Court File and Parties

Court File No.: 6/15 Date: 20160429 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Andrew Paxton

Counsel: D. Moffat, for the Crown C. McLean, for Andrew Paxton

Heard: February 18, 2016 and March 24, 2016 at London, Ontario

RAIKES, J.

Nature of Application

[1] The Defendant, Andrew Paxton, stands charged as follows:

1. On or about the 19th day of December, 2013, at the City of London, Ontario, he possessed a substance included in Schedule II of the Controlled Drugs and Substances Act, cannabis marijuana, for the purpose of trafficking, contrary to section 5(2) of the said Act; and,
2. On or about the 19th day of December, 2013, at the City of London, Ontario, he possessed a substance included in Schedule III of the Controlled Drugs and Substances Act, psilocybin, for the purpose of trafficking, contrary to section 5(2) of the said Act.

[2] The Defendant applies for an order to quash the search warrants issued on December 19, 2013 authorizing the search of his vehicle and the search of his residence situate at unit 310 – 501 Wilkins Street, London, Ontario. He seeks an order pursuant to section 24(2) of the Charter of Rights and Freedoms excluding evidence of the marijuana, psilocybin and related materials found in his residence and in his vehicle on that date.

[3] The Application filed by the Defendant initially sought to quash only the search warrant for his residence. Defence counsel indicated during the voir dire that he was not aware that a second search warrant had been issued on December 19, 2013 to search the Defendant’s vehicle, although Crown counsel referred to same in his responding Factum and indicated that it had been provided as part of the disclosure. Leave was granted to the Defendant to expand the scope of the Application to include the search warrant for the vehicle without the necessity to file a further or amended Application.

Facts

Arrest/Search and Seizure

[4] On December 19, 2013, London police followed the Defendant from his residence. He was driving a vehicle licenced to him for which police had obtained a warrant to search for drugs and related paraphernalia. He was pulled over and placed under arrest for possession of marijuana for the purpose of trafficking. The vehicle was then searched pursuant to the search warrant. In the trunk of the vehicle, police found 1.26 pounds of marijuana.

[5] Shortly thereafter on the same date, police entered the Defendant’s residence and conducted a search of that residence pursuant to a separate search warrant issued for the same purpose. During the search, approximately 80 pounds of marijuana and 1.85 pounds of psilocybin were seized. In addition, police seized $3200 Canadian, an alleged debt list, a scale, a laptop and a cell phone.

[6] The search warrants were issued on December 19, 2013 by a Justice of the Peace based on an Information To Obtain (ITO) sworn by Constable Mills of the RCMP on December 18, 2013. Constable Mills was then assigned to the London City Police Guns and Drugs Unit. The ITO sworn by Constable Mills indicates that he had extensive experience in drug investigations.

[7] It is undisputed that the searches conducted by police on December 19, 2013 were done in accord with the search warrants issued. There is no suggestion that the manner in which the searches were conducted was unreasonable. Instead, the Defendant’s Application focuses on the ITO and whether the search warrants should have issued having regard to the evidence placed before the Justice of the Peace.

Information To Obtain (ITO)

[8] According to the ITO by Constable Mills, London Police received a Crime Stopper tip in September, 2013 that the Defendant was selling marijuana in London. The tip provided the Defendant’s home address and a description of the Defendant including the type of clothing he wore. The ITO clearly indicated that the identity of the Crime Stopper tipster was not known to police and that it was unknown whether that tipster had been convicted of perjury or misleading police.

[9] On October 3, 2013, Constable Mills attended 501 Wilkins Street and observed a white Honda parked nearby which he determined was licensed to the Defendant. It is the same white Honda for which the December 19, 2013 search warrant was issued.

[10] Surveillance by police of the Defendant started November 8, 2013. On that date, police observed the Defendant and another man get into a van leased to Matthew Braund, whose vehicle remained in the Defendant’s driveway. A later CPIC search indicated that Mr. Braund had a criminal record for possession of ecstasy for the purpose of trafficking and possession of marijuana for the purpose of trafficking.

[11] On November 15, 2013, Constable Mills queried the Defendant in the London Police Service Information System and found three “Street Checks”, which are police intelligence reports completed by officers that are based on police observations or human sources.

[12] The first report (Street Check #1) was completed by a London police officer based on information provided by an anonymous caller who advised that:

1. There was suspicious activity, believed to be drug trafficking, at an address on Wilton Avenue;
2. A male in a vehicle showed up regularly and brought in a duffel bag.

[13] The officer who prepared the Street Check report wrote that the vehicle that “shows up” was registered to the Defendant.

