 8 is eligible to be excluded pursuant to s. 24(2). Thus, there must be a connection between the Charter breach and the evidence sought to be excluded sufficient to justify the exclusion. The connection, for example, may be temporal as it was in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.).

(e) looking for deficiencies in the ITO

[19] Primarily, what a reviewing court is looking for are deficiencies in the ITO relating to the facts: the overstating of facts; the misstating of facts; or the failure to state material facts. Any one of these deficiencies may lead to a finding that the search warrant is invalid.

(f) after improper evidence excised, could the rest support issuance?

[20] Evidence that is found to have been improperly before the issuing court should be excised by the reviewing court in determining the sufficiency of the ITO: see R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 at 216 (S.C.C.). Once the offending evidence has been excised or expunged, the question becomes whether that which remains could properly result in the issuance of the warrant. In R. v. Grant, supra, at p. 195, Sopinka J. stated:

However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for the reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event.

(g) reviewing court not to substitute own view or weigh evidence

[21] The test to be applied by a court, when reviewing the sufficiency of an ITO, was laid down in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 188 (S.C.C.): (Emphasis added)

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. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[22] Thus, it is not the responsibility of the reviewing court to weigh evidence to determine whether the search warrant should have been issued: see R. v. Berger (1989), 1989 CanLII 4468 (SK CA), 48 C.C.C. (3d) 185 at 188 (Sask. C.A.).

(h) reviewing court not to consider matter de novo

[23] The reviewing court does not consider de novo whether the search warrant should have been issued: see R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.).

(i) totality of circumstances to be considered

[24] The reviewing court must look at the totality of the circumstances that were before the issuing court: see R. v. Borowski (1990), 1990 CanLII 10973 (MB CA), 57 C.C.C. (3d) 87 at 91 (Man. C.A.). It was put this way by Wilson J., in R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 215 (S.C.C.):

. . . First, was the information predicting the commission of a criminal offence compelling? Secondly, 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 a 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. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

(j) reasonable and probable grounds

[25] Prior authorization, where it is feasible to obtain, is a pre-condition for a valid search and seizure. Reasonable and probable grounds, established upon oath, to believe that an offence has been committed or is being committed and that there is evidence to be found at the place of the search, constitutes the minimum standard (consistent with s. 8 of the Charter) for authorizing a search and seizure: see Hunter v. Southam Inc., supra, at p. 115.

[26] Determining the existence of reasonable and probable grounds for the search warrant cannot be delegated to the police officer applying for the warrant. It is not enough that the officer swears he has reasonable and probable grounds for believing the facts he or she states to be true; there must be facts given on oath from which the issuing court can be judicially satisfied that there are rational grounds for the belief: see R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 42 C.C.C. (3d) 485 at 511 (Sask. C.A.).

[27] The appropriate standard of proof required of a police officer, to establish that an offence has been committed and that there is evidence to be found at the place of the search, is “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”: see R. v. Debot, supra, at p. 213.

[28] The standard of proof required to obtain a search warrant was described by Dickson J., in Hunter v. Southam Inc., ibid: (Emphasis added)

The State’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.

[29] I also wish to mention a passage that I have always found helpful from the trial decision in R. v. Innocente et al. (1991), 1991 CanLII 13725 (NS SC), 108 N.S.R. (2d) 54 at 61 (subsequently approved by the Nova Scotia Court of Appeal at (1992), 1992 NSCA 4, 113 N.S.R. (2d) 256):

The fact that an experienced police officer is satisfied as to the reliability of the information is not the test to be used by Justices of the Peace in determining whether search warrants should be issued. The police officer, of course, must believe that he has reasonable and probable grounds for obtaining the search warrant, and it is the police officer’s obligation to communicate this belief to the justice issuing the search warrant. This, in most instances, involves the disclosure of the facts, and the circumstances that give rise to the police officer’s belief . . .

(k) no fixed formula for reasonable grounds

[30] There is no fixed formula for determining what constitutes reasonable grounds to believe. Whether grounds exist depends on the factual circumstances present in each case. No one fact can predominate. As I have already mentioned, the sufficiency of the grounds will depend on the totality of the circumstances.

[31] The concept of reasonable grounds involves the application of common sense, as well as practical and non-technical principles. The process does not deal with hard certainties, but with probabilities. The concept is a fluid one, turning on an assessment of probabilities in particular factual situations; it is not readily, or even usefully, reduced to a neat set of legal rules.

(l) subjective and objective basis to believe

[32] The police officer swearing the affidavit in support of an application for a search warrant must have both a subjective and an objective basis to believe that reasonable grounds exist for the search.

(m) mere suspicion insufficient

[33] Mere suspicion, on the part of the police, that an offence has been committed is not sufficient. The ITO must disclose the cause of the suspicion before the issuing court can be satisfied that reasonable grounds exist for believing that there is, in the place to be searched, evidence of the alleged offence: see R. v. Turcotte (1987), 1987 CanLII 984 (SK CA), 39 C.C.C. (3d) 193 at 205 (Sask. C.A.).

