COURT FILE NO.: 3872/12 (Welland)

DATE: 2013-01-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Domenico Garner and Lindsy Bruzzese - Accused

BEFORE: Justice D.A. Broad

COUNSEL: P. Heinen, for the Attorney General of Canada V. Singh, for the Accused Domenico Garner G. Walker Q.C., for the Accused Lindsay Bruzzese

DATE HEARD: November 13, 14, 15 and 16, 2012

RULING ON PRE-TRIAL APPLICATION

[1] The accused, Domenico Garner, is charged with two counts of possession of cocaine for the purposes of trafficking contrary to section 5(3) of the Controlled Drugs and Substances Act and two counts of possession of proceeds obtained by crime contrary to section 355(b) of the Criminal Code of Canada. The accused, Lindsay Bruzzese, is charged with one count of possession for the purpose of trafficking contrary to section 5(3) of the Controlled Drugs and Substances Act and one count of possession of proceeds obtained by crime contrary to section 355(b) of the Criminal Code of Canada.

[2] Garner was arrested without a warrant for possession for the purposes of trafficking and a subsequent search of his person, incident to his arrest, located eight 0.5 gram baggies of cocaine and $1,010 in Canadian currency.

[3] Following Garner’s arrest, a search warrant was obtained for his residence at 71 Green Pointe Drive, Welland, which was owned by the co-accused Bruzzese. Upon execution of the warrant, police located 845.2 grams of cocaine and $4,017 in Canadian currency.

[4] The accused have brought Applications for

(1) a determination of whether the arrest of Garner was valid or in violation of section 9 of the Canadian Charter of Rights and Freedoms;

(2) a determination of whether the warrantless search of Garner was valid or in violation of section 8 of the Charter;

(3) a determination of whether the warrant for the search of the residence was validly obtained or in violation of section 8 of the Charter; and

(4) for an Order excluding the evidence obtained as a result of the warrantless search of Garner and the search, under warrant, of the residence, pursuant to section 24(2) of the Charter.

Facts

[5] The following police officers testified on the voir dire:

(a) Detective Constable David Sinclair of the Niagara Regional Police Service;

(b) Constable Erica Warkertin of the Niagara Regional Police Service;

(c) Constable Trevor Michael Catch of the Niagara Regional Police Service;

(d) Constable Monique Simpson, of the Royal Canadian Mounted Police, who had been seconded to the Welland Street Crime Unit of the Niagara Regional Police Service at the time of the incident;

(e) Constable Jacob Virag of the Niagara Regional Police Service;

(f) Constable Christian Rawson of the Niagara Regional Police Service; and

(g) Detective Constable Matthew Hodges of the Niagara Regional Police Service.

[6] The facts are not largely in dispute, and there were no significant or substantive credibility issues or inconsistencies which arose out of the testimony of the officers, which touch on the issues to be decided. The outcome of the application, therefore, turns on the application of the legal principles respecting detention, warrantless searches and issuance of search warrants under the Charter of Rights and Freedoms to the facts as derived from the testimony of the officers.

[7] The facts can be summarized as follows.

[8] On June 1, 2010, Detective Matt Hodges of the Niagara Regional Police Service, received information from a confidential informant, identified as CI#1, who was a member of the Niagara drug subculture. CI#1 was regarded as a proven source, having provided previous information resulting in the execution of a number of Controlled Drugs and Substances Act warrants leading to cocaine seizures and arrests.

[9] CI#1 informed Detective Hodges that "Dom”, also known as “Mimi Jr.”, from Welland received a kilogram of cocaine, that he sells three different kinds of cocaine, drives an older model four-door car and delivers ounces of cocaine. CI#1 stated that “Dom” is referred to as “Mimi Jr.” because his father’s nickname is “Mimi”, a well-known criminal from Welland.

[10] Detective Hodges took no immediate action with respect to the information received from CI#1 in June, as he was involved in another investigation. In early September, he received further information from CI#1 that “Dom”, from Welland, drives a navy blue Buick LeSabre and meets clients in the City of Welland to sell coke. CI#1 further advised that “Dom” was still actively selling cocaine, was still meeting people in parking lots around Welland to sell cocaine and was in possession of a large quantity of cocaine.

