Court File and Parties

COURT FILE NO.: 161/15 DATE: 2016 07 26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Tristen MIGNOT Applicant

COUNSEL: H. Apel, for the Crown Respondent A. Dresser, for the Applicant

HEARD: April 27, 28 and 29, 2016

REASONS FOR JUDGMENT

WOOLLCOMBE J.

A. Overview

[1] At 5:00 a.m. on November 24, 2014, police executed a search warrant at 1 Celestial Crescent in Hamilton. Tristan Mignot was located by police in the master bedroom. In the master bedroom closet, police found a 9 mm Smith & Weston unloaded handgun, an empty magazine and a sock containing 9 mm bullets, all in a locked safe. They also found 2.8 grams of cocaine and a digital scale. Mr. Mignot was charged with the following offences:

a. Possession of a firearm without being a holder of a license, contrary to s. 91(1) of the Criminal Code;

b. Possession of firearm knowing that the serial number had been removed, contrary to s. 108(1)(b) of the Criminal Code;

c. Possession of firearm knowing that he was not the holder of a license, contrary to s. 92(1) of the Criminal Code;

d. Unlawful possession of a controlled substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act; and

e. Possession of a restricted firearm with readily accessible ammunition contrary to s. 95(a) of the Criminal Code.

[2] Mr. Mignot brings an application to exclude the evidence of the gun, ammunition and drugs pursuant to s. 24(2) of the Charter on the basis that that his Charter rights under s. 8 were violated. On the motion, Mr. Mignot filed an application record, and I heard evidence of four Halton Regional Police Service officers. Each party filed a factum and authorities and made oral submissions at the conclusion of the evidence.

[3] It is Mr. Mignot’s primary position that the police did not have reasonable and probable grounds to obtain the Controlled Drugs and Substances Act (CDSA) search warrant to enter 1 Celestial Crescent. Mr. Mignot also says that the police violated his s. 8 rights by the manner in which they executed the search warrant. As a result of these Charter violations, Mr. Mignot submits that the evidence obtained during the execution of the search warrant should be excluded at trial.

[4] The Crown responds that the search warrant was properly drafted, issued and executed and that there was no breach of Mr. Mignot’s s. 8 Charter rights. In the alternative, if there was a s. 8 breach, the Crown says that a proper s. 24(2) Charter analysis would result in the admission of the gun, ammunition, and drugs into evidence.

B. Relevant Factual Background

[5] A brief summary of the relevant background is necessary in order to assess the Charter arguments.

[6] After receiving information from confidential informants that James Evans-O’Connell was selling drugs, including cocaine and marihuana, members of the Halton Regional Police Service Guns and Gangs unit began an investigation on May 15, 2014. The evidence before me reveals that an extensive police investigation, named “Project Wales”, took place between May and November of 2014. It culminated with the execution of search warrants at fifteen locations, including 1 Celestial Crescent, on November 24, 2014.

[7] The applicant, Tristen Mignot, was not the target of the search warrant at 1 Celestial Crescent. In fact, he was never identified as a person of interest by the police during their investigation.

[8] The target of the search warrant at 1 Celestial Crescent was Merrick Broomfield. Mr. Broomfield was first identified by police, although not by name, on November 3, 2014, in the final weeks of their investigation.

[9] For the purposes of this application, much of the Project Wales investigation is not relevant, other than to give context to the investigation in relation to Mr. Broomfield. Project Wales involved use of many police investigative techniques including surveillance, general warrants, tracking of vehicles and cellular telephones, production orders and number recorder warrants.

[10] Through their investigation, the police identified a storage unit in Burlington that was regularly used by Evans-O’Connell and Derek Jackson. Surreptitious police entries into the storage unit pursuant to a general warrant enabled police to identify 5.4 kilograms of cocaine and 78.9 pounds of cannabis marihuana. Both Evans-O’Connell and Jackson were observed conducting suspected drug transactions after being at the storage unit.

[11] On October 19, 2014, the storage unit was broken into and police believe that the drug supply was stolen. Police then confirmed that Evans-O’Connell and Jackson no longer used the unit to store drugs.

[12] In addition to Evans-O’Connell, numerous other people were identified as being involved in what police characterized as a drug trafficking operation. One of these individuals was Garth Watkins, who was observed meeting with Evans-O’Connell. Evans-O’Connell and Jackson also went to Watkins’ home for what police believed was drug activity.

[13] Other less significant individuals were also identified as having involvement in the alleged drug trafficking operation.

[14] The police achieved one of their objectives when they were able to identify Erik Strong as Evans-O’Connell’s marihuana supplier.

[15] On October 28, 2014, the police obtained a Part VI wiretap authorization to intercept the communications of three known persons: Evans-O’Connell, Watkins and Jackson. At this point in their investigation, their goal was to identify Evans-O’Connell’s cocaine supplier. Information obtained from these intercepts led police to suspect that Strong was also the cocaine supplier.

[16] On the basis that they suspected that Strong was Evans-O’Connell’s cocaine supplier, and their belief that Evans-O’Connell would be replenishing his supply of cocaine in the next few days, the police met on November 16, 2014 to plan the take-down. At that meeting, Detective Constable Adam Bendiks was assigned to prepare an Information to Obtain a Warrant (ITO). The plan was to obtain search warrants for fifteen locations. The police intended to wait for Evans-O’Connell to replenish his cocaine supply, and then to conduct a take-down of the major players, effectively catching Evans-O’Connell with a large amount of cocaine.

[17] Detective Constable Bendiks completed the ITO on the morning of November 20, 2014. It was submitted to a justice and was signed that day. It authorized the searches of fifteen locations between 5:00 a.m. and 9:00 p.m. on November 21-25, 2014.

[18] In relation to 1 Celestial Crescent, the search warrant identified the following items to be searched for:

a. Cannabis marihuana b. Currency c. Packaging materials d. Scale e. Debt list f. Cellular telephone and subscriber identity module (SIM card) associated to 905 518 7583 to subsequently be forensically examined by police g. Other cellular telephone and SIM card to subsequently be forensically examined by police.

C. Analysis

i) Did the police have reasonable and probable grounds to search 1 Celestial Crescent?

a) Evidence Relied Upon in Support of the Warrant at 1 Celestial Crescent as amplified and clarified on the voir dire

[19] In the ITO, Detective Constable Bendiks provided a summary of grounds to search at 1 Celestial Crescent. It was the officer’s belief that a male person using a telephone registered to Delicate Touch Services Inc. was conspiring with Evans-O’Connell, Watkins and Strong to traffic in cannabis marihuana. He based this on ten points set out in the ITO.

