Introduction

[1] Akeem Bailey and Audrianna Ivy are charged in a multi-count indictment with various firearm and drug offences arising from their alleged possession of a prohibited firearm and ammunition, and possession of marijuana for the purpose of trafficking. They elected to be tried by me sitting without a jury. At the outset of their trial, they applied for an order pursuant to s. 24(2) of the Charter, to exclude all of the evidence obtained as a result of the arrest of Mr. Bailey and the execution of a search warrant at 1674 Albion Road, Unit #101, on the basis that their rights protected by sections 8 and 9 of the Charter were violated. They also applied for an order permitting the cross-examination of the affiant and sub-affiant of the information to obtain (the “ITO”) the search warrant that was executed at 1674 Albion Road, Unit #101.

[2] On June 18, 2013, I granted Ms. Ivy’s application and dismissed Mr. Bailey’s application. These are my reasons for doing so.

Factual Background

[3] On February 19, 2012 at 12:40 a.m., Officer Grewal obtained a telewarrant to search 1674 Albion Road, Unit #101 on the basis of information he had received from a confidential informant. The confidential informant informed him that Mr. Bailey resided at 1674 Albion Road, Unit #101, was in possession of a firearm, and was involved in the sale of marijuana.

[4] At approximately 10:11 p.m. on February 19, 2012, Mr. Bailey was arrested at gunpoint after police vehicles surrounded the car he was driving. The following items were located during a pat-down search of Mr. Bailey:

a. In the front left pocket of his jeans, $1,010.

b. In the front left pocket of his sweatshirt,

i. two small clear plastic bags marked with numerous green dollar signs each containing less than one gram of marijuana;

ii. two small empty clear plastic bags. One bag was marked with numerous green dollar signs. The other was marked with small green alien heads;

iii. the bags noted in i. and ii. were located inside a larger clear sandwich bag that contained 2.21 grams of marijuana.

c. In the rear pocket of his jeans, a Health Card bearing Mr. Bailey’s name and photograph.

d. A black sock that was tied through the front belt loops of Mr. Bailey’s pants.

[5] A search of Mr. Bailey’s car revealed three cell phones, and two sets of keys, each of which included a key that opened the deadbolt lock of the front door of 1674 Albion Road, Unit #101.

[6] At 11:40 p.m. on the same day, members of the Emergency Task Force executed the search warrant at 1674 Albion Road, Unit #101 by means of a no-knock dynamic entry. Three people were present in the residence at the time of the search – Audrianna Ivy and two children, Akeila Bailey, aged 3, and Jaquan Hurd, aged 6.

[7] During the search of the residence, police officers found the following items:

a. In a closet in the main entry hallway, a 9mm Ruger firearm loaded with 11 rounds of 9mm Luger ammunition. A round of ammunition was in the chamber and the safety was in the off position.

b. In the same closet, a green bulletproof vest on a hanger under an extra-large size men’s jacket.

c. In an electrical closet outside of the residence, a grey plastic bag containing 12 rounds of .40 calibre ammunition and 29 rounds of 9mm Luger ammunition.

d. On a desk on the main floor of the residence, a knotted piece of a grey plastic bag containing 2.82 grams of marijuana, a digital scale, a small Ziploc bag containing numerous empty small clear plastic bags marked with numerous green dollar signs, a blue plastic bag that contained an Ontario G1 driver’s licence in the name of Akeem Bailey, an application for an Ontario driver’s licence in Mr. Bailey’s name, and two small clear sandwich bags containing .66 grams of marijuana and 16.87 grams of marijuana.

e. On the floor, next to the desk, inside a Dell laptop computer bag, a large Ziploc bag containing four small clear bags, each of which contained less than 30 grams of marijuana, and a large bag containing six smaller clear bags, each of which contained less than 30 grams of marijuana.

f. In a pantry in the kitchen on the main floor, a silver case containing a firearm cleaning kit.

g. On a table in the basement, a resumé in the name of Akeem Bailey.

h. In a dresser drawer in the master bedroom on the top floor, an Ontario driver’s licence in the name of Audrianna Ivy, a birth certificate in the name of Audrianna Ivy, and birth certificates in the names of Akeila Bailey and Jaquan Hurd.