[11] Detective Hodges contacted the street crime unit of the Niagara Regional Police Service at Welland and on September 10, 2010, organized a briefing meeting with various officers to plan a surveillance operation to verify the information received from CI#1 by observing Garner’s behavior and movements.

[12] At 10:56 a.m. on September 10th, a Buick LeSabre was observed in the driveway at 71 Greene Pointe Drive, Welland, as well as a Cadillac. At 1:10 p.m. a female with a pink top was observed exiting northbound on Greene Pointe and returning to the residence at 2:26 p.m.

[13] At 2:52 p.m. the Buick LeSabre was observed exiting the residence and parking at a sandwich shop on Niagara Street in Welland. Garner was observed standing outside the sandwich shop speaking to a female.

[14] At 3:05 p.m. Garner was observed returning to the vehicle and taking something out of the driver’s side and carrying it with his hand. At 3:06 p.m. he was observed inside the restaurant with another male. At 3:21 p.m. Garner and the other male were seen exiting the restaurant and entering the vehicle where they remained for three to four minutes. At 3:25 p.m. the other male exited the vehicle and the Buick LeSabre left northbound on Niagara Street

[15] The vehicle returned to 71 Greene Pointe Drive at 3:32 p.m. At that time, a white pick-up truck was parked in front of the residence. At 3:35 p.m. two males exited the residence as Garner was returning, got into the pick-up and left the area.

[16] At 3:38 p.m. Garner was observed exiting the residence and leaving in the Buick LeSabre.

[17] At 3:46 p.m. the Buick LeSabre was observed parked in the driveway at 539 King Street, Welland. Detective David Sinclair had reported to Detective Hodges that morning that he had been carrying out a parallel investigation on a Shayne Pilgrim, who resided at 539 King Street, and he was in the midst of preparing a warrant for a search of that address. Another confidential informant, CI#2, had advised Detective Sinclair that Garner was supplying cocaine to Shayne Pilgrim. Unlike CI#1, CI#2 had not been proven reliable, as he had not been utilized on any previous CDSA warrant applications, but Detective Sinclair believed him to be credible.

[18] At 3:58 p.m. Garner was observed leaving 539 King Street and proceeding to a parking lot across from the Bridge Street Pub. He entered the pub at 4:16 p.m. Police believed that Shayne Pilgrim worked at the Bridge Street Pub.

[19] Garner entered the vehicle at 4:22 p.m. and returned to the 71 Greene Pointe Drive address. At 4:37 p.m. he was observed leaving the residence and proceeding to, and parking across the street from, a convenience store near Niagara and Elgin Streets. He was observed leaving the vehicle, attending at a rear apartment and leaving after a few seconds.

[20] Detective Hodges, who was coordinating the surveillance operation, testified that at this point he had determined that he had reasonable and probable grounds to believe that Garner was trafficking in drugs and advised the rest of the surveillance team accordingly. He pointed to three factors in this respect:

1. He had information from a reliable confidential informant that Garner was selling cocaine in Welland using a Buick LeSabre vehicle;

2. Detective Sinclair had provided information from another confidential informant that 539 King Street was the residence of Shayne Pilgrim who was buying drugs from Garner; and

3. The behavior exhibited by Garner throughout the afternoon was consistent with someone trafficking in drugs, namely, visiting various locations for short durations and returning to and leaving from his residence. Other individuals were also observed leaving the residence. He had made observations of behavior of this nature in the past, and believed that it was consistent with drug trafficking.

[21] At 4:46 p.m. Garner was pulled over and taken into custody for possession for the purpose of trafficking. He was advised by the arresting officers to empty his pockets, which resulted in seizure of eight individual wrapped packages of cocaine and $1,010 in cash. Although it was searched, no drugs were found in the vehicle.

[22] On the evidence of the police officers involved in the surveillance operation, Garner was not observed participating in any hand-to-hand transactions. It was also confirmed that he had no criminal record relating to drug offences.

[23] Following Garner’s arrest, Detective Hodges prepared an application for a warrant to search Garner’s residence at 71 Greene Pointe Drive. The Information to Obtain (ITO) was submitted to the Telewarrant Centre at Newmarket, Ontario at approximately 8:51 p.m. on the evening of September 10, 2010 and the telewarrant was issued at 9:51 p.m. that evening.

