R. v. Daniels, 2015 ONSC 283

COURT FILE NO.: 13/9-704

DATE: 20150115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ANDREW STUART DANIELS

Maryse Nassar, for the Crown

Christian Angelini, for the accused

HEARD: Nov. 10, 12-15, and 17-18, 2014

K.L. Campbell J.:

Ruling on Application to Quash

Telewarrant and Exclude Evidence

A. Overview

[1] The accused, Andrew Daniels, faces an indictment that charges him with three offences, all flowing from his alleged unlawful possession of three controlled substances, namely, Cocaine, Ketamine, and MDMA (ecstasy), for the purposes of trafficking. All three offences are alleged to have been committed in Toronto on or about June 12, 2012.

[2] At approximately 8:25 p.m. on June 12, 2012, members of the Toronto Police Service (TPS) executed a telewarrant at the accused’s third floor apartment premises on Maitland Street in Toronto. During the course of their search of those premises, the police discovered and seized 2.2 grams of cocaine powder, 15.55 grams of ketamine powder, and 23.68 grams (73 capsules) of MDMA. The police also seized weigh scales and other drug-trafficking paraphernalia, documents in the accused’s name, a cell phone, $3,105 in Canadian funds, and $93 in American funds. The police also seized quantities of other drugs, namely, marihuana, hashish and psilocybin, but those drugs are not the subject of any charges before the court.

[3] The accused has brought an application to quash the telewarrant. There are three main planks to this application. First, the accused contends that, contrary to s. 11(2) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19, and s. 487.1(1) of the Criminal Code, R.S.C. 1985, chap. C-46, there was no evidence before the issuing justice to justify resort to the telewarrant procedure that was employed in this case. Second, the accused contends that the impugned telewarrant was issued in the absence of the “reasonable grounds” required by s. 11 of the Controlled Drugs and Substances Act, to justify the search of his apartment premises. Third, the accused argues that the affiant, in his preparation of the Information to Obtain (ITO) the telewarrant, sought to mislead the justice and failed in his obligation to provide full, fair and frank disclosure of information in the ITO. The accused claims that, in the result, the police search of his apartment premises was in violation of s. 8 of the Canadian Charter of Rights and Freedoms, the telewarrant should be quashed, and the evidence of the finding of the drugs should be excluded under s. 24(2) of the Charter.

[4] The ITO, which was sworn by Cst. Mykola Skvortsov of the TPS, was based, in significant measure, upon information obtained from a confidential informant.[^1] As part of the disclosure process, the Crown provided the accused with a copy of the ITO that was significantly redacted in order to protect the identity of the confidential informant. As part of this application, the accused was granted leave to cross-examine the affiant on certain topics. See R. v. Daniels, 2014 ONSC 6542, [2014] O.J. No. 6035.

[5] In addition, in furtherance of the Crown’s “step six” application brought pursuant to R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461, the accused was provided with a judicial summary of the nature of the excised material. The creation of this summary was a time consuming process that involved numerous drafts and revisions, based upon the submissions of both Crown and defence counsel, and was designed to provide the accused with as much information as possible about the nature of the excised material, while at the same time preserving the anonymity of the confidential informant. Ultimately, I was satisfied that the final, revised judicial summary made the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. See R. v. Boussoulas, 2014 ONSC 5542, [2014] O.J. No. 4525, paras. 67-69. Accordingly, on this application to quash the telewarrant, I have reviewed the legal adequacy of the ITO based upon the contents of the original, unredacted ITO that was provided to the issuing justice by the affiant.

[6] At the conclusion of the argument of this application, I advised the parties that I had concluded that the evidence tendered by the Crown flowing from the execution of the telewarrant at the apartment premises of the accused was admissible. I indicated that I would subsequently provide reasons in support of this conclusion. These are those reasons.

B. The Generally Applicable Threshold Legal Standard

[7] When a trial judge is asked to review the sufficiency of an ITO used to obtain a search warrant, the judge must not approach the question of the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified and/or edited on the review, whether the issuing justice could properly have issued the search warrant. The question is not whether the reviewing judge would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were “reasonable grounds” justifying the issuance of the search warrant. See R. v. Garofoli, at p. 1452; R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8, 30; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave denied, [2010] 1 S.C.R. ix; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-43; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 37-38, 83, 88; R. v. Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d) 213, at para. 3.

[8] Recently, in R. v. Boussoulas, I sought to outline more fully, at paras. 5-22, the legal principles governing applications to quash search warrants. Without repeating those principles again, I will seek to apply them in the factual circumstances of the present case.

C. The Absence of Grounds for Use of the Telewarrant Procedure

1. Introduction

[9] The ITO in the present case was drafted by the affiant for the purpose of seeking a “search telewarrant” pursuant to the combination of s. 487.1 of the Criminal Code and s. 11(2) of the Controlled Drugs and Substances Act. After reviewing this ITO, the justice issued the requested telewarrant. It was upon the judicial authorization of this telewarrant that the members of the TPS entered and searched the private apartment premises of the accused. Defence counsel contends that the ITO in this case does not disclose the affiant’s alleged reasonable grounds of impracticability for employing the telewarrant procedure. I agree.

2. The Statutory Requirements for the Issuance of a Telewarrant

[10] Under s. 11(1) of the Controlled Drugs and Substances Act, a justice may, in certain defined circumstances, issue a warrant authorizing a peace officer to search a place for controlled substances. Such warrants may be issued on ex parte applications supported by “reasonable grounds.” According to s. 11(2) of the Controlled Drugs and Substances Act, for the purposes of such ex parte search warrant applications, an information may be submitted “by telephone or other means of telecommunication in accordance with s. 487.1 of the Criminal Code, with such modifications as the circumstances require.” It is apparent, therefore, that a telewarrant may be issued under the Controlled Drugs and Substances Act, provided that the ITO submitted in support of such an application is “in accordance” with the requirements of s. 487.1 of the Criminal Code.

[11] According to s. 487.1 of the Criminal Code, a peace officer may properly resort to the telewarrant procedure to obtain a search warrant whenever the officer believes that an indictable offence has been committed and it would be “impracticable” for the officer to “appear personally before a justice” and make the application for a search warrant in the usual fashion.

[12] As outlined in s. 487.1(4) of the Criminal Code, an “information that is submitted by telephone or other means of telecommunication” seeking a telewarrant, “shall include” a number of different statements justifying the issuance of the requested telewarrant. One of these mandatory statements is “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.”

[13] According to s. 487.1(5) of the Criminal Code, a justice may thereafter issue the requested telewarrant if he or she is satisfied that the information submitted by telephone or other means of telecommunication: (a) is in respect of an indictable offence and “conforms to the requirements” of s. 487.1(4); (b) “discloses reasonable grounds for dispensing with an information presented personally and in writing;” and (c) discloses the necessary “reasonable grounds” for the issuance of the warrant.