Procedure Followed on theVoir Dire

[8] The ITO disclosed to the defendants was heavily redacted to protect the identity of the confidential informant. At the outset of the application, Mr. Wilson, on behalf of the Crown, conceded, correctly in my view, that the edited ITO did not disclose reasonable grounds for the arrest of Mr. Bailey or the issuance of the search warrant. He indicated that he wished to proceed with a “step 6 application,” referring to a procedure suggested by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421. The step 6 application was suggested in Garofoli as a possible means for the Crown to establish the sufficiency of a peace officer’s grounds by relying on the information that was redacted from the ITO to protect the confidential informant. Justice Sopinka described it at para. 79 as follows:

If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it [the nature of the excised material] in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[9] In furtherance of the step 6 application, Mr. Wilson provided the court with the unredacted ITO and a proposed judicial summary that could be provided to the defendants. I was not satisfied that the proposed judicial summary would make the defendants sufficiently aware of the nature of the edited information to challenge it in argument or by evidence, and directed disclosure of certain other information. Mr. Wilson declined to disclose some of the information, and withdrew the step 6 application. The consequence of that decision was that Mr. Wilson could no longer rely on the edited information in the ITO.

[10] The court then considered Mr. Bailey’s standing to challenge the search of 1674 Albion Road, Unit #101. On June 11, 2013, I ruled that Mr. Bailey did not have standing to challenge the search because he had not established that he had an expectation of privacy in that place.

[11] The court then conducted a voir dire to determine the admissibility of the evidence pursuant to s. 24(2) of the Charter. At the outset, Mr. Wilson conceded that the arrest, detention and search of Mr. Bailey violated his rights protected by sections 8 and 9 of the Charter. He also conceded that the search of 1674 Albion Road, Unit #101 violated Ms. Ivy’s s. 8 rights. His concessions were based on the failure of the redacted ITO to reveal the currency or source of the confidential informant’s information that Mr. Bailey was in possession of marijuana or a firearm.

Evidence on theVoir Dire

[12] On the voir dire, I considered the redacted ITO and the warrant that was issued (Exhibit #1), an Agreed Statement of Fact (Exhibit #3), and the testimony of Officer Grewal, who was the affiant of the ITO and the handler of the confidential informant.

[13] Officer Grewal testified that on Saturday, February 18, 2012, he began preparing an ITO for a search warrant for 1674 Albion Road, Unit #101, because he had received what he considered to be credible and corroborated information that Mr. Bailey had a firearm in his residence at 1674 Albion Road, Unit #101, that two children lived in the residence, and that the address was within a residential community. On Sunday, February 19, 2012, he applied for a telewarrant to search those premises. The warrant was authorized at 12:40 a.m. He testified that he applied for a telewarrant because he understood that justices of the peace were not available to review search warrant applications outside of the hours of 8:00 a.m. to 4:30 p.m., Monday to Friday. He also testified that it was an oversight on his part not to provide the issuing justice with a statement of the circumstances that made it impracticable for him to appear personally before a justice of the peace.

[14] Officer Grewal described the steps he took to obtain the telewarrant as follows. He sent an initial contact sheet (Exhibit #2) by fax to the Telewarrant Centre. This contained his contact information, the type of warrant he was seeking, and the number of pages in the ITO. It also contained a checkbox to indicate whether the application was urgent. Officer Grewal did not check that box. He received a reply from the Telewarrant Centre advising him to fax the ITO, which he did.

[15] The warrant authorized the conduct of the search between the hours of 9:00 p.m. and 6:00 a.m. between February 19 and 23, 2012.

[16] Prior to applying for the telewarrant, Officer Grewal attempted to corroborate the information he had received from the confidential informant. The information he received, and how it was corroborated can be summarized as follows:

Information Received

Corroboration

Mr. Bailey drove an older green, four-door Honda Civic.