[24] Justice of the Peace Gerald Ryan endorsed on the Reply “please use appropriate form in the future i.e. p. 2 Info. To Obtain.” Although the ITO stated that it was being submitted “In the Matter of an Information to Obtain a Search Warrant pursuant to the provisions of section 11 of the [CDSA]”, the warrant that was requested was authorized under section 487.1 of the Criminal Code and not section 11 of the CDSA.

[25] The ITO for the telewarrant did not include a statement, in accordance with section 487.1(4) of the Criminal Code, of the circumstances that made it impracticable for the peace officer to appear before a justice, nor did it contain a statement as to any prior application in respect of the same matter of which the peace officer had knowledge.

[26] Upon execution of the warrant by police at 71 Greene Pointe Drive, 845.2 grams of cocaine and $4,027 in cash was seized.

[27] A Report to the Justice of the Peace was not filed by the police within seven days, as required by section 487.1(9) of the Criminal Code, but was filed on February 12, 2012, following the preliminary hearing, when the issue was raised.

A. [Arrest and Search of Garner](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

(1) Legal Framework

[28] The applicant Garner submits that his detention was in breach of section 9 of the Charter and that the consequent warrantless search was in breach of section 8.

[29] Section 8 of the Charter provides as follows:

Everyone has the right to be secure against unreasonable search and seizure.

[30] Section 9 of the Charter provides:

Everyone has the right not to be arbitrarily detained or imprisoned.

[31] On the authority of R. v. Collins, 1987 84 (SCC), [1987] S.C.J. No. 15 at para. 21, the Applicants bear the burden, on a civil standard, of persuading the court that that their Charter rights or freedoms have been infringed.

[32] Once an accused demonstrates that a search was a warrantless one, the onus shifts to the Crown to show, on a balance of probabilities, that the search was reasonable. As indicated at para. 23 of Collins, a search will be reasonable if it was authorized by law, if the law itself is reasonable and if the manner in which the search was carried out was reasonable.

[33] Section 495(1) of the Criminal Code of Canada provides that a peace officer may arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.

(2) Analysis

[34] As confirmed by Chief Justice Lamer in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 at para. 13, the power to search incident to an arrest is an exception to the ordinary requirements for a reasonable search, in that it requires neither a warrant nor independent reasonable and probable grounds. Rather it arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable grounds. The legality of the search is thus dependent upon the legality of the arrest. If the arrest is found to be invalid, the search will be found to be invalid as well.

[35] The requirement for reasonable grounds for arrest has both a subjective and objective aspect. As stated by Cory, J. in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at para. 17, an arresting officer must subjectively have reasonable grounds to base the arrest, and in addition, those grounds must be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. However, the police are not required to establish a prima facie case for conviction for making the arrest.

[36] The Applicant Garner argues that, viewed objectively, the police did not have reasonable grounds to arrest and search him and that they came to conclusions respecting the commission of the offences without any proper basis, and thereby acted precipitously in arresting him.

[37] Garner argues that his behavior, as observed by the police during the surveillance operation, was consistent with lawful activity, and no hand to hand transactions or other interactions with other persons were observed which would point to any involvement in the drug trade. Moreover, no attempts were made to determine any link between Garner and Shayne Pilgrim, nor that the pick-up truck parked in front of 71 Greene Pointe Drive had any association with the drug trade.

[38] Garner further argues that the police had made a determination to arrest him for drug offences prior to initiation of the surveillance operation, and that they effectively jumped to conclusions from their observations of what would otherwise be considered to be lawful activities, and carried out the arrest without making any observations which could be considered to be objectively indicative of drug offences being committed.

[39] Without the reasonable grounds required by s. 495(1) of the Criminal Code, Garner argues that the police did not have the authority to arrest him without warrant, and in addition, since it was unlawful, the detention would necessarily be arbitrary within the meaning of s. 9 of the Charter on the authority of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[40] As Justice Glithero held recently in R. v. Bareuther 2012 CarswellOnt 15631 at para. 70, it has been repeatedly held that, in order for there to be reasonable grounds for arrest, mere suspicion is not sufficient unless it rises to the point of credibility-based probability.