3. The Meaning of the Term “Impracticable”

[14] The jurisprudence on the meaning of the term “impracticable” in this legislative context suggests the creation of a relatively low threshold standard, which imports a large measure of practicality and common sense. According to the authorities, the term “impracticable” requires that personal attendance before a justice be more than merely inconvenient for the affiant, but it need not be impossible for the affiant. The term “impracticable” requires, in short, that personal attendance before a justice be very difficult or not practical for the affiant in the circumstances. See R. v. Boussoulas, at paras. 72, 76 (and the authorities cited and discussed therein).

4. The Grounds Purporting to Justify the Telewarrant in the Present Case

[15] In the ITO in the present case, the affiant stated that he had reasonable grounds for his belief that it was “impracticable” to appear before a justice “in person” to request the warrant, for the reasons outlined in “Appendix A.” However, the “Appendix A” that accompanied the ITO simply listed the seven items to be searched for, and provided no grounds for the issuance of a telewarrant. The issue of the asserted impracticability of personal attendance before a justice was simply not addressed in “Appendix A.” Moreover, the issue was not addressed anywhere else in the ITO.

[16] The Crown fairly conceded that the ITO in the present case did not expressly articulate the reasonable grounds for the affiant’s belief that it was “impracticable” to appear before a justice “in person” to request the warrant. The Crown argued, however, that the necessary grounds for the telewarrant could be inferred from the fact that the ITO was sent to the “telewarrant centre” after hours, at “17:40” on Tuesday, June 12, 2012. This time is apparent from the one-page “Initial Fax Contact Form” that accompanied the telewarrant materials. That same form, however, displayed check-boxes to indicate whether the application was “urgent” or “not urgent,” and the affiant marked the box indicating that his telewarrant application was “not urgent.”

[17] In any event, in my view, this is simply not sufficient to justify the issuance of the telewarrant in this case. First, as a matter of fact, the ITO in this case simply did not include “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.” There was nothing in “Appendix A” or elsewhere in the ITO that even sought to address this issue. As the unequivocal language in s. 487.1(4) makes clear, such a statement is a mandatory requirement of any ITO provided in furtherance of a request for a telewarrant.

[18] Second, according to ss. 487.1(5)(a) and (b) of the Criminal Code, a justice may only issue a telewarrant where, amongst other things, the justice is satisfied that: (a) the ITO “conforms to the requirements of s. 487.1(4); and (b) the ITO “discloses reasonable grounds for dispensing with an information presented personally and in writing.” Based upon the contents of the ITO in the present case, the justice could not possibly have been satisfied of either of these two mandatory legal pre-conditions for the issuance of a telewarrant. The ITO clearly did not conform to the requirements of s. 487.1(4) of the Criminal Code because it did not include the mandatory “statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.” Nor did the ITO in the present case disclose the existence of “reasonable grounds for dispensing with an information presented personally and in writing.”

5. The Explanatory Testimony of the Affiant

[19] In cross-examination, the affiant admitted that he knew, when he applied for the telewarrant in this case, that the Criminal Code required him to provide reasons in the ITO as to why it was impracticable to appear personally before a justice. The affiant also acknowledged that he did not, in fact, provide those reasons in his ITO in this case. The affiant explained that he meant to put his reasons in the ITO, but there was a “mistype” on his part. According to the affiant, what he meant to state in the ITO, instead of saying “Appendix A,” was the “justice of the peace office is closed, unavailable to attend.” The affiant indicated that, had he not made this mistake, he would have stated, in the ITO, that it was past 4:00 p.m. and no justice of the peace was available to meet with him in person. This explanation was only omitted from the ITO as a result of an oversight on the part of the affiant.

[20] In cross-examination, the affiant also testified that, in fact, when he faxed the ITO to the telewarrant centre, the justice of the peace office was closed. He explained that the governing procedure regarding search warrants was that, between the hours of 9:00 a.m. and 4:00 p.m., from Monday to Friday of each week, officers could see a justice of the peace in person regarding the issuance of search warrants, but that after 4:00 p.m., no justice of the peace was available and, in order to obtain a search warrant, officers had to employ the telewarrant process. The affiant further testified that, on June 12, 2012, he did not start his shift until 4:00 p.m., and he faxed his completed search warrant materials to the “telewarrant centre” at 5:40 p.m. as, at that time, the justice of the peace office was closed and no justice was available to meet with him in person.

[21] The affiant agreed, in cross-examination, that he did not make any specific inquiries about the potential availability of any justice of the peace, but rather, just looked at the clock and realized that, since it was past 4:00 p.m., there was no justice of the peace available. The affiant testified that he was not aware of any justices of the peace sitting during the evening hours, although he admitted that he was aware of some evening traffic courts. While the affiant acknowledged that he thought that judges could also issue search warrants, he made no inquiries as to the personal availability of any judge, but rather thought it best to simply fax his search warrant materials to the telewarrant centre.

[22] The affiant explained that the procedure he sought to follow was based upon an official “protocol” document that indicated that, if a police officer was seeking a search warrant after 4:00 p.m., the application had to be made by way of telewarrant. In cross-examination, the affiant identified a specific three-page document as outlining this official procedure. This document, dated November 28, 1997, is a “Routine Order” for all members of the TPS, on the topic of the availability of the “Telewarrant Service.” This document includes the following information regarding telewarrants:

• A centralized 24-hour facsimile (fax) warrant service has been implemented by the Ministry of the Attorney General, the Ministry of the Solicitor General and Correctional Services, and the Association of Chiefs of Police.

• As of December 1, 1997, a justice of the peace “will no longer be assigned to intake courts beyond the regular court hours of 0900 to 1600 hours, Monday to Friday,” and that during the “after hours” time, police officers “must apply for warrants” by referring to the justice of the peace “Duty Roster, except for applications which fall under the Telewarrant provisions” of the Criminal Code.

• Justices of the peace who are “on call” to provide after-hours services “will no longer issue” certain enumerated types of warrants that “are available through the Telewarrant Service,” namely, search warrants under s. 487 of the Criminal Code, warrants for blood samples under s. 256 of the Criminal Code, warrants for impressions under s. 487.091 of the Criminal Code, and “search warrants for a controlled drug or substance, or offence related property, under s. 11 of the Controlled Drugs and Substances Act.”

• TPS members are referred to an attached “appendix” for the details on the use of the Telewarrant Service. This appendix explains that the Telewarrant Service can be used whenever it is “impractical” to appear before a justice in person. While telewarrants are not to be used as a “tool of convenience,” considerations of “time, distance and availability of judicial officers are legitimate factors,” and use of the system is “not limited to emergency or exigent circumstances.” The appendix also notes that the justice on duty at the Telewarrant Centre must be satisfied that it is “impractical” for an officer to appear in person, and “the facts making it impractical MUST be set out” in the telewarrant ITO.