[20] I will summarize the information relied upon by Detective Constable Bendiks in the ITO, with the clarifications and corrections that were provided in the evidence of the police on the voir dire.

[21] There is no issue that the person using the telephone registered to Delicate Touch Services Inc. was Merrick Broomfield. Accordingly, although Mr. Broomfield was never identified by name in the ITO, and was always referred to as the person using that cellular telephone, for ease of reference, I will use his name.

November 3, 2014 intercepted conversation and surveillance

[22] Mr. Broomfield first became known to the police on November 3, 2014. At that time, Evans-O’Connell communicated with him for the first time known to police. Broomfield used the Delicate Touch Services Inc. cell phone. They arranged a meeting. Evans-O’Connell subsequently invited Watkins to attend the meeting but he declined.

[23] The police conducted surveillance of a meeting between Evans-O’Connell and Broomfield. Broomfield drove a grey Audi with license plate BVPX839. The Audi was registered to Delicate Touch Cleaning Services, 66 Trieste Place, Hamilton.

[24] Later that day, Evans-O’Connell and Broomfield set up another meeting.

November 6, 2014 intercepted conversations

[25] On November 6, 2014, Evans-O‘Connell spoke with Broomfield. Broomfield told him that he had an investment that Evans-O’Connell may be interested in. Broomfield asked Evans-O’Connell if he had his machine up and running yet and Evans-O’Connell responded not yet. They discussed another meeting involving an unnamed individual that police believed was Strong.

[26] Subsequently, Evans-O’Connell telephoned Broomfield and stated that his “buzzer will not be up, it could be the end of the day” and that he had dropped it off at the mall and they were going to call him when it was done. Evans-O’Connell told Broomfield that “my boy is available Monday so if you could make something happen for Monday”. They set up a meeting for Monday evening.

November 10, 2014 intercepted conversations and surveillance

[27] On November 10, 2014, Evans-O’Connell spoke with Broomfield and Broomfield agreed to meet him around 5:00 p.m. They had what was characterized in the ITO as a “guarded conversation” about a meeting that was going to happen in Toronto at 7:00 p.m. They spoke again later and Evans-O’Connell asked that Broomfield meet him at “Big Man’s” (who Detective constable Bendiks believed was Garth Watkins). They planned to meet at 5:30 p.m. During this conversation, Evans-O’Connell asked Broomfield why he was not using his “PG”.

[28] Detective Constable Bendiks explained in the ITO that he believed the conversation was important because when Evans-O’Connell asked Broomfield why he was not using his “PG”, he was referring to a PGP or “Pretty Good Privacy” Blackberry phone. A PGP is a program that can be installed on a Blackberry and enables users to send and receive messages that require an encryption code, and cannot be intercepted as they do not pass through a server. Detective Constable Bendiks took from this conversation that Evans-O’Connell had a PGP phone that he used to communicate with Broomfield. He said that he also believed that Evans-O’Connell was likely using this phone as a way of securing his communications with others involved in his drug trafficking network.

[29] At 6:15 that evening, Evans-O’Connell, Watkins and Broomfield left Watkins’ residence and drove away in Watkins’ Cadillac to 628 Fleet Street in Toronto where they entered the underground parking lot. Eight minutes later, Watkins’ Cadillac and Strong’s Dodge Journey left the parking garage. The two vehicles drove to the Thompson Diner in Toronto where, at 7:15 p.m., Watkins, Evans-O’Connell, Strong and Broomfield met with two unidentified males.

[30] The police intercepted a telephone conversation between Evans-O’Connell and an individual named Amir Pakekh that took place while Evans-O’Connell was in the Diner. They planned a meeting near the Ripleys’ Aquarium in relation to an undisclosed item.

[31] At 8:10 p.m., Watkins, Evans-O’Connell and Broomfield left the area in the Cadillac and stopped near the Ripleys’ Aquarium. Broomfield got into the back seat of the car and two minutes later he walked away.

[32] Detective Constable Bendiks says in the ITO that he believes that the meeting in the Thompson Diner was drug related. He believes that Strong, Watkins and Evans-O’Connell are all drug traffickers and the fact that Evans-O’Connell has had “previously guarded” conversations with Broomfield means that Broomfield is “related to Evans-O’Connell’s drug trafficking operation.”

[33] Detective Constable Bendiks was asked what he meant when he characterized the conversation between Broomfield and Evans-O’Connell as “guarded”. He said that they were guarded about their actual intentions including about where they were going to meet.

[34] Asked what he meant by a “drug trafficking network”, Detective Constable Bendiks said that it appeared to him that there was a network of individuals including Watkins, Evans-O’Connell and others that were being supplied with cocaine and marihuana. Police knew that Strong supplied the marihuana and later learned that he also supplied the cocaine. Broomfield’s role was not known.

November 11, 2014 intercepted conversation

[35] On November 11, 2014, the ITO indicates “that there were several conversations” between the targets and Broomfield regarding counter-surveillance. There follows descriptions of conversations that Evans-O’Connell had with a number of people, including Broomfield.

[36] Notably, there is a description of a conversation between Evans-O’Connell and Watkins in which Evans-O’Connell asked Watkins if he had heard of a “shot gun mic” for police to listen to conversations. Evans-O’Connell clarified that he was referring to the restaurant. It was Detective Constable Bendiks’ view that this conversation was a reference to the meeting at the Thompson Diner the night before, and about Evans-O’Connell’s concern that the police may have intercepted their conversations. Under cross-examination, he agreed that there was no specific reference to concerns about the meeting at the restaurant the night before.

[37] There is only one specific example given of a counter-surveillance conversation involving Broomfield. In that intercept, Evans-O’Connell asked Broomfield if he got his message. Broomfield responded that he had, however it died, and he left it at home charging. Constable Bendiks asserts in the ITO that this indicates that he agreed with what Evans-O’Connell sent him and that he would respond later when he got the thing. Detective Constable Bendiks indicates that he believes that Evans-O’Connell told Broomfield by PGP that a surveillance vehicle had been identified the night before.

[38] Detective Constable Bendiks states that based on the conversations of November 11, 2014, and the investigation as a whole, he believes that the meeting at the Thompson Diner was related to the drug trafficking network and those involved. He believes that Evans-O’Connell was nervous about police surveillance and interception and that he and Strong and Broomfield were using PGP phones to discuss their drug trafficking operation and to prevent police interception.

[39] Asked what he meant by the “drug trafficking operation”, Detective Constable Bendiks testified that he thought they were discussing the logistics of moving product around and how to go about daily operations. Under cross-examination, he agreed that there was no direct evidence of Broomfield ever being involved in any conversations about drugs. In fact, the strongest evidence of his involvement was his meeting with other targets.

