ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-500000030
DATE: 20121116

BETWEEN:

HER MAJESTY THE QUEEN – and – KENNETH GRANT Defendant

Ken Lockhart , for the Crown
Carlos Rippell , for the Defendant

HEARD: October 23, 25, 26, 29 and November 2, 2012.

b. P. O’marra J.

ruling

Overview

[ 1 ] Keisha Smith lived at 55 Bridesburg Drive, Apt. 511 in Toronto, with her three children. Kenneth Grant is the father of her youngest child, age six months as of June 2011.

[ 2 ] On June 29, 2011, the Toronto Police Services obtained a search warrant related to a firearm and ammunition. The target was Kenneth Grant and the location was Keisha Smith’s apartment.

[ 3 ] At approximately 11:30 p.m. that night, members of the Toronto Police Service were conducting surveillance outside of Keisha Smith’s apartment building. Kenneth Grant was observed sitting in the front passenger seat of a parked white Acura motor vehicle in an adjacent parking lot. An adult female named Melissa Adie was in the driver’s seat. Police approached the vehicle with guns drawn. Kenneth Grant was ordered out of the car. At the direction of the police he lay face down on the pavement. A pat search did not reveal any weapons but a key was found that was later used to open the apartment belonging to Keisha Smith. Kenneth Grant was handcuffed behind his back and then seated on a curb near the Acura.

[ 4 ] Kenneth Grant was advised of his rights under s. 10(b) of the Charter . He had some discussion with one of the police officers present.

[ 5 ] A few moments later Kenneth Grant was handed over to a uniformed police officer who had arrived on scene. That officer conducted a more thorough search which revealed a sock that was down the front pant area of Mr. Grant. Inside the sock was located a quantity of cocaine. The uniformed office also located a quantity of cash in Mr. Grant’s back pocket. Grant was charged with possession of cocaine for the purpose of trafficking.

[ 6 ] Police entered Apt. 511 with the search warrant. A loaded handgun and ammunition were found hidden between the mattress sponges in one of the bedrooms.

[ 7 ] Kenneth Grant was charged with a series of firearms related offences as well as possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

the proceedings

[ 8 ] Pretrial motions were held to determine the admissibility of evidence obtained by police. On November 2, 2012, I ruled that all of the evidence obtained from Kenneth Grant in the parking lot after his detention was to be excluded for this trial. That evidence included utterances he made to the police as well as a key, drugs and cash that were located on his person. The handgun and ammunition found in the apartment were ruled admissible. These are my reasons for those rulings.

garofoli step 6

[ 9 ] The defence applied at the outset of these pretrial applications for more complete information and detail from the Information To Obtain (“ITO”) the search warrant that formed the basis for the detention and search in this case.

[ 10 ] Exhibit D on this motion is a copy of the redacted ITO which was disclosed to the defence. The Crown acknowledges that the redacted ITO does not meet the statutory and constitutional standards to support the issuance of the warrant.

[ 11 ] Exhibit A on this application was a document prepared and tendered by the Crown. It is entitled “Proposed Judicial Summary of Excised Information”. Exhibit B in this application is a copy of the unedited ITO. I was given a copy for review in light of the judicial task at that stage. The Defence were not provided a copy of this exhibit. I ordered that Exhibit B be sealed.

[ 12 ] The Crown asked the Court to engage Step 6 of the Garofoli procedure.

R. v. Garofoli (1990) 60 ccc 3d 161 (S.C.C.) para. 79.

[ 13 ] The Crown asked the Court to consider the redacted material such as was necessary to support the warrant. He submitted that the proposed judicial summary (Exhibit A), together with such further summaries as the Court deemed appropriate should be provided to the Defence. The Crown needed to vet any such additional information from the Court before it was provided to the Defence. This latter point relates to the Confidential Informant privileges of two informants who provided information to the affiant on the ITO.

