Court File and Parties
COURT FILE NO.: 15-10000561-0000 DATE: 2015-10-21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ISAAC ALLEN, Accused
COUNSEL: Erin Pancer, for the Crown Perry Schott, for the Accused
HEARD: October 19, 2015
BEFORE: B.A. Allen J.
PUBLICATION RESTRICTIONS NOTICE
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
REASONS FOR DECISION
(Ruling on Charter, s. 8, Challenge to Search Warrant)
BACKGROUND
[1] The accused, Isaac Allen, is charged with eight offences related to firearms. Under a search warrant executed on July 25, 2013, the police seized from a residence at 59 Swansea Mews, Toronto ("the target residence"), two prohibited, loaded firearms, a Glock handgun and a Taurus revolver. The police also seized a prohibited device, an overcapacity firearm magazine. In committing these firearm offences, Mr. Allen was in breach of Criminal Code, s. 109 firearm prohibitions and was charged accordingly.
[2] On July 15, 2013, the affiant on the Information to Obtain (“the ITO”), D.C. Fazal Haffejee, received information from the confidential informant handler, D.C. Scott Ross, that a male the source knew as "Chops" was in possession of a firearm at the target residence. "Chops" was later determined to be Mr. Allen. On July 15, 2013, the affiant conducted police computer data base searches on Mr. Allen, conducted an investigation on the target residence and applied for a warrant to search the residence.
[3] The police made three applications for a warrant. The July 15th application was refused by reason that the issuing court found deficiencies in the information on the reliability of the source and in the information establishing Mr. Allen's presence at the residence. The officer inserted revised information at Appendix E of the ITO. A second warrant was sought and issued for July 16th to July 19th. The police were attempting to observe Mr. Allen at the residence and the warrant expired without them being able to achieve this. The police later learned that Mr. Allen was in custody on charges which included firearms charges. The third warrant under which the firearms, magazine and ammunition were seized was issued and executed on the evening of July 25th.
[4] Mr. Allen comes before this court to challenge the validity of the warrant and to assert that his Charter right to security from unreasonable search was violated.
APPLICATION OF LEGAL PRINCIPLES
Reasonable Grounds to Believe
[5] In reviewing the sufficiency of a warrant, the review court must look at whether the police demonstrated reasonable and probable grounds to believe:
• that an offence was being committed, had been committed or would be committed; and • that evidence of the offence would be found at the specified time and place.
[R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.)]
[6] Thus, a valid warrant must contain reliable information establishing both locational and temporal links to existing or unfolding criminal activity.
[7] Reasonable grounds to believe have both a subjective and an objective element. The subjective component is satisfied where the police officer has an honest belief that the suspect has committed an offence and that the evidence would be found at the target location. The objective component requires there be facts to support the officer's belief and raises the question whether a reasonable person in the place of the officer would conclude reasonable grounds existed: [R. v. Farrugia, 2012 ONSC 775, [2012] O.J. No. 634, at para. 36, (Ont. C.J.)].
[8] Courts have developed general guidelines for the determination of the sufficiency of a warrant:
• The issuing court must be satisfied by the information sworn in a warrant affidavit and must act on reasonable and probable grounds in authorizing a warrant. • The review judge should not substitute their own decision for that of the issuing court. • It is not a question of whether the review judge would have issued the warrant, but rather whether there was sufficient credible and reliable evidence that would allow the issuing court to grant the warrant. • Based on the record before the issuing court, amplified on review, the review judge should decide whether the issuing court could have granted the authorization. If the review court's conclusion is affirmative, it should not disturb the lower court’s decision.
[R. Araujo, [2000] S.C.R. 992, at para. 54, (S.C.C.)]
Cross-Examination of the Affiant
[9] The defence can seek to challenge the warrant through cross-examination of the affiant on the information to obtain. This is not an automatic right. The defence must seek leave of the court. The defence must demonstrate a particularized basis for the cross-examination.
The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make a full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, for example, the existence of reasonable and probable grounds.
[R. v. Garofoli, 1990 CanLII 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161, at para. 23, (S.C.C)]
[10] Cross-examination, if allowed, should be limited to questions directed to establish there was no basis upon which the authorization could have been granted: [R. v. Pires and Lising, 2005 SCC 66, [2005] S.C.J. No. 67 463, at para. 10, (S.C.C.)].