[34] Where the police have nothing but suspicion and no legal way to obtain other evidence, they must leave the suspect alone: see R. v. Kokesch, (1990), 1990 CanLII 55 (SCC), 61 C.C.C. (3d) 207 at 227 (S.C.C.).

[35] It is not sufficient if there is only a possibility of finding evidence. This would be “a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions”: see Hunter v. Southam Inc., supra, at pp. 114-5.

(n) ex post facto justification prohibited

[36] The results of a search cannot be used to show the reliability of the evidence that was before the issuing court. Ex post facto justification of searches by their results is not permitted: see R. v. Kokesch, ibid.

(o) full, fair and frank disclosure

[37] Full, fair and frank disclosure is required in the ITO: see R. v. Lukaniuk, [[1989] O.J. No. 33 (C.A.)]; as is particularity. This is because search warrants usually are obtained ex parte. Disclosure should include facts: that are exculpatory; that reveal police misconduct; and, generally, that might affect the reliability of the reasonable and probable grounds held by the officer seeking the warrant.

[38] Without a full and fair outline of all of the information that the police have or that is reasonably within their grasp, how is the issuing justice able to act judicially?

[39] Nevertheless, the material in support of a warrant is not required to set out every “minute step taken in the course of the investigation”: see C.B.C. v. New Brunswick (A.-G.) (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 at 562 (S.C.C.).

(p) hearsay permitted

[40] The police officer seeking the warrant is entitled to rely upon hearsay and to make statements that are not based on personal knowledge. However, he or she should clearly state the source of the hearsay with sufficient particulars in order that the issuing court is able to assess its reliability.

(q) erroneous material may colour the rest

[41] “Where . . . the erroneous . . . material [in an ITO] is sufficiently misleading, its character may colour the material that remains”: see R. v. Sismey (1990), 1990 CanLII 1483 (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.).

(r) omission of relevant information

[42] The omission of relevant information might well give a wrong impression to the issuing justice, leading to the issuance of a search warrant in circumstances where it ought not to have been issued.

(s) amplification on review

[43] Erroneous information before the issuing court (so long as it is not part of a deliberate attempt by the police to mislead) may be amplified on review, thereby permitting the error to be corrected: see R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 556 and 568 (N.S.C.A.). There, the Court further stated at p. 568: (Emphasis in original text)

[I]n . . . challenging a warrant issued pursuant to an Information to Obtain which is valid and adequate on its face, evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered. Although it is not, strictly speaking, necessary for me to do so for the purposes of this case, I am inclined to accept the Crown’s position that deliberately false and misleading material placed before the authorizing justice is not subject to amplification.

[44] Where a misstatement or omission in the ITO is the product of inadvertent or good-faith police error, the Crown may rely upon the “amplified record” (that is, the record disclosed through examination of witnesses in the voir dire or pre-trial application and the preliminary hearing) to “correct” the document.

[45] A summary of some of the principles (drawn from such cases as R. v. Garofoli, supra,[^4] R. v. Araujo, supra,[^5] and R. v. Allain (1998), 1998 CanLII 12250 (NB CA), N.B.J. No. 436 (N.B.C.A.)) applicable when determining whether the record that was before the issuing or authorizing court should be permitted to be amplified on review,[^6] is as follows:

(a) Only erroneous or false information need be excluded when considering whether there was any reasonably believable evidence that could have formed a basis for issuing the warrant or giving the authorization.

(b) Where sufficient reliable information remains after erroneous or false information has been excised, there is no need to amplify the record in order for the warrant or authorization to be sustained.

(c) Where erroneous or false information stems from inadvertent errors (that is, errors with no deliberate attempt to mislead), it can be amplified and corrected.

(d) Where erroneous or false information is the result of intentional errors, fraudulent misrepresentations or deliberate attempts to mislead the issuing or authorizing court, the same cannot be corrected by the amplification process.

(e) While amplification cannot go so far as to remove the requirement that the police must make their case to the issuing or authorizing court, it can serve to correct minor, technical or other inadvertent errors in the supporting material. In this way, amplification can ensure that minor defects in form do not triumph over substance.

(t) blind reliance on ritualistic phrases

[46] The language used in an ITO is important. Boiler-plate phrases such as “a reliable source” and “the investigation has revealed,” are to be avoided. In R. v. Hosie, supra, at p. 399, Rosenberg J.A. said:

Blind reliance upon ritualistic phrases without regard to the facts of the particular case robs the judicial officer of the ability to perform [his or her] vital function in the administration of justice.

[47] It is to be remembered that the purpose of the ITO is to allow the issuing court to decide for itself whether the purported reasonable and probable grounds, in fact, exist.

