ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: J(F)1019/11
DATE: 20121113

BETWEEN:

HER MAJESTY THE QUEEN – and – ENOCH JOHNSON

X. Proestos, for the Crown
L Giordano, for Enoch Johnson

HEARD: October 23 and 24, 2012

RULING

Hourigan J.

Introduction

[ 1 ] Enoch Johnson is charged with possession of cocaine for the purpose of trafficking, possession of cocaine, possession of marihuana for the purpose of trafficking and possession of marihuana contrary to the Controlled Drugs and Substances Act .

[ 2 ] Mr. Johnson brings this application to exclude certain evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms. He seeks this remedy a consequence of the alleged violation of his Charter rights after the police conducted a search of his dwelling house, located at 405 Rathburn Road East, Unit # 303, Mississauga, Ontario, Canada, pursuant to a warrant which he submits was obtained in violation of section 8 of the Charter .

[ 3 ] For the reasons which follow, the application is dismissed.

Background Information

[ 4 ] In September of 2010 Constable Michael Muresan received information from a confidential informant that Mr. Johnson was dealing both cocaine and marihuana from his residence at 405 Rathburn Road East, Unit #303, Mississauga, Ontario.

[ 5 ] As a result of receiving this information, Officer Muresan conducted computer database checks in an attempt to corroborate the information provided by the confidential informant.

[ 6 ] On October 6, 2010 Officer Muresan conducted surveillance at 405 Rathburn Road East. He also conducted surveillance at the address on October 7, 2010 with his partner, Constable Damian Savino.

[ 7 ] Officer Muresan swore an Information to Obtain Search Warrant on October 8, 2010. In Appendix “A” of the ITO the officer indicated that the items to be searched for were cocaine, marihuana and scales. Appendix “D” set out information regarding the informant.

[ 8 ] The relevant portions of Appendix “C” for the purpose of this application are as follows:

DETAILED GROUNDS FOR BELIEF

1. In the month of September 2010, I received information from a proven reliable confidential informant that a male party by the name of Enoch Johnson is currently involved in selling large amounts of marihuana and cocaine out of his residence located at 405 Rathburn Road East Unit #303 in Mississauga. The information provided by the confidential informant in its entirety as well as addressing the reliability of the informant is included in Appendix “D”.

2. The proven and reliable informant does have a criminal record and is heavily entrenched in the criminal subculture. The informant is interested in monetary compensation for the information provided.

3. The confidential informant’s identity must remain anonymous for reasons of personal safety.

4. In the month of September, I received the following information from the confidential informant .

(a) That the confidential informant knows a male party by the name of Enoch Johnson who is involved in trafficking marihuana and cocaine.

(b) [redacted]

(c) That the confidential informant described Enoch Johnson as male black, tall and thin approximately 160 lbs., with short afro.

(d) That the confidential informant knows that Enoch Johnson to reside at 405 Rathburn Road East Unit #303 in Mississauga, with his wife and his daughter.

(e) That the informant knows that Enoch Johnson drives an older green Lexus.

(f) [redacted]

UCR ADDRESS CHECK – 405 Rathburn Road East Unit #305, Mississauga

5. That, I caused checks to be made via the UCR system on the address of 405 Rathburn Road East Unit #303 in Mississauga and revealed several calls to the address for police service. I did not find any occurrences related to drug offences.

CPIC, UCR AND PARIS CHECK ON Enoch Johnson

6. That, I caused checks to be made via the CPIC system on Enoch Johnson with a date of birth of 26 th September 1983 and learned the following to be true;

(a) That Enoch Johnson is currently on several charges which are the following:

i. Possession of a Controlled Substance Sec. 4(1) CDSA – Offence date of 26 th of August 2010 with Peel Regional Police (2010-152392)

ii. Trafficking in Persons Sec. 279.01 (1) CC (3 counts)

Receiving Material Benefits Sec. 279.02 CC (3 counts)

Exercising Control Sec. 212 (1) CC (2 counts)

Living on Avails of Prostitution Sec. 212(1) CC (2 counts)

Procuring Prostitution Sec. 212 (1) CC

Offence date of 14 th of March 2009 with Peel Regional Police (2009-043144)

iii. Enoch Johnson is currently released on a Recognizance for the changes listed in paragraph 6(a)(ii). He has several conditions to abide by, one being to remain in his residence at all times except for emergency, court or employment purposes.

iv. Enoch Johnson’s address is shown as 405 Rathburn Road East Unit #303 in Mississauga.