[41] By the same token, the various elements of the conduct of the accused should not be assessed in isolation as to whether they rise to the required standard of probability, but rather, as demonstrated in Storrey at para. 18, reasonable grounds may be objectively based on the cumulative effect of the observations together with the supporting information in the possession of the police at the time of the arrest.

[42] In my view, the approach maintained by the applicant Garner seeks to isolate the individual observations made by the police for scrutiny, and fails to give sufficient weight to the cumulative effect of those observations, when viewed within the context of the information provided by the confidential informants. It also seeks to effectively call for the imposition of a standard of a prima facie case for conviction, which, as indicated in Storrey, is not required.

[43] The fact that the police started with the information from CI#1 and set up the surveillance operation in order to confirm the information received respecting involvement of Garner in the drug trade, does not point to some improper pre-determination on the part of the police. To the contrary, in my view it points to appropriate police investigative practice in seeking objective verification of information received from a confidential informant before acting upon it. The fact that the police believed, based on the information received from the confidential informant, that Garner was involved in the drug trade, and set out to obtain evidence, through a surveillance operation, to support an arrest and subsequent prosecution, does not undermine the reasonableness of the grounds for the arrest following the surveillance.

[44] Similarly, the fact that Garner’s conduct, as observed during the surveillance operation, was consistent with lawful activity, does not exclude the possibility that it may also be consistent with involvement in drug transactions. Criminals involved in illegal activity may be expected to conceal their illegal conduct and to seek to have their activities perceived as innocuous. Detective Hodges testified that Garner’s behavior, in attending at various locations for short durations, was consistent, in his experience, with involvement in drug transactions. This was a reasonable conclusion to draw, when supported by the information Detective Hodges had from the two confidential informants, and by the fact that one of the locations that he visited was known to be occupied by Shayne Pilgrim, who was also under active investigation for drug dealing, and who the police believed, based on information from another confidential informant, was purchasing drugs from Garner.

[45] In my view, this was not a case of the police acting on mere supposition or on an unsupported hunch that Garber was involved in drug trafficking, but rather a decision to arrest being made based upon the cumulative effect of information within the possession of the police coupled with observations of the accused’s conduct while under surveillance.

[46] Although the police may have extended the surveillance to make more observations, or initiated some other investigative measures to gather more evidence before acting, that is not the test. It is not enough to argue that someone else might have waited longer and made more observations before effecting an arrest. The question is whether the police had reasonable grounds, viewed both subjectively and objectively, based upon the information that they had at that time, to justify the arrest.

[47] The situation in this case is not unlike that in the recent case of R.v. Caravaggio 2012 ONCA 248 where the arresting officer had information from an unnamed reliable informer that the accused was selling drugs from his vehicle and observed a male person leaning though the window of the accused car in an alley near a café known for drug-dealing. The Court of Appeal held that, although the officer could not say that he observed a drug transaction between the accused and the other man, their interaction was suspicious and at least consistent with a drug transaction. When combined with the information from the confidential informant and the officer’s observations of the accused’s vehicle and its location, the court held that there was sufficient basis for a finding that the officer had reasonable and probable grounds for the arrest.

(3) Finding re Applications of sections 8 and 9 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) to the Arrest and Search of Garner

[48] On the basis of the foregoing, the evidence supports a finding that the police had reasonable grounds, attaining the point of credibility-based probability, to arrest Garner on the charge of possession of a controlled substance for the purposes of trafficking. On this basis there was no breach of section 9 of the Charter. The warrantless search being incident to the valid arrest, it follows that there was no breach of section 8 of the Charter, as there was no suggestion that the manner in which the search was carried out was unreasonable.

B. Search Warrant

(1) Substantive Attack on Information to Obtain Warrant

[49] The substantive attack by the Applicants on the search warrant issued in respect of their residence, as being in violation of their Charter rights under s. 8, rests largely on a finding being made that the search of Garner incident to his arrest, and the seizure of drugs and money, was invalid. They rely upon the case of R. v Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281 for the principle that “peace officers cannot benefit from their own illegal acts, by including in informations sworn to obtain warrants, facts which were retrieved through searches without lawful authority.”