[14] There was a second Street Check report (Street Check #2) completed by the same officer and derived from an anonymous source. The anonymous caller advised that:

1. There was constant drug activity at an address on Gordon Avenue;
2. A person at Gordon Avenue was being resupplied by a person in a green Sunfire bearing a licence which the officer indicated was registered to the Defendant; and,
3. The drugs were believed to be delivered in a duffel bag.

[15] The ITO noted that Street Check #2 did not specify what the person at Gordon Avenue was being resupplied with.

[16] Both Street Checks #1 and 2 were dated 2010. Constable Mills indicated in his ITO: “[Although this information contained in the about Street Checks is dated, I believe it shows a pattern or history of Paxton engaging in drug activity.]” Thus, two of the Street Checks were three years old.

[17] There was a third Street Check (Street Check #3), albeit more recent, from April, 2012. Again, the source of the information was an anonymous caller. The caller advised:

1. There was a heavy amount of traffic coming and going from an address on Oxford Street;
2. The heaviest time was during the evening;
3. A white male driving a beige Honda was seen at that address;
4. The male was observed making calls at the back of the unit, leaving in the vehicle and returning with a duffel bag which was left at the unit.

[18] I observe that the licence plate noted on the beige Honda is the same as that on the green Sunfire, and white Honda eventually searched on December 19, 2013.

[19] Constable Mills indicated in his ITO that it was unknown whether the anonymous callers and Crime Stopper tipster were a single person or multiple distinct sources.

[20] On November 15, 2013, Constable Mills read a prosecution summary for an occurrence in 2012 in which the Defendant and another person were investigated and found to be in possession of marijuana. Constable Mills learned that the Defendant was charged, but had no criminal record as at that date. He also learned through CPIC that the Defendant was listed as living at unit 310 – 501 Wilkins Street in London.

[21] It appears from the ITO that sometime in mid-November, 2013, Constable Mills learned that some of the information previously provided by the Crime Stopper tipster was second-hand information that the tipster learned from a friend. Constable Mills indicated in the ITO, however, that the following first-hand information was provided by the Crime Stopper tipster:

1. He/she saw the Defendant in possession of a large amount of marijuana in the last two months;
2. He/she saw marijuana that had been purchased from the Defendant at his address in the last two months.

[22] Police, including Constable Mills, conducted surveillance of the Defendant on November 26, 27 and December 18, 2013. Constable Mills sets out in detail the observations made by police during surveillance including:

1. The Defendant driving and parking a white Honda bearing the same licence plate number;
2. The Defendant carrying various bags and boxes to and from the trunk of his car to numerous locations in and around London;
3. The Defendant’s visits to and meetings with individuals were brief;
4. The Defendant brought bags from the trunk of his vehicle into various buildings and returned to his car without them;
5. The Defendant pulled into a parking lot at an adult entertainment club where another male got into the passenger seat with a blue bag. The Defendant then went to the back of the car and took a bag out of the trunk and got back in the driver seat. He and the other male drove to a nearby Tim Horton’s parking lot where the same male exited the car carrying a bag that he put into the trunk of his car. The blue bag remained in the Defendant’s car.

[23] Constable Mills deposed that he had reasonable grounds to believe that the Defendant had committed the offence of possession for the purpose of trafficking marijuana. He based that belief on the information provided by the Crime Stopper tip that the Defendant was selling marijuana to people in London, the information from the previous Street Checks that the Defendant was believed to be involved in drug trafficking, and the surveillance conducted on November 26, 27 and December 18, 2013.

[24] He further deposed that he had reasonable grounds to believe that marijuana and related paraphernalia were in the Defendant’s dwelling unit at 310 – 501 Wilkins Street and in the white Honda, and a search of each will afford evidence of that offence. In that regard, he set out the sources for his belief which mirror those which formed the basis for his belief that Mr. Paxton was trafficking in marijuana.

[25] At the voir dire, Detective Constable Brian Price gave the following evidence:

1. He has extensive experience in drug investigations as a police officer over several years;
2. In 2013, he was supervising Team #1 which was the team investigating the Defendant;
3. Constable Mills was part of Team #1;
4. He participated in the surveillance of the Defendant;
5. Officers would gather information and present same to him as the supervising officer, including their plan. He helped develop the investigation strategy;
6. He reviewed the ITO for the warrants before it was submitted;
7. He was aware of the information in the ITO before the Defendant was arrested;
8. He made the call to arrest the Defendant at a safe location distant from his residence as is standard London Police operating procedure;
9. It was his belief that they had reasonable and probable grounds to arrest the Defendant earlier based on the tip that he was dealing a large quantity of marijuana, the corroboration that they obtained through surveillance over three dates and his observations of the Defendant’s activities;
10. He and the other officers observed many interactions that he believed were drug deals that corroborated the tip of the Crime Stopper tipster; and,
11. Each time they did surveillance of the Defendant, he came out of his residence with boxes and then made delivery of those boxes or bags that were in the boxes. Accordingly, he believed that the Defendant kept his marijuana in his residence.

