COURT FILE NO.: CR-17-30000064-0000 DATE: 20170214

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Tim Edwards, for the Crown Respondent

• and -

VALERI GUEORGUIEV David North, for the Defendant/ Applicant Defendant/Applicant

HEARD: January 24-26, 2017, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Challenge to Warrants under Section 8 and 24(2) of the Charter

Introduction

[1] On December 18, 2013, police executed search warrants on four locations connected to the applicant, Valeri Gueorguiev: an apartment, a storage locker and two motor vehicles. Upon executing those warrants, police located cocaine and drug paraphernalia, cash, weigh scales, counterfeit credit and debit cards, credit card forgery devices, pinhole cameras, covert card readers and computers.

[2] On this application, Valeri Gueorguiev alleges that the “information to obtain” the warrants (the “ITO”) was improperly issued. He alleges that the ITO contains information that is wrong or misleading and that some of the claims set out in it are without foundation. As these reasons show, the ITO plainly contains errors that required correction. As such, properly considered, Valeri Gueorguiev alleges that the ITO offends his rights under section 8 of the Canadian Charter of Rights and Freedoms, and that all of the evidence seized pursuant to the warrants ought to be excluded pursuant to section 24(2).

[3] The Crown resists this application and states that the police had sufficient grounds to obtain the search warrant, and that having regard to the relevant legal tests, the Justice of the Peace could and would have issued the warrants he did based on the information that was before him, even if it was the now-corrected form of the ITO that was before him, as described below. As such, the Crown claims that there has been no violation of the applicant’s section 8 Charter rights, but even if there had been, the Crown contends that the exclusion of evidence pursuant to subsection 24(2) would not be an appropriate remedy in this case after applying the three-step method of analysis mandated by the Supreme Court of Canada in R. v. Grant. [1]

Overview

[4] Valeri Gueorguiev is charged with the offences of fraud over $5,000, possessing a device used in the forging of credit cards, possessing credit card data, two counts of possessing property obtained by crime over $5,000, and possession of cocaine for the purposes of trafficking.

[5] During the investigation, police applied for and were issued warrants to search at a number of locations related to Valeri Gueorguiev. On December 18, 2013, those warrants were executed at an apartment unit at 1850 Victoria Park Ave., #405, Storage Mart Locker # 3194 located at 25 Crouse Rd. in Toronto, a Ford van license number 2015 LP and finally a Lexus motor vehicle licence number 739Z HP.

[6] The ITO in this case was prepared by the affiant, Detective Sgt. Ian Nichol. It consists of 150 paragraphs setting out the background to the investigation and the information learned by the police from databases and surveillance, but very importantly, this investigation did not initially commence looking into the activities of this applicant. Initially it focused on another man, Borislav Valchev. Mr. Valchev and Mr. Gueorguiev were initially charged together, but Valchev was then severed from Gueorguiev. It is understood that Valchev’s charges have now been disposed of, leaving only Mr. Gueorguiev.

[7] Michael O’Malley of the Bank of Montréal initiated the investigation in this case. As part of his role within the Bank of Montréal, O’Malley began monitoring the actions of an individual whom he called “Bluetooth Guy”. Through his own investigation, O’Malley linked the “Bluetooth Guy” to 203 events of tampering on ATM machines that were at Bank of Montréal locations. Through his own investigation, O’Malley determined that the Bank of Montréal debit account number 50076076287847 had been compromised during an ATM tamper occurrence at the 659 Dupont Street ATM location in Toronto on July 30, 2013. The card generated by that tamper was then used to buy gas from a Petro Canada gas station located at 1977 Kennedy Rd. in Toronto on November 4, 2013.

[8] As a result of information received, D.C. Tom Jones of the Toronto Police Service attended the Petro Canada location to retrieve any security video that might be available. The video that D.C. Jones viewed showed an individual, who appeared to be the “Bluetooth guy”, but he was not alone. He was accompanied by another individual who was wearing a very distinctive orange-coloured jacket. They were recorded by the surveillance video purchasing gas that was loaded into red plastic gas canisters and then walking away.

[9] On November 29, 2013, D.C. Jones received a call from the manager of the same Petro Canada location. She indicated that she believed that the same two males were back at her Petro Canada location. Information was received that the two males had parked in an adjacent parking lot (in a car with marker BFBP 470) and walked over with empty gas canisters to fill them at the gas station. After reviewing the transaction history, the police determined that the fuel purchase attempts on that day were also linked to debit cards that had been involved in the Bank of Montreal ATM tampering events. Security video was obtained of this event.

[10] That same day, D.C. Jones determined that the blue van with licence BFBP 470 was registered to and associated with one Borislav Valchev. Through a comparison of photos derived from the videotape surveillance evidence, D.C. Jones was able to determine that Valchev was the “Bluetooth guy”. This gave rise to extensive surveillance on Valchev commencing on December 11, 2013.

[11] On that day, D.C. Russell observed Valchev attending at the parking lot located at 1850 Victoria Park Ave. in Toronto. Valchev was observed parking next to a white van with license plate 2015 LP. He was observed exchanging one red gas canister from his van for another from that other van, having entered the other van with a key. In the notes of both D.C. Jones and D.C. Tsering, there is reference to four large gas containers being in the back of Valchev’s vehicle. Valchev is observed removing a gas canister from his vehicle and entering the other van (later associated with Valeri Gueorguiev, marker 2015 LP) through its side door. Valchev is then observed removing a gas can from the white van associated with Gueorguiev. His actions and effort in carrying the canister show that it appears to be full as he takes it from that white van and puts it into his own blue vehicle.

[12] Police then conducted a licence plate check of the van with licence plate marker 2015 LP. They were able to determine that that van was registered to the applicant, Valeri Gueorguiev. Several database searches revealed that the applicant was on probation and had previously been convicted of a number of fraud-related offences.