[23] In his testimony, the affiant indicated that it was this “Telewarrant Service” document that he (and other members of the TPS) relied upon in not making inquiries as to the personal availability of a justice after 4:00 p.m. on weekdays. Defence counsel conceded that, in fairness to the affiant, the document “did seem to say that.” The affiant also testified that, as far as he was aware, since June of 2012, this practice has not changed, and that officers still seek telewarrants after 4:00 p.m. on weekdays and on weekends. The affiant also agreed that the “Telewarrant Service” document appeared to state that even justices who are “on call to provide after hour services” will no longer issue search warrants under the Controlled Drugs and Substances Act as they are “available through the Telewarrant Service.”

6. Analysis and Conclusions

[24] In his testimony, the affiant explained why he sought the issuance of a telewarrant in the circumstances of the present case. The affiant also acknowledged that while he knew he was required to provide reasons in the ITO as to why it was impracticable for him to appear personally before a justice, he had mistakenly failed to provide those grounds. If the affiant had fully expressed in his ITO, as he did in his testimony, his grounds for seeking a telewarrant, namely, that the request was being made after 4:00 p.m., the justice of the peace office was closed, and no other justice was available to meet with him personally, this statement might well have sufficed to provide the reasonable grounds to justify dispensing with the usual personal attendance and the issuance of a telewarrant, especially if there was some urgency to the request. See R. v. Boussoulas, at paras. 73-76. There is no need to express any final conclusion on that issue, however, as there was simply no such statement anywhere in the affiant’s ITO in the present case.

[25] As the appendix to the TPS Routine Order regarding the availability of telewarrants accurately noted, telewarrants are available whenever it is impracticable to appear before a justice in person, but “the facts making it impractical MUST be set out” in the telewarrant ITO. As this mandatory pre-condition to the issuance of a telewarrant was not provided by the affiant in his ITO, I am driven to conclude that the issuing justice could not properly have issued the telewarrant. As there was no statement in the ITO as to why it was impracticable for the affiant to appear personally before a justice, as required by s. 487.1(4)(a) of the Criminal Code, the issuing justice could not have been satisfied that the ITO conformed to the statutory requirements of s. 487.1(4), nor could the issuing justice have been satisfied that the ITO disclosed reasonable grounds for dispensing with an ITO presented personally and in writing, as required by ss. 487.1(5)(a) and (b) of the Criminal Code.

[26] While conceding the absence of any articulated reasonable grounds in the ITO that it was “impracticable” to appear in person before a justice, the Crown argued nevertheless that the telewarrant should still be viewed as valid given the “amplification” of the record provided by the explanatory viva voce testimony of the affiant. I disagree.

[27] This is not a case where the ITO otherwise provides the necessary reasonable grounds for use of the telewarrant procedure, and the amplification evidence is tendered to correct some minor, technical drafting error made in good faith by the affiant. If the testimony of the affiant in the present case were permitted to amplify the record, and thereby provide all of the missing reasonable grounds justifying use of the telewarrant procedure, this would, in effect, permit the affiant to entirely circumvent the requirement of prior judicial authorization. The affiant would be permitted, by means of the amplification process, to provide all of the necessary reasonable grounds justifying use of the telewarrant process, without having provided any such grounds in the original ITO faxed to the justice. That is simply not the proper role of amplification evidence in the judicial review of the legal adequacy of an ITO prepared in support of a search warrant.

[28] This point was made by the Supreme Court of Canada in R. v. Araujo, where LeBel J., delivering the judgment of the court, described the proper scope of amplification evidence, making it clear that amplification cannot be permitted to circumvent the requirement of prior judicial authorization, and must be limited to the correction of minor, technical, good faith drafting errors by the affiant, where the affiant has otherwise demonstrated the necessary reasonable grounds. More specifically, at para. 59, LeBel J. stated:

The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests …, amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would 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 some minor, technical error in the drafting of their affidavit material. Courts must recognize … the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

[emphasis added – citations omitted]

[29] Accordingly, the telewarrant issued on June 12, 2012 authorizing the police search of the accused’s apartment premises must be quashed. In my view, as the telewarrant could not properly have been issued given the complete absence of any statement in the ITO providing the necessary reasonable grounds justifying use of the telewarrant process, and as the invalid telewarrant cannot now be saved by amplification evidence, the police search of the accused’s apartment premises was conducted in violation of his right to be secure against unreasonable search and seizure, contrary to s. 8 of the Charter of Rights.

[30] Defence counsel advanced other reasons why the telewarrant in the present case should be quashed. However, given that I have concluded that the telewarrant must be quashed as there is no basis upon which the issuing justice could have concluded that the usual personal attendance before a justice was “impracticable,” it is unnecessary to consider whether there are other reasons for reaching this same conclusion. It will, however, be necessary to consider those arguments in the context of an assessment of the admissibility of the evidence under s. 24(2) of the Charter of Rights.

D. The Admissibility of the Drugs and the Drug-Related Paraphernalia

1. Introduction

[31] As I have determined that the police search of the accused’s apartment premises, which resulted in the discovery of the controlled substances, was in violation of s. 8 of the Charter of Rights, the admissibility of the drugs must be assessed under s. 24(2) of the Charter. Of course, under s. 24(2), the accused bears the burden of establishing, on the balance of probabilities, that the admission of the tendered evidence, obtained in violation of the Charter, would bring the administration of justice into disrepute. See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 209-213; R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, at p. 353-354; R. v. Fearon, 2014 SCC 77, [2014] S.C.J. 77, at para. 89.

[32] According to the governing three-part analysis, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 21-42; R. v. Morelli, at paras. 98-113; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at paras. 5-8; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 45-48; R. v. Spencer, 2014 SCC 43, 312 C.C.C. (3d) 215, at paras. 75-81; R. v. Taylor, 2014 SCC 50, 311 C.C.C. (3d) 285, at paras. 37-42; R. v. Mian, 2014 SCC 54, 13 C.R. (7th) 1, at paras. 78-89.

2. The Seriousness of the State Conduct

a. The Governing Principles

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

[34] Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights is at the other. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct, but negligence or wilful blindness by the police cannot properly be viewed as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 74-75; R. v. Boussoulas, at paras. 157-158.