(u) errors not necessarily fatal

[48] Although much is desired from an ITO, perfection is not expected. Errors are not necessarily fatal. Errors, “whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the [search warrant] and do not by themselves lead to automatic vitiation”: see R. v. McClure, [[2001] O.J. No. 13 at para. 47 (S.C.J.)].

[49] The ultimate question is whether, after excising all improper material from the ITO, there remains at least some evidence reasonably capable of belief on the basis of which the warrant could have issued.

[50] However, as to the form of the ITO itself and the usual appendices, the reviewing court must not be overly picky. I acknowledge the following words of Southin J.A. in R. v. Dellapenna (1995), 1995 CanLII 428 (BC CA), 31 C.R.R. (2d) 1 at 13 (B.C.C.A.):

While a skilled conveyancer would not draft a document in this form, constables are not to be held to the standard of skilled conveyancers.

(v) unconstitutional conduct

[51] Evidence that is obtained by unconstitutional means must be excised from the ITO by the reviewing court: for example, where police trespass upon private property to make visual observations that, in turn, are used to support a warrant or authorization: see R. v. Kokesch, supra; R. v. Grant, supra; R. v. Plant, supra; and R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.).

(w) evidence of a tip as reasonable and probable grounds

[52] In R. v. Garofoli, supra, at p. 191, Sopinka J. summarized certain propositions as having been established in earlier cases in respect of tipsters or informants:

(a) Hearsay statements of an informant 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.

(b) The reliability of the tip is to be assessed 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:

(i) the degree of detail of the ‘tip’;

(ii) the informer’s source of knowledge;

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

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

[53] Accordingly, the particulars from a tipster must be set out in the ITO and must be sufficient to allow the issuing justice to determine whether there are reasonable grounds for believing that evidence of a crime exists in the place to be searched.

[54] The following passage appears in the judgment of Sopinka J. in R. v. Plant, supra, at pp. 215-16:

In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at p. 215, this court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances and specified three areas of concern:

First, was the information predicting the commission of a criminal offence 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?

While that case related to the decision of police to conduct a warrantless search pursuant to the tip of a known informant, the factors enunciated demonstrate principled concerns with the use of informants in general . . .

[55] While on this point, it might be useful to set out a portion of the Reasons of Martin J.A., in R. v. Debot, (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 at 218 (Ont. C.A.), subsequently approved by the Supreme Court of Canada, in R. v. Debot, supra:

Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary reasonable grounds to believe, to justify the granting of a search warrant . . . On an application for a search warrant the informant must set out in the Information [to Obtain] the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged . . . Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity, or that drugs would be found at a certain place would be insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged . . . Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or arrest without warrant are whether the informer’s tip contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case provided that the totality of the circumstances meets the standard of the necessary grounds for relief.

[56] Where a tipster provides information to the police, the officer seeking to obtain a search warrant must set out, in as much detail as possible, the basis of the tipster’s knowledge. As well, the officer must substantiate the credibility, veracity or reliability of the tipster and disclose how knowledge of any facts was acquired by the tipster: see R. v. Pastro, supra, at pp. 517-18.

[57] Loukidelis J. made this apt observation about tips in R. v. Macangus (unreported, February 28, 1994) (Ont. Gen. Div.), at p. 5 of the typescript of his Reasons:

. . . but evidence of a tip cannot by itself give reasonable and probable grounds: see R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 191 (S.C.C.). The tip, in my mind, should act as the pressing of the button for an investigation by the police.

[58] The cases seem to support the general proposition that failure to disclose the basis upon which an informer came to his or her knowledge is a defect in substance sufficient to render a search warrant invalid.

[59] A succinct reminder as to the importance of going behind the bald statements of an informer is found in William Aikenhead Door & Hardware Ltd. v. Wagschal et al. heard by Smith J., of the Ontario High Court, on January 21, 1985. At p. 4 of the typescript of the Reasons, His Lordship said:

[The informer] may turn out to be an employee with an axe to grind, an eavesdropper, a thief, competitor or a mere gossiper who heard it from someone else.

[60] The level of verification required by the police in respect of a tip may be higher where the informer is one whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater: see R. v. Debot, supra, at p. 2l8. In such circumstances, the validity of the warrant depends upon the sufficiency of the police investigation to corroborate the informer’s tip: see R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at 392 (Ont. C.A.).

[61] “Absent confirmation of details, other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search”: see R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 at 490 (Ont. C.A.). Curiously, the following, somewhat contradictory, statement was made in R. v. Shogi-Baloo, [[1999] O.J. No. 325 at paras. 3 and 4], where the Court of Appeal upheld a warrant: “. . . the police corroborated some of the information provided, although this did not go beyond elements of the information that were innocent and commonplace such as the fact that a party by the name of the accused lived in the building identified by the informant.”

[62] In the circumstances of “an anonymous tip or untried informant . . . the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source”: see R. v. Debot, supra, at p. 217.

