ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 433/11
DATE: 20120912

B E T W E E N:

HER MAJESTY THE QUEEN - and - BEHZAD EFTEKHARI

Patrick Clement for the Crown
Edward Royal for the Accused

HEARD: September 10-12, 2012

Kenneth L. Campbell J.

Pre-Trial Ruling on s. 8 Charter Motion

A. Overview

[ 1 ] The accused, Behzad Eftekhari, has pled not guilty to an indictment alleging that, on June 28, 2011, in the City of Toronto, he was in unlawful possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code . There is no issue that, on that date, members of the Toronto Police Service executed a search warrant at his Toronto apartment, and seized a loaded restricted firearm from a safe located inside his bedroom at that residence.

[ 2 ] The accused has brought a pre-trial motion challenging the admissibility of the firearm. The defence contends that the sworn Information to Obtain the search warrant was simply not sufficient to justify the issuance of the search warrant and, therefore, the firearm was obtained by the police in violation of the accused’s right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter of Rights . Further, the defence contends that the admission of the firearm would bring the administration of justice into disrepute and, accordingly, ought to be excluded under s. 24(2) of the Charter . In response, the Crown contends that the Information to Obtain was sufficient to justify the issuance of the search warrant and, in any event, the evidence of the firearm found by the police inside the accused’s apartment should be admitted under s. 24(2) of the Charter .

B. The Governing Standard of Review

1. Could the Justice Have Issued the Search Warrant?

[ 3 ] The law is clear that when a judge is asked to review the sufficiency of an Information used to secure a search warrant, the judge must not approach the question of the issuance of the search warrant de novo , substituting his or her view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified on the review motion, whether the issuing justice could properly have issued the search warrant. If there is no basis upon which the issuing justice could have been satisfied that the pre-conditions for the issuance of the search warrant existed, the reviewing judge must find that the search contravened s. 8 of the Charter . On the other hand, if the issuing justice could properly have issued the search warrant, the reviewing judge must not disturb the decision of the justice. The question is not whether the reviewing judge would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were “reasonable grounds” justifying the issuance of the search warrant. See: R. v. Garofoli , 1990 52 (SCC) , [1990] 2 S.C.R. 1421, at para. 52-56 ; R. v. Bisson , 1994 46 (SCC) , [1994] 3 S.C.R. 1097; R. v. Araujo , 2000 SCC 65 () , [2000] 2 S.C.R. 992, at para. 40 , 50-61; R. v. Pires; R. v. Lising , 2005 SCC 66 () , [2005] 3 S.C.R. 343, at para. 30 ; R. v. Morelli , 2010 SCC 8 () , [2010] 1 S.C.R. 253, at para. 39-43 ; James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada (2007, 7th ed.) at pp. 84-98.

2. Confidential Sources - Where the Information to Obtain is Redacted

[ 4 ] Where the Information to Obtain the search warrant outlines factual details and allegations made by a confidential informant, and portions of that Information to Obtain have been redacted in order to preserve the confidentiality of the source of that information, as in the present case, there are two possible means by which the validity of the search warrant may be assessed.

[ 5 ] First, the facial validity of the search warrant may be assessed solely on the basis of the information revealed by the redacted Information to Obtain. In such circumstances, however, if the Information has been so heavily redacted that the reviewing judge cannot conclude that the remaining information was sufficient to justify the issuance of the search warrant, the warrant must be set aside. See: Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), 2003 52144 (ON CA) , 173 C.C.C. (3d) 466 (Ont.C.A.) at para. 10 , 22-25. Second, if the editing process renders the search warrant unsupportable, the Crown may apply to have the trial judge consider so much of the redacted information as is necessary to support the search warrant. However, the judge should only accede to such a request if satisfied that the accused can be made sufficiently aware, by way of a judicial summary of the redacted information, of the nature of the redacted material so as to be able to challenge it by argument or evidence. See: R. v. Garofoli , at para. 79 .

[ 6 ] In the present case, the Crown seeks to support the issuance of the search warrant only on the basis of the redacted version of the Information to Obtain, and does not purport to rely upon any redacted information. Accordingly, the validity of the search warrant must be assessed solely on the basis of the information revealed by the redacted Information to Obtain.