[13] D.C. Jones next spoke with the applicant’s probation officer who indicated that Valeri Gueorguiev’s address was 24 Forest Ridge Rd. in Richmond Hill and that his phone number was 416-885-5453. While the phone number ultimately proved to be connected to the accused, no surveillance was done at the Richmond Hill address so it was never associated with the applicant. Instead, however, D.C. Jones also spoke with the superintendent of the apartment building at 1850 Victoria Park Ave., one Steve Duravevic. He indicated that Valeri Gueorguiev was a long-term tenant of the building, and that he lived in Unit #405.

[14] Mr. Duravevic also confirmed that Gueorguiev had two parking spots, with a black Lexus vehicle assigned to spot #48 and a white van assigned to spot #68. He told D.C. Jones that “quite” some time ago, the applicant had asked to have his name removed from the lease. D.C. Jones then checked spot number #48 in the parking lot where he observed a black Lexus vehicle with Québec licence plate number 739Z HP. A check of that vehicle revealed that it was registered to one Stefan Gueorguiev. A review of police records suggested that Stefan Gueorguiev was the son of Valeri Gueorguiev, but also revealed that the applicant had previously been arrested in that vehicle.

[15] Monitoring of the applicant commenced on December 12, 2013. On that day, Mr. Gueorguiev was observed driving the Lexus vehicle from 1850 Victoria Park Ave. to a “Storage Mart” facility located at 25 Crouse Rd. in Toronto. D.C. Jones saw the applicant’s vehicle enter into the Storage Mart facility and park in section 16 or 17, facing north and close to Crouse Road.

[16] That same day, he spoke with Wendy Noseworthy, who was the manager of that Storage Mart location. D.C. Jones advised her that the police had followed the suspect into the Storage Mart and that he used an entry code to get in and that they were looking for information about the locker that he was renting. Ms. Noseworthy advised him that there was no record of a locker being assigned to Valeri Gueorguiev. However, there was one registered to one Stefan Gueorguiev, who was indicated as residing at 1850 Victoria Park Ave., Apt. 405, the same location where Valeri Gueorguiev lived.

[17] Ms. Noseworthy also advised that that locker was located in Building 3, Door 10 and that the Locker Number was 3194. Ms. Noseworthy told D.C. Jones that Stefan Gueorguiev and his mother had been renting that unit in the Storage Mart facility since 2007. She said that customers are given a four-digit code to access the property and that the building doors are left unlocked, but that the customers provide their own locks for their individual storage lockers. Finally, she indicated that sections 16 or 17 where the suspect’s vehicle was parked are in the same area as Building 3, Door 10, where the locker assigned to Stefan Gueorguiev was located.

[18] The affiant, Detective Sgt. Nichol, indicates in his notebook that he received this information from D.C. Jones on December 12, 2013, but what is recorded in his notes differs from the information recorded in D.C. Jones’ notes. The information recorded as received by the affiant was that D.C. Jones had spoken with Wendy Noseworthy, the office manager at the Storage Mart at 25 Crouse Rd. and that the notes of the officer had read “confirmed that G accessed locker number 3194, building three door 10. Keypad access.”

[19] The affiant, Detective Sgt. Nichol, also reviewed the images that were associated with the fraudulent gasoline purchase at the Petro Canada station located at 1977 Kennedy Rd. It was evident to him that one of the two males was wearing a very distinctive jacket which matched the jacket that the applicant was wearing while he was under surveillance by the police.

[20] This led to further investigation into the ATM tampering occurrences, conducted by D.C. Tiffany St. Dennis of the Halton Regional Police. She applied for a number of telephone production orders relating to four ATM tampers at three Bank of Montreal locations. Once she obtained those orders she was able to isolate what telephone calls were being made in the geographic proximity of those four ATM tampering events. The locations she identified through those orders were 280 Guelph Street in Georgetown, 21 Mill St. in Acton and 2 Victoria Street W. in Alliston.

[21] Relative to the Georgetown tamper event, it took place on June 8, 2013 at 6:49 PM. The second tamper event took place at 21 Mill St. in Acton on June 15, 2013 at 12:18 PM. The third tampering event of relevance also took place at 21 Mill St. in Acton, the next day on June 16, 2013 at 11:50 AM. Finally, the last tamper took place on July 7, 2013 at 9:36 AM at an ATM located at 2 Victoria St. W. in Alliston.

[22] However, within minutes before and after each of these four tampering occurrences, phone calls were made from 647-460-5453, a phone registered to “Jack” Gueorguiev, to 416-855-5453, which is the phone registered to Valeri Gueorguiev. On the first occasion, the 647-460-5453 cell phone registered to “Jack” Gueorguiev entered the cell tower area adjacent to the tampered location during the course of the call. On the second, telephone records produced showed that the phone registered to “Jack” Gueorguiev made a call to the Valeri Gueorguiev phone while the “Jack” Gueorguiev cell phone was located within the cell tower area embracing that Acton address.

[23] On the third tamper event, two calls were made from the 647-460-5453 cell phone to the 416-885-5453 cell phone close to the time of the tamper occurrence, and both of those cell phones were located within the tower area covering the Mill Street, Acton address at the time that the calls were made. A third call was made at 12:20 PM, from a phone 647-270-5284 (registered to Maria Valchev) to the 647-460-5453 phone registered to “Jack” Gueorguiev, with both phones located within the tower area covering the Mill Street, Acton address.

[24] On the last tamper occasion, just before that event, the phone registered to “Jack” Gueorguiev made a call to the phone registered to Maria Valchev. During that call, the Valchev phone entered the cell tower area covering the Victoria St. West address in Alliston, and then a second phone call was made within that cell tower area from the “Jack” Gueorguiev phone to the Maria Valchev phone at 9:36 AM, the same time at which the tamper event is reported to have occurred.