[63] Thus, compelling particulars from a tipster, if shown to be reliable, may form part of the reasonable grounds in the ITO.

[64] When all has been said, tips from informants vary greatly in their value and reliability.

(x) protecting the identity of informants

[65] “It is understandable that the police may need to protect a confidential source and therefore may not be in a position to reveal certain information. However, sufficient information must be revealed to justify the granting of the search warrant or to justify a warrantless search on the basis of reasonable and probable grounds. A warrantless search can never be justified on the basis of unrevealed information”: see R v. Zammit (1993), 81 C.C.C. (3d) 113 at 120 (Ont. C.A.).

[66] In R. v. Leipert (1997), 1997 CanLII 367 (SCC), 112 C.C.C. (3d) 385 at 390-91 (S.C.C.) the Court spoke of the long-accepted rule of public policy which grants informers absolute privilege against the revelation of their identities, subject to one exception: where innocence is at stake. The Court described the informer-privilege rule in this fashion:

A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same . . .

The rule is of fundamental importance to the workings of the criminal justice system. As described in Basaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 at p. 105, 7 C.C.C. (3rd) 385, 2 D.L.R. (4th) 193:

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange with this promise information about which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.

Informer privilege prevents not only disclosure of the name of the informant, but any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1460 . . . Sopinka J. suggested that trial judges, when editing a wiretap packet, consider:

. . . Whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name;

III. THE SECTION 24(2) INQUIRY

1. Sections 24(1) and 24(2) of the Charter

[67] Sections 24(1) and 24(2) of the Charter provide: (Emphasis added)

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

2. Collins, Stillman and “all the circumstances” clarified in Grant

[68] For many years, R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607 have been the foundation of the s. 24(2) inquiry. However, in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada considered it necessary to clarify “the criteria relevant to determining when, in ‘all the circumstances’, admission of evidence obtained by a Charter breach ‘would bring the administration of justice into disrepute’.”

[69] In R. v. Grant, the Court provided an overview of a revised approach to s. 24(2) at paragraphs [67]-[71] and spoke of the long-term and prospective sense of maintaining the integrity of the justice system and the need to balance the seriousness of “the Charter-infringing state conduct . . . the Charter-protected interests of the accused . . . and society’s interest in the adjudication of the case on its merits”:

[67] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term ‘administration of justice’ is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

[68] The phrase ‘bring the administration of justice into disrepute’ must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

[70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[70] In discussing the seriousness of the Charter-infringing state conduct, the Court, at paragraphs [72]-[75], speaks of “an evaluation of the seriousness of the state conduct that led to the breach,” the fact that “[s]tate conduct resulting in Charter violations varies in seriousness” as well as a realization that “[e]xtenuating circumstances . . . may attenuate the seriousness of police conduct that results in a Charter breach”:

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[71] In addressing the impact of the Charter-protected interests of the accused, at paragraphs [76]-[78], the Court in R. v. Grant speaks of Charter breaches ranging “from fleeting and technical to profoundly intrusive” and points out that “[t]he more serious the incursion on [an accused’s] . . . interest, the greater the risk that admission of the evidence would bring the administration of justice into disrepute”:

[76] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) — all stemming from the principle against self-incrimination: R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[72] At paragraphs [79]-[84], in dealing with the third line of inquiry in the weighing process (society’s interest in an adjudication on the merits), R. v. Grant refers to “[t]he view that reliable evidence is admissible regardless of how it was obtained” as being “inconsistent with the wording of s. 24(2)” and states that “[t]he court must ask whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”:

[79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law’: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[80] The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

[81] This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[82] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to ‘balance the interests of truth with the integrity of the justice system’: Mann, at para. 57, per Iacobucci J. The court must ask ‘whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial’: R. v. Kitaitchik 2002 CanLII 45000 (ON CA), (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.

[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) ‘operate independently of the type of crime for which the individual stands accused’ (para. 51). And as Lamer J. observed in Collins, ‘[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority’ (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[73] Finally, in R. v. Grant, the Court summarizes the three lines of inquiry at paragraphs [85] and [86]:

[85] To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of ‘all the circumstances’ of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

[86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

IV THE ITO, EVIDENCE OF THE POLICE OFFICERS GIVEN AT THE THE PRELIMINARY HEARING AND DISCUSSION

1. Composition of ITO

[74] The ITO was sworn by Detective Constable Ian Sills (“Sills”).

[75] The first part of the ITO sets out the fact that Sills has reasonable grounds to believe that, on April 2, 2010, Browne committed the indictable offence of possession of cocaine for the purpose of trafficking and that, due to the hour, resort was being had by facsimile transmission to the Telewarrant Centre, Newmarket, Ontario.

[76] Next comes the guts of the ITO, consisting of Appendix “A”, with 29 numbered paragraphs.

[77] Finally, there is Appendix “B”, a two-page affidavit in support of a request for a sealing order.