[26] In cross-examination, he testified that:

1. Police did not obtain a warrant for the Defendant’s arrest;
2. It is not unusual for people to put shopping bags or boxes in their vehicle;
3. He regarded the Defendant’s actions as part of a pattern consistent with what he had seen in other drug dealing investigations;
4. No drugs were ever seen during surveillance;
5. No drugs were found prior to the arrest;
6. No one observed the Defendant taking out a hockey bag.

[27] Detective Constable Price was the only witness on the voir dire.

Law

[28] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court of Canada summarized the principles that apply on an application pursuant to section 8 of the Charter to challenge the issuance of a warrant. At paragraphs 39 and 40, Justice Fish wrote for the majority:

“[39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., 1984 SCC 33, [1984] 2 S.C.R. 145, at p.168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p.168).

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.”

[29] The reviewing court must “keep in mind throughout the analysis that the warrant is presumed to be valid and the correct question is whether the respondent [defendant] has established that there was no basis for its authorization”. Unless the defendant meets the burden of demonstrating its invalidity, the decision of the issuing Justice must be upheld: R. v. Campbell, 2010 ONCA 588 at para 45.

[30] Further, in R. v. Nguyen, 2011 ONCA 465, the Ontario Court of Appeal quoted from paragraph 102 of the decision in R. v. Morelli, supra, dealing with the expectations on police officers making application for a search warrant, and wrote the following as to the approach to be taken to the consideration of the ITO:

“That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing Justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct to that is on trial rather than the sufficiency of the evidence in support of the application.…” (Emphasis in original)

[31] With respect to the concept of “reasonable grounds to believe”, Justice C. Hill summarized the applicable principles in R. v. Ngo, 2011 ONSC 6676 at para 35:

“[35] Central to the current application is the concept of reasonable grounds to believe. In the context of a search warrant ITO, the overarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds were credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), 1989 SCC 13, 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 ONCA 12292, 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p.77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell, at para 57:

“Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.”

See also R. v. Nguyen, 2007 ONCA 24, at para 4: (“The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house”).

(4) “It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para 48….

(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para 68(6) of the Cunsolo case in these terms:

“Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 1996 SCC 174, 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para 4; R. v. Simpson (1993), 1993 ONCA 3379, 79 C.C.C. (3d) 482 (Ont. C.A.) at 501;) R. v. Juan (2007), 2007 BCCA 351, 222 C.C.C. (3d) 289 (BCCA) at para 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para 12; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para 53; R. v. Rajaratnam (2006), 2006 ABCA 333, 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116, [2001] S.J. No. 694 (C.A.) at para 30; R. v. Quillian, 1991 ABKB 13109, [1991] A.J. No. 1211 (Q.B.) at para 56.”

The soundness of this approach has been specifically recognized in the context of marijuana grow-op investigations: “The officer’s observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant”: Jacobson, at para 22.

(6) An issuing Justice is entitled to draw reasonable inferences from the stated facts and an informant is not obliged to underline the obvious: Lubell, at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences”: R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.) at para 15;…

(8) Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marijuana grow-op: Nguyen (2011), at para 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: Nguyen (2011) at para 50. “There is no obligation” on a warrant application “to explain away in advance, every conceivable indicia of crime they did not see or sense”: Nguyen (2011) at para 51.

(9) While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity prerequisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in Nguyen (2011), at para 51, “there is no obligation” on the police in applying for a search warrant to explain “every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event”.”

[32] Where the reasonable grounds justifying the search originate, at least in part, from information provided by a confidential informer, the tip must be compelling, come from a reliable source and be corroborated by police investigation: R. v. Crevier, 2015 ONCA 619 at para 67; R. v. Debot, 1989 SCC 13, [1989] S.C.J. No. 118 (S.C.C.) at para 53. “These three factors are assessed on the totality of the circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.”: R. v. Crevier, supra, at para 67; R. v. Debot, supra, at para 59.

Defence Position

[33] The Defendant argues that he has established that the warrants should not have issued as:

1. In this case, the only specific information came from a Crime Stopper tipster whose identity was unknown to Constable Mills;
2. The circumstances of the tip were unknown;
3. The credibility and veracity of all tipster(s) was unknown; and,
4. Police investigation provided only evidence of ambiguous circumstances and did not remove the possibility of innocent coincidence.