[25] The affiant, Detective Sgt. Nichol, also reviewed photographs of the incidents on June 8, 2013 and July 6, 2013 and he identified Borislav Valchev as being seen in the photos that relates to those two ATM tamper events.

[26] On the basis of all this material, Detective Sgt. Nichol completed his ITO to obtain the search warrants on December 18, 2013 and submitted them to a Justice of the Peace. They were signed on that day based on the strength of that ITO that was written by Detective Sgt. Nichol and the warrants were executed the same day. Upon the execution of the warrants, extensive contraband was located and seized.

Correction, amplification and excision of the ITO, and standard of review

[27] Crown counsel concedes on this application that the ITO drafted by Detective Sgt. Nichol contains errors. Defence counsel contends that they are serious errors, material misstatements, and that go to the ultimate remedy available on this Charter motion. At its root, defence counsel claims that the errors in the ITO are sufficiently material that they should result in a determination that the Justice of the Peace could not lawfully have issued the warrants on the basis of the ITO as corrected. This is so, either because of the alleged sloppiness and carelessness of the errors, or because, even further as the defence contends, the errors misled the issuing justice.

[28] Apart from whether they have that materiality, however, Crown and defence counsel agree that the particular statements in question are “erroneous” which requires that the incorrect statements be excised from the ITO, and that they be corrected. This process was recently described in R. v. Jaser [2]. In Jaser, Code J. reviews the duty to excise “erroneous information” on a section 8 sub-facial wiretap authorization review, the same rules that apply to a warrant authorization as in this case, and as explained by the Supreme Court in R. v. Araujo [3], notes that only erroneous information needs to be excluded from consideration.

[29] The starting point of any warrant review is that search warrants are presumptively valid unless the challenging party can establish, to a balance of probabilities standard, that there is no basis upon which the Justice of the Peace acting judicially could have issued the warrant: see R. v. Campbell [4]. That is the ultimate determination to be made on an application like this is whether the sworn ITO, as amplified or excised on review, contained at least some reliable evidence upon which the issuing justice could have granted the warrant. The initial authorization is entitled to some deference. It is only where the ITO was completely void of reasonable grounds that a reviewing judge is permitted to interfere and set aside the resulting warrant. [5]

[30] First, the function of the reviewing court is not to conduct a rehearing of the application. Appellate courts have been very clear that trial judges are precluded from substituting their personal views for that of the issuing justice. At paragraph 54 in Campbell, the Court stated that:

The standard is necessarily qualitative and reasonable people can differ in some cases about whether the authorization should have been granted. In this context the question for the reviewing court remains could the justice of the peace have issued the warrant. [Emphasis added.]

[31] Moreover, a proper review of the ITO and assessment of the legitimacy of the warrants issued requires the scrutiny of the entire document. Individual items set out within the ITO are not to be looked at in isolation. Rather, the trial judge must assess the “totality of the circumstances” and refrain from analyzing isolated passages. [6]

[32] A search warrant may be issued where there are reasonable grounds to believe that an offence has been committed and that evidence particularized in the ITO may be discovered at the specified locations. The ITO must disclose grounds of reasonable or “credibly based probability” regarding the essential statutory prerequisites. It does not require or equate to proof beyond a reasonable doubt or even to a prima facie case or proof to a balance of probabilities. Rather, the standard envisages a “practical, non-technical and common sense probability as to the existence of the facts and inferences asserted”: see R. v. Debot, above.

[33] In this particular case, the applicant attacks the validity of the warrant on two separate grounds: first that the ITO was insufficient to establish the presence of reasonable grounds required to issue the warrant, and second, that errors undermine the sufficiency of the contents of the ITO. I analyze each of these two issues later in these reasons, but as Jaser explains, the first remedial step is to excise and correct the erroneous information in the ITO, but then leave the assessment of the materiality of those errors until later in the analysis.

[34] In addressing the process of correction, it is important to remember that it does not permit the excision of the entire content of paragraphs merely because they may contain erroneous information, but rather correcting such paragraphs contextually to accurately reflect what ought to have been before the Justice of the Peace when he or she was considering whether the warrants could issue. Thus, paragraph 77 of Jaser explains that:

The normal way in which omissions are addressed, during a section 8 sub-facial attack on a search warrant or wiretap authorization is by inserting the omitted facts into the part of the affidavit where they should have been included. In R. v. Araujo (citation omitted) LeBel J. referred with approval to the decision in R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 at 528-9 (Ont. C.A.) where the court stated:

… The function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue. We recognize that in such event it is not known whether the justice would have been satisfied but keeping in mind that the proceedings are not a trial involving the guilt or innocence of an accused, it is sufficient that he or she could have been satisfied.

Similarly in R. v. Morelli, at paragraph 60, Fish J., writing the majority judgment, stated the following:

The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes. Likewise, where, as in this case, the police failed to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO.

[35] Code J. completes his discussion in Jaser by observing that in most cases, including in one like this, these principles can be applied without any great difficulty because the applicant who brings a section 8 sub-facial attack will typically, as here, produce an expanded record and will submit that it shows the true facts to be less incriminating than the way in which the police affiant had presented the facts. That is the exact position of the applicant in this case. That is what happened as well in Morelli.

[36] In Morelli, however, by omitting certain innocent information and by overstating certain more damning information, the affiant had made the grounds for the warrant appear much stronger than they actually were. The applicant makes the same submission here, but as discussed below, the Crown argues this is an entirely different case than Morelli, and that even with the corrected versions of text inserted, the ITO as a whole is not denuded and still demonstrates reasonable and probable grounds upon which the Justice of the Peace who issued the warrants in this case could have done so.