[35] Even where the breach of the accused’s Charter rights is not the result of any “wilful disregard” for those rights, if the Charter violation constitutes a significant departure from the standard of conduct expected of police officers, such conduct cannot be condoned by the courts, and this aspect of the inquiry will lean in favour of the exclusion of the evidence. See R. v. Taylor, at para. 39.

b. Seeking the Telewarrant in Good Faith – Not a Serious Charter Breach

[36] The first act of police conduct that must be considered is the affiant’s failure to provide any grounds of “impracticability” in support of his request for a telewarrant. However, in all of the circumstances of this case, I conclude that the police acted in good faith in seeking to obtain a telewarrant for their proposed search of the accused’s apartment premises.

[37] First, the affiant sought, and obtained, prior judicial authorization for the telewarrant. This demonstrates that the affiant was mindful of the privacy interests of the accused, and wanted judicial approval for his proposed search of the accused’s apartment premises. As Rosenberg J.A. observed in R. v. Rocha, 2012 ONCA 707, 292 C.C.C. (3d) 325, at paras. 28-29, “[a]pplying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights,” and unless the applicant can show that the warrant was “obtained through the use of false or deliberately misleading information,” obtaining the warrant generally “tells in favour of admitting the evidence.”

[38] Second, the courts have recognized that seeking to employ the telewarrant process in obtaining the necessary prior judicial authorization for a proposed search, without having properly demonstrated the necessary grounds justifying resort to the telewarrant process, is not a serious breach of the Charter where the proposed search would likely have been properly judicially authorized in any event – either by means of a telewarrant or by a standard search warrant.

[39] For example, in R. v. Lacelle, 2013 ONCA 390, 284 C.R.R. (2d) 184, the Court of Appeal for Ontario considered the potential application of s. 24(2) of the Charter in a case where the court assumed, without deciding, that the only statement in the ITO that could have justified the use of the telewarrant procedure (i.e. “[t]here is no Justice of the Peace available at this time [9:51 p.m.]),” should be excised from the ITO. In short, the court assumed that there was nothing in the ITO that justified use of the telewarrant process. Nevertheless, the Court of Appeal concluded that the evidence obtained as a result of the telewarrant search was admissible in any event under s. 24(2) of the Charter. More particularly, with respect to the seriousness of the Charter-infringing conduct, the court stated, at paras. 11-12:

The first line of inquiry under Grant is into the seriousness of the Charter-infringing conduct. In R. v. Lao, 2013 ONCA 285, at para. 75, this court found that “the use of the telewarrant process without having adequately demonstrated that it was impractical to appear in person” did not amount to a serious Charter breach. See also R. v. Farewell, 2008 BCCA 9, at para. 43.

In R. v. Farewell, 2006 BCSC 372, at para. 56, the trial judge, who was upheld on appeal, stated:

It would be difficult to explain to the community that the results of the search have been excluded because of the failure by the police officer to make a phone call in circumstances where it would almost inevitably have made no difference – either because a telewarrant was in fact the only option, or because an in-person appearance, if available, would have resulted in the warrant being issued anyway.

[emphasis added]

[40] Similarly, in my view, for the reasons outlined below, even if the affiant had not sought to employ the telewarrant procedure, a standard, personally-presented search warrant would inevitably have been issued had a justice been personally available when the telewarrant was sought by the affiant.

c. Reasonable Grounds Justifying the Search of the Accused’s Apartment Premises

1. Introduction

[41] The accused argued that there were no reasonable grounds justifying the search of his apartment premises by the police – by any judicially approved mechanism (telewarrant or otherwise). This argument was advanced by defence counsel as another reason why the telewarrant in this case should be quashed. This is, accordingly, another act of alleged police conduct that must be considered under at least the first prong of the governing s. 24(2) analysis. Of course, if I were to conclude that there were no reasonable grounds justifying the issuance of any kind of warrant to search the accused’s apartment, the seriousness of that Charter-violating conduct of the police would also have to be assessed under s. 24(2) of the Charter. I have not reached this conclusion. Rather, in my view, based upon the ITO prepared by the affiant in this case, as amplified on the review, the issuing justice could properly have concluded that there were “reasonable grounds” justifying the issuance of a search warrant. Indeed, in my opinion, that conclusion by the justice was inevitable.

[42] In explaining how I have reached this conclusion, my reasons will have to be somewhat more guarded and general than would otherwise be appropriate, given that my conclusion is based upon my review of the unredacted, original ITO, which contains information that, if disclosed, would identify the confidential informant. Accordingly, in outlining my reasons, I am effectively limited, in relation to certain information, to the type of language employed in the judicial summary of the excised materials.

2. Reasonable Grounds

[43] Of course, in order to assess the sufficiency of an ITO used to obtain a search warrant, the court must determine whether, in the totality of the circumstances, the ITO reveals the necessary “reasonable grounds.” This standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. This standard requires more than an experienced-based “hunch” or reasonable suspicion, but it does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. In short, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have been issued. See Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7; R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont.C.A.), at para. 22; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 17, 21-23; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at paras. 37-38; R. v. Sadikov, at para. 81.

[44] Further, when the police rely upon information from a confidential informer to meet this threshold standard, consideration must be given to whether the information from the informer is compelling, credible, and/or corroborated by other aspects of the police investigation. However, these are not discrete, isolated inquiries, and weaknesses in one area may be offset by strengths in another. See R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont.C.A.), at pp. 218-219, affirmed, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1168-1171; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 297; R. v. Rocha, at para. 16; R. v. Eftekhari, at para. 21; R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341, at para. 40; R. v. Boussoulas, at paras. 21-22.

3. Incredible Informant – But Information Both Compelling and Corroborated

[45] In the circumstances of the present case, in summary, while the personal credibility of the confidential informant must be fairly and objectively described as very poor, his information detailing the drug-trafficking activity of the accused was compelling, and significant aspects of his information were confirmed and corroborated by subsequent police investigation.

[46] I have described the personal credibility of the confidential informant as “very poor.” I have reached that conclusion based upon all of the following considerations:

• The confidential informant has a lengthy criminal record which includes convictions for property-related offences, offences against the administration of justice, driving offences, and offences of obstructing a peace officer. This criminal record serves to significantly undermine the credibility of the confidential informant.

• The confidential informant has never previously provided the police with information about the criminal activities of others on a confidential basis (or otherwise). Accordingly, this “first time” informant has no established history or “track record” of reliability that might enhance his credibility.

• According to the ITO in the present case, the confidential informant is “well-entrenched in the drug sub-culture” and appears to be “familiar with drug activity and persons involved in drug dealing.” While this statement may provide an explanation as to how the confidential informant came to possess knowledge as to the drug-trafficking activities of the accused, it otherwise undermines the credibility and reliability of the confidential informant. See R. v. Barton, 2013 ONSC 3366, 285 C.R.R. (2d) 21, at para. 104.

• While no promises or inducements were made by the police in relation to the information provided, the confidential informant was motivated by self-interest in providing this information about the accused’s drug-dealing activities to the police.