November 12, 2014 intercepted conversation

[40] The ITO indicates that on November 12, 2014, Evans-O’Connell spoke with Broomfield about a lock that he had taken to a locksmith to try to have the locksmith pick, but which had been unsuccessful. The officer says that based on the conversations Evans-O’Connell had with a number of people including Watkins, Strong, Broomfield and two others, he thought that all five of them believed that Derek Jackson, or someone assisting him, stole the drugs from the storage unit on October 19, 2014.

[41] Under cross-examination, Detective Constable Bendiks agreed that he relied on only one conversation between Evans-O’Connell and Broomfield to infer Broomfield’s knowledge about of the locker. In that call, Evans-O’Connell said to Broomfield, “I’ll keep it short and sweet they couldn’t get in”. Broomfield responded, “you already know what it is then bro’ you already know”. Detective Constable Bendiks agreed that Evans-O’Connell did not say what was in the locker and did not say who broke in. There was no evidence that Broomfield was ever told what was in the unit and Broomfield was never intercepted discussing the locker with anyone else.

[42] It was suggested to the officer that there was no agreement on the part of Broomfield that Jackson had stolen the drugs. He agreed that Jackson was never named and agreed that there was no evidence of any agreement by Broomfield that Jackson had broken into the unit. He agreed that all the intercept revealed was that Broomfield knew that the locker had been broken into and that the locksmith could not pick the lock.

November 13, 2014 intercepted conversation and surveillance

[43] On November 13, 2014, Evans-O’Connell spoke with Broomfield and they arranged a meeting in Burlington. At 7:43 p.m, Evans-O’Connell spoke to him again and said that he was three to four minutes away. Broomfield’s Audi arrived in a parking lot at Guelph Line and New Street. Four minutes later, Watkins arrived in the same parking lot. At the time, the police were conducting surveillance of Evans-O’Connell’s Dodge Dart, which was in a nearby parking lot. Evans-O’Connell drove to the lot where Broomfield and Watkins were, picked up Broomfield, and drove to Toronto.

[44] Watkins stayed in his vehicle in the parking lot after they left. This led Detective Constable Bendiks to conclude that Watkins was conducting counter-surveillance for Evans-O’Connell and Broomfield by watching to see if police surveillance vehicles left the area after they did. Detective Constable Bendiks says in the ITO that this furthered his belief that Broomfield was involved in drug trafficking.

[45] Evans-O’Connell and Broomfield were said to have conducted counter-surveillance measures on their way to Toronto, although nothing is explained as to what was done. They went to 628 Fleet Street and parked in the underground garage. At 9:02 p.m., they left the garage in Evans-O’Connell’s Dodge Dart and Strong followed them. They went to the Wheat Sheaf Bar for 70 minutes, after which Evans-O’Connell and Broomfield drove back to the Burlington parking lot where Broomfield’s Audi had been left. Broomfield then drove to the area of Celestial Street and Ballagio Avenue in Hamilton.

[46] In the ITO, Detective Constable Bendiks states that Broomfield parked on Celestial Street and entered a nearby residence, which could not be determined. The officer also says that based on the November 12, 2014 conversation between Evans-O’Connell and Strong about another meeting and exchanging resources, he believed that Broomfield was involved in Evans-O’Connell’s drug trafficking and “is his cocaine supplier”. It is noteworthy that there is no reference in the ITO to any conversation involving Broomfield about trading resources. The conversation referred to was between Evans-O‘Connell and Strong.

[47] During his evidence, Detective Constable Bendiks acknowledged that the assertion in the ITO that he believed that Broomfield was Evans-O’Connell’s cocaine supplier was an error and should be excised from the ITO as he knew by the point of completing the ITO that Strong was the cocaine and marihuana supplier.

[48] In his evidence, Detective Constable Bendiks acknowledged having reviewed the surveillance report from that day which made clear that the police did not observe Broomfield going into any home. His reference in the body of the ITO and the summary of grounds in relation to 1 Celestial Crescent, in which he says that Broomfield entered a nearby residence, was also an error.

November 17, 2014 surveillance

[49] The ITO indicates that on November 17, 2014, police conducted surveillance in the area of 1 Celestial Crescent. They observed Broomfield’s Audi in the driveway. At 8:50 a.m., Broomfield exited the residence and moved the Audi from the driveway to the roadway. At the same time, a pick-up truck arrived and Broomfield was seen unloading furniture from the pick-up truck into the residence.

[50] Broomfield then moved the Audi to the driveway, removed various items, including a blue Rubbermaid container, and took them into the residence. Although there is no specific reference to it in the body of the ITO, in the summary of grounds, Detective Constable Bendiks refers to Broomfield taking a “green tote” from the Audi into the residence.

[51] Based on these observations, Detective Constable Bendiks says in the ITO that he believes that Broomfield lives at 1 Celestial Crescent.

The legitimacy of Delicate Touch Services Inc. as a business

[52] There is nothing in the ITO as to whether or not Delicate Touch Services Inc. was a legitimate business. Detective Constable Foley said that he ran a query on Delicate Touch and learned that it was an active registered business. The Business Names Report that was generated listed the business as sole proprietorship with Sajid Essa as the registrant. In the Corporation Profile Report, Michael Broomfield was listed as associated to the business. This Report provided a Trieste Pl. address in Hamilton for him. The officer acknowledged that he believed that this was a legitimate business and said that there was no further investigation done into the business.

[53] Detective Constable Bendiks also acknowledged that he believed that Delicate Touch Services was a business. He thought he knew that a corporate search had been done in relation to it. He did not know if there were intercepted conversations about cleaning of businesses or homes. He said that he did not include in the ITO that it was a business because he did not see it as relevant. However, he agreed that he had included in the ITO that Evans-O’Connell did not have a known job. He also agreed that employment status could be relevant, and that he had wanted to present Evans-O’Connell as more likely obtaining his income as a drug dealer than any legitimate job.

The link between Broomfield and 1 Celestial Crescent

[54] Detective Constables Bendiks and Wright both testified that at the November 16, 2014 meeting, police discussed seeking warrants to search at fifteen locations. At that meeting, Detective Constable Bendiks expressed the view that he did not think that they had grounds to search at 1 Celestial Crescent. He thought that the police needed further surveillance to ensure that Broomfield was living there. Detective Constable Foley testified that 1 Celestial Crescent had come to the attention of the police late. They decided it was necessary to conduct surveillance to determine who was living there and to include this information in the ITO and because it would be relevant for the execution of the warrant.