C. The Information to Obtain

[ 7 ] The search warrant in the present case was issued by the justice pursuant to s. 11 of the Controlled Drugs and Substances Act , S.C. 1996, chap. 19, on the basis that there were reasonable grounds to believe that there was cocaine, drug paraphernalia and debt lists in the accused’s apartment, that would afford evidence that the accused had committed the offence of possession of a controlled substance (ie. cocaine) for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act .

[ 8 ] The Information to Obtain this search warrant, sworn by Detective Constable John DeSousa of the Toronto Police Service, provided essentially the following hearsay information in support of the issuance of the search warrant:

(a) Information From Confidential Informant: On June 23, 2011 Detective Constable Michael Lane received information from a “confidential source” that the accused was a “drug dealer that carries a firearm.” The accused was currently dealing in cocaine. Through Detective Constable Lane, the confidential source provided detailed and accurate information as to the physical appearance of the accused, his date of birth, and his apartment address. He also mentioned the accused’s motor vehicle. According to the officer, the confidential source also indicated that he has known the accused for some time, has known him to have handguns during their relationship, and knows that the accused presently “has a firearm.” The confidential source has criminal convictions, but not for crimes of deceit, and may have been motivated by “charge consideration”. The confidential source expressed confidence that the police would successfully recover a firearm. Both Detective Constable Lane and Detective Constable Brian Johnson provided some information that corroborated the personal information provided by the confidential source, namely, the date of birth of the accused, and the fact that he lived with his family in the apartment residence provided by the confidential source since 2004.

(b) Police Surveillance of the Accused : On the evening of June 27, 2011 Detective Constable Maruizio Ceresoli of the Toronto Police Service conducted surveillance on the accused and witnessed two “hand to hand drug transactions.” More particularly, at approximately 9:14 p.m. the officer watched the accused leave his apartment building and walk to his motor vehicle in the parking lot. The accused was carrying some type of black bag or knapsack and he placed this bag in the trunk of his vehicle. The accused then drove to a nearby location, where he met an unidentified female in a courtyard near some washrooms by a coffee shop. At that location Detective Constable Ceresoli witnessed a “hand to hand drug transaction” between the accused and the female. The accused provided the female with a clear plastic bag from his pocket, and she provided the accused with what appeared to be money. Subsequently, the officer followed the accused to another location, where he met with an unidentified male on the street. The male approached the accused’s vehicle on foot. As the male approached, the accused quickly exited his vehicle and opened the trunk. The accused was seen by the officer to remove a plastic bag from the black bag or knapsack in the trunk. The accused gave this plastic bag to the unidentified male, who looked inside and then tied the bag. The male then put the plastic bag into the gym bag that he had been carrying, and gave the accused an envelope that he had retrieved from that same gym bag. The accused quickly put the envelope into the trunk of his vehicle and drove away.

(c) Police Information Systems Checks: During the course of his investigation of the accused, Detective Constable DeSousa gathered information from a wide variety of police information systems. More particularly, a “unified search” revealed that the accused had “67 hits” on the Toronto Police information system. Another system check confirmed the date of birth and apartment address of the accused. A criminal record check revealed that the accused had previously been convicted, in 2004, of dangerous operation of a motor vehicle and, in 2005, for failing to comply with a recognizance and two robberies. Another system check revealed that the accused had previously been investigated, in May of 2010, for a drug-related offence.

[ 9 ] Based upon this information, Detective Constable DeSousa expressly stated, in the sworn Information to Obtain the search warrant, that he believed, on reasonable grounds, that the accused was responsible for “the illegal possession of a firearm and drugs,” and that the proposed search of his residence would afford evidence of this “illegal possession of a controlled substance and a firearm.”

D. The Voir Dire Evidence

1. Introduction

[ 10 ] The Crown called two witnesses on the Charter voir dire , namely, Detective Constable DeSousa and Detective Constable Maruizio Ceresoli. Given the brevity of the Crown’s examination-in-chief of these witnesses, it was apparent that they were called so that they could be cross-examined by counsel for the accused. While their testimony amplified and clarified some of the factual details in the Information to Obtain, their viva voce testimony was largely repetitive of the facts contained in the Information to Obtain. Without reviewing the entirety of the testimony of those witnesses, their additional evidence can be summarized as follows.