2. Appendix “A”

(a) introduction

[78] In the first five paragraphs of Appendix “A”, Sills describes his then-five-years of experience with the Niagara Regional Police Service. He outlines the investigations, drug seizures and arrests (“in excess of 60”) in which he has been directly involved. He also states that he has “taken specific courses on the Controlled Drugs and Substances Act as well as drug investigations” and has been “the handler of several confidential informants that provided information that directly led to the arrest of approximately 20 individuals and the seizure of a quantity of cocaine.”

(b) investigative sources

[79] In the next four paragraphs of Appendix “A”, Sills identifies his “investigative sources” consisting of “police surveillance information and data from computerized police information networks such as, but not limited to, CPIC,[^7] PARIS[^8] and VERSADEX.”[^9]

(c) involved persons

[80] Paragraph 10 of Appendix “A” sets out “involved persons,” including various police officers, two confidential informants and one concerned citizen.

(d) grounds to believe an offence has been committed

[81] Paragraphs 11-29 of Appendix “A” outline the “grounds to believe an offence against this Act has been committed.”

[82] Paragraphs 11-19 deal with the events of one day, “Thursday, March (redacted) 2010.” I will set out the relevant portions of those paragraphs in the left column below. In the right column, I will refer to the testimony at the preliminary hearing which primarily is that of Sills and of Detective Constable Carmine Cataldo (“Cataldo”) – the latter having “set up in the area making observations at the rear door of” 37 Rykert Street (the high-rise building containing the apartment in which Browne resides):

Paragraphs from ITO

Preliminary hearing evidence and discussion

11. Sills “received information from CI #1[Confidential Informant #1] . . .”

▪ (Sills points out elsewhere in the ITO that CI #1 “wishes to remain anonymous for fear of safety . . . CI #1 has a criminal record but does not have any convictions for perjury or deceit[^10] . . . CI #1 has provided me with information in the past that has always been proven reliable. CI #1 has always been accurate and has never provided me with information that has been exaggerated. CI #1 has provided with (sic) information that has led directly to the arrest of an individual and the seizure of 45 grams of cocaine. CI #1 has provided with (sic) that has led directly to the arrest of an individual and the seizure of 30 grams of cocaine.”)

Paragraph 11 of the ITO continues in setting out information received from CI #1:

▪ “A black male named Damon Browne, who is known as ‘Lion’, is in possession of large amounts of crack cocaine and is trafficking the cocaine to individuals . . .”

▪ “Browne is approximately 40 years of age, has a skinny build, is average height, has long black dreadlocks and is believed to be from Barbados.”

▪ “Browne currently resides in apartment #112, located at 37 Rykert Street, in the City of St. Catharines, with his wife Ashley Browne.”

▪ “Browne drives a brown four-door Acura with tinted windows and Ontario licence plate #BFVZ486.”

▪ “Browne parks the vehicle in the parking lot located at 37 Rykert Street . . .”

▪ “Browne keeps the crack cocaine inside apartment #112 at 37 Rykert Street . . .”

▪ “Browne is usually in possession (redacted) of crack cocaine.”

▪ “CI #1 purchases cocaine from Browne (redacted).”

▪ “Browne always has crack cocaine available (redacted).”

▪ “CI #1 will meet Browne inside the apartment building located at 37 Rykert Street . . . and purchase crack cocaine from Browne.”

▪ “CI #1 advised that on today’s date they[^11] contacted Browne and purchased crack cocaine from Browne. CI #1 explained they met Browne inside 37 Rykert Street . . .”

▪ How CI #1 learned this information is not stated. Presumably, it came from Browne.

▪ These are neutral facts that could be known by anyone.

▪ These are neutral facts that could be known by anyone.

▪ These are neutral facts that could be known by anyone.

▪ This is a neutral fact that could be known by anyone.

▪ CI #1 alleges that he obtained this information from Browne.

▪ CI #1 alleges that he obtained this information from Browne.

▪ CI #1 alleges that he obtained this information from Browne.

12. Sills performed a CPIC search on the above plate and learned that it “is attached to a brown 1996 four-door Acura 32T” and that it “is registered to Ashley Browne with a date of birth of 1984-05-20 . . . 54 Culligan Crescent, in the City of Thorold”

▪ This search is corroborative of neutral facts.

13. Sills carried out a VERSADEX query on Browne which revealed:

▪ “. . . Browne with the date of birth of 1969-10-17 [and] an address of 54 Culligan Crescent . . .”

▪ “. . . that Browne uses the nickname Lion.”

▪ “. . . that Browne has the cell phone number 905-325-3205.”

▪ “. . . a mug shot photo of Browne which matched the description provided by CI #1.”