(b) That Enoch Johnson does not have any criminal convictions.

7. That, I caused checks to be made via the UCR system on Enoch Johnson and revealed the following occurrences:

(a) Peel Occurrence # 2010 – 152392 – 26 August 2010 – Enoch Johnson was arrested for possessing 6.95 grams of marihuana. At this time Enoch Johnson was operating a green Lexus bearing licence #BHHS978 and provided an address of 405 Rathburn Road East Unit #303 in Mississauga.

(b) Peel Occurrence # 2009-049501 – Enoch Johnson is listed as a suspect in a fraud investigation which was initiated on March 25 th , 2009.

(c) Peel Occurrence # 2009-043144 – 01 August 2009 – Enoch Johnson was arrested for several Human Trafficking related charges. The occurrence indicated the Enoch Johnson has an alias of “Face.”

(The Confidential informant stated that Johnson’s street name is “FACE” which was corroborated with the above police occurrence where his alias was also said to be “FACE.”)

(d) Peel Occurrence # 2007-238649 – Enoch Johnson was arrested and charged with domestic assault during an incident with his now x-common law partner.

(The address listed for all the above occurrences were 405 Rathburn Road East Unit #303 in Mississauga.)

8. That, I caused checks to be made via the PARIS system on Enoch Johnson with a date of birth of 26 th of September 1983 and learned the following to be true;

(a) That Enoch Johnson does have a valid Ontario drivers licence (J6173-22778-30926) with a registered address of 405 Rathburn Road East Unit #303 in Mississauga.

OBSERVATION BY POLICE – 06 October 2010

9. On the 6 th of October 2010 at approximately 2:10 p.m. I attended the area of 405 Rathburn Road East Unit #303 in Mississauga and made the following observations:

(a) That 405 Rathburn Road East is a three level town house complex. Unit #303 is located on the main floor on the east side of the complex and faces the rear.

The address is clearly posted outside the main entrance. The numbers #303 are also clearly posted on the apartment door.

(b) That the complex has an underground parking area which has two levels.

(c) That at approximately 2:15 p.m. Enoch Johnson was observed driving a green Lexus bearing Ontario licence #BHHS978, into the underground at 405 Rathburn Road East. Enoch Johnson parked his vehicle in sport #204 and walked up to his apartment. He was observed entering unit #303 on the main floor.

(Observations made by police in paragraph 9(c) are consistent with the information provided by the confidential informant)

(d) That at this time I made observations of unit #303 directly.

(e) That within a few minutes a male walked up to unit #303 and knocked on the door. Enoch Johnson answered the door and let him in. The male was described as male black in his late 20’s wearing a “Ewing” basketball jersey.

(f) That at 2:21 p.m. another male walked up to unit #303 and was invited in. The male was inside for approximately one minute after which he exited the apartment. The male came out with a lit marihuana cigarette in his mouth. The male walked out into the parking lot and walked away.

(This amount of time the male spent inside the apartment is consistent with a drug transaction occurring inside a residence.)

(g) That at approximately 2:30 p.m. another male attended unit #303. Enoch Johnson was observed opening the door and conduct a hand to hand drug transaction in the doorway of unit #303. The male then left via the front doors and walked away.

(h) That at approximately 2:42 p.m. another male attended unit #303. The male knocked on the door and was quickly let inside the apartment. The male was out within 2 minutes and left on foot through the parking lot.

(The random pedestrian traffic to this apartment is consistent with the information provided by the confidential informant and also consistent with an individual selling illicit narcotics out of a dwelling house.)

11. That, I caused checks to be made via the PARIS system on Ontario licence #BHHS978 and revealed the following information which I believe to be true;

(a) That Ontario licence #BHHS978 is registered to a 1993 Lexus green in color and registered to a female, Mercy Johnson with a date of birth of 25 th of March 1960.

12. That, I caused checks to be made via the UCR system on Ontario licence #BHHS978 and revealed the following occurrences;

(a) Peel Occurrence # 2010-152392 – 26 August 2010 – Enoch Johnson was arrested for possessing 6.95 grams of marihuana. At this time Enoch Johnson was operating a green Lexus bearing licence # BHHS978 and provided an address of 405 Rathburn Road East Unit #303 in Mississauga.

OBSERVATION BY POLICE – 07 October 2010

14. On the 7 th of October 2010 at approximately 1:10 p.m., Constable Savino #2805 and I attended the area of 405 Rathburn Road East Unit #303 in Mississauga and made the following observations;

(a) At this time police confirmed that the green Lexus was parked in the underground garage in spot #204. This indicated that Enoch Johnson was at home.