2. Detective Constable DeSousa

[ 11 ] Detective Constable DeSousa testified that, as a result of the execution of the search warrant on June 28, 2011 at the apartment residence of the accused, the police discovered a 9 mm handgun located inside a safe in the accused’s bedroom. The officer testified that a search warrant had also been obtained in connection with the accused’s motor vehicle, but that search proved unproductive as nothing of significance was discovered.

[ 12 ] Detective Constable DeSousa confirmed that the police had made efforts to try to corroborate the information from the confidential source, especially given his criminal record and the fact that the informant had not previously provided information to the police and had no established track record of reliability.

[ 13 ] Detective Constable DeSousa also confirmed that the police gathered information that corroborated the confidential source in relation to the identity and address of the accused, and his motor vehicle.

[ 14 ] Detective Constable DeSousa agreed that the 67 “hits” on the Toronto Police information system simply reflected some “contact” between the accused and the police, but did not necessarily reflect any criminal conduct on the part of the accused. The officer also obtained the criminal record of the accused. This record displayed convictions for robbery, but no drug-related crimes or offences involving firearms.

[ 15 ] Detective Constable DeSousa reviewed, as part of his testimony, all of the information that he was provided by other police officers during the investigation of the accused, including the results of the surveillance on the accused.

[ 16 ] Detective Constable DeSousa also testified, in a general way (so as not to disclose the identity of the confidential source), that some of details in the various “field information reports” in the possession of the Toronto Police Service corroborated some of the information provided by the confidential source.

3. Detective Constable Ceresoli

[ 17 ] Detective Constable Maurizio Ceresoli provided some additional details concerning his surveillance of the accused on the evening of June 27, 2011. He testified that he conducted this surveillance by himself in plain clothes. He testified that, while in his vehicle, making his observations of the accused in the parking lot of his apartment building, he was approximately four or five car lengths away.

[ 18 ] As to the first observed transaction between the accused and the unidentified female near the coffee shop, Detective Constable Ceresoli agreed that, while she appeared to provide money to the accused, in return for the plastic bag, it could have been something else. He testified that he made these observations in artificial light while on foot, after having left his vehicle.

[ 19 ] As to the second transaction between the accused and the unknown male, Detective Constable Ceresoli testified that this happened in a residential area, and the bag that the accused passed to the male was a white grocery bag. The officer agreed that he could not see what was in the envelope that the male passed to the accused in return.

E. Analysis of the Sufficiency of the Information to Obtain

[ 20 ] The defence contends that the redacted Information to Obtain that was sworn by Detective Constable DeSousa to secure the search warrant in the present case was simply not legally sufficient to justify the issuance of the search warrant. The defence argues that the Information to Obtain does not provide reasonable grounds to justify the search of the accused’s apartment. I disagree. In my view, applying the governing standard of review, the redacted Information to Obtain the search warrant was such that the authorizing justice could properly have concluded that there were “reasonable grounds” justifying the issuance of the search warrant.

[ 21 ] In order to assess the sufficiency of the Information to Obtain the search warrant, the court must determine whether, in the totality of the circumstances, the redacted Information to Obtain demonstrates the necessary “reasonable grounds.” While this standard is not akin to “proof beyond a reasonable doubt” or even establishment of a “ prima facie case,” it does require “reasonable probability” or “reasonable belief.” Where the police rely upon information from a a confidential informer to meet this standard, consideration must be given to whether the information is compelling, credible or corroborated by other aspects of the police investigation. See: R. v. Debot (1986), 1986 113 (ON CA) , 30 C.C.C. (3d) 207 (Ont.C.A.) at pp. 218-219; Affirmed : 1989 13 (SCC) , [1989] 2 S.C.R. 1140, at pp. 1168-1171.

[ 22 ] In the present case, the information provided by the confidential informant required careful and cautious assessment. The allegation by the confidential informant that the accused was a drug dealer selling currently cocaine was a general one, without any details as to how the informant came to be possessed of such knowledge. There was nothing especially compelling or credible about the allegation itself. Moreover, the confidential source had never provided information to the police before so there was no past history of demonstrated reliability. In addition, the confidential informant has a criminal record, albeit not for crimes of deceit, and may well have been motivated to provide this information to the police in order to personally benefit in connection with the resolution of his own criminal charges. In these circumstances, the issuance of the search warrant turns almost entirely upon the existence of corroborative evidence that may provide evidentiary support for the confidential informant’s allegations. As Wilson J. stated in R. v. Debot , at p. 1171, in such circumstances, the quality of the information and corroborative evidence may have to “compensate for the inability to assess the credibility of the source.”