[ 14 ] After hearing submissions from both counsel, I provided a copy of what is now Exhibit C on this application to the Crown. This single-page document contained two further items of information that I would direct the Crown to disclose before the application proceeded.

[ 15 ] Exhibit C was not provided to Defence counsel since the Crown needed to review its contents before deciding whether to continue on that basis. I ordered that a copy of Exhibit C be sealed.

[ 16 ] It was my view at this Step 6 stage that the Defence were entitled to the combination of Exhibit A from the Crown as well as Exhibit C additions by the Court before the matter proceeded to further evidence and submissions on the s. 8 of the Charter issue. After reviewing Exhibit C, the Crown declined to disclose one of those two further items to the Defence. That is an option open to the Crown as set out in Step 6 of Garofoli. The consequence of that decision was that the Crown could no longer rely upon the unredacted information conveyed by the Confidential Informants to the informant to the ITO.

[ 17 ] In light of my ruling and the Crown decision the Crown properly conceded that there was by operation of law a breach of ss. 8 and 9 of the Charter to the extent to which police actions were based on the search warrant.

the affiant to the ito

[ 18 ] Detective Constable Adam Hockaday drafted the ITO based significantly on information from two Confidential Informants.

[ 19 ] Officer Hockaday confirmed that the Justice of the Peace was not advised of the following:

1. Whether or not Confidential Informant #2 had a criminal record.

2. Whether either of the two Confidential Informants had outstanding charges.

3. Whether either Confidential Informant had been offered or received consideration for the information they provided.

[ 20 ] He agreed that the Justice of Peace was given inaccurate and information that Mr. Grant had prior convictions for firearms offences. In fact, Mr. Grant had no such prior convictions. He had been previously charged but the Justice of the Peace was not advised that those charges were withdrawn.

[ 21 ] Officer Hockaday indicated that he was aware of that inaccuracy when he drafted the ITO. He referred to it as a “typo” and that it “read wrong”. He testified that he did not realize this error until shortly before this trial was to commence in October of 2012. In cross examination he agreed that he had actually printed off Mr. Grant’s criminal record. He also had looked at the CPIC occurrences. He did not attach a copy of the record which would include prior withdrawals but no convictions for firearms to the ITO. He agreed it would have been a good idea to do so, but that it was “not part of his training”.

[ 22 ] He does not know why he did not include information as to whether either of the Confidential Informants had outstanding charges.

[ 23 ] In terms of his training, he indicated that he had taken a general investigative course but no specialized or formal training in regard to applications for search warrants. He had done a CPIC check on Confident Informant #1 but not on #2. The reason he gave for that was that #2 was not his informant. He did not know whether or not the handler for #2 had checked CPIC and he did not ask that handler what the result of any such check had been.

[ 24 ] He admitted that the error/inaccuracy regarding the record of Mr. Grant did not meet the test of “full, frank and fair” disclosure to the authorizing justice. He indicated that it was a mistake based on inexperience.

[ 25 ] On page 8 of the redacted ITO, Officer Hockaday referred to Mr. Grant having been investigated on a prior occurrence with a specific occurrence number. This incident allegedly occurred in the vicinity of the apartment building that was the target of the warrant. The ITO provided no detail of the occurrence. In fact, that occurrence related to a Provincial Offence Act (“ POA ”) investigation regarding alcohol consumption.

[ 26 ] When Officer Hockaday ultimately attended the apartment for the execution of warrant he indicated that he probably handed it to a note-taker present for the police. He indicated that a copy of the warrant was left at the apartment but is not sure if it was actually shown to anyone.

[ 27 ] The officer also indicated that after the search, when he returned to the station, he had some conversation with Mr. Grant. He has no notes or memory of that conversation other than it probably related to background biographic information for the show cause process.

evidence gathered in the parking lot

[ 28 ] Officer Hockaday finished drafting the search warrant at approximately 6:40 p.m. He faxed the ITO to the Telewarrant Centre at 7:12 p.m. The warrant was issued by the Justice of Peace at 7:42 p.m.

