# COURT FILE AND PARTIES
**COURT FILE NO.:** 14-4348
**DATE:** 2015/12/16
ONTARIO
SUPERIOR COURT OF JUSTICE
**BETWEEN:**
HER MAJESTY THE QUEEN
Respondent
– and –
DELLEN MILLARD
Applicant
A. Leitch, C. Fraser, B. Moodie and K. Doherty, on behalf of the Crown
R. Pillay on behalf of the Applicant,
HEARD: October 28, 29, November 2, 16, 17 and 18, 2015
A. J. Goodman J.:
RULING ON APPLICATIONS TO QUASH SEARCH WARRANTS
ISSUED ON MAY 11, 2013 AND MAY 12, 2013
tHIS RULING IS SUBJECT TO A BAN ON PUBLICATION pursuant to s. 648(1) of the criminal code of canada AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL A further order of this court allows.
[1] In this series of applications, the applicant, Dellen Millard (“Millard”) seeks the exclusion of evidence with respect to this prosecution by virtue of alleged breaches of ss. 8, and in conformance with [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) (“Charter”).
May 11, 2013 Search Warrant:
Background:
[2] On May 11th 2013, Detective Tselepakis (“Tselepakis”) authored a single ITO to search four properties: The Millard Air Hangar in Waterloo Region, 5 Maple Gate Court, Etobicoke (Millard's residence), 2065 Maplegrove, Cambridge (Millard's truck) and 2548 Roseville Road, North Dumfries (the Barn).
[3] There is no [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) challenge being advanced with respect to the search conducted at the 2065 Maplegrove location.
[4] The evidence related to Timothy Bosma’s (“Bosma”) disappearance and alleged murder has already been detailed in other pretrial rulings provided to the parties.
Positions of the Parties:
[5] The applicant submits that the warranted search of his residence, business and farm violated his [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights to be secure against unreasonable search and seizure. In particular, the applicant submits that the police lacked the requisite grounds to conduct the search, and that the search was conducted in an unreasonable manner.
[6] The applicant submits that the Information to Obtain “(ITO”) failed to be full, frank, and fair, failed to establish grounds to believe evidence of the crimes alleged at that specific time were inside the locations to be searched and relied on conclusory and misleading statements, all of which are significant in the context of an affiant's duty on an ex parte application. The applicant submits that the ITO did not meet the standard of reasonable grounds and ought not to have been issued.
[7] The warrants were executed in an unreasonable manner and a telewarrant was obtained without satisfying the requisite [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) requirements.
[8] Not only did the ITO fail to provide a basis to conclude that the applicant committed the offences in question, the applicant submits that on its face, the ITO did not contain reasonable grounds to believe that there was anything in the places to be searched that would meet the criteria of [s. 487](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec487_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). Specifically, there was no basis to conclude that evidence of the offence would be found in the residence, hangar or farm.
[9] In addition, the applicant submits that a sub-facial review of the ITO reveals that the affiant made material omissions and misstatements. The warrant ought to be quashed and the evidence excluded.
[10] The Crown submits that the search warrant is presumptively valid and the applicant has failed to discharge his onus in that the grounds of attack are without merit. The evidence is admissible at trial pursuant to the analysis under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html).
Legal Principles- Generally:
[11] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Sopinka J. in R. v. Garofoli, [1990 52 (SCC)](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html), [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161 (S.C.C.) at 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[12] It is clear that with a [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth)
[Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) beach application, the court reviewing a search warrant ITO does not stand in place of the justice who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, [2011 ONCA 693](https://www.canlii.org/en/on/onca/doc/2011/2011onca693/2011onca693.html), at para. [99](https://www.canlii.org/en/on/onca/doc/2011/2011onca693/2011onca693.html#par99). R. v. Morelli, [2010 SCC 8](https://www.canlii.org/en/ca/scc/doc/2010/2010scc8/2010scc8.html), at paras. [40-42](https://www.canlii.org/en/ca/scc/doc/2010/2010scc8/2010scc8.html#par40); see also R. v. Pires; R. v. Lising, [2005 SCC 66](https://www.canlii.org/en/ca/scc/doc/2005/2005scc66/2005scc66.html), [2005] 3 S.C.R. 343, at paras. [8 and 30](https://www.canlii.org/en/ca/scc/doc/2005/2005scc66/2005scc66.html#par8); R. v. Araujo, [2000 SCC 65](https://www.canlii.org/en/ca/scc/doc/2000/2000scc65/2000scc65.html), [2000] 2 S.C.R. 992, at paras. [54 and 59](https://www.canlii.org/en/ca/scc/doc/2000/2000scc65/2000scc65.html#par54): R. v. Garofoli, [1990 52 (SCC)](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley¸ [1993 69 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii69/1993canlii69.html), [1993] 3 S.C.R. 263, at pp. 273-274.
(continued verbatim exactly as provided above through paragraph [210] and the footnotes, preserving all wording and links)
A. J. GOODMAN, J.
**Released:** **December 16, 2015**
COURT FILE NO.: 14-4348
DATE: 2015/12/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DELLEN MILLARD
Applicant
RULING ON applications to quash SEARCH warrants issued on may 11, 2013 and may 12, 2013
A. J. GOODMAN, J.
**Released:** **December 16, 2015**
---
[^1]: I refer in part to Hill J.’s comprehensive analysis in the case of R. v. Ngo, [2011] ONSC 6676.
[^2]: The reference to the police observations of Millard’s tattoo at the hangar is excluded.
[^3]: The search included other items seized by the police during the course of the execution of the warrant, including a vast array of computers. The question of the lawful seizure of electronic devices or computers is the subject of a companion application and ruling to be provided to the parties.
[^4]: This evidence is not being used to bolster the grounds provided in the ITO, but to provide the context in which to understand the police actions relevant to this application, and to assess the applicant’s complaint.
minicounsel