[47] Nevertheless, I am satisfied that the detailed information, which the confidential informant provided to the police about the drug-trafficking activities of the accused, was “compelling” in light of all of the following considerations:

• The confidential informant provided the police with his own “first-hand” knowledge as to how the accused was “aggressively” trafficking marihuana and cocaine from his apartment.

• The confidential informant provided the police with detailed information as to how he personally purchased quantities of powdered cocaine and marihuana from the accused at his apartment over the previous 30 day period, the general frequency of those purchases, and how he saw the accused on several occasions in the possession of not only cocaine and marihuana, but also ketamine, MDMA capsules, scales for weighing the drugs, and “baggies” for packaging the drugs.

• The confidential informant provided the police with detailed information about how the accused ran his drug-trafficking operation from his apartment, the specific location in the apartment where the drugs were stored, and his method of packaging the drugs.

• The confidential informant provided the police with specific information about approximately how long and how often he had been purchasing marihuana and powdered cocaine from the accused, and specific details about the quantities of the drugs he purchased from the accused and the frequency of his purchases, including the weight/costs of the drugs. The informant also explained how the drugs were weighed and packaged in front of him.

• The confidential informant told the police that he could attend the accused’s apartment “any time” to purchase drugs as the accused operated “24/7.” The informant also provided the police with information about the “business flow” of the accused’s drug trafficking operation at a particular time of day.

• The confidential informant provided the police with specific information as to how he personally purchased quantities of powdered cocaine and marihuana from the accused at his apartment during the preceding seven days, how much he paid for the drugs (including how much he paid on a cost/weight basis), and how the accused’s apartment was accessed for purposes of purchasing drugs.

• The confidential informant provided the police with specific information detailing a recent occasion, on a specific date within the seven days prior to the execution of the warrant, when the confidential informant purchased powdered cocaine and marihuana from the accused at his apartment. The informant provided details about the location where the accused stored the drugs in his apartment, and the quantity of the drugs that the accused had on hand for sale.

• The detailed and specific information provided to the police by the confidential informant revealed that the accused was engaged in illegal drug-trafficking activities from his apartment over a period of time, and that his involvement in these activities were continuing, in the sense that the information was fresh as opposed to stale and dated.

[48] This kind of detailed information about criminal activities by a suspect, based upon reasonably current and first-hand observations from a confidential informant, has generally been regarded as “compelling” by the authorities. See R. v. Rocha, at para. 28; R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont.C.A.), at paras. 9-11; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, at paras. 40-42.

[49] Further, in my view, having regard to all of the following considerations, significant aspects of the information from the confidential informant were confirmed and corroborated by subsequent police investigation:

• The confidential informant provided the police with detailed and accurate information about the identity of the accused as the drug dealer. More specifically, the confidential informant: (1) told the police the drug dealer was named “Andrew,” which proved to be the first name of the accused; (2) provided the 10-digit cell phone number of the drug dealer, which proved to be the cell-phone number of the accused; (3) provided a physical description of the drug dealer, which generally matched the physical description of the accused; and (4) provided the municipal address for the drug dealer, and accurately described the physical location of this apartment unit, which proved to be the apartment unit belonging to the accused. See R. v. Boussoulas, at para. 35; R. v. Greaves-Bissesarsingh, at paras. 30-32, 43-45.

• When the affiant and another police officer attended at the accused’s apartment building on May 22, 2012, they smelled a “very strong odour” of marihuana coming from the specific unit belonging to the accused, and the smell “filled the hallway” on that floor of the building.

• When two police officers were detailed to attend at the accused’s apartment building on the evening of June 11, 2012 in furtherance of their investigation, they were approached in the stairwell of the building by an individual who inquired as to the purpose of their presence in the stairwell. When they identified themselves as police officers, this anonymous resident of the building immediately asked them if they were there “for the guy in 311” (i.e. the specific apartment unit that belonged to the accused). This resident advised the officers that “the guy in 311” is “the only problem in the apartment building,” as “he has people coming in and out all hours, day and night,” and that the “hallway always stinks of marihuana [that is] coming from his apartment.” This anonymous resident described the people who attended at apartment unit 311 as “transient youth and druggies.” This resident insisted on remaining anonymous, however, as he had to continue to live in the building and was scared of what could happen. See R. v. Plant, at pp. 296-298.

• When the two police officers attended at the accused’s apartment building on the evening of June 11, 2012, they observed “drug packaging in the hallway in the area of unit 311” and in the stairwell, and they also noticed “the smell of fresh marihuana” which was “extremely evident” as they walked through the third floor hallway, and which was “most overwhelming” in the specific area of apartment 311, where the accused resided.

• Building management confirmed that the accused had been living in his apartment in the building since 2007, and also provided the police with the 10-digit cell phone number of the accused, which matched the number provided by the confidential informant.

[50] As I have indicated, the law is settled that the assessment of whether the information provided by a confidential informant is sufficiently “compelling, credible, and/or corroborated” to amount to the necessary “reasonable grounds” justifying the issuance of an impugned warrant, does not demand a minimum showing in each category. Rather, weaknesses in one area may be offset by strengths in the others. In the circumstances of the present case, given the personal incredibility of the confidential informant as a witness, there must be convincing countervailing strengths proving that the information provided by the confidential informant is both compelling and corroborated. In my view, in the present case, the incredibility of the confidential informant is indeed overcome by: (1) the truly compelling nature of the specific and detailed information provided by the confidential informant about the accused’s ongoing drug-trafficking activities; and (2) the strong confirmation of the reliability of that information by the corroboration that flowed from the subsequent police investigation. See R. v. Greaves-Bissesarsingh, at para. 37.

[51] In reaching this conclusion, I recognize that not every passing olfactory experience of the scent of marihuana will itself provide reasonable grounds justifying the issuance of a search warrant. As Rosenberg J.A. noted in R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434, 134 C.C.C. (3d) 187 (C.A.), at para. 13, the sense of smell is “highly subjective,” and smells are often “transitory” and “incapable of objective verification” given that they can disappear often leaving “no trace.” In the present case, however, the anonymous resident of the apartment building complained to the police that the third floor hallway “always stinks” of the smell of marihuana emanating from the accused’s apartment, and police officers, on two separate occasions (approximately three weeks apart), noticed the overwhelming smell of marihuana coming from the accused’s apartment and permeating the third floor hallway. In my view, this body of evidence soundly corroborates the information from the confidential informant that the accused often had significant quantities of marihuana for sale in his apartment. See R. v. Safarzadeh-Markhali, 2014 ONCA 627, [2014] O.J. No. 4149, at paras. 3-7, 9-10, 16-18; R. v. MacCannell, 2014 BCCA 254, 314 C.C.C. (3d) 514, at paras. 34-50; R. v. Harding, 2010 ABCA 180, 256 C.C.C. (3d) 284, at paras. 21-30.