On February 18, DC Small saw a green four-door Honda, licence plate #BMSC 849, parked in the driveway of 1674 Albion Road, Unit #101.

Officer Grewal reviewed a Field Information Report dated May 23, 2009 that indicated that Mr. Bailey was stopped by police in a green four-door Honda, licence plate #BFJT914, driven by Ms. Ivy.

He checked licence plate #BFJT914 on the Ministry of Transportation database and discovered that it was inactive, but had been previously used on a 1996 green Honda owned by Ms. Ivy with an address of 1674 Albion Road, Unit #101. The current owner of the car was Peter Alexander of 390 Dawes Road, Apt. #912. The current licence plate number of the car was BMSC849.

1674 Albion Road, Unit #101 was a two-storey brown brick townhouse, with a single garage with a cream or white garage door. It was the end unit and was the first unit on the right hand side as a person entered the complex.

DC Small described the premises as a two-storey townhouse, end unit, attached on the north side. The building was a brown brick building with a white garage door.

Mr. Bailey was a black male, 6' tall, 160 – 165 lbs., black hair in braids with a goatee beard, brown eyes, dark skin, approximately 21 – 22 years old.

Officer Grewal conducted a CPIC check on the name Akeem Bailey with a birth date of September 3, 1989. CPIC described Mr. Bailey as male, non-white, 22 years old, 5'9" tall, 141 lbs., with black hair and brown eyes.

The Field Information Report dated May 23, 2009 that Officer Grewal reviewed described Mr. Bailey as male, black, 19 years old, born September 3, 1989, brown eyes, black short braided hair, 5'10" tall, 145 lbs.

Mr. Bailey was engaged in the sale of marijuana, and possessed a firearm.

Officer Grewal performed a criminal record check and discovered that Mr. Bailey had been convicted of similar offences to the ones he was investigating. He was convicted on July 9, 2007 of possession of a Schedule II substance for the purpose of trafficking, conspiracy to commit an indictable offence, possession of a firearm knowing the serial number had been tampered with, unauthorized possession of a firearm, possession of a Schedule I substance for the purpose of trafficking and possession of a Schedule II substance.

Mr. Bailey had moved from his previous address after he was arrested in a big raid a few years previous, so he could be more discreet about selling marijuana.

Officer Grewal checked the Toronto Police Service database (CIPS) and determined that Mr. Bailey was one of five people investigated as part of a criminal organization known as the Doomstown Crips. Mr. Bailey was arrested and charged at the conclusion of the investigation with the offences of which he was convicted in July 2007.

The Field Information Report dated May 23, 2009 noted that Mr. Bailey gave his address as 164 Jamestown Crescent, Toronto.

Mr. Bailey’s address on his driver’s licence was listed as 519-11 Bergamont Road, Toronto.

Mr. Bailey’s older brother is JJ Money, a rap artist signed by the G7 label.

Officer Grewal had personal knowledge that Mr. Bailey’s brother, Tristan Bailey, (DOB: Sept. 23, 1992) is a Toronto-based rap music artist signed by the G7 label.

Mr. Bailey lived at 1674 Albion Road, Unit #101.

Metro Housing confirmed that the registered occupants of 1674 Albion Road, Unit #101 were Audrianna Ivy, Jaquan Hurd (DOB: June 5, 2006) and Akeila Bailey (DOB: Dec. 20, 2009).

[17] Mr. Bailey had not been seen at 1674 Albion Road, Unit #101 before Officer Grewal applied for the warrant. Officer Grewal testified that he did not wait to confirm that Mr. Bailey lived at that address because he believed he had reasonable grounds to believe that Mr. Bailey lived there, and he was concerned about the presence of a firearm in a residential area in a home with two children.

[18] Subsequent to the issuance of the warrant, further surveillance was conducted on 1674 Albion Road, Unit #101 on February 19. The Agreed Statement of Fact sets out the details of the surveillance as follows.