[55] Detective Constable Bendiks testified that he received an email from Officer Steinmar about the surveillance conducted on November 17, 2014. Steinmar advised him that another unknown black male had been observed at the residence and that there was a second vehicle parked in the garage, for which he received a license plate. He did not run a query on it and did not know if anyone else had, though he agreed that it should have been done as it could have been relevant to the warrant. Nothing about the second person or vehicle in the garage was included in the ITO.

[56] Detective Constable Wright testified that he learned from the November 17, 2014 surveillance that there was another male and an Infinity associated to 1 Celestial Crescent. He learned that the car was registered to Tristan Mignot, with a Hamilton address. He also knew that there was a female associated to the address.

[57] Detective Constable Bendiks was asked why the ITO made no reference to other people who had been seen by police at 1 Celestial Crescent. He said he did not do so because he was unaware of their relevance or association to the address.

[58] Under cross-examination, Detective Constable Wright was asked whether police should set out in an ITO who lives at the addresses for which search warrants are sought. He agreed, although somewhat reluctantly, that he would mention individuals living in a residence to be searched, although if there were large number of people he might not mention all of their names.

[59] Detective Constable Bendiks agreed that police observed nothing suspicious at 1 Celestial Crescent. There was nothing in any of the intercepts about 1 Celestial Crescent being location at which others could attend for drug activity.

Meetings and conversations between Evans-O’Connell and Broomfield

[60] Detective Constables Wright and Bendiks both agreed that most of the intercepts involving Broomfield were focused on arranging meetings, directions, and he and Evans-O’Connell finding each other. They also both agreed that while Evans-O’Connell and the people he supplied with drugs used the terms pizza and beer for drugs (Evans-O’Connell tended to call marihuana pizza and to call cocaine beer), there was no use of this sort of coded language in any of the intercepts with Broomfield.

[61] Detective Constable Bendiks agreed that police never saw anything exchanged during the meetings Broomfield had with any of the targets. There was never a time when police observed Broomfield do anything drug related as a result of any of his meetings with the targets. Detective Constable Bendiks agreed that there was no surveillance of Broomfield involving drug transactions and that there was such surveillance for all of the other targets.

Grounds for belief that Broomfield conspired to traffic marihuana

[62] Under cross-examination, Detective Constable Bendiks testified that his grounds for saying that Broomfield was conspiring to traffic in marihuana were: the discussions about counter-surveillance, Broomfield’s awareness of Evans-O’Connell’s trafficking and of the storage unit and the problems after it was broken into. He said that Evans-O’Connell would not have talked about the locker with Broomfield if Broomfield were not involved.

b) Relevant Legal Principles

[63] The parties appear to be generally agreed as to the relevant legal principles.

[64] Section 11 of the Controlled Drugs and Substances Act provides:

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

[65] The ITO must satisfy the justice, therefore, that there are reasonable grounds to believe that there will be a controlled substance, offence–related property, or anything that will afford evidence of a CDSA offence at the place to be searched. The justice may draw reasonable inferences from the evidence included in the ITO.

[66] The starting point of the analysis is that a warrant is presumed to be valid. The onus of demonstrating invalidity falls on the party who asserts it, in this case Mr. Mignot: R. v. Sadikov, 2014 ONCA 72 at para. 83.

[67] Section 8 of the Charter protects an individual against unreasonable search and seizure.

[68] In a s. 8 challenge to the issuance of a search warrant, the reviewing judge does not stand in the place of the justice of the peace who issued the warrant. Rather, the reviewing judge has to determine whether, on the basis of the material before the authorizing justice, as trimmed of any extraneous or unconstitutionally obtained material, and as amplified by evidence adduced on the hearing to correct any minor or technical errors in drafting the ITO, there remains sufficient credible and reliable evidence for the warrant to issue. This is not a de novo hearing. In this process, the existence of fraud, non-disclosure, misleading or unconstitutionally obtained material, new evidence, or the omission of facts material to the exercise of discretion to issue the warrant, are all relevant to the review. Their impact is to determine whether there continues to be a basis for the decision of the authorizing justice (R. v. Araujo, 2000 SCC 655 at para. 54; R. v. Pires, 2005 SCC 66 at para. 8; R. v. Morelli, 2010 SCC 8 at paras. 40-42; R. v. Mahmood, 2011 ONCA 693 at para. 99; Sadikov at paras. 84-88).

c) Analysis

[69] There is no issue that many of the targets of the Project Wales investigation were involved in trafficking of marihuana and cocaine. There appears to have been an ample basis in the ITO for the warrant to issue in relation to locations associated with individuals other than Broomfield.

[70] The fact that Broomfield came to the attention of the police late in the police investigation does not, by itself, mean that the police lacked grounds for the warrant to issue at the address at which they believed he resided. Nor does the fact that the police set their target take-down date because they wanted to arrest Evans-O’Connell after he had replenished his cocaine supply, and thus were under some time pressure to obtain grounds to support the warrant at 1 Celestial Crescent, mean that the warrant could not have been properly issued. The issue to be decided is whether there were reasonable grounds for the warrant to issue for 1 Celestial Crescent.

[71] For the reasons that follow, it is my conclusion that the applicant has met his onus of establishing that a search warrant could not properly have been issued in relation to 1 Celestial Crescent. Accordingly, I find that there was a s. 8 violation.

The intercepted communications

[72] First, I am not persuaded that there is anything in any of the intercepted communications between Broomfield and Evans-O’Connell from which to conclude that Broomfield was involved in trafficking drugs. There were calls intercepted between the two of them on November 3, 5, 6, 10, 11, 12 and 13, 2014.

[73] As the officers acknowledged, most of these conversations were about the logistics of arranging meetings. The fact that Broomfield planned meetings with Evans-Connell and others, even accepting that Evans-O’Connell and the others were dealing in drugs, does not necessarily mean that Broomfield was involved in Evans-O’Connell’s drug operation.

[74] It is significant that while the officer describes conversations involving Broomfield in which “guarded language” was used, there was never any conversation involving Broomfield in which the “coded” language of “pizza and beers” (used by Evans-O’Connell in his conversations with others) was employed. The “guarded language” seems to refer to care used about where they were meeting or references to the PGP.