[37] It will suffice for the present to observe that Crown and defence counsel agree on these principles and the language that would be used to replace the erroneous content of the ITO as initially sworn to by Detective Sgt. Nichol. That amended text is found in paragraphs 65 and 66, and in paragraphs and 81 and 82 of the corrected ITO entered as an exhibit on the voir dire.

[38] The corrections to paragraphs 65 and 66 now clarify that the four gas canisters that the ITO indicates were in the white van associated with Valeri Gueorguiev were actually located in the blue Dodge van owned by Valchev. There is no change, however, to the action initially recorded by the affiant that describes Valchev taking an empty gas canister from his own truck to the white van, opening the door with a key, putting the empty canister in the white van and carrying a full canister back with him from the white van to his own vehicle.

[39] The corrections to paragraphs 80 and 81 continue to reflect that Valeri Geuorgeuiev was under surveillance on December 12, 2013 driving to and parking in section 16 or 17 at the “Storage Mart” located at 25 Crouse Rd., in Toronto and that he then entered the facility. However, the corrections to paragraph 81 that detail D.C. Tom Jones’ follow up with Wendy Noseworthy, the office manager at the Storage Mart location, now specifically displace the ITO perception that Valeri Gueorguiev was seen directly accessing the locker at the Storage Mart, and instead clarify Ms. Noseworthy’s evidence that:

• there was no record of a Valeri Gueorguiev, but they did have one of a Stefan Gueorguiev of 1850 Victoria Park, apartment #405, Scarborough who rents a locker in Building #3, Door #10, Locker #3194;
• Stefan Gueorguiev and his mother had been renting there since 2007 and they always paid for the locker in cash;
• customers were given the four-digit code to access the property and the building doors were left unlocked but the customers provided their own locks; and
• the section 16 or 17 parking area was in the same area as Building #3, Door #10.

Cross Examination of the ITO Affiant and Sub-Affiant

[40] The materials filed by the applicant in support of his section 8 Charter challenge refer to the preceding two errors in the ITO and assert that they tend to discredit or undermine a necessary condition precedent to the issuance of the warrants. The applicant’s section 8 materials demonstrate, and the Crown conceded, that both of the claims relating to the storage locker and where the four gas canisters were located are incorrect and have been demonstrated to be false with reference to the notes of the sub-affiant, D.C. Tom Jones.

[41] As such, defence counsel sought leave to cross-examine Detective Sgt. Nichol and D.C. Jones under the tests in R. v. Garofoli, on the basis that such examination would or could be reasonably likely to elicit evidence that could tend to discredit the existence of one of the conditions precedent to the issuance of a warrant, specifically, that evidence of criminal activity would be found within storage locker #3194 at 25 Crouse Rd. in Toronto. Given the consent of the Crown and the acknowledgment of the errors in the ITO, defence counsel was granted leave to cross-examine both officers.

[42] However, there was another issue that came up, that it on its own would have necessitated cross-examination of both officers in any event. In his testimony on the voir dire, Detective Sgt. Nichol acknowledged that he had known, generally from shortly after the preliminary inquiry, that the applicant intended to challenge the issuance of the warrants on the basis of the ITO he had drafted. He thought he might have heard of that possible challenge from Mr. Gueorguiev’s prior counsel. He was not certain what the area of attack might be, but he testified that he thought that there were concerns being expressed about the information in the ITO relating to the applicant accessing the storage locker at the Storage Mart facility. He knew nothing more concrete than that.

[43] In the week before the trial commenced, Detective Sgt. Nichol was called to a meeting with the Crown Attorney. At that meeting, the Crown Attorney told him to have regard to and be certain of his sources for the information that he had put into the ITO. Apparently no specific area of potential challenge was identified at the meeting. However, when he came out of that meeting with the Crown Attorney, Detective Sgt. Nichol immediately called D.C. Tom Jones. He specifically asked D.C. Jones to go back and look at his notes relating to the information that he had obtained from Ms. Noseworthy about Valeri Gueorguiev’s attendance at the Storage Mart facility. Detective Sgt. Nichol then had to attend on a course for the balance of the day on Wednesday and Thursday morning, so he left the matter in the hands of D.C. Jones, but then he immediately went to see D.C. Jones when he returned on Thursday about midday.

[44] D.C. Jones identified that the error in the ITO was between what Jones’ notes recorded Ms. Noseworthy told him and that he believed he had communicated by phone with Detective Sgt. Nichol, as compared to what the affiant had recorded in paragraphs 81 and 82 of the ITO arising out of that information. In his evidence on the voir dire, D.C. Jones testified that Detective Sgt. Nichol expressed surprise to learn of the discrepancy when it was shown to him, but that they had no further discussion on the point, or on how it might have come about that such a discrepancy would have existed. How it was that the ITO did not record exactly what Jones’ notes indicate had been communicated by Ms. Noseworthy had to await Sgt. Nichol’s evidence on this voir dire.

[45] For his part, however, once he learned of the incorrect statements in paragraph 82 of the ITO as compared to D.C. Jones’ notes, Detective Sgt. Nichol immediately sent an email to the Crown Attorney confirming the existence of that error and correcting it with the correct information as it was contained in D.C. Jones’ notes. That email was disclosed to defence counsel.

[46] Detective Sgt. Nichol testified that this was unusual and not a normal practice. As such, insofar as the ITO affiant was having such specific communications only days before the commencement of the trial with D.C. Jones, the OIC and another important witness in this trial, and insofar as it was expected that both officers would be testifying on the voir dire at which the applicant would challenge the issuance of the warrants on the basis of the ITO Detective Sgt. Nichol had drafted, defence counsel’s questions also delved deeply the communications between Detective Sgt. Nichol and D.C. Jones. The affiant was questioned about what precipitated the communications with D.C. Jones, what the state of his knowledge was at that time, and whether there was anything in the conduct of the two officers that on its own might raise questions about the veracity of their evidence. Indeed, defence counsel pressed further asking questions relating to the possibility of collusion or trying to cover up what defence counsel ultimately argued was an intentionally misleading statement inserted into the ITO by Detective Sgt. Nichol.