[19] At 12:16 p.m., Mr. Bailey left the house, entered a green Honda Civic, licence plate #BMSC849, which was parked in the garage attached to the house. He drove to the area of Unit #131 in the same complex, at which time a male got into the passenger seat of the car for a few seconds. The male left the car, and Mr. Bailey drove out of the complex.

[20] Mr. Bailey drove to 65 Jamestown Crescent and parked in the parking lot of that complex.

[21] At 1:20 p.m., Mr. Bailey drove back to 1674 Albion Road, Unit #101, and parked in the driveway. He and another male got out of the car, unloaded groceries, and went into the residence.

[22] At 3:15 p.m., a second male (male #2) arrived at the residence by taxi. He entered the residence. Between 3:19 and 3:22 p.m., Mr. Bailey and male #2 stood outside the residence smoking.

[23] Surveillance was discontinued at 3:45 p.m. and recommenced at 7:17 p.m. at which time Mr. Bailey left the residence and got into the green Honda, which was parked in the driveway with the engine running. He drove from the complex. Officers lost sight of him.

[24] At 8:21 p.m., a different green Honda bearing licence plate #AFKR977 stopped in the driveway of the residence. A male got out of the car and knocked on the door of the residence. He did not go in. He returned to his car, and made a call on his cell phone. He then returned to the door of the residence, which was opened by a female.

[25] Officers located Mr. Bailey, still driving the green Honda, licence plate ##BMSC849 at 9:06 p.m. He returned to the residence, left the car running in the driveway and went into the residence. At 9:19 p.m., he drove away from the residence.

[26] He was arrested at approximately 10:11 p.m. when police vehicles surrounded his car and arrested him at gunpoint. The search warrant was executed at 11:40 p.m. that night.

Section 24(2) of the Charter

[27] The parties agreed on the test to be applied to determine whether the evidence obtained in violation of the defendants’ Charter rights should be excluded. It is set out in s. 24(2) of the Charter as follows:

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

[28] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 held that the purpose of s. 24(2) is to protect the long-term reputation of the justice system by maintaining the public’s confidence in it.

[29] The Court identified three lines of inquiry relevant to the determination of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute:

the seriousness of the Charter-infringing state conduct (the admission of the evidence may send the message that the justice system condones serious state misconduct);
the impact of the breach on the Charter-protected interests of the accused (the admission of the evidence may send the message that individual rights count for little); and
society’s interest in the adjudication of the case on its merits.

Mr. Bailey

[30] Mr. Herscovitch raised a preliminary issue before making his arguments on the three lines of inquiry set out in Grant. He submitted that all of the police conduct that ultimately led to the arrest of Mr. Bailey, including the steps taken to obtain the search warrant, was relevant to the first line of inquiry notwithstanding Mr. Bailey’s lack of standing to challenge the search of the residence. Mr. Wilson disagreed. He argued that the search warrant was irrelevant to the arrest of Mr. Bailey. He was not arrested on the basis of the warrant, but rather on the basis of the detailed tip Officer Grewal received from the confidential informant, and the corroborative information the police had gathered prior to Mr. Bailey’s arrest.

[31] I agree with Mr. Herscovitch that the court is entitled to view all of the police conduct leading to the arrest of Mr. Bailey. At issue here is police conduct within a 24-hour period. The actions taken by the police in relation to the warrant and in relation to the investigation are so intertwined in time and nature that it would not be reasonable to examine them in isolation. To do so would distort the overall picture.

Seriousness of the Charter-infringing state conduct

[32] This inquiry requires an analysis of the nature of the police conduct that violated the Charter and led to the discovery of the evidence. The more serious the police conduct was, the greater the need is for the court to dissociate itself from it to preserve the reputation of the justice system. As Doherty J.A. explained in R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 at para. 23, “this disassociation is achieved by excluding the evidentiary fruits of the state misconduct.”