(b) That Constable Savino #2805 and I made direct observations of Unit #303.

(c) That at approximately 1:26 p.m. a male in his late 30’s walked up to Unit #303 and knocked on the door. Enoch Johnson opened the door and conducted a hand to hand drug transaction with the male in the doorway. The male then left on foot.

(d) That at approximately 1:38 p.m. a female in her mid twenties approached the door of Unit #303 and knocked. Enoch Johnson opened the door and invited her in. The female was in the apartment for approximately 3 minutes after she walked out and left on foot.

(e) That at approximately 2:23 p.m. two males in their mid 30’s walked I up to the door of unit #303. One male stood off to the side looking around. The second male knocked on the door, which was answered by Enoch Johnson. A quick hand to hand drug transaction took place in the doorway. After, the male who had bought the drugs handed a small wrapper to the second male who stood off to the side during the transaction. They both walked off on foot.

(f) Observations was ended at this time.

(Police had made observations for approximately one hour and ten minutes during which time four random individuals had approached Enoch Johnson to purchase illicit drugs.)

CONCLUSION

20. That I can conclude from the information obtained and from my experience as a member of the Peel Regional Police that the offence of Possession for the Purpose of Trafficking is being committed by Enoch Johnson (1983-09-26) at 405 Rathburn Road East Unit #303 in Mississauga.

21. I believe the information obtained through a reliable proven carded confidential informant is true and accurate. I have corroborated the vast majority of this information provided by the confidential informant through police checks and surveillance.

22. That the confidential informant’s information has been accurate in the past and has resulted in successful arrests and convictions in court.

23. That the information provided by the Confidential Informant is detailed, specific and independent of the checks that I have made.

24. [redacted]

25. That I have attended 405 Rathburn Road East Unit #303 in Mississauga and confirmed observations made by the informant, regarding specifically the type of vehicle Enoch Johnson drives, and his home address.

26. The identity and alias which was provided by the confidential informant was also confirmed through police checks and surveillance.

27. Police observed heavy pedestrian traffic in and out of the apartment which was also consistent with the information provided by the confidential informant.

28. That on October 6 th , 2010 police have observed Enoch Johnson conducting hand to hand drug transactions out of his residence with three random individuals at three separate times. One male walked out of the residence smoking a marihuana cigarette.

29. That October 7 th , 2010 police observed Enoch Johnson conducting a total of three a hand to hand drug transaction in just over one hour period.

30. That as a result of confidential information, investigative background checks and my observations from surveillance, it is clear that Enoch Johnson is currently in possession of cocaine and marihuana for the purpose of trafficking at 405 rathburn Road East Unit #303 in the city of Mississauga.

[ 9 ] A search warrant was issued by Justice of the Peace Farnum. Peel Regional Police executed the warrant on October 8, 2010 at approximately 2:40 p.m.

[ 10 ] Over a kilogram of cocaine, which was packaged in 33 bags, was located in a shoebox found inside a closet in the residence. Mr. Johnson was found in the same closet. The police also seized digital scales, $855.00 and pre-packaged marihuana. Mr. Johnson was arrested and charged.

[ 11 ] In his application, Mr. Johnson raised certain concerns regarding the confidential informant. In response, the Crown provided a revised copy of the ITO which eliminated a number of redactions from the earlier draft.

[ 12 ] Specifically paragraphs 4(b), 4(f) and 24 of Appendix “C”, which had originally been completely redacted, were provided as follows:

4(b) That the Informant also calls Enoch by his street name which is “Face ”.

4 (f) That the confidential informant has purchased on several occasions both marihuana and cocaine from Enoch Johnson at his residence located at 405 Rathburn Road East Unit #303.

24. That the Confidential Informant has attended 405 Rathburn Road East Unit #303 in the city of Mississauga, within the past [time period redacted] and has seen what he/she believed to be a quantity of cocaine and a quantity of marihuana in the apartment.

[ 13 ] In response to an application for leave to cross-examine Officer Muresan regarding the reliability of the informant, the Crown re-vetted Appendix “D” and provided the following further information:

a. The informant has been providing information to Officer Muresan since 2007;

b. The informant has provided information to Officer Muresan in excess of 15 times;

c. The informant has no convictions for crimes of dishonesty;

d. The informant has provided information in the past which has been corroborated;

e. Every time the informant has provided information that the police have acted on, the information has been found to be accurate; and

f. Information provided by the informant has always been first hand (non-hearsay) information.