Analysis

[47] As explained above, the review of whether the Justice of the Peace could have issued the warrants based on the ITO in its corrected form, that is whether it was sufficient to evidence reasonable and probable grounds that evidence of the alleged offences against Gueorguiev would be found at the places sought to be searched, proceeds independently of the question of whether the ITO was misleading or undermined because of other police conduct. As such, the analysis that follows looks first at the substantive issues relating to the sufficiency of the warrant as corrected, and, secondly, addresses the issues of materiality of the errors and related police conduct.

Overview of the Applicant’s Charter challenge

[48] The applicant’s position is that the number and type of errors contained in the ITO are sufficient in aggregate to undermine its sufficiency. Some of the errors in the ITO are clearly minor, such as failing to include the full description of the suspect in the November 4, 2013 gas purchase as having “jet black hair” or the failure to include the word “quite” in the phrase “quite some time ago”, used by the superintendent of the apartment building in describing when it was that Valeri Gueorguiev asked to have his name removed from the lease. On the other hand, the defence contends that the ITO also contains substantially more serious errors, such as describing the white Ford van that is registered to Valeri Gueorguiev as containing the four full containers of gasoline, when it was in fact Valchev’s vehicle that the surveillance officer’s notes indicated contained those canisters. Similarly, the claim that the manager of the Storage Mart told D.C. Jones that Valeri Gueorguiev had just gained access to Locker #3194 is considered a much more serious error given that that is not what was said, that it is not what D.C. Jones’ notes reveal, and that it places Gueorguiev directly at the locker, rather than merely inferentially.

[49] The applicant also complains about other errors or claims in the ITO such as that Valeri Gueorguiev lied to his probation officer about his address, or the association in the ITO that “Jack” is an alias for Valeri Gueorguiev when the defence claims there is no evidence as to whether “Jack” exists, or whether Valeri Gueorguiev ever used the phone that is registered to “Jack”. Finally, the defence contends that there were serious errors made in the ITO associated with Detective Sgt. Nichol’s interpretation and use of the applicant’s criminal record, errors that the defence contends involved the creation of evidence where none existed, such as the claim that the applicant’s criminal record and a possible fear of future incarceration would explain why Valeri Gueorguiev is not seen in any of the hundreds of other ATM tamper events viewed by Michael O’Malley.

[50] This culminating feature of the affiant’s grounds in seeking the warrants and which connects the applicant to the alleged crimes is said to taint and overwhelm an ITO that does not otherwise go beyond raising a suspicion as to the applicant’s involvement in the alleged scheme, and as such, that this court ought to intervene and strike down the warrant. At its core, in the applicant’s submission, the ITO fails to distinguish between “mere suspicion” of criminal conduct and reasonable grounds to believe that an offence has been committed and that evidence will be found at a specific location. Because of that foundational concern relating to the ITO having nothing more than suspicion rather than reasonable and probable grounds to serve as its foundation, it is important to focus on that particular principal in the context of the analysis that follows.

[51] The Supreme Court decision in Morelli, as noted above, restates certain of the fundamental principles associated with the review of search warrants, but it is notable as well for Justice Fish’s emphasis on the distinction between suspicion of criminal conduct and reasonable grounds to believe that an offence has been committed. Justice Fish concludes that in many circumstances “obvious and innocent” explanations may exist for the conduct of an accused. In Morelli, the accused tidied up his room and reformatted his computer’s hard drive after the computer technician’s visit. In dissent, Deschamps J. argued that such actions were evidence of “a desire not to arouse suspicion with respect to his reproduction of images or his computer practices” and that the conduct created “a credibly based probability” that the accused was in the habit of reproducing and saving images that had a propensity to pornography, and more specifically to child pornography.

[52] Writing for the majority, however, Justice Fish disagreed with that characterization of the evidence stating “[t]here is an obvious and innocent explanation for this conduct that is at least as plausible: the accused might well have tidied up and formatted his computer simply to avoid further embarrassment from having an outsider see the disorderly state of his home and the evidence of his consumption of pornography on his computer. Again the accused’s conduct might raise suspicions, but it establishes nothing more.” [7]

[53] While the distinction between mere suspicion and a credibly based probability is critical where an ITO is said to demonstrate the former rather then the latter, it is important to counterbalance this concern by again focusing on the central considerations that underlie a review of the search warrant. As Blair J.A. observes in paragraphs 57 and 58 of R. v. Nguyen [8]:

57. The central consideration on the review of the 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 that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.

58. There may have been some flaws in the ITO presented by D.C. Mason in support of the application--the confusing reference to both 304 and 302 Sheppard Ave. in the paragraph cited above, for example. Few applications are perfect. The flaws did not go to the heart of the application, however, and--for the reasons outlined above--the trial judge’s overall conclusion that the ITO “was carelessly drafted, materially misleading and factually incomplete” is simply not supported on the record.

[54] Further, as the authorities make plain, the ITO must be looked at in its entirety. That is particularly relevant in this case, given that the preponderance of the evidence initially developed relating to tampering with ATM machines pointed to the involvement of Valchev. Most of the 150 paragraphs comprising this ITO do relate to Valchev and the 200 occurrences of tampering with ATM machines that are attributed to him. Valchev was severed off from this original co-accused and has been dealt with separately, leaving only Valeri Gueorguiev on this application and at this trial. However, it is the commencement of observation of association between Valchev and Valeri Gueorguiev and even their relatively limited involvement together that triggers the investigation of Valeri Gueorguiev and that leads to the further inquiries being made into the individual who is seen to be assisting Valchev with the fraudulent gas purchases at the Petro Canada station, which turns out to be Valeri Gueorguiev.