[ 29 ] Since the warrant related to a firearm in a residence the Emergency Task Force (“ETF”) of Toronto Police Service were alerted to prepare to attend at the location later that evening. The ETF provide, amongst other things, tactical support in high risk situations where firearms may be involved. A number of plain-clothes officers attached to the Major Crime Unit (“MCU”) of Toronto Police Service were detailed to attend in the vicinity of 55 Bridesburg Drive to conduct surveillance. They included Officers Maltar, Davis, Nasser and Philips.

[ 30 ] Those officers were told that the search warrant related to an unlawful firearm and ammunition and that the target (Kenneth Grant) should be treated as possibly armed and dangerous. A photo of Mr. Grant was provided to the officers.

[ 31 ] Officer Maltar testified that he received information that Kenneth Grant either had a gun with him or that a gun was in the apartment. The plan in the event that they should observe Mr. Grant leaving the apartment was to stop and detain him until the search warrant was executed.

[ 32 ] At approximately 11:30 p.m. Officer Maltar received information that there was an Acura motor vehicle in an adjacent parking lot to 55 Bridesburg Avenue. He approached the vehicle with his firearm drawn for officer safety. He had identified Kenneth Grant as being in the front passenger seat. An adult female was in the driver’s seat. Mr. Grant was ordered to exit the vehicle and lay on his stomach. He was handcuffed behind his back. The officer conducted a pat search to ascertain if he had any firearms or other weapons on his person. There were none. After Mr. Grant was under control he was seated on a curb near where the Acura was parked.

[ 33 ] Officer Maltar testified that he spoke to Mr. Grant in a stern, loud voice when he directed him to get out of the vehicle. He said he was yelling at Mr. Grant to comply. After Mr. Grant was under control with cuffs behind his back Officer Maltar put his own gun back in the holster. He indicated that Mr. Grant was compliant and under control.

[ 34 ] The search that Officer Maltar conducted was not for the purpose of gathering evidence except if a gun had been found. In the course of the pat search the officer located and retrieved a set of keys from Mr. Grant’s pocket. The officer then advised Mr. Grant that he was under investigative detention based on information that he had a firearm and that a search warrant was to be executed at the nearby apartment. Mr. Grant appeared to understand. He identified himself properly and provided an address of 4049 Dundas Street West, Apt. 818.

[ 35 ] Officer Maltar indicated that keys are potentially a weapon but in this particular circumstance he did not consider them as such. He took the keys and is not sure what happened to them thereafter. He testified that he did not view the keys as evidence.

[ 36 ] Officer Maltar advised Mr. Grant of his rights under s. 10(b) of the Charter . When asked if he understood, Mr. Grant replied “Yeah, I guess. You guys do your job”. When asked if he wished to call a lawyer now, Mr. Grant indicated “Not now, I want to see what happens”.

[ 37 ] Officer Maltar went on to ask further questions. He asked if he was visiting someone. When asked in Court why he asked that question, the officer indicated he could not recall. He did recall asking follow-up questions of Mr. Grant related to the names of who he was visiting and where they lived. Mr. Grant responded that he was visiting “My baby and baby mama”. In response to follow up questions he identified Keisha Smith as his “baby mama” and Kenneth Junior Grant as his baby.

[ 38 ] Officer Maltar did not read Mr. Grant a caution regarding his right to remain silent.

[ 39 ] Officer Maltar testified that his personal dealings with Mr. Grant from the time he ordered him out of the car through the pat search and cuffing and their conversation lasted approximately four minutes.

[ 40 ] The officer’s notes regarding his dealings with Mr. Grant in the parking lot, including the conversation he had with Mr. Grant, were not made until the officer had returned to the station after the search of the apartment.