[75] I accept that some of the conversations give rise to an inference that both Evans-O’Connell and Broomfield had concerns about the privacy of their conversations. There is nothing illegal about communicating using a PGP. The fact that Broomfield seems to have been communicating with Evans-O’Connell by way of encrypted messages, combined with the fact that both of them appear to have been security conscious about their conversations, may mean that they were involved in something illegal together. But it may not. It may mean that Broomfield was aware of Evans-O’Connell’s activities but was not involved. I do not view these conversations, even when considered in the context of what Evans-O’Connell was involved in with others, as evidence of Broomfield’s involvement in drug trafficking. In my view, Detective Constable Bendik’s opinion in the ITO that Evans-O’Connell was discussing with Broomfield their drug operations lacks a proper evidentiary basis.

[76] While the officer’s grounds to search 1 Celestial Crescent, as set out at paragraph 187 of the ITO, rely heavily on the intercepted conversations involving Broomfield and Evans-O’Connell in which there are references to the PGP, in my view it is an impermissible leap on the part of the officer to draw from these conversations that Broomfield was involved in drug trafficking or that any of the items sought would be at 1 Celestial Crescent.

[77] I reach my conclusion as to the significance of the intercepts having considered that there appears to have been a reference in one of the conversations between Evans-O’Connell and Broomfield to the storage unit. I have carefully reviewed that November 12, 2014 intercept, the only intercept involving Broomfield in which any reference is made to the storage unit. In my view, there is nothing in that conversation that supports the suggestion made in the ITO “that all five of them” (including Broomfield) “believe that it was Derek Jackson, or someone associated to him, who stole the drugs out of the storage unit on October 19, 2014”. This statement is misleading in relation to Broomfield and should be excised from the ITO.

[78] In fact, there is no intercepted conversation involving Broomfield in which there is any mention of drugs being stored at, or stolen from, the storage unit. All that can be taken from the one conversation they had is that Broomfield knew that a locksmith had been unable to open the lock. While Broomfield said that Evans-O’Connell knew what this meant, it is far from clear that Broomfield knew all of the details of what this meant. While conversations about the locker Evans-O’Connell had with others may suggest that others shared his view as to who had stolen his drugs, it cannot be inferred from what Broomfield said that he even knew that drugs had been stored in the locker.

[79] I note that the storage locker conversation was specifically relied upon in the grounds for the warrant to search 1 Celestial Crescent. I do not see this conversation as able to support a view that Broomfield was involved in drug trafficking or that drugs or the items sought would be at 1 Celestial Crescent.

The meetings

[80] Second, I am not persuaded that there is anything about the meetings that took place between Broomfield and others suggestive of Broomfield’s involvement in drug trafficking or that drugs would be found at 1 Celestial Crescent. It is significant that at no point did the police ever see Broomfield give or take anything from anyone that could be understood to be a drug transaction. While drug transactions were witnessed involving the other targets, such evidence was notably absent in relation to Broomfield.

[81] Meetings involving Broomfield were observed by police on November 3, 10 and 13, 2014.

[82] In the November 3, 2014 meeting, Broomfield and Evans-O’Connell met in Stoney Creek. Nothing can be inferred about Broomfield’s involvement in drug trafficking from this meeting.

[83] The second meeting took place on November 10, 2014. Broomfield met with Watkins and Evans-O’Connell at Watkins’ home. They met up with Strong. The four of them then went to the Thompson Diner where they met up with two other men.

[84] While Evans-O’Connell had a conversation with Amir Parekh, and then met up with him for activity that may well be drug related, there is no evidence that Broomfield was aware of what took place in Evans-O’Connell’s telephone conversation with Parekh. Furthermore, Broomfield had left the group by the time of Evans-O’Connell’s meeting with Parekh at Ripleys’ Aquarium.

[85] In my opinion, there is no basis from which to conclude from Broomfield’s presence at the Thompson Diner meeting that he was involved in a drug trafficking operation with the others. I accept that after the meeting, Evans-O’Connell had significant security concerns about what had taken place at the meeting, and whether the police were watching them and listening to their conversations. Evans-O’Connell shared these concerns with others including Jessica Grant and Watkins. However, I see no evidence that Broomfield was either aware of or shared these concerns.

[86] While one might well infer from Evans-O’Connell’s concerns after the meeting at the Thompson Diner that issues of drug trafficking had been discussed at the meeting, I cannot say from Broomfield’s presence that he was involved in any drug trafficking operation. This could just as easily have been a meeting at the bar among friends and acquaintances, some of whom were involved in drug trafficking and had discussions about their activities, and some of whom were not involved or did not partake in those conversations.

[87] The third meeting was on November 13, 2014. Broomfield met up with Evans-O’Connell in Burlington and drove to Toronto where they met up with Strong and the three of them went to the Wheat Sheaf. In the ITO, there is a statement that Broomfield and Evans-O’Connell conducted counter-surveillance. There is no explanation as to what was done by Broomfield or by Evans-O’Connell with Broomfield’s.

[88] What is in the ITO is a description of counter-surveillance conducted by Watkins, who stayed behind. While I accept that Watkins was involved in counter-surveillance, I am not persuaded that Broomfield was the instigator of this or even aware of it.

[89] I am also not persuaded that any inference can be drawn from the trip to Toronto that the meeting that took place was about drug operations, as is suggested in the ITO.

[90] In the ITO, the officer relies on the meetings in is grounds for the warrant to search 1 Celestial Crescent. In my view, these meetings do not provide reasonable grounds to believe that Broomfield was involved in drug trafficking or that there would be any of the items sought at 1 Celestial Crescent.

Significant errors in the ITO

[91] Third, there are two specific, concerning errors in the ITO.

[92] First, as Detective Constable Bendiks and the Crown acknowledged, the ITO erroneously states at paragraph 112 that the officer “believes’ that the driver of the Audi, now known to be Broomfield, is Evans-O’Connell’s cocaine supplier. While the police may have suspected, at some point, that Broomfield was the cocaine supplier, it is very clear that they did not believe this at the point that the ITO was completed and submitted to the justice. I see the failure of the officer to properly edit this statement out prior to submitting the ITO for the warrant as a significant error that may well have influenced the issuing justice. It should be excised.

[93] Second, Detective Constable Bendiks inaccurately states in the body of the ITO, and in his summary of grounds, that on November 13, 2014, Broomfield was seen entering a residence nearby Celestial Crescent. This was acknowledged by him to be an inaccurate summary of the surveillance that police conducted. This must be excised.

[94] Unfortunately, both of these errors had the effect of improperly enhancing in the ITO the officer’s grounds for the search warrant. While the second is less serious than the first, both may well have mis-led the issuing justice.

The basis for the items to be searched for to be at 1 Celestial Crescent

[95] Fourth, I not think the ITO provides any basis to believe that there will be any of the items sought at 1 Celestial Crescent. While Detective Constable Bendiks provides some explanation in the ITO for his belief that Broomfield was conspiring with Evans-O’Connell, Watkins and Strong to traffic in cannabis marihuana, he offers no explanation at all as to why there would be any of the items sought at 1 Celestial Crescent.