[50] Having found that the arrest and the subsequent search of Garner were valid and did not breach Garner’s Charter rights, it is not appropriate to excise the information related to the results of that search from the ITO to determine whether the warrant would have properly issued without those facts.

[51] The reliance of the Applicants on a finding that Garner’s arrest and subsequent search breached his Charter rights to support their challenge of the warrant is evident from their Factum. At para. 144, the Applicants assert that “if the information gained from the initial arrest and search is excised from the ITO then upon review of the information put forward to the authorizing justice there would be no basis upon which the pre-conditions for the granting of the authorization could exist.”

[52] Regardless of whether the balance of the information in the ITO would have supported the issuance of the warrant, there is no question that the presence of the information obtained on the initial arrest and search, namely the seizure of 5.1 grams of powder cocaine and 2.0 grams of crack cocaine, $1,010 in cash and two cell phones, does support the issuance of the warrant for the search of Garner’s residence.

(2) Technical Breaches

[53] The Applicants also rely on the two technical errors in the form and content of the ITO described above, as well as the failure of the police to file a Report to the Justice of the Peace regarding the evidence that was found during the execution of the warrant until after the preliminary hearing, long after the time for filing prescribed by the Criminal Code.

[54] The Applicants rely heavily on the decision of Justice Henderson in R. v Brown, [2003] O.J. No. 5089 (SCJ) in support of their argument that the technical breaches justify exclusion of seized evidence at trial.

[55] It is evident from a review of Justice Henderson’s reasons in Brown that the information that the police relied upon by the police to obtain the warrant, and the conduct of the police in carrying out the search, in that case was so problematic as to constitute an egregious multi-faceted assault on the rights of the accused to be secure in their own home from the exercise of unreasonable police powers. It was not a case of the police merely using the wrong form or being careless with the clerical aspects of the application for the warrant. Moreover, at para. 43, Justice Henderson did find that the lack of completeness on the application with respect to the reasons why a personal attendance before a Justice was not feasible was not fatal to the application for the telewarrant.

[56] In my opinion, a review of the warrant must be guided by the more recent observation made by the Court of Appeal in R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 (CA) at para. 57 that “the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is police conduct that is on trial rather than the sufficiency of the evidence in support of the application.”

[57] With respect to the failure of the police to file a report with the Justice within seven days of execution of the warrant, as required by s. 487.1(9), the case-law seems to support the view that such a failure does result in a breach of s. 8 of the Charter, and therefore its effect on the admissibility of the evidence obtained on the search falls to be determined under s. 24(2) (see R. v. Kirubanathan, [2011] O.J. No. 5766 (SCJ) at para. 38 and R. v. Paterson, [2011] BCSC 1728 (BC SC) at para. 110.)

[58] On the basis of the foregoing, I find that the warrant to search the Applicants’ residence at 71 Greene Pointe Drive was validly issued and, with the exception of the failure of the police to file the requisite report with the Justice on a timely basis, there was no violation of the Applicant’s rights under s. 8 of the Charter in relation to the warrant.

C. Section 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[59] Having found that the Applicants’ Charter rights were violated for failure of the police to file a report with the Justice within the time required by s. 487.1(9) of the Criminal Code, it is necessary to consider whether the evidence obtained on the search under the warrant should be excluded pursuant to section 24(2) of the Charter. Although I have found that Garner’s Charter rights were not violated in reference to his arrest and the search of his person and vehicle incident to that arrest, and that the Charter rights of both Applicants were not violated in reference to the warrant for search of their residence, other than by reason of the failure to file the report to the Justice, it is desirable to consider the application of s. 24(2) to the evidence obtained as a result of those searches in the event that I am wrong on those findings.

[60] It is well known that the court is called upon to conduct a three stage enquiry in determining whether the admission of evidence obtained as a result of Charter-infringing police conduct would bring the administration of justice into disrepute under s. 24(2). Consideration must be given to the following three factors:

1. The seriousness of the state conduct;

2. The impact of the breach of the Charter-protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71).

[61] With respect to the breach of s. 8 for failure to file the report, I find, as did Justice Kelly in Kirubanathan, that the failure to file the report would not bring the administration of justice into disrepute. It was a not a serious breach, and society’s interest in the adjudication of the case on the merits would far outweigh any interest in imposing discipline on the police to encourage timely filing of reports of this nature by excluding the evidence obtained as a result of the search. As observed by Justice Blok in Paterson at para. 123, the late filing of the report did not go to the root of the police authority to enter and search the premises pursuant to the warrant.