[33] There is a continuum of police misconduct ranging from minor or technical breaches of the Charter to wilful or reckless disregard of Charter rights. Mr. Herscovitch did not suggest overt, bad faith on the part of the police officers in this case. As he reminded the court, in the absence of knowing the contents of the ITO, he had no basis upon which to argue bad faith on the part of the police. Rather, he submits significant negligence and carelessness on the part of Officer Grewal. He relied on the following facts in support of his submission.

[34] First, the redacted ITO as disclosed falls significantly short of the required standard. It contains no information about the confidential informant’s credibility, the source of her or his information, or the recency of the information. It does not disclose credible or compelling information. Mr. Herscovitch argued that Officer Grewal, with 12 years of experience as a police officer, should have known that when an ITO is based exclusively on a tip from a confidential informant, many of the details will be redacted. This imposed some duty on him to disclose sufficient details in the ITO that would not be redacted to allow the court to determine whether he had reasonable and probable grounds and acted in good faith. This is especially relevant in this case where Officer Grewal participated in the vetting of the ITO. According to Mr. Herscovitch, Officer Grewal’s failure to disclose enough details in the ITO to allow the court to determine his good faith is indicative of carelessness and negligence.

[35] I do not accept this argument. There is no support for it in the jurisprudence. Officer Grewal’s duty was to make full, frank and fair disclosure of all material facts in the ITO: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. He had no duty to draft the ITO with a view to its ultimate disclosure to the defence.

[36] Second, the use of the telewarrant process was improper. Officer Grewal failed to disclose to the justice of the peace the circumstances that made it impracticable to appear in person before a justice of the peace as required by s. 487.1(4). Furthermore, Officer Grewal made no effort to determine if the justice of the peace, who would have been conducting bail hearings at Old City Hall court on Sunday, February 19, 2012, would consider an in-person application for a warrant.

[37] Officer Grewal admitted that it was an oversight on his part not to disclose the circumstances that made it impracticable for him to appear before a justice in person. But, he testified that in his experience, justices of the peace are not available for in-person applications for search warrants outside of the hours of 8:00 a.m. and 4:30 p.m., Monday to Friday. He had never attended as an affiant before a justice of the peace on a weekend, and he was not aware of any of his colleagues on the Guns and Gangs Task Force having done so.

[38] At its highest, Officer Grewal’s failure to disclose the circumstances that made it impracticable for him to appear before a justice in person was a mistake. However it does not rise to the level of negligence, or careless disregard for constitutional standards. This is particularly so in light of the fact that he applied for the search warrant at 12:03 a.m. on Sunday, February 19, when it was reasonable for him to assume that the reason it was impracticable for him to appear before a justice in person was self-evident.

[39] Third, Officer Grewal failed to express to the justice of the peace the urgent circumstances of the presence of a firearm in a residential area, in a home where two children reside. Instead, he received a warrant that did not allow the police to search the residence for a further 21 hours, and he took no steps to rectify that. This contradicts Officer Grewal’s evidence that the urgent circumstances compelled him to obtain a telewarrant on a Sunday night rather than wait until a weekday when he could attend before a justice in person.

[40] Fourth, twelve hours elapsed between the time Officer Grewal received the warrant and the time police began surveillance on 1674 Albion Road, Unit #101. This also contradicts Officer Grewal’s evidence that the situation was urgent. Had he thought it was urgent, the police would not have waited twelve hours to begin surveillance, according to Mr. Herscovitch.

[41] The third and fourth points are not relevant to the propriety of Officer Grewal obtaining the warrant by the telewarrant process. Section 487.1 does not limit the use of the telewarrant system to urgent circumstances. Section 487.1(1) sets out two conditions that must be met before an officer may apply for a telewarrant – the officer must believe that an indictable offence has been committed and that it would be impracticable to appear personally before a justice. Both conditions were satisfied in this case.

[42] These facts, according to Mr. Herscovitch, suggest negligence and carelessness on the part of the police and thus the first line of inquiry favours exclusion of the evidence. I do not agree that these facts suggest that Officer Grewal was negligent, or even careless.