[ 41 ] Uniformed members of the Toronto Police Service arrived on scene at approximately 11:40 p.m. They included P.C. Nicholson who took custody of Mr. Grant from Officer Maltar. Officer Maltar advised Officer Nicholson that Mr. Grant was under investigative detention for a firearms investigation and that a search warrant was shortly to be executed at a nearby apartment.

[ 42 ] Some three or four minutes later Officer Nicholson called Officer Maltar over and advised him that he found a sock down the front pants of Mr. Grant with what appeared to be cocaine inside. Officer Nicholson advised that Mr. Grant was now under arrest for possession of cocaine for the purpose of trafficking.

[ 43 ] D.C. Aman Nasser was a member of the Guns and Gangs Task Force. In June of 2011, he was usually partnered with D.C. Hockaday. However, on this particular evening he worked with Officer Philips.

[ 44 ] Officer Nasser was among the officers who conducted surveillance in the vicinity of 55 Bridesburg Avenue in anticipation of the arrival of the search warrant. He testified that if Mr. Grant had been observed leaving the apartment before the search warrant was obtained the plan was to simply to maintain surveillance on him. In cross examination he said that if the search warrant had been signed before they observed Mr. Grant leave the apartment they would then detain Mr. Grant until the search warrant had been executed.

[ 45 ] Officer Nasser and his partner became aware of the Acura motor vehicle in the adjacent parking lot with two occupants. He and other officers converged on the car and in his words “arrested the occupants”. He had his gun out but it was not pointed at anyone in particular. He testified that he treated Mr. Grant as possibly armed. He observed Mr. Grant exiting the car and being put on the ground with minimal force onto his stomach. He observed Mr. Grant being cuffed to the rear. Officer Nasser received keys that were found on Mr. Grant’s person although he did not personally conduct any search. He was in a position to hear discussion between Officer Maltar and Mr. Grant as to where Mr. Grant lived. He felt it was significant that he did not hear reference to the particular apartment number 511 that was the target of the search warrant. Officer Nasser took the keys as he felt that they could help with the entry and obviate the need for forcing open the door. He also indicated that the key would be “some evidence” about where Mr. Grant lived. At some point in time Officer Nasser gave the keys to another officer named Kay.

[ 46 ] Officer Nasser agreed that in the first dealings between Mr. Grant and the police in the parking lot Mr. Grant was under investigative detention. He was satisfied that once the cuffs were on there was no longer a concern for officer safety in terms of a weapon in Mr. Grant’s possession.

[ 47 ] Officer Nasser was concerned that Mr. Grant may be untruthful about his address. He felt the keys could be instrumental in proving his true address and also avoid breaking the door of the apartment. Officer Nasser does not recall that he took the keys from Mr. Grant. He agreed that at the preliminary hearing of this matter he testified that Mr. Grant had in his possession house keys and that he decided to seize them to see if it would help with the execution of the warrant.

[ 48 ] Officer Nasser assisted in the search of Apt. 511.

[ 49 ] Officer Maltar turned Mr. Grant over to Officer Nicholson and advised that Mr. Grant was under investigative detention in regard to a firearm matter. Officer Nicholson observed that Mr. Grant was cuffed to the rear and that he appeared to be fully compliant. He was aware that Officer Maltar had done a pat search for weapons. However, he did a more thorough search. Indeed it was his practice to always do so notwithstanding what searches may have been conducted by other officers in regard to prisoners presented to him. This was a practice that he conducted for his own safety as well as the safety of others. In the course of this search, in the front pants belt area, Officer Nicholson detected a sock tucked inside. In his experience small guns can be stored in the groin area of prisoners. He felt what appeared to be a round substance inside a rolled sock. He pulled the sock out and opened it. He detected a chemical odour that he associated with cocaine. He retrieved from the sock three plastic baggies that appeared to contain crack cocaine. Officer Nicholson then advised Mr. Grant that he was under arrest for possession of cocaine for the purpose of trafficking. He also advised Mr. Grant of his rights under s. 10(b) of the Charter . In response, Mr. Grant indicated that he wanted to call a lawyer but he did not have one. Officer Nicholson told Mr. Grant that he could call duty counsel from the station.