[11] The defence originally sought to cross-examine D.C. Hafferjee on a number of areas but at the hearing limited its request to one area. The defence argued there was inaccurate and misleading information in the ITO about the occupants of the target residence. The affiant stated in the ITO that he had confirmed with Toronto Community Housing that Mr. Allen lived at the residence. Over a year later, the Crown made a Freedom of Information request for access to the lease for the residence. As it turned out, the lease indicated Mr. Allen's mother and siblings lived at the residence. It did not disclose Isaac Allen as resident.
[12] The affiant prepared an unsworn "will-say" statement explaining the basis of the information that Mr. Allen lived at the residence. He explained that he had called Toronto Community Housing and spoke to an attendant who for privacy reasons would only disclose the mother's name as a resident. The attendant indicated siblings lived there as well, a male and a female. The attendant would only confirm that a male of about age 28 (Isaac Allen's age) lived there and that his surname was "Allen". The male turned out to be a "Ricardo Allen." The defence received both the lease and the will-say statement before the preliminary inquiry in February 2015.
[13] At this hearing, D.C. Hafferjee swore to the truth of the will-say statement. He testified as to his honest belief that the male living at the residence was Isaac Allen and that the information he provided in the ITO was an error.
[14] I did not find cross-examination in this area would be useful. I do not find it would tend to illicit evidence to discredit one of the statutory pre-conditions. The officer has explained to my satisfaction his steps in obtaining the information about the occupants of the residence and the reason for the error in the information. I find that cross-examination would only elicit the same information as provided in the will-say statement. D.C. Hafferjee provided revised information at Appendix E of the ITO.
The Information to Obtain
Facial Deficiencies in the Information to Obtain
[15] Because of the “without notice” nature of a warrant, the applicant must be full, frank and fair in their disclosure of material facts: [R. Araujo, at para. 46].
[16] There are no strict drafting rules. The information to obtain is not expected to be drafted to perfection, and in fact, flaws are to be expected [R. v. Nguyen, 2011 ONCA 57, 2011 ONCA, at para. 57, (Ont. C.A.)]. The defence has argued that the error related to the information that Mr. Allen lived at the target residence is significant as it misled the issuing court in its finding that this information justified the warrant.
[17] Courts have considered the effect of errors and inaccuracies in a warrant application. Inaccuracies or material facts not disclosed do not necessarily detract from the satisfaction of the statutory pre-conditions. There is no obligation to disclose every fact that might possibly be relevant: R. v. Chambers (1983), [1983 CanLII 245 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1983/1983canlii245/1983canlii245.html), 9 C.C.C. (3d) 132 (B.C.C.A.), at p. 143; aff'd (1986), [1986 CanLII 22 (SCC)](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii22/1986canlii22.html), 26 C.C.C. (3d) 353 (S.C.C.) and R. v. Pires and Lising, at para. [30]. Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding whether to set aside the authorization and do not by themselves lead to automatic vitiation of the authorization": [R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098, (S.C.C.)].
[18] The review court should not concentrate its attention on individual shortcomings in the information to obtain in isolation from the full factual context of the information. In deciding whether the issuing court could have issued the warrant, every piece of information must be assessed in the context of the totality of the information. Certain deficiencies can be rectified by amending the information to obtain. The review judge is required to excise or exclude erroneous information.
… only erroneous information needs to be excluded from consideration and that material, provided it is not part of a deliberate attempt to mislead the Justice of Peace, may be amplified by evidence on review showing the true facts.
[R. v. Araujo, supra, at para. 56]
[19] The Crown concedes, and I agree, that the impugned inaccurate information must be excised from the ITO.
The Judicial Summary
[20] The court in this case is faced with a heavily redacted ITO which the Crown concedes. The Crown acknowledges the redacted ITO lacks sufficient information to justify the issuance of the warrant. However, it is the Crown's position that the unredacted ITO before the issuing court contains sufficient information to support the issuance of the warrant.
[21] The six-step disclosure process in Garofoli for wiretaps has been adopted as a procedure to consider the validity of a search warrant: R. v. Garofoli, at para. [79]. At Step 6, if the Crown believes the warrant cannot be supported by the redacted information to obtain, the Crown may apply to the judge to request the court consider so much of the redacted material as necessary to support the warrant. The court should allow the request only if it is satisfied that the accused is sufficiently aware of the redacted material to challenge it in argument or evidence.