[62] With respect to the balance of the potentially Charter-infringing conduct, the following observations may be made.

[63] On the first branch of the Grant enquiry, in my view, setting up and carrying out a surveillance operation in order to verify the information obtained from the confidential informant, and then applying for and obtaining a search warrant from an independent judicial officer, would be considered to be the antithesis of a willful disregard of Charter rights. It is not suggested that the warrant was obtained through the use of false or misleading information, or that somehow the warrant-issuing process was subverted by police misconduct. The most that was alleged by the Applicants was that the police were careless and sloppy, and, at least in reference to the initial arrest, acted with tunnel-vision, being too focused on effecting an arrest at the earliest possible moment, rather than waiting to obtain more conclusive evidence of actual drug transactions taking place.

[64] As indicated by the Court of Appeal in R v. Rocha 2012 ONCA 707 at para. 29, the proper approach should be to look at the ITO and consider whether if it is false or misleading in any way, and if so, to consider where it lies on the continuum from the intentional use of false and misleading information at the one end to mere inadvertence on the other.

[65] In my view, there is no evidence of deliberate misconduct on the part of the police, either in making the determination to effect the arrest of Garner, or in the preparation of the ITO for the warrant. Indeed, Detective Constable Hodges, who directed the surveillance operation and prepared and swore the ITO, demonstrated by his actions that he was fully alert to the need to respect the Applicants’ Charter rights and acted in good faith in attempting to do so.

[66] In the most recent Supreme Court of Canada case to apply section 24(2) R. v. Aucoin 2012 SCC 66, Justice Moldaver observed:

The law surrounding police powers in the detention context is still evolving. For that reason, in cases where the police act in good faith and without deliberate disregard for or ignorance of Charter rights — as was the case here — the seriousness of a breach may be attenuated.

[67] On the second branch of the Grant test, it has been long recognized that persons have a high expectation of privacy in their private residences (see Rocha at para. 38 and Bareuther at para. 88). Accordingly a Charter breach in respect of the warrant to search their residence would be considered to have a relatively high impact on their Charter-protected interests, as would the search of Garner’s person and his vehicle on his.

[68] In respect of the third of the Grant lines of enquiry, as confirmed by the Court of Appeal in Rocha at para. 39, the principal factor is the reliability of the evidence, applying the principle in Grant at para. 81, that “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.”

[69] In my view, the evidence obtained as a result of the searches, being the controlled substances and the cash, is of utmost importance to the Crown’s case, thus favouring the admission of the evidence. The offences are serious, and the public has an understandably high interest in seeing that charges of this nature are prosecuted diligently. The prevalence of these types of drugs in society generally, and in the Niagara Region specifically, is of great public concern, due to the havoc which they can wreak on the lives of those directly and indirectly affected.

[70] As pointed out by the Supreme Court of Canada in R. v Harrison, 2009 SCC 34, at para. 36, the exercise of balancing the three enquiries under the Grant test is a qualitative one. In the end it is the long-term repute of the administration of justice that must be assessed. As Justice Glithero stated in Bareuther at para. 92 “the issue comes down to whether the administration of justice is better served by excluding the evidence or by admitting it”.

[71] In my view, given the lack of any bad faith on the part of the police, the seriousness of the charges and the importance of the evidence obtained as a result of the searches, the balance favours the admission of the evidence. As was observed by Justice Moldaver in Aucoin at para. 51, even accepting that any impact that might have been found on the Applicants’ privacy rights would be considered significant, it is no more significant than society’s interest in having the case tried on its merits.

[72] I would therefore admit the evidence under s. 24(2) of the Charter notwithstanding any Charter breach that might have been found under sections 8 and 9.

Disposition

[73] For the foregoing reasons, the Applications of the accused to exclude the evidence obtained as a result of the searches are therefore dismissed.

D.A. Broad J.

DATE: January 23, 2013