[52] While the confidential informant in this case was an unproven informant with no established history of reliability, and the nameless resident of the apartment building who spoke to the police was, in effect, an anonymous tipster, in my view, the information provided to the police by each of these unidentified witnesses can be mutually corroborative. In other words, like inherently dangerous Vetrovec witnesses, confidential and/or anonymous informants may provide mutually supportive corroborative information where there is no evidence of collusion or collaboration between them. See R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 O.R. (3d) 582, 131 C.C.C. (3d) 380 (C.A.), at paras. 95-121; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 188 O.A.C. 37, 187 C.C.C. (3d) 213 (C.A.), at paras. 157-162; R. v. Naicker, 2007 BCCA 608, 229 C.C.C. (3d) 187, at para. 34, leave denied, [2008] S.C.C.A. No. 45; R. v. Illes, 2007 BCCA 125, 217 C.C.C. (3d) 529, at paras. 33-37; reversed on other grounds: 2008 SCC 57, [2008] 3 S.C.R. 134; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at paras. 63-71; R. v. Drabinsky, 2011 ONCA 582, 274 C.C.C. (3d) 289, at paras. 139-143; R. v. Duhamel, 2012 ONSC 6449, [2012] O.J. No. 5817, at paras. 111-119; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 90-93; R. v. Worm, 2014 SKCA 94, [2014] S.J. No. 516, at paras. 38-44.

4. Conclusion

[53] In summary, in my opinion, based upon the record that was before the issuing justice, as amplified on the review, the issuing justice could properly have authorized a search warrant in this case. Indeed, prior judicial approval of the proposed search of the accused’s apartment premises was inevitable. Accordingly, this argument by defence counsel provides no further evidence of police misconduct that must be considered under s. 24(2) of the Charter of Rights.

d. The Drafting Issues With the ITO

1. Introduction

[54] Concluding that the issuance of a search warrant was inevitable, however, is not to say that the ITO prepared by the affiant was a problem-free model of clarity and accuracy, which fully provided the justice with all of the relevant information both for and against the requested issuance of the warrant. There were some other drafting problems with the ITO in the present case. More particularly, the affiant failed to include all of the information that he ought to have included in the ITO. However, these imperfections by omission do not establish that the affiant (or any other police officer involved in the investigation) sought to deliberately mislead the justice, or acted recklessly, or even negligently, in relation to the Charter rights of the accused. Rather, these imperfections in the ITO are more accurately characterized as simply the honest mistakes of an inexperienced police officer engaged in drafting his very first ITO, and not being fully versed in all of the nuances of his drafting obligations as an affiant. See R. v. Morelli, at paras. 99-103; R. v. Lacelle, at paras. 3, 7, 14.

[55] In my review of the ITO in this case I have considered the information that was not disclosed to the issuing justice, while at the same time keeping in mind the fact that search warrant applications are ex parte proceedings and that affiants seeking such warrants are obliged to make full, fair, and frank disclosure of all material facts, regardless of whether they implicate the target of the investigation or not. Further, I appreciate that where relevant information has, inadvertently, not been disclosed in an ITO, on review, the issue remains whether the issuing justice, having been apprised of the omitted information, could judicially have issued the search warrant. See R. v. Araujo, at paras. 46-47, 57; R. v. Morelli, at paras. 44, 55, 58-60, 96, 102, 131; R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont.C.A.), at pp. 391-394; R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont.C.A.), at paras. 40-41; R. v. Kesselring, at para. 31; R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at paras. 48-51. Yet, as Watt J.A. observed in R. v. Sadikov, at paras. 87 and 93, while material non-disclosure in an ITO is relevant on any review of the validity of a search warrant, it is not dispositive of the review. See also R. v. Bisson, at p. 1098; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), at pp. 552-555; R. v. Araujo, at para. 54; R. v. Garofoli, at p. 1452; R. v. Pires; R. v. Lising, at para. 30; R. v. Ebanks, at paras. 20-21; R. v. Nguyen, at paras. 23-25; R. v. Evans, 2014 MBCA 44, [2014] M.J. No. 129, at paras. 11, 17.

[56] In my view, for the reasons that follow, notwithstanding the drafting deficiencies in the ITO, had the issuing justice been provided with all of the material information that should have been included in the ITO, the justice could (and would) have still issued a search warrant in the circumstances of this case.

2. The Criminal Record of the Confidential Informant

[57] The most obvious and troubling drafting issue in this case was the unfortunate decision by the affiant not to clearly advise the issuing justice about the details of the criminal record possessed by the confidential informant.

[58] Disclosure to the accused of all of the details of the criminal record of the confidential informant would, of course, compromise the anonymity of the confidential informant. Accordingly, the record has only been summarized for the purpose of assisting the accused in advancing his position on this application. More particularly, defence counsel has been advised that the confidential informant has a “lengthy criminal record” that includes convictions for “property-related offences, offences against the administration of justice, driving offences, and offences of obstructing a peace officer.” The Crown has also admitted that this criminal record was “not placed before the issuing justice” by the affiant in the ITO.

[59] Defence counsel argued that the affiant’s failure to include the details of the confidential informant’s criminal record in the ITO was a deliberate act of concealment that was intended to mislead the justice into erroneously believing that the confidential informant was more credible than he was. Indeed, defence counsel relied upon this argument as an alternative basis upon which to quash the telewarrant, in addition to relying on this aspect of the case as further evidence of misconduct by the police relevant to the first prong of the governing analysis under s. 24(2) of the Charter.

[60] I have no hesitation concluding that the affiant was quite mistaken in deciding not to include the details of the confidential informant’s criminal record in his ITO. At a minimum, the affiant should have clearly stated, in the ITO, that the confidential informant had a criminal record and summarized the important aspects of criminal record so that the justice could properly consider it in assessing the credibility of the confidential informant. Without such details, the justice is effectively deprived of information that may be of considerable assistance in assessing the credibility of the informant. In my view, the best drafting practice remains, as outlined in R. v. Boussoulas, at para. 46, as follows:

In cases in which a confidential informant has a criminal record, the affiant should include all of the usual details of that record (i.e. dates and locations of convictions, offences committed, and sentences imposed) in the ITO. This can be easily accomplished by simply referring to the existence of the record in the ITO and appending a copy of the record as an appendix. Such an approach has much to commend it. Such an approach would allow the justice reviewing the ITO to see all of the details of the criminal record and use it to properly assess its impact upon the credibility of the confidential informant. Such an approach would also avoid subsequent complaints and litigation about the accuracy of the manner in which the affiant elected to characterize or summarize the record.