[22] A judicial summary of the redacted information is used as a tool to achieve a balance between the competing interests of a full and fair defence and the protection of informer privilege. The Supreme Court of Canada has suggested, on Charter admissibility proceedings where the merits of guilt or innocence are not being determined, that the right to full answer and defence is somewhat attenuated: R. v. Pires and Lising, at paras. [29 - 30].
[23] In the case before me, the Crown presented a draft of a proposed judicial summary. The defence submitted that the redacted ITO was not sufficient to allow an effective challenge of the ITO.
[24] The Crown provided the court with the unredacted ITO to review together with the draft judicial summary. Following my review, I am satisfied on the whole that the information the Crown chose to redact is so detailed and precise in certain critical areas in relation to the confidential source, that there is a real risk that disclosure would identify the source or narrow the pool of whom the source could be.
[25] There was one exception that was agreed to by the Crown. Regarding page 7, item 10 of the ITO, I inquired if the redaction could be removed without a risk of breaching privilege. Once removed, item 10 disclosed the source's information that “‘Chops’ lives with his mother and some possibly [sic] some siblings, but is not sure”.
[26] I also inquired as to whether the redaction on page 7, item 4, could be removed without the risk of identifying the source. Crown counsel consulted with the Officer in Charge who indicated that the redaction should remain in place for reasons of privilege. The judicial summary indicates for item 4: "Discloses first-hand recent specific knowledge the source has in relation to Isaac Allen."
[27] The defence challenged the judicial summary on the basis that the summaries of the redacted areas were not sufficiently detailed to allow an adequate test of the reliability of the information or an effective challenge to the warrant by evidence or argument.
[28] After hearing the parties' submissions, I indicated I appreciated why the Crown sought protection of the redacted information. While the redactions are somewhat extensive, I find that the summaries of the redactions are such that they offer the defence a good idea of the type of information behind the redactions that was before the issuing court. I think a fair, although not perfect, balance has been achieved in protecting the privileged information and the defence's right to a full and fair defence.
[29] I therefore accepted the Crown's position that the judicial summary allows the defence to be sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence.
The Debot Factors
[30] An assessment of the reliability of the source and the source's information must be determined in the totality of the evidence. Once the erroneous information has been excised, the review court's task is to consider whether there remains sufficient evidence on the basis of which the warrant could have issued. It is the burden of the Crown to prove there was sufficient and reliable information before the issuing court to support the issuance of the warrant. Proof requires establishing that the information is credible, compelling and was corroborated before execution of the warrant.
[31] The Supreme Court of Canada developed three tests to be applied in deciding the accuracy and trustworthiness of the informant and their information:
• Is the source credible? • Did the police investigate to corroborate the information before conducting the search? and • Is the information predicting the commission of the offence compelling?
[R. v. Debot, 1989 CanLII 13, pp. 3 - 4], (S.C.C.)].
[32] The factors in the three criteria should not be treated as separate tests. Weaknesses in one area of inquiry may be compensated for by strengths in the other two. The "totality of the circumstances" must meet the standard of reasonableness. The source and quality of the information provided at the time the search was executed must be examined in determining the validity of the warrant.
Is the source credible?
[33] One way to judge the reliability of a source and their information is to consider the source's relationship with the police and whether they have provided reliable information in the past. The source was a carded informant that had provided reliable information to the police on one previous occasion. The information led to an investigation which resulted in a warrant and arrests and criminal charges against an individual or individuals. The details of this information are redacted as being capable of identifying the source. The issuing court had the details before it when it assessed reliability.
[34] A further consideration is whether the source has a criminal record particularly convictions for crimes of dishonesty such as obstruct justice or perjury. The ITO indicates the source has a criminal record but the particulars are redacted. The Crown indicated that disclosing the details of the record risks exposing the identity of the source. The issuing court had before it the details of whether or not there were crimes of dishonesty to aid its assessment of whether the source's information was sufficiently reliable to issue the warrant.
[35] The motivation of the source to provide information to the police is another factor to consider. The ITO indicates the source provided information he hoped would lead to consideration on their current criminal charges. At the time the source provided the information, he had not received any such consideration. According to the ITO, the source understood that if the information they provided was false or not helpful in the investigation, the source would receive no benefit. This, the Crown asserts, and I agree, points away from evidence of a motive by the source to fabricate the information.