[55] By the time Valeri Gueorguiev comes into the picture, Valchev is already associated with a panoply of ATM tampers. He is already identified as the perpetrator of numerous fraudulent uses of the credit card, and is clearly involved in criminal conduct. Valchev used fraudulent credit cards at the Petro Canada station that are linked to two of the ATMs he had tampered with, but importantly, Valchev was not alone at that Petro Canada station. He was accompanied by a second individual. Paragraphs 54 and 84 of the ITO show the presence of the distinctly-coloured jacket that belongs to Valeri Gueorguiev accompanying Valchev at the Petro Canada station, and that is how the initial tie-in of Valeri Gueorguiev commences.

[56] So again, I emphasize that the ITO needs to be looked at in its entirety as a whole. In addition, the sufficiency of the information to support the issuance of the warrants must take account of the manner in which the evidence unfolds and how that unfolding of evidence permits the ITO affiant to move forward to draw reasonable inferences from the increased information learned by the police about the association of Valeri Gueorguiev with Valchev who is plainly and unquestionably identified as participating in criminal activity.

Sufficiency

[57] I accept that the presence of the distinctly-coloured jacket being worn by Valeri Gueorguiev at the Petro Canada station when he is in the company of Valchev and where fraudulently created credit cards were used, combined with the surveillance of Valchev dealing with Valeri Gueorguiev’s van, being in possession of a key that permits him to enter that van, and his exchange of one empty gas canister for one full canister, provides a strong inference that it was Valeri Gueorguiev who was present with Valchev at the Petro Canada location when the use of the fraudulent credit card to purchase gasoline was observed. The complaint about the gas canisters being in Gueorguiev’s van rather than Valchev’s is of little moment, because it is not the location of the canisters that is significant. It is the creation of the association and link between Valchev and Gueorguiev that is evident in the gas canister exchange, supplementing the video-surveillance evidence, that involves them both in the fraudulent purchase of gasoline, using cards that are known to have originated from “Bluetooth Guy’s” multiplicity of known ATM tampers that is of evidential importance.

[58] Having concluded that reasonable inferences rather than mere suspicion thus link Valeri Gueorguiev with Valchev, and through the use of the fraudulent credit cards with the ATM tampers perpetrated by Valchev, the “Bluetooth Guy”, then the presence of the cell phones within the triangulation area of the cellular telephone towers at the very time that four of the tamper events are occurring, further strengthens Gueorguiev’s connection to Valchev and to the fraudulent conduct.

[59] Defence counsel complains that of 200 tampers associated with Valchev, the cell phone evidence only associates Valeri Gueorguiev with Valchev on three or four of the tamper occasions, but what is important is that police initially sought telephone records for all 200 of the tamper events, looking for evidence of Valchev’s and Valeri Gueorguiev’s cell phone numbers, but only four occurrences arise where both phone numbers register on the same tower location. So, not surprisingly, the police only sought production orders for those three locations, not for all 200 tamper events, because plainly Valeri Gueorguiev was present through a cellular telephone connection on any of those other locations.

[60] In other words, the police only sought production for telephone records for the three locations where both relevant phone numbers related to the two suspects were returned. Yet this amounts to a 100% return for at least those four occasions, when both phone numbers were returned from the cellular tower information, showing that cell phone conversations took place between Gueorguiev’s and Valchev’s cell phones close to the time that the ATM tamper events occurred, and at least in the case of the second Acton ATM temper, with both cell phones being physically within the triangulation area at the same time. Clearly this shows that Gueorguiev was either physically or cellularly present in that cell tower area with phone conversations taking place between the two suspects’ telephones at the time those tamper events occurred.

[61] The evidential value of this is not mere suspicion. When the cell phone evidence is looked at in the context of and in combination with the other evidence then known to the police, and the observation of Valeri Gueorguiev having participated in the filling up of the gas canisters with Valchev at the Petro Canada station, it in turn provides very significant evidence to tie Valeri Gueorguiev to the ATM skimming operation.

[62] The ITO affiant states in the ITO that “Jack” is an alias for Valeri Gueorguiev. The applicant complains, however, that the police do not actually know that the cell phone registered to “Jack” Gueorguiev actually belongs to this applicant, and so it is an inflammatory suggestion without foundation. The question that arises is could the Justice of the Peace reasonably rely on this inference?

[63] When all the facts are looked at as a whole, it is plain to me that the inference was open and available and reasonable to draw, and not mere speculation as claimed by the applicant. The address for the “Jack” cell phone is the same address where Valeri Gueorguiev is believed to be living in the apartment building in Scarborough. It is the same location where the superintendent indicates he has lived for a long time, and it is the same location where the superintendent advises D.C. Jones that he asked to have his name taken off the lease at some time. Whether it was “some time ago” as recorded in the ITO, or “quite some time ago” as actually stated by the superintendent, is inconsequential and picayune.

[64] I look next at the calls made between Valchev’s Bluetooth earpiece and the phone records that show that the calls take place between “Jack” Gueorguiev’s cell phone and one belonging to Valeri Gueorguiev, and from “Jack” Gueorguiev to Maria Valchev. Certainly the “Bluetooth Guy”, who is at the site of the ATM machines and tampering with them, is talking to somebody. Again, relating back, I find that the clear identification of Valeri Gueorguiev associated with Valchev in the use of the fraudulent credit cards at the Petro Canada location, and the exchange of gas canisters between their two vans, combined with the residential address associated with the registration of the “Jack” Gueorguiev cellular phone account, strongly strengthens the inference that the “Jack” Gueorguiev cell phone is owned and used by Valeri Gueorguiev.