[ 23 ] In the present case it is apparent that the key aspects of the allegation by the confidential informant were, indeed, subsequently corroborated by other aspects of the investigation undertaken by the police.

[ 24 ] First, the personal information from the confidential informer as to the physical description and identity of the accused, his date of birth, the whereabouts of his apartment residence, and the fact that he had a motor vehicle where all subsequently confirmed by the police, through their own investigative efforts, to be entirely accurate. This adds at least some limited credibility and reliability to the information from the confidential source. Information may be confirmed and corroborated without necessarily providing evidence of the criminality alleged by the confidential informant. See: R. v. Lewis (1998), 1998 7116 (ON CA) , 38 O.R. (3d) 540 (C.A.) at para. 22 ; R. v. Koppang , [2004] A.J. No. 1300 (C.A.) ; Leave denied : [2005] 1 S.C.R. xi; R. v. Caissey (2007), 2007 ABCA 380 () , 227 C.C.C. (3d) 322 (Alta.C.A.) at para. 12-25 ; Affirmed : 2008 SCC 65 () , [2008] 3 S.C.R. 451. On the other hand, the corroboration of innocent and general information is of only limited consequence in this analysis. Such public information could be gathered by nearly anyone familiar with the accused, and provides little insight into whether the accused was engaged in criminal activities. See: R. v. Zammit (1993), 1993 3424 (ON CA) , 81 C.C.C. (3d) 112 (Ont.C.A.) at para. 12 , 26-28; R. v. Castillo , [2011] O.J. No. 2525 (S.C.J.) at para. 24-28 . Indeed, in argument the Crown fairly conceded that, if this was the only corroboration of the information from the confidential informer, it would be insufficient to justify the issuance of the search warrant.

[ 25 ] More importantly, the allegation by the confidential informer that the accused was a “drug dealer” who was currently dealing in cocaine was corroborated by the physical surveillance of the accused on June 27, 2011. That evening, Detective Constable Ceresoli witnessed the accused conduct two “hand to hand drug transactions” with different individuals. Just prior to those transactions, the accused left his apartment building carrying a black bag or knapsack. It was from this same bag that the accused was later seen to remove a plastic bag and pass the bag to an unknown male. Admittedly, Detective Constable Ceresoli could not say positively that these were both drug transactions as he was unable to see the contents of the plastic bags, or ascertain positively whether money was being provided to the accused in return. However, in all of the circumstances, and viewing the nature of the transactions realistically, it is difficult not to draw the conclusion that the accused was selling drugs that evening. In any event, it was certainly an inference that was open to the police officers conducting the investigation. Likewise, the inference of drug trafficking by the accused was also an inference that was open to the justice in considering whether to issue the search warrant. In my opinion, this important corroboration of the key allegation of the confidential source provides a sufficient basis upon which the justice could properly have concluded that there were reasonable grounds in support of the requested search warrant.

[ 26 ] In R. v. Soto , 2010 ONSC 1734 () , [2010] O.J. No. 1644 (S.C.J.); Affirmed : 2011 ONCA 828 () , [2011] O.J. No. 5899 (C.A.) the court concluded, in similar circumstances, that an allegation by a confidential informer that the accused was “dealing cocaine” was sufficiently confirmed by police officers witnessing two hand-to-hand drug transactions, so as to justify the issuance of the search warrant for the accused’s residence. More particularly, Harvison-Young J. concluded, at para. 18, that as the accused had been seen leaving his apartment building and then conducting the two drug deals, and since he had not stopped anywhere else in between, it was “reasonable to believe that he would have had the drugs on his person when he left the apartment.” In its review of this decision, the Court of Appeal concluded, at para. 5, that this reasoning was “sound” in that there was an “obvious nexus among a person, drug and location” in that “if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence.”

[ 27 ] This reasoning is directly applicable in the circumstances of the present case. The accused was seen leaving his apartment building with a bag or knapsack. He was then surreptitiously observed, by a police officer, to engage in what appeared to be, at least to the officer, two successive hand-to-hand drug transactions. During the second transaction, the accused was observed taking a plastic bag, potentially containing drugs, out of this same bag or knapsack. As the accused did not stop at any other locations in the intervening period, it stands to reason, just as it did in R. v. Soto , that there were reasonable grounds to believe that there were drugs in the accused’s apartment.