[36] I find on the credibility/reliability factor that the information in the ITO weighs more on the positive side. The source was carded and had, though only one, previous experience in providing fruitful information. There is evidence that suggests the absence of a motive to fabricate.
Did the police investigate to corroborate the information?
[37] On this criterion the court considers whether the police confirmed information of a substantive nature or only ordinary or neutral information that could have been given by anyone.
[38] The source told the police that Chops lived at the target residence at 59 Swansea Mews. The source provided specific information about the residence, describing the external layout of the building and the gap between the units and how one reached the upper level by stairs. The source attended outside the unit with the affiant and identified the residence. The affiant attended the address on another occasion to corroborate the description given by the source.
[39] This information is not particularly compelling. The information describing the external features and location of the target residence is information I believe anyone could acquire by attending the property. I find nothing special about the source's knowledge in this area.
[40] The police relied on the source's information that Mr. Allen lived at that address with his mother and perhaps some siblings. The details of that information are redacted. The summary indicates the redacted information discloses recent information in relation to Mr. Allen. The affiant attempted to get accurate and independent confirmation that Mr. Allen lived at the residence through his call to Toronto Community Housing on July 16 and, as I accepted earlier, the affiant had the honest belief that the information the attendant provided indicated the 28-year old male with the surname “Allen” who lived there was Isaac Allen.
[41] The lease that was accessed by the Crown over a year after the search indicated the male was not Isaac Allen. This points to a frailty in the police investigation in that it would clearly have been preferable over a verbal exchange by phone if before the search the police had obtained written confirmation from Toronto Community Housing like a copy of the lease.
[42] The affiant also confirmed the description of "Chops" given by the source through obtaining a photograph from the police data base search. The affiant showed the photograph to the source and he confirmed that the photograph of Isaac Allen was "Chops". I do not find this information particularly compelling since a description of Mr. Allen could be known to many people.
[43] Not during the surveillance the police conducted on the residence on July 15th, nor at any other time, did the police observe Mr. Allen before they executed the search on July 25th. On July 25th, the police learned that Mr. Allen was detained in custody in Sudbury on criminal charges. So when the warrant was executed, the police knew Mr. Allen would not be present.
[44] From the laundry room of the residence, the police seized a suitcase containing the two loaded firearms and the overcapacity magazine. A bag of ammunition was located in the living room. For understandable reasons it is highly unlikely that the police would have been able to confirm the presence of the firearms before executing the warrant. But it is not open to the police to use the fact that they found firearms in the home after the fact to bolster the validity of the warrant. The law provides that the critical time for assessing the validity of the information in a warrant is at the time of the application before the issuing judge, not in retrospect after the search: R. v. Garofoli, at para. [68].
[45] The Ontario Court of Appeal recognized the obvious reality that unlawful possession of a firearm in a person's home is difficult to corroborate through surveillance. To require in the case at hand that the police have independent findings before the search to support the information about the location of the guns would not be reasonable: [R. v. Crevier, 2013 ONSC 1880, [2013] O.J. No. 5833, at para. 109 (Ont. C.A.)].
[46] As noted earlier, the details of the source's criminal record are redacted. The summary indicates the redacted information discloses background information about the source and whether or not the source is currently facing any charges before the court. The Crown pointed out that the summary does not indicate whether or not the source's convictions are for crimes of dishonesty or obstructing justice because this information could narrow the identity of the source. But the issuing court would have knowledge of this when it issued the warrant.
[47] Regarding the source's information about Mr. Allen's criminal activity, the affiant was able to confirm through the Holdup Squad that Mr. Allen had a charge for possession of a firearm which was withdrawn, and four weapons prohibitions, two of them for life. The affiant was able to confirm Mr. Allen's lengthy record of criminal convictions. CPIC disclosed a criminal record dating from 2000 to 2008 with convictions for assault, robbery, drug possession and trafficking, obstruct police officer, fail to comply, assault with a weapon, and aggravated sexual assault.
[48] There are some shortcomings in the corroboration of the source's information, particularly with respect to connecting Mr. Allen and his criminal activity to the target residence. As discussed earlier, the police acted on bona fide but inaccurate information in concluding that Mr. Allen lived there. This frailty, however, is somewhat minimized by the detail in the unredacted information of the source's specific, recent firsthand knowledge in relation to Mr. Allen and his criminal activities.
Is the information predicting the commission of the offence compelling?