[ 50 ] Officer Nicholson testified that he understood that under investigative detention an officer can only search for weapons and not for other evidence. He disagreed that it was unusual to see someone in investigative detention who was cuffed to the rear.

[ 51 ] After finding the drugs he also pulled a wad of cash from Mr. Grants back pocket. He cannot recall how much money there was.

[ 52 ] In the sock he felt a round bottom part and only then knew that it was not a gun. He proceeded with the search and ultimately seized what he felt was crack cocaine. He indicated that round object in the sock felt hard.

[ 53 ] Exhibits F, G and H on this application were packages that contained the crack cocaine that was recovered from the sock. These exhibits reveal relatively small quantities of this very dangerous drug.

[ 54 ] Officer Nicholson indicated that he knew that this search was beyond the scope of investigative detention. However, he testified that he was still checking for possible weapons being razor blades or keys. In cross examination he agreed that he had made no mention of the possibility of razor blades or a key in his testimony at the preliminary hearing. He also acknowledged that at the preliminary hearing he had testified that the crack cocaine was the size of a cue-ball. It is evident and he now agrees that in fact the quantity of cocaine found was much less than the size of a cue-ball.

[ 55 ] Detective Constable Ryan Philips accompanied Officer Nasser on the surveillance that ultimately included the apprehension of Mr. Grant. He testified that his information was that Mr. Grant was possibly armed and based on that he drew his gun as he approached the white Acura. Officer Philips dealt exclusively with the adult female who was in the driver’s seat. This woman was identified as Melissa Adie.

[ 56 ] Based on the evidence on these applications three officers had their service revolvers drawn as they approached the white Acura containing Mr. Grant. All of the officers indicated that in situations where a firearm is used by a police officer, including pointing at anyone, that a Use of Force Report is to be filled out. Counsel in this proceeding have agreed that in fact none of the officers involved filled out a Use of Force Report.

search of apartment 511

[ 57 ] Officer Maltar was among the officers who participated in the search of apartment 511 under the authority of the search warrant. He searched in a family room area as well as a balcony area with negative results. He observed a female, later identified as Keisha Smith, with a baby in one room. He also observed two young boys in another room. He believes that Keisha Smith was arrested by someone else. He testified that he had observed Officer Kay use a key to enter Apt. 511. He said that he did not know how Officer Kay obtained that key. He could not even say if it was the same key that he took from Mr. Grant during his initial dealings with him in the parking lot.

[ 58 ] Officer Nasser assisted in the search of Apt. 511. He located a loaded handgun and two magazines between the mattress sponges in one of the bedrooms. The handgun was in a holster but the gun was in such condition that if removed from the holster there was nothing further needed to discharge other than to pull the trigger.

did kenneth grant have a reasonable expectation of privacy in apartment #511?

[ 59 ] The right to be free from unreasonable search and seizure is a personal right. It protects people not places. A reasonable expectation of privacy is the triggering device for s. 8 rights.

R. v. Gomboc 2010 SCC 55 () , [2010] 3 S.C.R. 211 at paras 17-21 .

[ 60 ] Whether an accused has a reasonable expectation of privacy depends on the totality of the circumstances. It involves two questions. First, did the accused have a subjective expectation of privacy? Second, was that expectation objectively reasonable?

R. v. Gomboc (supra) at paras 17-21.

R. v. Edwards (1996) 1996 255 (SCC) , 104 CCC 3d 136 at para. 45 (S.C.C.) .

[ 61 ] Justice Cory provided a non-exhaustive list of factors for a Court to consider in deciding whether an accused had a reasonable expectation of privacy:

1. Presence at the time of the search.
2. Possession or control of the property or place searched.
3. Ownership of the property or place searched.
4. Historical use of the property or place searched.
5. The ability to regulate access, including the right to admit or exclude others.