14. As part of the VERSADEX check, Sills read and reviewed a general occurrence report prepared by another constable concerning surveillance on a named female in 2008 who was followed to the parking lot of [a St. Catharines restaurant]. “Police observed a black four-door vehicle being driven by a male identified as being Damon Browne. Browne parked beside [the female]’s truck. . . . Police observed [the female] exit her vehicle and stand outside the passenger door of Browne’s vehicle. Police observed [the female] exchange something with Browne . . . This action was consistent with a drug transaction. As a result, police followed [the female to a St. Catharines address] . . .and located 7.19 grams of cocaine on [her person].”

▪ In cross-examination at the preliminary hearing, Cataldo testified that the female was a known drug user and trafficker. When she was arrested she did not say that “the 7.19 grams or any of it came from” Browne (and Browne was not charged).

15. Also included in the VERSADEX search was a general occurrence report from 2009 that detailed a conversation between a police officer and a Confidential Informant (“CI #2”).

▪ (Elsewhere In the ITO, Sills states that CI #2 “wishes to remain anonymous for fear of their safety . . . CI #2 has a criminal record but does not have any convictions for perjury or deceit. CI #2 has provided information to [another officer] regarding a crack cocaine dealer named Damon Browne who is also known as Lion”.)

▪ CI #2 described a “non-white male named Lion . . . [who is] . . . approximately 30 years of age, approximately 5 feet 10 inches tall, 160 lbs and possibly of Barbadian descent . . . [from whom] they consistently buy crack cocaine . . . ”

▪CI #2 stated that “Lion was most recently seen in a newer silver Cadillac style vehicle, however normally drives a black Pontiac Sunfire.”

▪ CI #2 described purchasing cocaine from Lion on a specified (but redacted) date in September, 2009 and provided details about the manner in which Lion conducted his business of selling cocaine. Lion:

▪ “. . . only delivers in his vehicle during the daylight hours”;

▪ “. . . normally does not deliver cocaine past 11:00 pm.”;

▪ “. . . will deliver to his clients for about three to four months at a time and then will not deliver for three to six months after that”;

▪ “. . . is known to frequent the Brown Sugar bar in downtown St. Catharines”;

▪ “. . . will park his vehicle in the Knights Inn parking lot across the street from the bar”;

▪ “. . . sometimes deals drugs from this location and will meet buyers at his vehicle where the exchanges take place”;

▪ “. . . is one of the most important suppliers of crack cocaine.”

▪ CI #2 gave Lion’s cell phone number as 905-325-3205.

▪ There is no evidence of the credibility or reliability of CI #2. Cataldo confirmed in cross-examination at the preliminary hearing that this was the “first time he gives information.” It is acknowledged that Sills did not “bring to the attention” of the Justice of the Peace that CI #2 “was not a proven and reliable source.”

▪ Because CI #1 had spoken of a “brown four-door Acura,” Cataldo was cross-examined on the vehicle:

Q. No mention from [CI #2] of the Acura?

A. No.

Q. And we had never heard about a Cadillac before this, or since then?

A. No.

▪ Cataldo was cross-examined on Lion’s modus operandi, differently described by CI #1 and CI #2:

Q. There’s nothing there, is there, about [Browne] dealing from his apartment . . .?

A. No.

Q. So, that information is different from the information that you received from CI #1?

A. As in how the drug operation works?

Q. Yeah.

A. Yes, that’s correct.

16. The VERSADEX check disclosed an occurrence report in which another officer, on December 28, 2009, carried out “a traffic stop of a 1992 four-door brown Acura . . . plate #BFVZ486 in the parking lot of 37 Rykert Street . . . The driver was identified as Damon Browne . . .”

▪ These facts do not advance the investigation in any material way.

17. Sills performed a CPIC search and it “revealed that . . . in 2005 Browne was convicted of possession of a Schedule I substance.”

▪ When cross-examined at the preliminary hearing, Cataldo acknowledged that, in fact, Browne did not have a criminal record:

Q. But he doesn’t have a criminal record, does he?

A. I know, and I think, with reference to the VERSADEX[^12] system and all that, because there’s a bunch of things that are listed as withdrawn, conviction withdrawn, so it might have been something happened in a court process or something that I didn’t understand . . . but it did have it on there, at some point . . . I don’t know if it was taken care of afterwards or . . .

A. . . . you can pull up their history of offences. I believe it showed on there, but, in the meantime, something happened, and I can’t explain that . . . but that’s what was viewed on the screen when I ran it, this history of . . .

▪ Cataldo also was cross-examined regarding when the error came to his attention:

A. Well, it actually came up [after the warrant]. There were some conversations. I can’t talk about it here, and I can explain to you why afterwards. I can’t talk about certain things that I now, now know of that I didn’t know at the time this was going on . . .

▪ This mysterious and unacceptable answer falls short of “amplification on review.” It is safe to assume, for example, that if the conviction had been reversed on appeal Cataldo happily would have volunteered that explanation for this error in the ITO.