[49] Courts have set down principles to aid the determination of whether the information is sufficiently compelling to support the issuance of the warrant:
• whether a statement in the information is bald and conclusory or amounts to mere gossip; • whether there is information about the informant's past reliability and motivation to provide the information; • whether information from the affiant amounts to merely information that an informant told the affiant that contraband would be found in a particular place; • whether the information inspires confidence that the source has knowledge of the target's criminal activity and that the activity has occurred or will occur at the target address; • whether the information is based on first-hand knowledge or on hearsay from another source; • whether the source or means of the informant's knowledge has been disclosed; • whether police surveillance has confirmed the informant's information.
[50] I find the information provided by the source contains relatively persuasive detail as it relates to the statutory precondition of reasonable grounds to believe a crime had been committed. The information is first-hand, detailed and current in terms of when the source acquired the information and passed it on to the police. I find the level of detail places the information beyond the bounds of mere gossip, rumour or commonplace knowledge. This information was required to be redacted due to its potential to identify the source.
[51] The timing of the information with respect to the firearms being present at the target address at the time of the search is important to determining whether the information is compelling or not. The summary of this area of the redacted information indicates the information is current in terms of when the source acquired it, and that it is based on first-hand information of the source's knowledge of Mr. Allen and his criminal activity.
[52] The redacted information indicates that the source provided the information to the police on July 15th and 16th. Therefore, there is a delay of nine and ten days from the dates the source provided the information until the execution of the warrant on July 25th. As noted earlier, the second warrant expired on July 19th while the police were attempting to observe Mr. Allen at the target address. The police continued the investigation to try to establish Mr. Allen's connection to the target residence but failed to observe him. On July 25th, the affiant found out that Mr. Allen was in custody in Sudbury. The warrant was sought and executed on that day.
[53] I find these circumstances do not sufficiently satisfy the pre-condition of reasonable grounds to believe the firearms would be located at the target residence at the time of the search. The nine/ten day delay from the time the police received the information, combined with the police's knowledge that Mr. Allen had left Toronto and was in jail in Sudbury at the time of the search, casts some doubt that there existed reasonable grounds to believe the firearms would be at the residence when they entered.
[54] Further, without giving away particulars, I note that the judicial summary indicates that Appendix F contains second-hand information from the source in relation to Isaac Allen. It does not provide a source for the informer's information. This means the information provided by the affiant in the ITO is third-hand information and quite possibly in the realm of gossip or rumour. I find this information does not assist with supporting the pre-condition that the firearms would be found at the residence when the police entered.
[55] There are critical deficiencies in the factual underpinnings to this pre-condition, both in terms of the timing of receipt of the information in relation to entry and with respect to the police's knowledge of Mr. Allen's absence from the residence, that diminish the source's allegation that there would be firearms located at the residence. It is reasonably possible that Mr. Allen took the hand guns with him when he left Toronto. I find for those reasons that the information supporting this statutory pre-condition is not of a sufficiently compelling quality.
Conclusion on the Sufficiency of the Warrant
[56] In the totality of the information in the ITO, I do not find the one facial deficiency of much consequence to the validity of the warrant. The excision of the information about the communication with Toronto Community Housing did not have much effect on the facial quality of the ITO. The disclosure of the source's information about Mr. Allen living at the target address with his mother, and perhaps his siblings, was useful.
[57] I indicated that I recognized why the redacted information remaining after the two areas of information were excised and unredacted should be protected as privileged. I had no problem seeing how the source could be identified through disclosure. I found that the summaries of information in the judicial summary allowed the defence to be sufficiently aware of the redacted information to allow it to challenge the warrant by evidence or by argument.
[58] I turn now to my conclusions on the Debot criteria. As noted earlier, the three criteria are not to be dealt with as separate tests. Weaknesses in one of the criteria can be bolstered by strengths in the other two. The criteria must be applied together and assessed in the totality of the evidence before the court.
[59] On the credibility/reliability criterion, the source's past experience as a carded informer who provided fruitful information to the police on one occasion holds moderate reliability value. The information also tends to indicate the source had no motive to fabricate since they had not been given consideration on their current charges and they were aware that they would not benefit unless the information was of assistance to the police.
[60] This puts the source and the source's information in a relatively positive light in terms of credibility and reliability. I am unable because of privilege to be specific about the impact of the source's criminal record on this factor. Suffice it to say that the source's criminal record does not assist in bolstering the credibility of the information on this criterion.