[ 28 ] Clearly not all aspects of the confidential informant’s allegations were corroborated. More particularly, there was no confirmation that the accused was in possession of a firearm. In this regard, however, it is important to recall that the search warrant in this case was issued pursuant to s. 11 of the Controlled Drugs and Substances Act , on the basis that there were reasonable grounds to believe that there was cocaine, drug paraphernalia and debt lists in the accused’s apartment, which would provide evidence that the accused was in possession of a controlled substance for the purposes of trafficking. The search warrant was not issued on the basis that there were reasonable grounds to believe that the accused was in illegal possession of a firearm. That did not, of course, prevent the police from seizing the loaded restricted firearm when it was discovered in the safe in the accused’s bedroom during execution of the search warrant. But the search warrant was not issued for that purpose. The search warrant was only issued in relation to the allegations of the confidential informant that had been corroborated by the observations independently made by the police during their surveillance of the accused.

[ 29 ] In summary, as the confidential informer alleged that the accused was a “drug dealer” selling cocaine, and since the police subsequently observed the accused involved in what appeared to be two hand-to-hand drug transactions one evening, after leaving his apartment with a bag that appeared to contain the drugs being sold, in my opinion it was open to the justice to conclude that there were “reasonable grounds” for the issuance of the search warrant to permit the police to search for cocaine, drug paraphernalia and debt lists in the accused’s apartment. In short, the allegations of the confidential informant had been sufficiently corroborated to permit the issuance of the search warrant.

[ 30 ] For these reasons I conclude that, based upon the record that was before the issuing justice, as redacted to protect the identity of the confidential source, and as amplified on this review motion, the issuing justice could properly have concluded, based upon the totality of all of the circumstances, that there were “reasonable grounds” supporting the issuance of the search warrant.

F. The Admissibility of the Firearm

1. Introduction

[ 31 ] In the alternative, had I reached the conclusion that there was an insufficient basis for the issuance of the search warrant in this case and found a violation of s. 8 of the Charter of Rights , I would nevertheless have admitted the evidence under s. 24(2) of the Charter .

[ 32 ] In R. v. Grant , 2009 SCC 32 () , [2009] 2 S.C.R. 353 and R. v. Harrison , 2009 SCC 34 () , [2009] 2 S.C.R. 494, the Supreme Court of Canada took a fresh look at the principles underlying s. 24(2) of the Charter and outlined a new approach with three avenues of inquiry. Under this three-pronged test, the 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; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Of course, the court must conduct this balancing process considering all the circumstances of the case. See also: R. v. Morelli , 2010 SCC 8 () , [2010] 1 S.C.R. 253; R. v. Côté , 2011 SCC 46 () , [2011] 3 S.C.R. 215, at para. 45-48 .

2. The Seriousness of the State Conduct

[ 33 ] As to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for the courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but preserve public confidence in the rule of law and its processes. See: R. v. Grant , at para. 72-75 .

[ 34 ] Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum, while wilful or reckless disregard of Charter rights is at the other. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct, but negligence or wilful blindness is not good faith. Deliberate, wilful or flagrant disregard of Charter rights may require exclusion of the evidence. If police conduct that infringed the Charter was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See: R. v. Grant , at para. 74-75 .

[ 35 ] In the present case I am drawn to the conclusion that the police acted in good faith in obtaining a warrant for their search of the accused’s apartment. There is certainly no evidence to suggest that they acted recklessly, negligently, or in ignorance of any statutory or Charter requirements. Indeed, realistically, it is difficult to level any criticism at the police conduct in this case. They acted exactly as they were obligated to act under the law. Accordingly, their conduct does not really fit anywhere on the continuum of police misconduct outlined by the Supreme Court of Canada in R. v. Grant . Accordingly, this first prong of the governing s. 24(2) analysis strongly favours the admissibility of the firearm. Of course, incidentally, prior to R. v. Grant , this evidence would inevitably have been admissible as real, non-conscriptive evidence the admission of which would have no impact on the fairness of the trial. See: R. v. Blake (2010), 2010 ONCA 1 () , 251 C.C.C. (3d) 4 (Ont.C.A.) at para. 23-27 ; R. v. Morelli , at para. 99-103 .