[43] Mr. Wilson submitted that the evidence supports the utmost good faith on the part of the police in this case. There were no technical or inadvertent breaches of the Charter. The breach arose solely from the operation of law and his competing duties to protect the identity of the confidential informant, disclose all relevant material to the defence, and satisfy the court that Officer Grewal had reasonable and probable grounds to obtain the warrant.

[44] Officer Grewal had what he believed to be a compelling and credible tip, which he attempted to corroborate. In Mr. Wilson’s submission, this is evidence that the officer acted in good faith.

[45] He also relied on the fact that he made a step 6 application, heeding the advice of the Ontario Court of Appeal in R. v. Rocha, 2012 ONCA 707 and R. v. Blake. In his submission, this must inure to the benefit of the Crown in the s. 24(2) analysis.

[46] Given that the step 6 application was attempted, but failed, Mr. Wilson submitted that the court is left in the same situation that Justice Doherty considered in Blake. There is simply no evidence of bad faith on the part of the police officers. Officer Grewal was required to obtain a search warrant. He did so. He and the Crown were legally required to protect the identity of the confidential informant. They did so by redacting the material in the ITO that could identify the informant before disclosing the material to the defence. There is no suggestion that Officer Grewal failed to make full and frank disclosure to the justice. But of course, defence counsel is not in a position to suggest this, having not seen the unredacted ITO.

[47] Mr. Wilson submitted that this line of inquiry favours the admission of the evidence.

[48] Mr. Wilson informed the court that he was not aware of another case in which a court had considered this argument. In my view, this case is not the same as Blake. Of particular significance to Justice Doherty’s s. 24(2) analysis in Blake was the manner in which the s. 8 claim had been litigated (see paras. 17, 25, 27, 32, and 33). The Crown did not ask the trial judge to consider the unredacted version of the ITO, and the defence did not challenge the validity of the confidential informant claim, seek access to the identity of the confidential informant or challenge the editing done by the Crown to protect the confidential informant’s identity. In contrast, in this case, the Crown brought a step 6 application, and the defendants challenged the editing, and sought to cross-examine the affiant and sub-affiant to test the good faith of the officers. As well, there is evidence to suggest that some of the information provided by the confidential informant was not reliable, and indeed, that was the Crown’s position when he successfully argued that Mr. Bailey did not reside at 1674 Albion Road, Unit #101, and therefore lacked standing to challenge the search.

[49] It is not accurate to say that the breach of Mr. Bailey’s rights arose solely because the Crown is obliged to protect the identity of the confidential informant. The redacting of the ITO rendered it impossible for the defence to examine the good faith of the officers. The Crown withdrew the step 6 application after I suggested that an addition to the judicial summary was required. There is absolutely nothing in the evidentiary record before me that discloses how my proposed addition could identify the confidential informant.

[50] The further surveillance of Mr. Bailey and 1674 Albion Road, Unit #101 conducted after the search warrant was obtained and prior to Mr. Bailey’s arrest is relevant to my consideration of this line of inquiry. The police did not rely solely on the information from the confidential informant, which they did to obtain the search warrant, but attempted to corroborate it before arresting Mr. Bailey.

Impact of the breach on the Charter-protected interests of Mr. Bailey

[51] The parties agreed that this line of inquiry favours exclusion of the evidence.

[52] Mr. Herscovitch stressed the serious impact of the arbitrary arrest of Mr. Bailey. He was arrested at gunpoint after the police boxed in his car.

[53] I agree that the impact of the arrest on Mr. Bailey’s liberty interests protected by s. 9 of the Charter was significant. This line of inquiry favours exclusion of the evidence.

Society’s Interest in an Adjudication on the Merits

[54] This line of inquiry requires the court to consider factors such as the reliability of the evidence and its significance to the Crown’s case.