[65] It is claimed that Detective Sgt. Nichol misused information obtained from the probation officer and Valeri Gueorguiev’s criminal record. Plainly, Valeri Gueorguiev does have a criminal record and it is for fraud offences. But importantly, the very first paragraph of the ITO draws to the attention of the Justice of the Peace that the record is being used for limited purposes. The record is not overstated in the ITO, and is not being used on its own to somehow displace the need for reasonable and probable grounds based on evidence. Rather, it is used by the affiant as the foundation to draw inferences that are reasonable in and of themselves, looked at in the context of the ITO as a whole, and that provide an inferential explanation for certain conduct by the accused.

[66] The probation officer tells the affiant that the address given by Valeri Gueorguiev is an address in Richmond Hill. Defence counsel complains that the police did not go to that location and actually do surveillance over that house. In a perfect world with unlimited resources, perhaps that position might be correct. It strikes me, however, that such surveillance was quite unnecessary given that the superintendent of the building in Scarborough plainly told D.C. Jones that Valeri Gueorguiev had lived in that apartment building for some years, that his wife and son lived there, that he had two parking spots in the basement of that apartment building, and that he had asked “quite some time ago” to take his name off the lease. That provides contrary evidence to the information provided by the probation officer that Valeri Gueorguiev lived in Richmond Hill. When this information is combined with the comments made by police related to Valeri Gueorguiev distancing himself on camera, it becomes information of considerable inferential value, given Detective Sgt. Nichol’s experience and the underlying facts that were present at that time.

[67] If one accepts, as I do, that it is a valid inference that Valeri Gueorguiev was with Valchev at the gas station, and regardless of the number of gas canisters that were in either person’s vehicle, if it is accepted that gas canisters were exchanged, then those facts combined reveal the interaction of Valeri Gueorguiev and Valchev. That, in turn, supports the inference that Valeri Gueorguiev and Valchev were together using fraudulently-produced credit cards to purchase gasoline at the Petro Canada station.

[68] The interaction of Valeri Gueorguiev and Valchev becomes meaningful for the ITO affiant and helps to inform the reasonability of his beliefs. Moreover, the reasonability of his belief is enhanced by the plain fact that Valeri Gueorguiev has previously been convicted of fraud offences. The fact that he has been convicted of prior fraud offences certainly does not provide RPG for these offences, but the presence of that record makes plain that there may be ulterior motives for the association between Valeri Gueorguiev and Valchev, and their collective use of fraudulent cards to purchase gasoline together. So, contrary to the defence position, in my view the presence of that formal record, and bearing in mind the forthright reservations expressed by Detective Sgt. Nichol, in fact strengthens the warrant. Moreover, it is reasonable given the ties of Valeri Gueorguiev and Valchev, for the police to think that Valeri Gueorguiev would be distancing himself from his address and from the actual ATM tamper events. It is also consistent with the officer’s experience, experience he is entitled to rely upon in crafting an ITO for a warrant, taken together with other information that the police possessed.

[69] This is an entirely different circumstance than was present in Morelli. While that decision is certainly relevant, the underlying facts were very different. It was not a case here of an ITO being sworn, but the warrant being left with nothing but generalizations in it after the process of excision has taken place, as was the case in Morelli. Rather, in this case, even as corrected, the warrant contained specific facts about Valeri Gueorguiev’s ties to Valchev. Those facts in turn permit a legally probative conclusion to be reached that establishes grounds to be reached to search Gueorguiev’s apartment, cars, and the storage locker in his son’s name. This is in distinct contrast to Morelli. Once the excision process had taken place in that case, there was nothing of substance left except generalizations and the Supreme Court quite properly determined that the Justice of the Peace could not have issued that warrant based only on that information that remained.

[70] In this case, the ITO to obtain the warrant is quite different. Valeri Gueorguiev is both directly and circumstantially tied to Valchev. All of that remains in spite of the excisions and the presumption of the validity of the warrant as corrected. When one looks at the all of the information known to Detective Sgt. Nichol, he is not making generalizations. Rather, he is drawing appropriate and strong inferences based on the evidence he possesses.

[71] Then, I must consider the strength and value of the storage locker-related evidence, but in its corrected form. The police observe Valeri Gueorguiev driving to the storage locker location. He parks in a parking spot located close to a building and he uses a four-digit user’s security code to access the building. But then, contrary to what was originally stated in the ITO, he was not seen actually entering a locker, as Detective Sgt. Nichol describes. Instead, it is inferential that he must have accessed a locker in that building. What permits those inferences to be drawn is that his son and wife have a locker there, they have been paying for it for years, and he does not have a locker there. There would have been no reason for Valeri Gueorguiev to be in that locker building unless he was either going to someone else’s locker, or going to the locker registered in his son’s name. Certainly, the statement as corrected is not as weighty as the statement that he is seen directly entering the locker itself, but when considered in the context of the entirety of what was then known, its inferential weight is not materially less persuasive. The inference available from the circumstantial evidence is, frankly, the only reasonable inference to draw, and it was open to Detective Sgt. Nichol to do so. It is obviously not as strong a connector as the direct statement, but it does come close when the facts are considered as a whole. In my view, there is no reasonable alternative inference.

[72] For these reasons, I am satisfied that based on the sufficiency of its content, even in its corrected form, the Justice of the Peace could have issued the search warrant. The ITO affiant plainly had reasonable and probable grounds to obtain that warrant and it would have been evident to the Justice that there were more than adequate grounds as a basis upon which the warrant could issue.

Police conduct

[73] The remaining area of inquiry relates to the conduct of the police in this matter. That conduct must be assessed having regard to Blair J.’s comments in Nguyen at paragraph 53 and 54, noted above, that the purpose of this exercise is not to be switched from considering the sufficiency of the ITO and whether the Justice of the Peace could have issued the warrant and instead turned into a overly-critical analysis of police conduct. However, the applicant claims here that Detective Sgt. Nichol knew that paragraphs 80 and 81 were incorrect, and that he intentionally put those paragraphs into the ITO. It is claimed that this was not a product of inadvertence, but rather a direct and deliberate effort on the part of Detective Sgt. Nichol to mislead the Justice of the Peace. In my view, the evidence supports exactly the opposite conclusion.