18. Sills attended 37 Rykert Street, spoke to the superintendent of the building who “advised me that Ashley Browne resides in apartment #112 with her husband . . . a skinny, black male with long dreadlocks (redacted).”

▪ These facts are corroborative of neutral information that could be known by anyone.

19. Sills attended 37 Rykert Street and spoke to a “concerned citizen” (“CC #1”) who advised “that a black male with dreadlocks who resides in apartment #112 is selling drugs (redacted) inside the building (redacted).”

▪ (Elsewhere in the ITO, Sills states that “CC #1 wishes to remain anonymous for fear of their safety . . . CC #1 provided me with information in regards to drug activity at apartment #112 located at 37 Rykert Street . . .”)

▪ The information from CC #1 is devoid of detail. What is the source of CC #1’s information? Is it from personal knowledge? Is it rumour?

[83] Paragraphs 20 and 21 of the ITO deal with “Tuesday, March (redacted), 2010” and “Thursday, April 1, 2010,” [^13] respectively:

Paragraphs from ITO

Preliminary hearing evidence and discussion

20. CI #1 advised Sills “that they . . . met Browne inside the apartment building . . . at 37 Rykert Street . . . and Browne sold them crack cocaine (redacted).”

This is repetitive of information in paragraph 11.

21. Sills contacted the superintendent of 37 Rykert Street and the latter “faxed . . . a copy of the current tenant list for the building . . . the list . . . had the name Ashley Browne listed in apartment 3112 as a current tenant.”

This is corroborative of neutral information and repetitive of paragraph 18.

[84] Paragraph 22 of the ITO addresses various events that took place on Friday, April 2, 2010:

Paragraphs from ITO

Preliminary hearing evidence and discussion

22. Members of the St. Catharines Street Crime Unit set up surveillance on 37 Rykert Street. According to Sills, police observed:

▪ “. . . a black Audi with Quebec plates pull into the rear parking lot of 37 Rykert Street . . .”

▪ “. . . a white male in [his] thirties exit the passenger side of the vehicle and attend the rear door to the apartment.”

▪ “. . . Browne exit the rear door to the apartment building and conduct a hand-to-hand transaction with the male. The male then returned to the passenger seat of the vehicle and the vehicle left the area. This type of transaction is consistent with drug dealing.”

▪ Cataldo, who was conducting the surveillance, testified that “at 7:10 I see a black Audi with a Quebec licence plate pull up to the rear of the complex.”

▪ Cataldo testified:

A. “. . . someone gets out of the passenger seat and [goes] to the rear of the building . . . I couldn’t see if they entered the building or not . . . I don’t recall if [the passenger] was male or female.”

▪ Cataldo further testified:

A. At 7:12 the passenger gets back into the vehicle and then away (sic). But at that point I observed a hand-to-hand . . . I observed the passenger from the Audi get out of the passenger side, go towards the rear of the building, approach another male,[^14] and I observed some type of a transaction hand-to-hand.

▪ The passenger goes to the back door of the building and “meets up with [Browne].”

Cataldo was cross-examined on the hand-to-hand transaction:

A. I observe the person from the Audi converse with . . . Browne and they touch hands and there was a hand-to-hand transaction made. I don’t know exactly what, what was transferred, but there was something transferred hand to hand.

▪ Cataldo does not recall if it was Browne’s right or left hand that was touched or the passenger’s right or left hand.

▪ Cataldo did not see what was transferred and, in cross-examination, conceded that he does not know if “anything was transferred.” All he saw “was these two people touch hands.”

▪ The following exchange also occurred in his cross-examination:

Q. They could have shaken hands for all you know?

A. Could have.

Q. . . . Or they could have . . . you know how some people put knuckle to knuckle together. You know what I mean?

A. Sure.

Q. It could have been that, right?

A. Yep.

▪ Constable Cataldo defined a hand-to-hand transaction as two hands simply touching:

Q. So, two hands touch, that’s, in your definition, that’s a hand to hand?

A. Yes.

Q. Even though . . . there’s no evidence that anything was transferred from one person to another, by your definition, if those two hands touch, that’s a hand to hand, and that’s what you meant. Fair enough?

A. Yes.

V CONCLUSION

[85] Our legal system suffers from a number of vulnerabilities, a vital one being where relief is sought against a person in his or her absence. In those situations, there is a duty on the party requesting the relief to present the supporting evidence to the issuing court in a full, fair and balanced fashion. Nowhere is that duty more important than in obtaining a search warrant for a private residence.

[86] In the case before me, a search warrant was obtained in respect of the residence of the accused and, of course, this was done without notice to him. However, the evidence used by the police to convince a Justice of the Peace to issue the search warrant contained deficiencies: (1) a material misstatement; and, (2) an instance of material non-disclosure. It is well-settled law that material non-disclosure and material misstatements in an ITO, even if arising simply from carelessness, may lead to a finding that the search warrant should not have been issued.