[61] I do not find the strength of the information on the corroboration and compelling criteria sufficiently fulsome to make up for the moderate quality of the information supporting reliability.
[62] Much of the information that was corroborated was not in the special knowledge of the source. The description of Mr. Allen and of the exterior and layout of the target residence could be within the common knowledge of many. Also problematic is that before entry the police were not able to satisfactorily corroborate the source's information connecting Mr. Allen to the target address although they believed they had.
[63] The police were however able to confirm the information about Mr. Allen's current criminal activity. The investigation revealed Mr. Allen's lengthy criminal record including involvement with illegal firearms and other crimes.
[64] The information put forward to establish factual support for the statutory pre-requisite of a reasonable belief that a crime had been committed is persuasive. It is first-hand, current, detailed and related to Mr. Allen and his criminality.
[65] However, the information presented to demonstrate a reasonable belief that the guns would be in the target residence at the time of entry falls short of being satisfactory. The time delay in entering the unit together with the knowledge of Mr. Allen being out of town in jail when they entered, detract from the reasonableness of the police's belief that the guns would be in the residence when the warrant was executed. This is fatal to the issuance of warrant.
[66] The standard of proof for reasonable grounds is not high. It does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. "If the inference of specific criminal activity is reasonable from the facts, the warrant could be issued": [R. v. Jacobson, 2006 CanLII 12292 (ON CA)]. I find that even applying the relaxed standard, the evidence does not support a finding that there was sufficient evidence to demonstrate reasonable grounds with respect to the firearms being found at the residence.
[67] I conclude in the totality of the evidence that the information in the warrant was not sufficient to allow the warrant to issue. A search and seizure conducted outside the prescribed standards constitutes a violation of a person's s. 8 rights under the Charter. The warrant was therefore invalid and the search of the residence a violation of Mr. Allen's right to be secure from unreasonable search and seizure.
THE CHARTER, S. 24(2) APPLICATION
The Inquiries
[68] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of a person's Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The Supreme Court of Canada in R. v. Grant set down three inquiries to guide this determination. They are as follows: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society's interest in the adjudication of the case on its merits: [R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.)].
The First Inquiry
[69] The seriousness of the breach falls along a spectrum: "The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law." On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights: R. v. Grant, at paras. [72 and 74].
[70] Where the police wilfully or flagrantly disregard the Charter, the court may be required to dissociate itself from such conduct. As state agents, the police have the obligation to uphold those rights. Police conduct that deliberately violates Charter protected rights tends to attract an order for the exclusion of evidence seized: R. v. Grant, at para. [75].
[71] There is no evidence before me that demonstrates the police showed undue disregard or neglect for Mr. Allen's rights. I considered the sensitive issue of the police entering a private abode. I have no evidence that questions the manner of the police entry and their conduct in the residence. This bodes in favour of admissibility.
[72] I considered other factors that support admissibility on this criterion.
[73] The police were legally authorized to search Mr. Allen's home on the strength of a search warrant issued by an independent judicial officer. The search therefore cannot be said to have been unjustified.
[74] The police made three attempts to obtain a warrant. They sought through a second revised ITO to satisfy the issuing court's concerns about the deficiencies in the first warrant. The second warrant expired while the police were trying to observe Mr. Allen and the police reapplied. These facts support a finding that the police acted in good faith in their attempts to obtain lawful authorization to search the residence: [R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, at para. 24, (Ont. C. A.)]. As the court held in R. v. Blake:
The police were clearly aware of the need to obtain a warrant and proceed accordingly. They cannot be said to have acted negligently or in ignorance of any applicable Charter requirements. A finding of "good faith" obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the infringement, and supports admissibility of the challenged evidence.
R. v. Blake, at paras. [24 and 25]
[75] The basis for excluding the firearms and ammunition was the deficiencies in the information provided in the ITO by the source and the police, deficiencies mainly having to do with corroboration and the compelling factor. There was no evidence of deliberate erroneous or misleading information designed to deceive the court. The one error by the affiant related to his communication with Toronto Community Housing was not made in bad faith. The officer swore to the truth of his will-say statement explaining the error.
[76] I do not find the deficiencies in the information reach the level of recklessness or negligence. This signals good faith on the part of the police and bodes in favour of admissibility which I find reduces the need to dissociate from the state conduct: [R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, at paras. 28 and 29, (Ont. C.A.)].