[34] As a consequence, the evidence from the searches should be excluded under section 24(2) of the Charter having regard to the factors in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.).

Crown Position

[35] The Crown acknowledges that the source(s) of the tips are all anonymous so their credibility cannot be assessed. Nevertheless, the Crown submits that the information obtained from the source may still be used to ground a search warrant where there is corroboration and/or other compelling information as is the case here.

[36] The Crown argues that the information provided by the Crime Stopper tip is compelling. It provided specific information that this accused was selling marijuana in London, where he lived, a description of him, that the tipster had seen the Defendant with a large amount of marijuana at his residence within the past two months, and had seen marijuana purchased from his residence in that timeframe.

[37] Further, the Crown noted that earlier, dated information was provided to police that likewise asserted specific details of drug trafficking activity at multiple locations involving a vehicle licenced to the Defendant.

[38] The Crown submits that officers witnessed eight transactions which police believed were drug transactions. These observations constitute corroboration of a pattern of activity that removes the possibility of innocent coincidence: R. v. Whyte, 2011 ONCA 24 at para 30.

[39] Accordingly, the Crown submits that the compelling nature of the tip and the corroboration by police investigation make up for the inability to assess the credibility of the tipster. There were reasonable and probable grounds to believe that a search of the Defendant’s vehicle and home would yield evidence of illicit drugs for the purpose of trafficking.

[40] Alternatively, the discovery of drugs in the vehicle would inevitably have led to a warrant being issued for the Defendant’s home where further drugs were located.

[41] The Crown asks that a Step 6 Garofoli application be held if I find that the material before me is insufficient to ground the warrants issued. Some of the information received from the Crime Stopper tipster was redacted.

Analysis

[42] It is undisputed that the tip which led police to investigate the Defendant came from an anonymous source and, as such, his/her credibility cannot be assessed. On its own, the tip received by police in 2013 is insufficient to ground the issuance of a search warrant, a fact which police presumably recognized as evidenced by the investigation that ensued which forms a substantial part of the ITO.

[43] The Crime Stopper tip provided very specific information including:

1. The identity of the Defendant;
2. A description of the Defendant;
3. The Defendant’s address;
4. A first-hand account that the Defendant was selling marijuana from that location; and,
5. The Defendant possessed a large amount of marijuana.

[44] Police then investigated and determined through that investigation the following:

1. The Defendant operated a vehicle licensed to him;
2. There were earlier anonymous tips of alleged drug dealing involving vehicles having the same license plate number licenced at all times to the Defendant;
3. The Defendant had been found in possession of or with someone in possession of marijuana on a previous occasion;
4. The Defendant was observed interacting with and travelling with another individual known to police for prior convictions for possession for the purpose of trafficking of various drugs including marijuana;
5. The Defendant was observed to go to numerous locations where he met very briefly with individuals, consistent with drug transactions;
6. The Defendant was using his vehicle to transport boxes and bags believed by police to contain drugs; and,
7. The Defendant was observed meeting with an unidentified male and receiving a blue bag. The unidentified male took a separate bag from the Defendant’s vehicle when he exited. Again, this is consistent with a drug transaction.

[45] The officers who investigated were part of a dedicated team dealing with drug trafficking in London. They were experienced investigators who reasonably concluded that the actions of the Defendant were consistent with a dealer engaged in trafficking drugs. The Defendant was observed taking bags and boxes from his vehicle which he transported to locations where he made brief stops. Police could not possibly know what was in the boxes or bags but, based on their extensive experience, were entitled to reasonably infer that they contained drugs. It certainly appeared to the officers involved that the Defendant used his vehicle to transport drugs to others.

[46] I find that the information provided by the Crime Stopper tip was compelling in its specificity, and the investigation done by police to corroborate the activities of the Defendant more than makes up for the anonymity of the tipster who provided the initial information.

[47] The surveillance evidence clearly establishes a link between the trafficking of drugs and the Defendant’s vehicle. The surveillance details various perceived deliveries and brief meetings that police, based on their experience, inferred were drug transactions which took place as recent as the day preceding the issuance of the warrant to search his vehicle. In my view, there was credible and reliable evidence from which the justice of the peace could find that there were reasonable and probable grounds to believe an offence had occurred (trafficking) and that evidence of the offence could be found in his vehicle if searched on December 19, 2013.

[48] With respect to the authorization to search his dwelling-unit, I am not satisfied that there was credible and reliable evidence tying the presence of the drugs to that location to justify the issuance of the warrant. It is a close call in that there is evidence he was engaged in trafficking drugs, but on the whole of the evidence, there is an insufficient connection between the drugs and the dwelling-unit. Apart from the Crime Stopper tip, there were no observed drug transactions at his residence. There was no further corroborative tip or evidence that drugs were in the dwelling or could be expected to be at that date.