[87] The material misstatement occurred when Sills incorrectly swore in the ITO that Browne had been convicted of “possession of a Schedule I substance” when, indeed, Browne did not have a criminal record of any kind. The curious explanatory preliminary-hearing testimony of Cataldo on the point makes it impossible to determine the reason for the misstatement.[^15] The misstatement is a deficiency that colours the balance of the ITO.

[88] The material non-disclosure in the ITO consists of a statement that police surveillance witnessed a “hand-to-hand transaction” between Browne and a “white male” whereas, at the preliminary hearing, Cataldo, who had conducted the surveillance, conceded that he did not see anything transferred and that the parties could have been shaking hands. The ITO reference to police having observed two males conducting a “hand-to-hand transaction” is nothing more than semantic trickery. Such deliberately misleading evidence has no place in an ITO. The police officer who swore the ITO intended the Justice of the Peace to conclude that illicit drugs had changed hands and I have no doubt that His Worship did so.

[89] After excising the “hand-to-hand transaction” evidence from the ITO, insufficient evidence remains upon which a Justice of the Peace, acting judicially, could have issued the search warrant. This insufficiency is exacerbated by the criminal-record error.

[90] In my opinion, after considering the totality of the evidence before the Justice of the Peace, as amplified, s. 8 of the Charter was breached. The search warrant is invalid and the resultant search and seizure are unreasonable. What about the evidence seized under the search warrant?

[91] The deficiencies in the ITO are neither trivial nor technical. The breach of s. 8 was a serious and flagrant Charter violation and could have been so easily avoided with proper police investigation. Time was not of the essence. There were no extenuating circumstances. Although the evidence obtained upon execution of the search warrant is non-conscriptive, as well as essential to substantiate the charges, I am of the view that, in the eyes of any informed citizen, its admission at trial would bring the administration of justice into disrepute. I come to this conclusion after a full consideration of “all the circumstances” as contemplated by s. 24(2) of the Charter and after careful attention to the lines of inquiry mandated in R. v. Grant, supra. Here, the Charter-infringed state conduct and the impact of that conduct upon the Charter-protected interests of the accused outweigh the societal interest in an adjudication of this case on its merits.

[92] The application is allowed. The search warrant is quashed. The evidence seized pursuant to the warrant shall be excluded from the trial.

The Honourable Mr. Justice J.W. Quinn

RELEASED: July 4, 2012

COURT FILE NO.: 1776/11

DATE: July 4, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

DAMON ATHELSTON BROWNE

Applicant

REASONS FOR JUDGMENT

J.W. Quinn J.

Released: July 4, 2012

[^1]: Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended.

[^2]: Section 355 of the Criminal Code of Canada.

[^3]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.

[^4]: Although R. v. Garofoli was concerned with a wiretap authorization, it is applicable to cases involving search warrants.

[^5]: R. v. Araujo also involved a wiretap authorization, but the comments of the Court apply equally to cases dealing with search warrants.

[^6]: It seems that the concept of amplification was first articulated by Sopinka J. in R. v. Garofoli, supra, where, at p. 188, His Lordship stated: (Emphasis added) “If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge . . .”

[^7]: “CPIC” is the acronym for “Canadian Police Information Centre.” CPIC “contains information regarding criminal records, vehicle information, persons who are presently charged and on probation.”

[^8]: “PARIS” is the “Police Automated Registration Information System.” It has information on vehicle ownership, driver’s licence validity and history and driver’s licence suspensions.”

[^9]: VERSADEX is a database for Niagara Regional Police Service incident reports and provides access to “police reports, person contacts, person pictures and motor vehicle information.”

[^10]: I find it amusing that someone with, for example, a criminal record for armed robbery, aggravated assault or drug trafficking, apparently would pass muster as an informant as long as he or she had never been convicted of perjury or deceit. Is criminality that compartmentalized? “I may stab you in the chest but, do not worry, I’ll never lie to you.” Really? I feel much better.

[^11]: Sills and Cataldo attempt to use “they” rather than “he” or “she”, so as not to divulge the sex of their informants. But, in his testimony at the preliminary hearing, Cataldo slipped up and said “he” at least once, making it obvious that the informants were male.

[^12]: I do not know why Cataldo referred to VERSADEX. I would have thought that the criminal record was part of the CPIC search.

[^13]: In the ITO, this date is incorrectly shown as April 2, 2010.

[^14]: It was pointed out to the officer that, earlier in his evidence, he stated that he did not know the gender of the passenger, whereas, he had just referred to “another male.” He corrected his testimony and said, “I don’t remember the gender.” In paragraph 22 of the ITO, Sills refers to “a white male.”

[^15]: It will be recalled that he testified: “A. Well, it actually came up [after the warrant]. There were some conversations. I can’t talk about it here, and I can explain to you why afterwards. I can’t talk about certain things that I now, now know of that I didn’t know at the time this was going on . . .”