[96] I accept that the police had a sufficient basis to conclude that Broomfield lived at that address. While they recognized at their November 16, 2014 meeting that they did not have grounds to search 1 Celestial Crescent, officers were sent to conduct surveillance to support their grounds. Viewed cumulatively, I am prepared to accept that the surveillance of November 13, 17 and 18 (which was not included in the ITO) supported an inference this was Broomfield’s residence. But, in my view, this fact alone did not support a belief that a search of that residence would afford the evidence sought, absent some explanation as to why that was.

[97] When asked what evidence there was providing a link to the house, Mr. Apel for the Crown submitted that an inference could be drawn that having had the storage unit broken into, those involved in drug trafficking would have needed somewhere else to store drugs. True as that may be, the ITO suggests that the officer believed that Evans-O’Connell was storing his cocaine and marijuana at a New Street address. Nowhere in the ITO is there a suggestion that police believed drugs were being stored at 1 Celestial Crescent.

[98] Mr. Apel suggests that it was not unreasonable for drug dealers to store drugs at their homes. He also suggests that Broomfield went to the area of 1 Celestial immediately after his meeting with the other targets on November 13, 2014.

[99] While it may not be unreasonable that drug dealers store drugs at their homes, there is no evidence before me about this, little evidence that Broomfield was involved in a conspiracy to sell drugs and no evidence that anything was taken from the November 13, 2014 meeting to 1 Celestial. At their highest, these arguments seem speculative to me.

[100] In my view, it is a critical flaw in the ITO that there are no grounds at all identified as a basis for the officer’s belief that any of the items sought will be at 1 Celestial Crescent.

Omissions from the ITO

[101] Fifth, I think that there were material omissions in the ITO. I will summarize the most significant of these.

[102] First, the ITO fails to mention that the police surveillance revealed that there were two individuals besides Broomfield associated to the address at 1 Celestial. On November 17, 2014, the police observed a second black male, now known to be Mr. Mignot, move an Infinity out of the garage and onto the street and then assist Bromfield in unloading furniture. He was seen driving the Infinity from the garage again the next day. There is nothing in the ITO about his existence or about any query done on the license plate of the Infinity, although the evidence is that one was done.

[103] In addition, on November 18, 2014, a black woman was seen coming to and leaving from the residence in the Audi with Broomfield. She is not mentioned in the ITO.

[104] While I am not convinced that knowledge on the part of the issuing justice of the existence of these other two individuals with a connection to the address would have made any difference in terms of whether the warrant would have been issued, I think this information ought to have been disclosed.

[105] Second, the ITO fails to mention that the police were aware that Delicate Touch Services was a legitimate business. While I accept that this fact did not preclude the person using the Delicate Touch phone being involved in drug trafficking, it seems to me that when the ITO referred to the fact that Evans-O’Connell had never been seen going to a place of employment between May and the end of October 2014, presumably to bolster the likelihood that he was involved in drug trafficking, the police should have included in the ITO that a business query conducted on Delicate Touch revealed it to be a legitimate business. At a minimum, this suggested that the person using that phone, Broomfield, may have had other employment. Had this information been included, it may well have affected the issuing justice’ view about Broomfield.

Evidence as a Whole

[106] I recognize that individual pieces of the police investigation should not be parsed and viewed in isolation. I have looked at the officer’s grounds to search 1 Celestial Crescent as a whole. I am also aware that my role is not to determine whether I would have issued the warrant. Rather, I must ask whether there was a basis upon which it could properly have been issued by the justice.

[107] When the ITO is reviewed as a whole, with the various errors and omissions corrected, as discussed, I am not satisfied that there was a proper basis upon which the justice could have issued a warrant to search 1 Celestial Crescent. The ITO was drafted in a manner that tried to link Broomfield into the drug trafficking operation that appears to have been carried out by Evans-O’Connell, Watkins, Strong and others. It contains errors and draws inferences by Broomfield’s associations with others. Viewed cumulatively, I accept that the circumstances give rise to suspicions about the reasons for Broomfield’s connection to the main targets. One could legitimately speculate from this evidence that he was up to something nefarious with the targets. But for a warrant to have issued, there must have been reasonable grounds to believe that there he was involved in the offence and that there would be evidence located at the place to be searched. The evidence in relation to 1 Celestial Crescent is insufficient for a warrant to have issued.

[108] Accordingly, the warrant could not properly have been issued and I conclude that there has been a s. 8 charter violation.

ii) Was the search warrant carried out in a reasonable manner?

[109] I understand the applicant to make two complaints about the manner in which the search was carried out, assuming that it had been properly authorized by the search warrant. First, and most significantly, it is argued that the police exceeded the scope of their lawful authority in searching Mr. Mignot’s bedroom. Secondly, it is argued that the police did not follow their Operational Plan.

a) Evidence as to how the search was conducted

[110] Prior to the execution of the search warrants, an “Operational Plan and Risk Assessment” was prepared for each of the fifteen locations to be searched. The Plan in relation to 1 Celestial Crescent was filed as an exhibit on this application.

[111] At 1 Celestial Crescent, the Plan was for the Peel Regional Police TAC team to conduct entry at 5:00 a.m. without knocking or announcing police presence. The Plan indicated that there were two males and one female living at the residence. The Plan was for the residence to be secured, and for the entry team leader to designate a collection area to which all parties would be escorted. If it was reasonable and justified, those responsible would be handcuffed, searched and read their rights to counsel and caution. Those not responsible would be released.

[112] The Exhibits Officer was to ensure that the location was videotaped prior to any search being conducted and was to orchestrate a detailed search of the residence.

[113] The Plan indicated that Detective Berrigan was the Team Leader and Detective Constable Shanley was the Exhibits Officer.

[114] The evidence as to what took place when the warrant was executed is found in an Agreed Statement of Facts and in the evidence of two of the officers who were involved in the search at 1 Celestial Crescent: Detective Constable Shanley and Officer Harloff.

[115] As set out in the Agreed Statement of Facts, the search warrant was executed at 5:00 a.m. by a tactical team.

[116] Upon entry into the home, PC Chin located Mr. Broomfield and Geneva Rayne in the front bedroom. At 5:09, Broomfield was handed off to Detective Berrigan. He and Detective Constable Shanley identified Broomfield as the target of the investigation and Detective Constable Shanley took Broomfield downstairs to the living room gathering area.