3. The Impact of the Charter Violation

[ 36 ] As to the impact of the Charter violation, the second prong of the test, the Court must assess the extent to which the breach undermined the Charter protected interests of the accused. Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. See: R. v. Grant , at para. 76-78 .

[ 37 ] There are few, if any, contexts in which a person has a greater expectation of privacy than in the sanctity of his or her own home. Accordingly, the police intrusion of this important personal space in the present case is a grave invasion of the personal privacy of the accused. Indeed, such residence searches strike at the very core of an accused’s right to privacy. This must be viewed, therefore, as a very serious breach of the accused’s Charter rights. He had a high expectation of privacy in his residence, and that privacy was compromised by an intrusive police search. This second factor in the s. 24(2) analysis, accordingly, strongly favours the exclusion of the evidence. See: R. v. Morelli , at para. 104 ; R. v. Blake , at para. 28-29 ; R. v. Campbell , 2010 ONCA 588 () , [2010] O.J. No. 3767 (C.A.) at para. 99 .

4. The Truth-Finding Function of the Trial

[ 38 ] As to the third avenue of inquiry, the court must inquire whether the truth-seeking function of the trial is better served by admission of the evidence, or by exclusion. The court must consider not only the negative impact of the admission of the evidence, but the impact of failing to admit the evidence. The reliability of the evidence is an important factor in this prong of the analysis. If the Charter breach has undermined the reliability of the evidence, this will suggest exclusion of the evidence. On the other hand, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public, and may bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. 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. See: R. v. Grant , at para. 79-84 .

[ 39 ] In the present case there is no question that the firearm in issue is an inherently reliable and objective piece of evidence that is critical to the merits of the case. If the firearm is excluded, the Crown’s case must fail. If the evidence is admitted, however, the Crown would appear poised to establish that the accused was, indeed, in possession of a loaded restricted firearm. Society's interest in the adjudication of a criminal trial on its merits would be seriously undercut if highly reliable and critical evidence such as this firearm was excluded. This third aspect of the governing s. 24(2) analysis clearly favours the admission of the firearm. See: R. v. Blake , at para. 31 .

5. Conclusion

[ 40 ] There is “no overarching rule” that governs how the balance of these three factors is to be struck. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of “decision tree.” See: R. v. Grant , at para. 86 .

[ 41 ] The balancing of these three considerations, in light of all of the circumstances of this case, leads me to the conclusion that the evidence of the firearm must be admitted.

[ 42 ] In summary, the police conduct was not abusive, negligent, reckless, or exercised in bad faith. There was no deliberate, wilful or egregious violation of the Charter . The police placed all of the relevant information from their investigation accurately and fairly before the justice in support of their request for a search warrant. The search of the accused’s premises was, in the result, conducted pursuant to that prior judicial authorization. The police acted in good faith and as the law required. Accordingly, the first factor supports the admission of the evidence. On the other hand, the impact of the breach of s. 8 of the Charter was very significant. The police invaded the private sanctity of the accused’s home and rummaged through his personal space and possessions. This second factor, therefore, supports the exclusion of the evidence. Finally, the evidentiary value of the gun is considerable given that it is highly reliable evidence that is essential to the just determination of this case on its merits. This third factor, therefore, supports the admission of the evidence. See: R. v. Grant , at para. 129-140 .

[ 43 ] To paraphrase the conclusion reached by the Court of Appeal for Ontario in R. v. Blake , at para. 32-33 , without diminishing the important negative impact on the legitimate privacy interests of the accused that was occasioned by the unreasonable search of his home, the argument is compelling that the exclusion of reliable, crucial evidence in circumstances where the propriety of the police conduct stands essentially unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice. Accordingly, the evidence of the finding of the firearm in the accused’s bedroom is admissible under s. 24(2) of the Charter of Rights .

G. Conclusion

[ 44 ] In conclusion, in my view the issuance of the search warrant in the present case was not the result of any violation of s. 8 of the Charter . The redacted Information to Obtain was such that the justice could properly have issued the search warrant. Alternatively, and in any event, in my view the firearm that was seized from the accused’s apartment by the police is admissible under s. 24(2) of the Charter .

Kenneth L. Campbell J.

Released: September 12, 2012

COURT FILE NO. : 433/11
DATE: 20120912

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN - and - BEHZAD EFTEKHARI

RULING ON S. 8 CHARTER MOTION Kenneth L. Campbell J.

Released: September 12, 2012