[ 14 ] On consent, Officer Muresan was cross-examined as part of the application.

Legal Principles: Section 8

[ 15 ] The search warrant was sought pursuant to section 11 of the CDSA which provides:

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a ) a controlled substance or precursor in respect of which this Act has been contravened,

( b ) any thing in which a controlled substance or precursor referred to in paragraph ( a ) is contained or concealed,

( c ) offence-related property, or

( d ) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

[ 16 ] In issuing the warrant the justice of the peace had to have been satisfied that there were reasonable and probable grounds to believe that narcotics and a scale would be found at the residence and would provide evidence of an offence under the CDSA.

[ 17 ] In R. v. Morelli 2010 SCC 8 , Justice Fish described the analysis of reviewing the decision of the authorizing justice as follows:

[39] Under the Charter , before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., 1984 33 (SCC) , [1984] 2 S.C.R. 145 , at p. 168) . These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter , for authorizing search and seizure” (p. 168).

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued ” ( R. v. Araujo , 2000 SCC 65 () , 2000 SCC 65, [2000] 2 S.C.R. 992 , at para. 54 (emphasis in original) ). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO ( Araujo , at para. 58 ) . Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo . Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement” ( Araujo , at para. 59 ).

[43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors (para. 59). In all cases, the focus is on “the information available to the police at the time of the application” rather than information that the police acquired after the original application was made (para. 59).

[ 18 ] An ITO may contain information from a confidential police informant who is protected by informer privilege. On its own such a tip from a confidential informant is not sufficient to establish reasonable and probable grounds. The reviewing court must examine all of the evidence and determine if there were sufficient grounds to issue the warrant. That analysis is driven by a consideration of whether the tip is compelling, credible and corroborated and was described by Justice Martin in R. v. Debot, 1986 113 (ONCA), affirmed 1989 13 (SCC) , [1989] 2 S.C.R. 1140:

Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary "reasonable ground to believe", to justify the granting of a search warrant: see, for example, R. v. Nepp reflex , (1927), 1927 513 (MB CA) , 48 C.C.C. 275 at pp. 276-7, [1927] 3 W.W.R. 353 , 37 Man. R. 5 (Man. C.A.) ; Illinois v. Gates (1983), 462 U.S. 213. Such information may also provide the necessary reasonable and probable grounds to justify an arrest without warrant: see Draper v. U.S. (1959), 358 U. S. 307. It would seem to be entirely logical and reasonable that such information can also provide the necessary "reasonable ground to believe", to justify a warrantless search, where a warrantless search is authorized by law. On an application for a search warrant, the informant must set out in the information 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: see R. v. Noble, supra, at p. 161. 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 an insufficient basis for the granting of the warrant. The under­ lying 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. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an 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 circum­ stances meets the standard of the necessary reasonable grounds for relief.

[ 19 ] In assessing whether the tip has been sufficiently corroborated by police investigation, the police are not obliged to obtain evidence which definitively determines that the tipster is telling the truth about the alleged criminal activity. In this regard see the decision of the Alberta Court of Appeal in R. v. Caissey 2007 ABCA 380 () , [2007] A.J. 1342 (C.A.), affirmed 2008 SCC 65 () , [2008] 3 S.C.R. 451, wherein Justice McFadyen stated (at paragraph 23):

The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of a crime itself being committed does not have to be confirmed: Koppang at para. 8. I agree with the comments of Doherty J.A. in R. v. Lewis (1998), 1998 7116 (ON CA) , 38 O.R. (3d) 540 , 107 O.A.C. 46 at para. 22 :

In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.

Section 8 Analysis

[ 20 ] With the foregoing legal principles in mind, I turn to the arguments advanced by the accused on the application. Mr. Johnson submits that the information supplied by the confidential informant was not compelling, credible or corroborated and, therefore, there were not sufficient grounds for the issuance of the warrant. The applicant further submits that the affidavit contains conclusory statements, misleading information, prejudicial information and material non-disclosure.

[ 21 ] I am satisfied that the information supplied by the confidential informant was compelling. The informant provided the name, address, physical description and street name of the applicant. The informant also provided specific information regarding the type of drugs being sold and regarding the vehicle driven by the applicant. More importantly, the informant had personally observed drugs at the residence and had purchased drugs directly from Mr. Johnson there on more than one occasion. This was specific information regarding criminal activity and was highly compelling.