[55] The evidence seized from Mr. Bailey was physical, non-conscriptive evidence. It is reliable. The third line of inquiry “tends to weigh in favour of admission” where the evidence seized is non-bodily real evidence: Grant, at paras. 81 and 115.

[56] Mr. Herscovitch submitted that it is minimal circumstantial evidence, and not critical to the Crown’s case. The small amount of marijuana found on Mr. Bailey is relevant to the possession of marijuana for the purpose of trafficking charge and is less relevant to the more serious charges related to the possession of the firearm. Furthermore, the sock tied around Mr. Bailey’s belt loops is only a potential piece of circumstantial evidence because it will be the subject of contested expert evidence that it was used as a holster.

[57] Mr. Herscovitch submitted that the third line of inquiry is neutral because the evidence seized is only circumstantial evidence from which only minimal inferences can be drawn.

[58] Mr. Wilson, on the other hand, submitted that the evidence seized from Mr. Bailey and the car he was driving is crucial evidence because it connects Mr. Bailey to some of the items seized in the residence where the firearm was discovered. For example, the small amount of marijuana found on Mr. Bailey was packaged in a small plastic bag marked with small green dollar signs. A large quantity of those bags was located in the residence.

[59] I accept that the evidence is important to the Crown’s case. I agree that it is relevant to more than the possession for the purpose of trafficking charge because it links Mr. Bailey to the residence where the firearm was found.

[60] The court may also consider the seriousness of the charges against Mr. Bailey under this line of inquiry. I am mindful that this factor must not take on disproportionate significance in my analysis. The charges against Mr. Bailey are serious and the possible penal consequences for him are high. I accept Mr. Wilson’s submission that the proliferation of guns in this city, especially in the hands of people involved in the drug trade, is of grave concern to the public. Of course, the seriousness of the offence is an issue that cuts both ways, as the court noted in Grant. The public has an interest in seeing a determination of the charges on the merits, but the public also has an interest in a justice system that is above reproach, especially where the penal stakes for an accused person are high.

[61] In my view, the third line of inquiry favours the admission of this reliable evidence, which is important to the Crown’s case. The admission of it would serve society’s interest in having the case adjudicated on its merits.

Balancing the Factors

[62] Balancing the three lines of inquiry as called for in Grant is not simply a matter of mathematical calculation. Despite the negative impact on Mr. Bailey’s rights, which was considerable, the state conduct, which was not at the serious end of the continuum, and the high societal interest in having the matter adjudicated on its merits, leads me to the conclusion that the evidence should be admitted.

Ms. Ivy

[63] I turn now to whether the breach of Ms. Ivy’s s. 8 rights justifies the exclusion of the evidence seized from her home at 1674 Albion Road, Unit #101 on February 19, 2012.

Seriousness of the Charter-infringing state conduct

[64] Mr. Goldman, on behalf of Ms. Ivy, adopted Mr. Herscovitch’s submissions on the first line of inquiry in Grant. I do not intend to repeat them here. I dealt with each of the submissions in my reasons dealing with Mr. Bailey.

[65] In Ms. Ivy’s case, police conducted a warrantless search of her home. They did so late at night by way of breaking through the front door, knowing there were two small children in the home. Although police had a warrant to search the residence, that is not determinative of whether the evidence should be admitted: Rocha at para. 29.

[66] Officer Grewal applied for a search warrant based entirely on information received from a confidential informant that Mr. Bailey lived at 1674 Albion Road, Unit #101, was in possession of a firearm and was selling marijuana. Despite efforts by defence counsel, he has been unable to challenge the credibility of the confidential informant, the compelling nature of the information provided, or the good faith of the officer.