[61] As mistaken as the affiant was in failing to advise the justice about the criminal record possessed by the confidential informant, in my view, this was an honest mistake by the affiant based upon some bad advice he appears to have received from a misinformed police officer colleague. I am satisfied, however, that it was not a deliberate attempt by the affiant to conceal the criminal record, or otherwise mislead the issuing justice.

[62] The affiant was cross-examined at length on this issue. He testified that, shortly after his meeting with the confidential informant in late May of 2012, he conducted database searches that disclosed the criminal record of the confidential informant. He agreed that the contents of the criminal record were significant, and that he was legally obliged in the preparation of an ITO to provide full, fair and frank disclosure of information to the justice.

[63] The affiant agreed, moreover, that he did not include the contents of the confidential informant’s criminal record in his ITO. Rather, in his “introduction” of the confidential informant in the ITO, the affiant indicated only that the “confidential source in this matter is known by an FPS and MTP number.” The affiant explained that he included reference to the FPS (fingerprint) number and the MTP (Metro Toronto Police) number to indicate to the justice that the accused had a criminal record, as those numbers were, according to the affiant’s understanding, only assigned to individuals upon conviction. The affiant thought that the reviewing justice would understand the meaning of the FPS and MTP acronyms. The affiant testified that, in not putting the details of the criminal record in the ITO, he was not trying to mislead the justice. Rather, he did not include the criminal record in the ITO because he had been told that the usual practice was not to include it, but to only provide it later if it was requested by the reviewing justice. The affiant could not recall which officer specifically advised him of this usual practice, but he did recall speaking to a police colleague about the issue.

[64] The affiant testified that, after the execution of this telewarrant, he came to understand that he was obliged to include the details of the confidential informant’s criminal record in the ITO. More specifically, the affiant identified an email circulation entitled “Search Warrant Info” that was sent to him, amongst other members of the TPS, in February of 2013, which provided information and advice in relation to the decision in R. v. Rocha. This email circulation quoted five different aspects of the text from the ITO that was used by the police in Rocha, identified the “problem” with each aspect of the text, and offered a “solution” to the problem. With respect to the criminal record of the confidential informant, the email quoted the ITO text in Rocha as indicating that the source “has no convictions for perjury or public mischief.” The email identified the problem with this “cute language” as potentially concealing “other convictions relating to dishonesty,” such as fraud and false pretenses “relevant to credibility.” The drafting solution to the problem that was suggested by this email circular was to state: “The source has criminal convictions, which I list in Appendix A,” which would subsequently be redacted from what was provided to the defence.

[65] I accept the testimony of the affiant as to how and why he did not include the details of the confidential informant’s criminal record in the ITO. Cst. Skvortsov struck me as an honest witness who was telling the truth in his viva voce testimony. Moreover, it is difficult to understand why the affiant would include in the ITO that the confidential informant was “known by an FPS and MTP number” if he were trying to deliberately conceal from the justice that the confidential informant had a criminal record. The inclusion of these acronyms certainly suggested that the confidential informant had some history of criminal activity. Accordingly, I find that the omission by the affiant was a genuine mistake by an honest but inexperienced police officer. While the mistake was unfortunate, and might conceivably have been avoided by better training and greater hands-on supervision by senior and more experienced officers, even well-trained police officers, acting in good faith, will make troublesome drafting errors in the preparation of their very first ITO. Such mistakes do not necessarily signal larger, systemic training problems in the TPS, or provide any evidence of unacceptable police misconduct. Rather, they may be, as I have found in this case, simply a function of the fallibility of every police officer, no matter how well-meaning.

[66] In any event, given my finding as to the benign origin of this drafting error by the affiant, it does not weigh in any significant way in my assessment of the gravity of the alleged Charter-infringing conduct of the police in this case under the first prong of the governing analysis under s. 24(2) of the Charter. See R. v. Morelli, at paras. 99-103; R. v. Rocha, at paras. 27-37; R. v. Lacelle, at paras. 3, 7, 11-14.

3. The Other Alleged Drafting Issues Regarding the ITO

[67] Defence counsel raised a number of other complaints regarding the content of the ITO in the present case. These complainants are largely about an alleged lack of clarity in the drafting of the ITO by virtue of the omission of certain statements of fact. It is fair to observe, with respect to at least some of these points, that if the affiant had drafted the ITO as suggested by defence counsel, a greater degree of clarity would have been achieved. However, that is not to say that the ITO, as drafted, was misleading or inaccurate. Indeed, in my opinion, these various drafting issues, viewed individually or collectively, do not reveal any potential police conduct on the part of the affiant that might render the alleged Charter-breaching conduct of the police more serious.

[68] First, the accused argued that the ITO in the present case ought to have included a clear and unequivocal statement that the confidential informant was providing information to the police for the “first time” and had no previous history as a confidential informant that might contribute to his potential reliability. I agree that such a statement would have improved the clarity of the ITO in the present case, as it would have explicitly highlighted that fact for the consideration of the reviewing justice. See R. v. Henry, 2012 ONSC 251, [2012] O.J. No. 1267, at paras. 32, 36. At the same time, however, the ITO was not legally deficient or in any way misleading by the absence of such a statement. In the ITO the affiant did not, at any point, suggest that the confidential informant had, on any prior occasion, provided the police with information on a confidential basis. Accordingly, based upon the facts outlined in the ITO, the justice could not reasonably have drawn any conclusion other than that the police were receiving information from a “first time” confidential informant. As A.J. O’Marra J. stated in R. v. Ali (unreported, Ont.S.C.J., March 6, 2014), at p. 16, in similar circumstances, the affiant did not in any way mislead the issuing justice by failing to expressly note that the confidential informant was providing information to the police for the “first time,” especially as the absence of any “prior history” as an informant is a “neutral fact” in the assessment of the reliability of the informant.

[69] Second, the accused argued that the affiant should have expressly indicated that, in their investigation following receipt of the information from the confidential informant, the police were never able to visually confirm the actual physical presence of the accused at the apartment premises that they sought to search. The fact that the affiant did not include, in the ITO, an express statement to this effect was not, however, in any way misleading as the affiant did not make any suggestion to the contrary. The affiant did not suggest that any police officer had confirmed, by surveillance or other investigative technique, the presence of the accused at the targeted apartment premises. Accordingly, based upon the facts contained in the ITO, the justice could not reasonably have drawn any conclusion other than that the police had not been able to visually confirm the presence of the accused in the targeted apartment premises.