R. v. Edwards (supra) at para. 45 .

[ 62 ] The accused must show that his reasonable expectation of privacy was breached by the state conduct. That inquiry goes to the substantial question of whether the accused’s s. 8 rights were breached. The onus is on the accused to demonstrate a reasonable expectation of privacy.

R. v. Belnavis 1996 4007 (ON CA) , [1996] O.J. No. 1853 (O.C.A.) at paras 25 and 26 .

R. v. Edwards 1996 255 (SCC) , [1996] 1 S.C.R. 128 at p. 140 .

[ 63 ] The critical witness on the issue of reasonable expectation of privacy in this case was Keisha Smith. The accused did not testify.

[ 64 ] She testified that no one else lived with her and her children in Apt. 511.

[ 65 ] She testified that she did not have a relationship with Mr. Grant. She did not describe him as of June 29, 2011 as her boyfriend. He would come by the apartment occasionally to see his son. However, she insisted on being told in advance of his arrival. She could not recall specifically how long before he had last been to the apartment before that date. It may have been three to five months. There was no specific date for him to visit. He sometimes visited weekly, other times perhaps three times a month. She specifically recalled that he had missed her birthday which was on the 20 th of June, 2011. She could not recall if he was there the day that the police attended with the search warrant on June 29, 2011. She had had a problem a week before in getting money to buy formula for the infant. She ultimately had to get money for that from her mother.

[ 66 ] In August of 2010 she had given a key to her apartment to Mr. Grant. By the time of the arrival of the police on June 29, 2011 she had forgotten that. She was never aware of him letting himself in by use of that key when she was not there. On occasion he stayed overnight and slept on the couch.

[ 67 ] There were three bedrooms in the apartment. The main bedroom was used by herself and the infant child. The other two rooms were for her other two sons. On occasion she was intimate with Mr. Grant in her apartment but it had been some time since that had occurred. He had left the odd item in her apartment but he did not have sufficient property there to justify having a closet or drawer for himself. When she initially gave Mr. Grant a key to the apartment she had hoped that their relationship would be exclusive. It did not work out. Mr. Grant did not contribute in any way towards rent of the apartment. On occasion he would assist with buying baby food or diapers for his son. As of June of 2011, Mr. Grant was not staying in the apartment on any kind of a regular basis. She said it was possible that he had left some papers in the apartment but cannot say specifically. Her best recollection of when he last slept on the couch in her apartment was April or March of 2011. She believes that he may have watched the baby for her on one occasion. As of June of 2011, she understood that Mr. Grant lived with his mother in Whitby.

[ 68 ] It is of interest to note that when Mr. Grant was asked where he lived by Officer Maltar he provided an address of 4049 Dundas Street West, Apt. 818. When Mr. Grant was detained by police in the parking lot adjacent to Ms. Smith’s building he was in the company of an adult woman.

[ 69 ] Mr. Rippell makes the interesting submission that on the issue of reasonable expectation of privacy the Court is entitled to consider information provided by the two Confidential Informants that Mr. Grant resided at 55 Bridesburg Drive in Toronto. The redacted Information did not refer to a specific apartment number but it did give the municipal address of where Keisha Smith lived with her children.

[ 70 ] The information provided by the two informants through the affiant to the ITO was of course not provided in viva voce testimony and was not subject to cross examination. Assuming, without deciding, that I can in fact consider that information from the two Confidential Informants that he resided there, I am nonetheless obliged to consider all of the circumstances. Those include the far more cogent and significant information provided by Keisha Smith under oath. I will decide this particular issue on the basis that that information is “some evidence” that Mr. Grant resided at that address. That assessment clearly must be weighed against the sworn testimony of Keisha Smith and in the absence of any evidence from the accused himself as to his connection to Apt. 511.