[117] Tactical team PC Ross proceeded upstairs and was the first to attend the master bedroom. Mr. Mignot was located on the floor next to the bed under a comforter. The officer demanded that he uncover his hands and Mignot complied. The officer asked Mignot if he lived there and he replied that he did, along with another male and female. PC Arakgi, another member of the tactical team, attended at the master bedroom and applied flex cuffs to Mignot’s wrists.

[118] At 5:09, Officer Harloff, a Halton Police officer who was not part of the TAC team, entered the residence and went to the master bedroom. Mr. Mignot was present with the two TAC officers. Officer Harloff replaced the flex cuffs with handcuffs and asked Mignot his name. Mignot responded and said that he lived there and that the master bedroom was his. Officer Harloff escorted Mignot downstairs to the living room.

[119] After everyone was in the living area, Detective Constable Shanley took the video of the residence.

[120] Both Detective Constable Shanley and Officer Harloff were asked why, when Broomfield was the target of the investigation, the police searched the master bedroom in which Mignot was located and which Mignot identified as his room.

[121] Detective Constable Shanley testified that when there are multiple people living in a residence that is to be searched, police conducting the search determine whether to include all, or just some of them, in the search. Some of the factors that they may consider include: the relationship between the target’s room and other rooms, the layout of the house, evidence that officers see in the open, whether doors in rooms are locked, and the relationship between the occupants of the residence. Seeing something in the residence may also influence the decision.

[122] Detective Constable Shanley agreed that in this case, the police had nothing specific to suggest that Mignot was involved in drug trafficking with Broomfield. However, he said that the police were looking for currency and marihuana and that there was currency on the bed in the master bedroom, amounting to a couple of hundred dollars, when they went in.

[123] Officer Harloff, who was assigned to the master bedroom, also explained his understanding as to why it was searched in this case. The officer said that the police did not know the relationship between the people and did not know if Broomfield had access to the master bedroom. The master bedroom doors were open and it appeared like there was free and clear entry. He did not know whether they had been opened by the TAC unit.

b) Relevant Legal Principles

[124] The applicant has provided a number of authorities said to support his position that the officers should not have searched Mignot’s room.

[125] In R. v. Fernandes, [2009] O.J. No. 5218 (S.C.J.), Justice Backhouse held that where a residence houses a number of occupants, absent evidence of common usage of the spaces in question or evidence of mutual involvement in the offence, it is a defect to permit an overall search of the premises. In that case, the police knew that the target was 27 years old and that there was a 73 year old woman with no criminal record also living at the residence. There was also a vehicle parked at the residence and no attempt had been made to identify the owner or determine if the owner also resided at the residence.

[126] Justice Backhouse held that in this context, had full disclosure been made to the issuing justice, there likely would have been some limitations on the warrant to protect the privacy interests of other occupants.

[127] In reaching this conclusion, Justice Backhouse relied on other authorities also relied upon by the applicant. One of these is R. v. Cann, [1997] A.J. No. 584 (P.C.). In that case, Reilly J. held, at para. 44, that:

Where a suspect occupies only a portion of the premise to be searched described by a municipal address, the information and warrant should specify the rooms or portions which will be searched, so that the warrant does not on its face, authorize the search of premises which are occupied by persons other than the target.

[128] In that case, the dwelling house described in the warrant was designed so that each of the four bedrooms had their own outside entrance as well as inside doors that accessed common areas. The investigating officer could see three entrances at the front and knew that the unit was leased to two people not alleged to be involved in the offences. In that context, the court found as a fact that there were four separate units that shared common areas and that the police ought to have made further inquiries and not sought a warrant for the whole unit.

[129] A similar result was reached in R. v. Innes, [1990] B.C.J. No. 1009 (Co.Ct.). There, the police entered a three level home with a search warrant that was obtained on the basis that a target named Vassalos was selling drugs in the home. Upon entry, the police quickly learned that there was no one by the name of Vassalos and that the allegation that he was selling drugs was “baseless”. The court held that in the absence of any further evidence, any additional search was unreasonable.

[130] However, having found that an individual named Fahel was using drugs, the court held that a search of any part of the home to which he had access was reasonable. What was not permitted was the search of all of the other occupants’ rooms unless there was evidence to connect those occupants to the sale of drugs or evidence that all occupants in the house had access to all rooms.

c) Analysis

[131] In my view, had the police properly obtained a warrant to search 1 Celestial Crescent, there would have been no s. 8 violation in the manner in which the search was conducted.

[132] This is not a case in which the police knew that the home was divided into separated units or separate locked bedrooms. The surveillance conducted prior to the execution of the warrant suggested that in addition to Broomfield, there was both a second male, Mr. Mignot, who lived at the address, and a female. There was no evidence to suggest that that any of these individuals were in any manner constrained from accessing the entire home.

[133] I agree with the applicant that Detective Constable Bendiks should have disclosed in the ITO his belief that there were two people, in addition to Broomfield, living in the home. But, I do not accept that in the context of what was known, this would have led to limitations being placed on any search to be conducted of the residence. The difficulty here is that the police did not know, and could not reasonably ascertain, prior to the execution of the warrant, how the inside of the home was divided and shared.

[134] The more difficult question is whether, once the police were in the home and had identified Broomfield in the rear bedroom, they should have refrained from searching the master bedroom. In my view, the search of the master bedroom was permissible. I say this for two reasons.

[135] First, Detective Constable Shanley testified that he did not know the relationship between Mignot and Broomfield and did not know whether Broomfield had access to the master bedroom. It appeared to him that the master bedroom was open. Moreover, he was not required to accept Mr. Mignot’s statement that the master bedroom was his. Given the way in which the home appeared to be laid out, and the apparent openness between the rooms, it was reasonable for the officer to authorize the search of the master bedroom, notwithstanding that Mr. Mignot claimed the room was his and he was not the target of the investigation.

[136] Second, Detective Constable Shanley testified that he saw the cash on the bed when he conducted the video of the home before directing what areas were to be searched. In my view, given that currency was one of the items the police were searching for, this provided him with a basis to suspect that Mignot may have been involved with Broomfield, or that the cash may have been Broomfield’s and in Mignot’s room. Either way, I think it entitled him to authorize the search of the room.