[70] Third, the accused argued that the affiant should have included in the ITO an express statement that the accused did not have any previous criminal record. In the ITO the affiant indicated that, as part of his investigation in this case, he conducted a Canadian Police Information Centre or “CPIC” search using the name and date of birth of the accused, and this search revealed: (1) that the accused was “on file” for a “lost Canadian passport;” and (2) that MTO revealed that the accused was a licenced driver, whose “home address” was the targeted apartment premises. I agree that it would have been preferable for the affiant to have included in the ITO that this CPIC check also revealed that the accused did not have a prior criminal record. Such a statement would have improved the clarity of the ITO. See R. v. Ricketts, 2014 ONSC 3210, [2014] O.J. No. 5389. at paras. 84-86. Nevertheless, as the affiant did not suggest in the ITO, even impliedly, that the accused did have a criminal record, the only inference that the justice could reasonably have drawn from the ITO was that the accused did not have any prior criminal record.

e. Conclusion

[71] In summary, the first prong of the governing s. 24(2) analysis favours the admission of the evidence. In seeking and acting upon the judicially authorized telewarrant, the police acted in good faith, and the breach of s. 8 of the Charter, flowing from the execution of the subsequently quashed telewarrant, was not a serious breach of the Charter, especially given that the proposed search was based upon reasonable grounds and would inevitably have been properly judicially authorized in any event. Further, while there were some drafting issues in connection with the preparation of the ITO, the affiant never intentionally sought to mislead the justice, nor did the affiant engage in any other misconduct. Moreover, I am satisfied that notwithstanding the drafting issues regarding the ITO, the justice would have issued the search warrant in any event.

3. The Impact of the Breach on the Charter-Protected Interests of the Accused

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

[73] There are few, if any, settings in which a person has a greater expectation of privacy than the sanctity of his or her own residence. At least since the decision in Seymane’s Case (1603), 77 E.R. 194, at p. 195, it has been accepted that an individual’s home is their “castle and fortress.” Accordingly, the police intrusion of the accused’s apartment in the present case is a grave invasion of the privacy interests of the accused. Residential searches strike at the very core of an accused’s right to privacy. See R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paras. 141, 148; R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras. 55-58.

[74] Accordingly, any violation of s. 8 of the Charter of Rights in this particular context must almost invariably be viewed as having a very serious impact upon the constitutional rights of the accused. Mr. Daniels had a high expectation of privacy in his apartment unit, and that privacy was compromised by the intrusive police search of his premises. Therefore, this second prong of the governing s. 24(2) analysis strongly militates in favour of the exclusion of the evidence of the controlled substances and drug paraphernalia. See R. v. Morelli, at para. 104; R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at paras. 28-29; R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767, at para. 99; R. v. Boussoulas, at paras. 163-164.

4. Society’s Interest in Adjudication on the Merits of the Case

[75] As to the third prong of the admissibility analysis, the court is obliged to inquire whether the truth-seeking function of the trial is better served by the admission of the evidence, or by its exclusion. The court must consider not only the negative impact of the admission of the evidence, but also the impact of failing to admit the evidence. The reliability of the evidence is an important factor in this prong of the analysis. If the Charter breach has undermined the reliability of the evidence, this will suggest the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this prong of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice if the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84. At the same time, the public has an interest in ensuring that the criminal justice system remains above reproach in its treatment of accused persons charged with these types of serious offences. See R. v. Spencer, at para. 80; R. v. Taylor, at para. 38.

[76] In the present case, there is no doubt that the various controlled substances and drug-trafficking paraphernalia that were found by the police in the accused’s apartment premises are inherently reliable and objective pieces of evidence that are critical to the merits of this case. If the drugs are excluded, then the Crown’s case against the accused must necessarily collapse. If the evidence is admitted, however, the Crown would appear to be able to establish that there were a variety of controlled substances and an assortment of drug-trafficking paraphernalia in the apartment rented and occupied by the accused. Society’s interest in the adjudication of a criminal trial on its merits would be seriously undercut if such highly reliable and critical evidence was excluded. Accordingly, this third aspect of the governing s. 24(2) analysis strongly favours the admission of the tendered evidence. See R. v. Blake, at para. 31; R. v. Boussoulas, at paras. 165-166.

5. Conclusion

[77] The Supreme Court of Canada has made it clear that there is “[n]o overarching rule” that governs how the balance of these three important factors must be struck. Mathematical precision is obviously not possible. However, consideration of these factors provides a helpful and flexible type of “decision tree.” See R. v. Grant, at para. 86. The balancing of these three considerations, against the background of all of the circumstances of this case, leads me to the conclusion that the evidence of the finding of the controlled substances and drug-trafficking paraphernalia should be admitted. The accused has simply not convinced me, on the balance of probabilities, that the admission of this objectively reliable and critically important evidence would bring the administration of justice into disrepute.

[78] I am satisfied that the affiant and the other police officers involved in the investigation in this case acted in good faith throughout the course of their investigation and in obtaining and executing the judicially-authorized telewarrant at the accused’s apartment premises. The quashing of the telewarrant, and the other drafting flaws in the ITO to which I have referred, do not establish otherwise. Accordingly, the first factor, on balance, supports the admission of the tendered evidence. However, the impact of the breach of s. 8 of the Charter in this case was very significant. The police entered the accused’s apartment, and searched through his personal residential space and his personal possessions. This second factor, therefore, strongly supports the exclusion of the evidence. Finally, the evidentiary value of the controlled substances and the accompanying drug-trafficking paraphernalia is substantial given that they provide highly reliable evidence that is essential to a just determination of this case on its merits. This third factor, therefore, certainly supports the admission of the evidence. See R. v. Grant, at paras. 129-140.

[79] To paraphrase the conclusion reached by the Court of Appeal for Ontario in R. v. Blake, at para. 32-33, without diminishing the importance of the negative impact on the legitimate privacy interests of the accused caused by the police intrusion into his residential apartment premises, the argument is compelling that the exclusion of reliable, vital evidence in circumstances in which the police conducted themselves in good faith, viewed reasonably and from a long-term perspective, would have a negative effect on the overall repute of the administration of justice. Accordingly, the evidence of the controlled substances and the various drug-trafficking paraphernalia, and the fact that they were found in various different locations throughout the accused’s apartment, are admissible under s. 24(2) of the Charter of Rights.

E. Conclusion

[80] In conclusion, while the telewarrant must be quashed, as I advised the parties at the end of the argument of this application, the evidence discovered by the police in the accused’s apartment during the execution of the telewarrant is admissible under s. 24(2) of the Charter.

Kenneth L. Campbell J.

Released: January 15, 2015

CITATION: R. v. Daniels, 2015 ONSC 283

COURT FILE NO.: 13/9-704

DATE: 20150115

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

ANDREW STUART DANIELS

Ruling on Application to Quash

Telewarrant and Exclude Evidence

K.L. Campbell J.

Released: January 15, 2015

[^1]: Throughout these reasons, I will refer to the confidential informant as “he” purely as a matter of convenient reference, and to avoid consistently having to use the phrase “he or she.” This should not be interpreted as providing any insight as to the potential gender of the confidential informant in this case.