[67] Although not required to corroborate the information regarding Mr. Bailey’s criminal conduct, the police did not observe Mr. Bailey at 1674 Albion Road, Unit #101 prior to applying for the search warrant. Officer Small observed a green four-door Honda in the driveway of the residence. A review of the Ministry of Transportation’s database revealed that, although Ms. Ivy once owned the car, Peter Alexander was now the registered owner. There was no evidence that Peter Alexander was related to this investigation. Mr. Bailey had been stopped in that car with Ms. Ivy in May 2009, three years earlier. No surveillance was done on or inquiries made regarding other addresses connected to Mr. Bailey such as the one on his driver’s licence or the one listed in the police database. This stands in contrast to the surveillance done on Mr. Bailey once the search warrant had been obtained, and prior to his arrest. Police officers had 1674 Albion Road, Unit #101 under surveillance on February 19, 2012 between noon and 3:45 p.m. and between 7:15 p.m. and the time of Mr. Bailey’s arrest at 10:10 p.m. During that time, they observed Mr. Bailey coming and going from the residence and operating the green Honda.

[68] Mr. Wilson’s argument that the court has no evidence of bad faith based on the Blake decision pertains to Ms. Ivy as well. I need not repeat what I view are the important distinguishing features of this case and the Blake case.

Impact of the breach on the Charter-protected interests of Ms. Ivy

[69] This line of inquiry considers the seriousness of the Charter breaches from the perspective of Ms. Ivy. Canadian jurisprudence has long recognized the very high expectation of privacy citizens have in their homes. It is based on the principle articulated more than 400 years ago in Semayne’s Case (1604), 77 E.R. 194 that, “a man’s home is his castle.” Citizens undertake their most intimate and private activities in their homes. As Justice Cory said in R. v. Silveira, [1995] 2 S.C.R. 297 at para. 140, “There is no place on earth where persons can have a greater expectation of privacy than within their dwelling-house.” Aside from human dignity and the right to bodily integrity, the right to be free from unreasonable search and seizure in our homes is our most jealously guarded right.

[70] At 11:40 p.m. on February 19, police officers from the Emergency Task Force performed a no-knock dynamic entry into Ms. Ivy’s residence where she and her three-year-old daughter and six-year-old son were present. The severity of this intrusion had a very significant negative impact on Ms. Ivy’s high expectation of privacy. This line of inquiry militates strongly in favour of excluding the evidence.

Society’s Interest in an Adjudication on the Merits

[71] As Mr. Goldman pointed out, in the absence of the evidence seized from 1674 Albion Road, Unit #101, the prosecution against Ms. Ivy will fail. The evidence is reliable physical evidence critical to the Crown’s case. As I indicated earlier, the seriousness of the offences is a factor that cuts both ways. Society has an interest in having serious offences adjudicated on their merits, but also in a justice system above reproach, especially when the penal stakes are high. Ms. Ivy is charged with very serious offences that carry high penal consequences.

Balancing the Factors

[72] These factors must be balanced rather than placed in a mathematical equation. The court must determine whether admission of the evidence would bring the administration of justice into disrepute having regard to all of the circumstances. This assessment requires the court to consider the long-term reputation of the administration of justice.

[73] Balancing the three lines of inquiry, I find that the profound incursion on Ms. Ivy’s right to privacy in her own home outweighs the reliability of the seized evidence and its importance to the Crown’s case. I am satisfied that the admission of the evidence seized from 1674 Albion Road, Unit #101 against Ms. Ivy, would negatively affect the long-term reputation of the administration of justice and bring it into disrepute. I therefore, exclude the evidence seized from 1674 Albion Road, Unit #101, against Ms. Ivy.

K. Corrick J.

Released: July 4, 2013

Her Majesty the Queen v. Audrianna Annette Ivy and Akeem Raymond Bailey, 2013 ONSC 4581

Case Summary

Introduction

Factual Background

Procedure Followed on theVoir Dire

Evidence on theVoir Dire

Section 24(2) of the Charter

Mr. Bailey

Seriousness of the Charter-infringing state conduct

Impact of the breach on the Charter-protected interests of Mr. Bailey

Society’s Interest in an Adjudication on the Merits

Balancing the Factors

Seriousness of the Charter-infringing state conduct

Impact of the breach on the Charter-protected interests of Ms. Ivy

Society’s Interest in an Adjudication on the Merits

Balancing the Factors

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2