[137] The applicant’s secondary complaint about the execution of the warrant is that the Operational Plan was not followed in that Mignot was handcuffed immediately in the master bedroom, not given his rights to counsel and was asked if it was his bedroom prior to being taken to the prisoner collection area. In my view, there was nothing improper in the way in which the TAC team and then the Halton Police executed this search warrant. I view this relatively minor deviation from the Operational Plan to be fairly insignificant.

iii) Should the evidence be excluded under s. 24(2) of the Charter

a) Relevant Legal Principles

[138] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 explained that when considering an application to exclude evidenced under s. 24(2), 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.

b) Analysis

The seriousness of the Charter infringing state conduct

[139] At the first stage of the analysis, the court is to consider the nature of the police conduct that infringed the Charter. The critical issue is whether the admission of the evidence would bring the administration into disrepute by sending a message that the courts “effectively condone the state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: Grant at paras 72-75. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding the evidence linked to that conduct.

[140] The first inquiry requires an assessment of where along a continuum the seriousness of the s. 8 breach falls. It requires me to examine the conduct of the police involved in the investigation.

[141] I will look first at the contents of the ITO. I found that the ITO could not support the issuance of a search warrant for 1 Celestial Crescent.

[142] While it was my conclusion that the information was insufficient to justify the search, I do not find that the police intended to mislead the issuing justice. I am not prepared to find, as suggested by the applicant, that the inclusion in the ITO of Detective Constable Bendiks’ belief that Broomfield may have been the cocaine supplier, or his improper reliance on Broomfield having been observed going into a residence in the vicinity of Celestial Crescent on November 13, 2014, were deliberate efforts to deceive the justice. I accept his statement that this was an error.

[143] But, I also cannot say that this was mere “inadvertence”. In my view, particularly the comment that Broomfield may be the cocaine supplier is a serious mistake and flowed from a failure to conduct an appropriately diligent and careful edit of the ITO before submitting it to the justice.

[144] Likewise, I see nothing deceptive in the failure of Detective Constable Bendiks to include in the ITO information about the legitimacy of Delicate Touch as a business or information about the other occupants of 1 Celestial Crescent. I think the officer failed to recognize that by excluding the Delicate Touch business information, it appeared that he was excluding information that, unlike Evans-O’Connell, Broomfield could have been involved in legitimate business activities.

[145] I am not prepared to find that the ITO had a pattern of deliberate errors.

[146] The primary difficulty I have with the ITO was that I think Detective Constable Bendiks inferred more than was reasonable about Broomfield’s involvement in drug trafficking from his conversations and meetings with Evans-O’Connell and others. He seemed to me too ready to assume that Broomfield was part of the drug operations when there was a lack of evidence supporting such a hypothesis.

[147] My finding was that the officer was prepared to infer from conversations and meetings that Broomfield was part of the drug trafficking operation when I do not think the evidence could have fairly support that inference. For example, the officer drew from the locker unit conversation between Evans-O’Connell and Broomfield far more than I think was reasonable. He assumed from the fact that Broomfield was communicating with Evans-O’Connell using a PGP that Broomfield must be part of the drug trafficking operation. His assumptions led to conclusory statements that were not grounded in the evidence and were overstatements of the evidentiary value of the evidence.

[148] Officers must be very careful when summarizing investigations, being careful to set out grounds in relation to each of the targets and locations for which warrants are sought. The court must distance itself from police conduct that unfairly suggests involvement in criminal activity that is not supported by the evidence.

[149] I will turn now to the police investigation. In my view, the police could and should have done more investigation about Broomfield if they thought he was involved in a drug trafficking network and had any basis to suspect that there were drugs at 1 Celestial Crescent. There were numerous avenues that would have been available to them and which were not taken. This might have included intercepting Broomfield’s phone or conducting further surveillance of him or of his residence.

[150] The police acknowledged that other investigative steps could have been taken but were not because the police were timing the take-down around Evans-O’Connell’s activities. That may be understandable from the perspective of the project. But it is my view that this timing led them to cut short what should have been a proper investigation in relation to Broomfield and 1 Celestial Crescent.

[151] I did not find any flaw in the manner in which the search of the home was conducted, as was alleged by the applicant.

[152] My conclusion on this branch of the test is that it favours exclusion of the evidence. The police failed to carefully review the ITO for obvious errors, failed to include relevant information and included opinions about Broomfield and his role in the drug trafficking operation that were just not reasonably inferred from the evidence. The investigation fell short of providing any grounds to believe that any of the evidence sought would be at 1 Celestial Crescent. When police seek to enter a private home, there is an expectation that they be more scrupulous in ensuring that the facts and opinions upon which they rely are true and well supported. As a whole, I think the police conduct falls at the more serious end of the spectrum.

Impact of the breach on the Charter-protected interests of the accused

[153] The second line of inquiry calls for an analysis of the impact of the breach on 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 the Charter rights are of little value.

[154] The Supreme Court of Canada has repeatedly made clear that individuals have a very high expectation of privacy in their homes. Residential searches strike at the core of that expectation of privacy: Morelli at para. 104.

[155] Given the high expectation of privacy in a private dwelling home, I have no difficulty in concluding that the impact of the breach on the Charter-protected interests of the accused favours exclusion of the evidence.

Society’s interest in adjudication on the merits

[156] The third line of inquiry asks “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion”. Among other factors to consider at this stage are the reliability of the evidence and the importance of the evidence to the prosecution’s case: Grant at paras. 79-81.

[157] An important focus of the third area of inquiry is the reliability of the offence. The evidence that the applicant seeks to exclude is real and compelling. I accept the Crown’s position that the gun, ammunition and drugs are inherently reliable and objective pieces of evidence that are critical to its merits. If they are excluded, the Crown’s case will fail. Mr. Mignot is facing very serious charges. There can be no doubt that society’s interests in the adjudication of this case on its merits would be seriously undermined by the exclusion of this evidence. The third branch of the analysis favours admission of the evidence.

The Balancing

[158] I must seek to balance the effect of admitting the evidence on society’s long-term confidence in the justice system.

[159] While I do not find anything deliberate about the police conduct, I do find that the lack of care on the part of the police led to a warrant being issued on something short of reasonable grounds. It was executed in a private home in violation of the expectation of privacy of those residing there. I must balance these factors against the fact that reliable evidence that is central to the Crown’s case was found in Mr. Mignot’s bedroom. The charges faced by Mr. Mignot are very serious.

[160] I see the balancing as a close call. However, despite the unease that necessarily comes with excluding a firearm, it is my view that the balance in this case favours the exclusion of the evidence. In my view, the administration of justice would be brought into disrepute by the admission of the evidence found during the execution of this search.

D. Conclusion

[161] The evidence obtained from the execution of the search warrant at 1 Celestial Crescent will be excluded.

Woollcombe J.

Released: July 26, 2016

COURT FILE NO.: 161/15 DATE: 2016 07 26 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Tristen MIGNOT REASONS FOR JUDGMENT Woollcombe J. Released: July 26, 2016