[ 22 ] I am also satisfied that the information was credible. The confidential informant had a history of providing accurate information to the police. Indeed, in the past when the police had acted on information from this source, they have never determined that the information was inaccurate. The informant was disclosed to have a criminal record but he has no convictions for crimes of dishonesty.

[ 23 ] The primary argument made by the applicant is that the information from the confidential informant was not corroborated to the point where it moved from mere suspicion to reasonable and probable grounds. I disagree.

[ 24 ] In considering the evidence of Officer Muresan, I found him to be a credible and careful witness. Counsel for the defence argued that Officer Muresan did not have the ability to observe what he testified to because he was several feet away and always had at least one glass door between he and apartment 303. In support of that position, the defence relies upon photographs taken of the building depicting the angle of sight that the officer had when conducting his surveillance. Nothing in those photographs leads me to conclude that the officer’s testimony was incorrect or misleading. Neither the glass doors nor any other alleged obstacle would have prevented him from having a clear view of the door to apartment 303. Moreover, I accept his evidence that if he could not observe the door to the apartment he would have simply moved to a different vantage point.

[ 25 ] The fact that Officer Muresan did not recall seeing if the items received from Mr. Johnson were placed in the recipients’ pockets or clenched hands, also does not deter from his credibility. There is no question that once the encounters at the door were completed the visitors would be headed toward the officer and his ability to continue to carefully observe them would be adversely impacted by his need to ensure that he was not drawing attention to himself and arousing the suspicion of the visitors.

[ 26 ] Defence counsel also made much of the fact that Officer Muresan testified to certain facts which were not included in his notes. For example, she observes that the colour of the money exchanged on one occasion and the fact that money was exchanged on another occasion were not included in his notes. That the officer had an independent recollection of these facts but did not include them in his notes is hardly surprising given that the officer was taking notes in a dynamic situation while in plain clothes. The omission of these items does not adversely impact on his credibility. Nor does the fact that he was unable to remember matters that were peripheral to his investigation such as the layout of the underground parking lot or the weather on October 7, 2010.

[ 27 ] I accept Officer Muresan’s evidence regarding the identification of Mr. Johnson. Specifically I accept that he had available a mug shot of Mr. Johnson and that he used that photograph to identify him. He had sufficient opportunity to identify Mr. Johnson as he initially drove by him in the parking lot and while he was in the underground parking lot shortly thereafter. His ITO (in paragraph 26) also makes reference to the fact that the identity of Mr. Johnson was confirmed through police checks. I reject the suggestion made by defence counsel that in these circumstances, where the officer believed that he had made a positive identification, he was obliged to investigate the accused’s brother and determine what he looked like.

[ 28 ] The defence argues that there is nothing about the fact that there was heavy traffic to the apartment which suggests criminality. I agree that on its own the fact that several people attended the residence during the relatively short period of surveillance does not mean that Mr. Johnson was engaged in criminal activity. However, that evidence cannot be viewed in isolation. It has to be considered in the context of all of the evidence, including the brevity of the visits and the observations which the officer made which led him to believe that hand to hand drug transactions were occurring.

[ 29 ] The defence argues that the ITO contains conclusory statements by Officer Muresan. In particular, reference is made to his statements regarding hand to hand drug transactions. I do not consider those statements to be conclusionary. Rather, they are simply his best evidence as a trained police officer who has experience witnessing such transactions as to what he believed that he saw.

[ 30 ] The defence argues that the fact that the accused lived with his brother in the apartment should have been included in the affidavit. I find that the inclusion of this information was not necessary. The affidavit included relevant information regarding Mr. Johnson’s activities and the fact that his brother lived with him was of no moment.

[ 31 ] The defence argues that the affidavit contained prejudicial information. I find that it does not. The two references to Mr. Johnson’s outstanding drug charge could not have left the impression with the justice of the peace that he had been arrested twice, as the date and occurrence number were listed in each reference. The reference was included on the first occasion from the CPIC system to confirm Mr. Johnson’s address. The second reference, which was from the UCR system, was included to verify that at the time of his arrest he was driving a green Lexus and had provided the address of 405 Rathburn Road East Unit #303.

[ 32 ] The occurrences listed at paragraphs 7(b) and 7(d) were not padding or prejudicial. These references provided confirmation of Mr. Johnson’s address. The references to the outstanding charges (found at paragraphs 6(a)(ii), (iii) and 7(c)) corroborated the information provided by the confidential informant regarding the accused’s address and street name.