[77] In conclusion, I find the police conduct to have been in good faith and in accordance with the law. As the court in R. v. Blake found, the conduct of the police cannot be placed anywhere on the continuum of misconduct as set out in R. v. Grant: R. v. Blake, at para [25].
The Second Inquiry
[78] The second inquiry into the seriousness of the impact of the breach on the Charter-protected interests of an accused requires an assessment of the extent to which the breach undermined the interests protected by the right infringed.
The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute:
[79] There is no dispute on the impact on Mr. Allen's rights of the police entering the private dwelling in the late evening.
[80] The second inquiry is founded on a cherished societal expectation that people should be free to relax in the comfort and protection of their homes without fear of unwarranted interference by state agents. As stated in R. v. Grant:
An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.
[81] Intrusions by state agents into private domains such as homes meet with more critical scrutiny and are considered more serious breaches than interferences in less private spheres: R. v. Grant, para. [76]. By its very nature, interference by the state in the private life of an individual in their home puts a search on the more intrusive end of the spectrum. This circumstance points towards inadmissibility of the firearms and ammunition. However, I again note there is no evidence to support a finding that the manner of the police conduct on the search was on the scale of the most profound intrusion.
The Third Inquiry
[82] The third inquiry concerns the seriousness of the offence. R. v. Harrison addressed the court's task on the third inquiry. In that case, the police seized a high quantity of drugs through Charter violations. The court found the drugs to be highly reliable evidence, conclusive proof of the accused's knowledge and possession.
[83] I am faced with a similar concern with the firearms and ammunition seized. This evidence can present conclusive proof of Mr. Allen's knowledge and possession, evidence that is critical to the trier of fact's search for the truth at trial: [R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82, (S.C.C.)].
[84] The items seized were loaded, prohibited firearms, a prohibited, overcapacity magazine and additional ammunition. This is a recipe for a dangerous and potentially volatile situation. This is particularly the case where the accused was already under several previous firearms prohibitions and has a criminal record including firearms offences. The danger to society and communities caused by people with handguns has been recognized by other courts that have spoken to the importance of police taking them from the hands of those not authorized to own them: [R. v. Clayton (2005), 2005 CanLII 16569 (ON CA), 194 CCC (3d) 289; 27 CR (6th) 197, at para. 41, (Ont. C.A.); aff'd at 2007 SCC 32, [2007] 2 S.C.R. 725 (S.C.C.)].
[85] R. v. Harrison observed that the seriousness of the offence cuts both ways. Serious consequences to our justice system can result from a failure to prosecute a serious crime because critical evidence was excluded. This concern must be balanced against the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused's rights.
[86] Without the firearms, the Crown will have no case. There is no evidence the Crown can rely upon at trial outside that which was recovered through the Charter violation. The firearms have strong probative value and weighed against this is the seriousness of the violation of the Charter-protected right.
[87] In conclusion on this inquiry, when I weigh these considerations, I find, on balance, that society's interests in adjudicating the case on its merits are best served by allowing the firearms, ammunition and magazine into evidence.
CONCLUSION
[88] The final step in determining the admissibility of the firearm requires a balancing of the three R. v. Grant factors. The court is required to undertake a qualitative balancing of the three factors which does not involve simply looking at whether the majority of the factors favour exclusion. The weighing must consider the effect that admitting the evidence would have on the long-term repute of the administration of justice: R. v. Harrison, at para. [36].
[89] Although on the second inquiry I found the impact on the Charter right to privacy was serious, there is no evidence of unreasonable conduct by the police in the search. I also found the police acted in good faith in presenting information for the warrant application, and as such, I do not find their actions in relation to the first inquiry require the court to dissociate itself from the state conduct.
[90] Weighing heavily in favour of admission is the seriousness of the crime which only has the potential to be proved with the admission of the guns and ammunition. As the court in R. v. Blake held:
… I find compelling the argument that the exclusion of reliable crucial evidence in the circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.
[91] Inclusion of the evidence is critical to the truth-seeking function and the Crown's ability to move this matter to trial. I find in weighing the three factors that the balance tips in favour of admitting the firearms, ammunition and the magazine.
DISPOSITION
[92] I order the Glock handgun, the Taurus revolver, the overcapacity firearm magazine and the additional ammunition admitted in evidence.
B.A. Allen J.
Released: October 21, 2015