[49] It follows that the warrant to search the dwelling unit should not have issued and the resultant search constitutes an unreasonable search and seizure contrary to section 8 of the Charter.

[50] I must now turn to whether the evidence obtained from the search of the Defendant’s residence should be excluded pursuant to s. 24(2) of the Charter. The test is whether the administration of justice would be brought into disrepute by the admission of the evidence obtained contrary to the Charter.

[51] In R. v. Grant, 2009 SCC 32 at paragraph 71, the Supreme Court of Canada, set out the factors which must be considered in the determination of the admissibility of the impugned evidence as follows:

“[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a 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 (admission may send the message the justice system condones serious State misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.…”

[52] I will address each factor in turn but note that the facts relevant to each factor cannot be compartmentalized as exclusive to only one factor or another.

Seriousness of the Charter-Infringing State Conduct

[53] In this case, police acted in good faith in the search of the Defendant’s residence. They were alive to the necessity for a prior judicial authorization and sought that authorization. There was no deliberate disregard for the Defendant’s constitutionally protected rights. Police sought authorization for the search warrant after multiple days of surveillance during which they observed him engaged in what they believed were drug trafficking transactions.

[54] This is not a case where police conduct is part of a pattern of abuse, nor is there a wilful or flagrant disregard of the Charter by those responsible to uphold the rights in question. In my view, police believed at all material times that they had followed the required constitutional process and were acting in accord with it.

[55] Further, the evidence recovered is non-conscriptive in nature. Nothing done or omitted to be done by police caused those drugs to be in his residence.

Impact on the Charter-Protected Interests of the Accused

[56] As indicated in Ngo above, section 8 of the Charter protects against inappropriate State intrusion upon individual privacy interests. An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy, such as his or her home, is more serious than one that does not: R. v. Grant, supra, at para 78.

[57] At first blush, the police search of the Defendant’s residence is highly intrusive. However, it is equally clear that having first searched the Defendant’s vehicle pursuant to a judicially authorized warrant and found evidence of possession of a significant quantity of marijuana, that evidence, in addition to the tip and surveillance evidence already in hand, would have readily justified a further search warrant to search the Defendant’s residence. I agree with the submission of the Crown that the discovery of the drugs in the Defendant’s residence was inevitable once police searched his vehicle and found drugs in a significant quantity in the vehicle.

[58] This is not a case where police would never have searched his home if the warrant to search his residence had been denied at first instance. They applied to search that home. They believed that it contained drugs. If the warrant to search the home had been denied, there is no question that that application would have been renewed once the search of his vehicle was completed. The drugs found in his vehicle corroborate the tip that he was engaged in the sale of marijuana and, together with the other evidence already gathered, provide a basis for a warrant to search his residence.

[59] I find that on the whole of the evidence before me, and in the totality of the circumstances present here, the drugs and related items in his residence would have been inevitably discovered by police as part of its investigation of his drug trafficking operation.

Society’s Interest in an Adjudication on the Merits

[60] This line of inquiry requires that I consider whether the truth seeking function of the criminal trial process will be better served by admission of the evidence or by its exclusion. I must consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence: R. v. Grant, supra, at para 79. As part of this analysis, I must consider the importance of the evidence to the prosecution’s case and the seriousness of the offence at issue.

[61] The drugs and other related items found in the Defendant’s residence are critical evidence to the Crown’s case against this Defendant. The second count of the indictment deals with psilocybin, which was found only in his residence. The quantity of marijuana found in his residence is significant to the determination of whether the marijuana was for personal use or for the purpose of trafficking. It also informs in a material way the extent of the Defendant’s business operation.

[62] The Defendant is charged with serious drug offences which carry the potential for significant penal consequences. The nature and quantity of drugs found in the search of his residence can reasonably be anticipated to bear upon the final outcome.

[63] I find that this is a case where the exclusion of this evidence would bring the administration of justice into disrepute.

[64] Given my findings above, it is unnecessary to engage in a Step 6 Garofoli hearing.

Conclusion

[65] Having regard to the factors in R. v. Grant above, I conclude that the admission at trial of the drugs and related items found in the search of the Defendant’s residence would not bring the administration of justice into disrepute. I have also found that the search of the Defendant’s vehicle was lawful and authorized by a valid search warrant. Accordingly, the Defendant’s s. 24(2) application is dismissed.

“The Honourable Mr. Justice R. M. Raikes” The Honourable Mr. Justice Russell Raikes Released: April 29, 2016.