[ 33 ] I also do not find that the information in paragraph 5 of the ITO regarding the fact that there had been “several calls to the address for police service” was prejudicial to the accused. I note that the officer quite fairly included in this paragraph that there were no occurrences related to drug offences. I also agree with the submission of the Crown that the fact that there were calls to the residence would not have automatically lead the justice of the peace to conclude that there was criminal activity occurring. The justice of the peace as a judicial officer would have known that the police are called to residences in situations where there is no criminal conduct.

[ 34 ] In any event, even if I were to accept that the impugned information contained in paragraphs 5, 6 and 7 of the ITO was prejudicial, if it were excised from the ITO its exclusion would not have made any difference to the justice of the peace. The defence relies upon the decision of the New Brunswick Court of Appeal in R v. Shalala , 2000 20260 (NB CA) , [2000] N.B.J. No. 14, leave refused [2000] S.C.C.A. No. 13, for the proposition that “after excising impugned information, the reviewing judge no longer has to show deference to the decision of the authorizing judge in making the decision as to whether the statutory preconditions continue to be met.” I find that even with no deference to the decision of the issuing justice of the peace there was more than enough evidence to establish reasonable and probable grounds for the issuance of the warrant, including the surveillance evidence of Officer Muresan.

[ 35 ] I conclude that Mr. Johnson has failed to meet his onus of establishing a breach of his section 8 rights and that the warrant was properly issued.

Section 24(2) Analysis

[ 36 ] If I am wrong in my conclusion that there has been no Charter breach, pursuant to the decision of the Supreme Court of Canada in R v. Grant , 2009 SCC 32 () , [2009] 2 S.C.R. 353, three factors must be considered in a section 24(2) analysis: the seriousness of the Charter infringing state conduct; the impact on the Charter protected interests of the accused; and society’s interest in an adjudication on the merits. All three factors must be considered and none is definitive.

[ 37 ] In analyzing the seriousness of the Charter infringing state conduct, such violations vary in seriousness. Inadvertent or minor violations of the Charter will have a minimal impact on public confidence in the rule of law whereas evidence obtained through wilful or reckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute by sending the message that courts “effectively condone state deviation from the rule of law.” (See Grant at paras. 72-75 ).

[ 38 ] I conclude that the officer was acting in good faith in obtaining the warrant and that there is no evidence that the police purposely chose to breach the accused’s Charter rights or that they were wilfully blind regarding his rights. Indeed any misconduct could not even be considered to qualify as significant carelessness. To the extent that there was any misinformation provided in the ITO, it was minor in nature. I conclude that the public confidence in the rule of law would not be eroded by the admission of evidence obtained through a warrant where the police were acting in good faith and made only minor errors. I conclude, therefore, that to the extent that there was any Charter infringing state conduct, it is properly classified as not serious. This factor militates in favour of inclusion of the evidence.

[ 39 ] In considering the impact on the Charter protected interests of the accused, the impact of a breach may range from being “fleeting and technical” to being “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, thereby breeding public cynicism and bringing the administration of justice into disrepute (see Grant , at paras. 76-78 ).

[ 40 ] This was a search of the accused’s home. Such a search by its very nature is highly intrusive. This factor militates in favour of exclusion of the evidence.

[ 41 ] The third part of the analysis is a review of society’s interest in an adjudication on the merits. Society generally expects that a criminal allegation will be adjudicated on its merits. The reliability of the evidence is a significant factor in this line of inquiry but any suggestion that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter . The importance of the evidence to the Crown’s case is also a factor at this stage (see Grant at paras. 79-83 ).

[ 42 ] This factor also weighs in favour of the inclusion of the evidence. The evidence obtained is highly relevant and reliable. It is also critical to the Crown’s case.

[ 43 ] I conclude that in balancing the Grant factors the result of the analysis is that the evidence should be admitted. Accepting, as I do, that the search was highly intrusive, any Charter breach would not qualify as serious state misconduct and society’s interest in an adjudication on the merits weighs heavily in favour of inclusion. I find that factors one and three outweigh factor two and conclude, therefore, that even if a Charter violation could be established, the evidence should not be excluded.

Disposition

[ 44 ] The application is dismissed.

Hourigan J.

Released: November 13, 2012

COURT FILE NO.: J(F)1019/11

DATE: 20121113

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ENOCH JOHNSON RULING Hourigan J.

Released: November 13, 2012