[ 71 ] A further factor to consider in support of the Defence’s position on this issue is that the key to the apartment was found in the possession of Mr. Grant when he was detained by the police. That is some evidence that he had access to the apartment. That evidence, however, must again be considered with the evidence of Keisha Smith as to the circumstances in which Mr. Grant came into possession of that key and the dramatic change in their relationship from the time that she had hoped that they would have an ongoing and exclusive relationship.

[ 72 ] Based on all of the information related to this specific issue the Defence have failed to establish that Mr. Grant had a reasonable expectation in Apt. 511 as of June 29, 2011. He clearly had a significant connection to that apartment since the child born of his relationship with Ms. Smith resided there. He would visit from time-to-time to see his son and on occasion sleep on the couch. Ms. Smith did not know of and would not have approved Mr. Grant simply letting himself in with the key when she was not present. As the two parties who were effectively separated he was at most a visitor to unit 511.

[ 73 ] Mr. Grant has failed to establish that he had a reasonable expectation of privacy related to Apt. 511. Thus he had no right that merits protection under s. 8 of the Charter in regard to that premise. The gun and magazines located within the home between the mattress sponges in one of the bedrooms will be admissible as evidence.

application of s. 24(2) of the charter re: evidence gathered in the parking lot

[ 74 ] The Crown concedes that based on the information in evidence on these applications that there has been demonstrated a breach of ss. 8 and 9 of the Charter . These breaches arise from the operation of law related to the insufficiency of the redacted ITO in support of the search warrant.

[ 75 ] When faced with an application for exclusion under s. 24(2) of the Charter , 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, (2) the impact of the breach on the Charter -protected interest of the accused, and (3) society’s interest in the adjudication of the case on the merits.

R. v. Grant 2009 SCC 32 () , 2009 S.C.C. 32 .

The seriousness of the Charter -infringing conduct

[ 76 ] Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The obtaining of a warrant generally tells in favour of admitting the evidence. However, that does not mean that whenever a search warrant has been granted the first Grant inquiry favours admission of the evidence. The approach should be to look at the ITO and consider first if it is misleading in any way. If so, the Court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.

R. v. Jason Rocha 2012 ONCA 707 at paras. 28 and 29 .

[ 77 ] The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly they must guard against making statements that are likely to mislead the Justice of the Peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for the issuance of a search warrant.

R. v. Morelli 2010 SCC 8 () , [2010] 1 S.C.R. 253 at paras. 99-103 .

[ 78 ] In R. v. Blake , the Court found that the evidence should be admitted although the redacted ITO in that case was not sufficient to sustain the granting of the warrant. The Court noted that absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accord with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.

R. v. Blake 2010 ONCA 1 at para. 33 .

[ 79 ] In R. v. Rocha , there was at least negligence in the obtaining of the search warrant. While there was no impropriety or bad faith, there was a sufficient inattention to constitutional standards to tip the scales in the favour of exclusion give the deleterious effect on the respondent’s privacy interests in that case. Notwithstanding the significant public interest in a trial on the merits, the decision to exclude the evidence was upheld.

R. v. Rocha (supra) .

[ 80 ] Investigative detention and related power to search for weapons are to be distinguished from arrest and incidental power to search on arrest. Investigative detention should be brief in duration and does not impose an obligation to answer questions posed by the police.

R. v. Mann 2004 SCC 52 () , 2004 S.C.C. 52 at para. 45 .

[ 81 ] The redacted ITO in this case contained inaccurate, misleading and incomplete information.

[ 82 ] The questions posed by Det. Cst. Maltar to Mr. Grant in the parking lot clearly exceeded what would have been permissible even if there was an objective basis for investigative detention. Questions as to where he lived and his connection to Apt. 511 were obviously important to the police. When those questions were asked by Det. Cst. Maltar he knew that the search warrant was soon to be executed on the apartment. Officer Nasser overheard the conversation and was tuned in to the significance of the response.

[ 83 ] The retrieval of the keys from Mr. Grant by Officer Maltar clearly went beyond the pat-down safety search related to investigative detention. Both Officers Maltar and Nasser understood the potential evidential value of the key.

[ 84 ] When Mr. Grant was presented to uniformed Officer Nicholson he had been pat-searched and cuffed behind his back. He was seated on a curb. P.C. Nicholson was told that Mr. Grant was under investigative detention. The Officer then proceeded to make a more thorough search that yielded the sock containing a small quantity of crack cocaine. By the time P.C. Nicholson had opened the sock and observed the contents he was clearly beyond the level of pat-search for safety. He understood that under investigative detention he could only search for weapons and not for other evidence. He knew the search was beyond the scope of investigative detention.

[ 85 ] The touchstone of analysis of the first Grant inquiry is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the Courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of their unlawful conduct”. Police conduct that shows 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.

R. v. Grant (supra) at paras. 72 and 74.

R. v. Rocha (supra) at para. 27.

[ 86 ] The combination of the inaccurate, misleading and incomplete information in the redacted ITO plus the excessive search and questioning of Mr. Grant in the parking lot puts this case towards the serious end of the first Grant inquiry and favours exclusion.

Impact of the breach on Charter -protected interests of the accused

[ 87 ] Mr. Grant was apprehended at gun point and handcuffed behind his back. The officers had a clear subjective basis to view him as potentially armed and dangerous. The Crown concedes there is no evidential basis for the objective aspect of reasonable grounds. The impact on Mr. Grant’s Charter -protected interests was significant and favours exclusion of the key, the drugs and the cash found in his pocket.

Society’s interest in adjudication of the case on its merits

[ 88 ] In this third line of inquiry the principal factor is the reliability of the evidence as well as its importance.

R. v. Grant , at paras. 81 and 83 .

[ 89 ] The key, money and drugs retrieved from Mr. Grant would be important and reliable evidence which favours admission.

[ 90 ] The utterances attributed to Mr. Grant are less reliable since the notes of Det. Cst. Maltar were not made until some time later at the station after the search of the apartment. There was no evidence that Mr. Grant acknowledged the accuracy of the notes in any fashion.

balance of grant inquiries

[ 91 ] The balancing exercise mandated by s. 24(2) is qualitative. It is not capable of mathematical precision. The evidence on each line of inquiry must be weighed in the balance to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In all cases it is the long-term repute of the administration of justice that must be assessed.

R. v. Harrison 2009 34 at para. 36.

[ 92 ] In this case both the seriousness of the violation and the impact on the Charter -protected interests on the Charter -protected interests favour exclusion. The apparent good faith of the officers who detained and searched Mr. Grant in relying on the warrant process is undermined by:

(a) the inaccurate, misleading and incomplete wording of the ITO; and

(b) the legally excessive search and questioning of Mr. Grant on his detention.

[ 93 ] Notwithstanding the significant public interest in a trial on the merits, I exclude the evidence obtained from Mr. Grant on his detention, being the key, the drugs and the cash from his pocket.

other issues re: utterances to det/cst maltar

[ 94 ] Counsel addressed further issues on these pretrial motions, being:

1. Whether Crown proved that the utterances made to Det. Cst. Maltar in the parking lot were voluntary; and

2. Whether Mr. Grant’s rights under s. 10(b) of the Charter were breached, and if so, what remedy should be applied.

[ 95 ] It is unnecessary to rule on these issues in light of this disposition.

[ 96 ] I am grateful to both counsel for their helpful presentation and submissions.

B. P. O’Marra J.

Released: November 16, 2012

COURT FILE NO.: CR-12-500000030
DATE: 20121116

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – KENNETH GRANT Defendant

ruling B. P. O’Marra J.

Released: November 16, 2012