[74] While the question is whether there is sufficient reliable evidence for the Justice of the Peace to rely upon, courts must nevertheless distance themselves from abusive or intentionally misleading, or recklessly careless conduct by the police in preparing ITO’s to support of the issuance of warrants. As such, even if there is sufficiently reliable evidence that would have permitted the Justice of the Peace to issue the warrant in its corrected form, as I have found, the question remains whether there was improper police conduct which could vitiate and undermine the foundation for the warrant to be granted regardless of the sufficiency of its content.

[75] The focus here is whether the mis-description in the ITO of the presence of the gas canisters in Valchev’s vehicle rather than in Valeri Gueorguiev’s vehicle, and the mis-description of the information obtained by D.C. Jones from Ms. Noseworthy relating to Valeri Gueorguiev’s attendance at the Storage Mart locker facility were the product of honest mistakes, or were they instead inserted by Detective Sgt. Nichol knowing that information to be false, either with carelessness as to the accuracy of the information or animated by an intentional effort to mislead the Justice. The reasonable inferences that can be drawn from the evidence demonstrate that it is the former, not the latter.

[76] Dealing first with the gas canisters, I consider this to be a largely irrelevant mis-description of no particular consequence in the context of the ITO as a whole. It seems plain on the evidence that Detective Sgt. Nichol simply misunderstood that the four gas canisters were located in Valchev’s vehicle, rather than in the vehicle associated to Valeri Gueorguiev. Perhaps it was careless and perhaps Detective Sgt. Nichol should have checked back against the notes a second time to ensure that the four gas canisters were being attributed to the proper person. Defence counsel contends he did not do that because he wanted the four canisters to be associated with Valeri Gueorguiev on the basis that this would demonstrate more active involvement by Valeri Gueorguiev in a “boss” type of role, with Valchev being his underling.

[77] However, as noted above, I have rejected this construction. Moreover, it is not the location of the four gas canisters in one vehicle or the other that is of importance to the evidential value of that information, but rather the exchange of an empty gas canister for a full one, which unquestionably came from the vehicle associated with Valeri Gueorguiev. Even if that mistake was a product of carelessness, it is hardly significant and the evidential value of the information and the inference it permits to be drawn is not diminished in any way by the mistake.

[78] The more important alleged misconduct follows from the meeting held the week before this voir dire commenced, between Crown counsel and Detective Sgt. Nichol. Detective Sgt. Nichol was told to have regard to and be careful that he was certain of his sources for the information contained in the ITO. However, no particular source or piece of information was identified as the subject of the applicant’s challenge. As such, defence counsel claims Detective Sgt. Nichol should have come out of that meeting and immediately contacted all of his sources, but instead he came out of the meeting and directly and immediately contacted only D.C. Jones.

[79] This phone call, and the subsequent meeting between D.C. Jones and Detective Sgt. Nichol is said to betray consciousness of guilt on the part of Detective Sgt. Nichol. It is said to indicate that he knew that the difficulty that was going to be challenged related to the information about the surveillance of Valeri Gueorguiev at the Storage Mart locker facility. It is said that he knew that, because he had intentionally mis-described the information communicated to him by D.C. Jones when he initially prepared the ITO in order to create a stronger and direct link to Valeri Gueorguiev, rather than merely the indirect circumstantial link that is present in the ITO as corrected.

[80] In my view, this is a conclusion that is not reasonably borne by the evidence and by common sense. Detective Sgt. Nichol acknowledged that what he had done was incorrect. It was plain observing his demeanour as he testified that he was concerned and embarrassed at the mistake. A little context helps to understand why Detective Sgt. Nichol testified that he has prepared over 100 ITOs in the course of his career. Immediately after this ITO was prepared, he was promoted to the rank of Detective Sgt. and put in charge of the Commercial Crime Unit of the Toronto Police Service. He said that caused him to be somewhat removed from day-to-day activity, or day-to-day involvement with this case as it proceeded forward towards the preliminary inquiry and then towards trial. However, he knew from the time of the preliminary inquiry, and what he thought he had heard from former defence counsel for Valeri Gueorguiev, that there was going to be a challenge brought against the ITO that he had prepared and he thought he had heard that it might have related in some way to the information pertaining to the storage locker.

[81] Armed with that information and knowledge, it is not surprising to me that when Detective Sgt. Nichol came out of the meeting with Crown counsel, his natural reaction would have been to do exactly what he did. Prior information suggested that the locker information was what was being challenged. He had obtained that information from D.C. Jones. D.C. Jones was the officer in charge of the case, and a partner and friend of Detective Sgt. Nichol’s for over thirty years. It would be natural against that background that Detective Sgt. Nichol would first call D.C. Jones.

[82] However, the imputation of consciousness of guilt of Detective Sgt. Nichol making that call has no foundation and common sense to it in my view. Detective Sgt. Nichol makes the call because he genuinely does not know what the problem is as between the ITO and the source information. He calls D.C. Jones in order to find out. He has to go out of town for a day, but he asks D.C. Jones to go back immediately and check his notes and what information he had conveyed to Detective Sgt. Nichol. He advises that he will follow up with him again the next day as soon as he is back in the city. When he does that, on returning from a course that he had to attend, D.C. Jones advises him that the problem is between what is actually reflected in the notes that D.C. Jones made when he took a statement from Ms. Noseworthy, and what was described in the ITO. The mistake creates an appearance that Valeri Gueorguiev was directly viewed entering into the locker, when in fact that was not so. The connection between Valeri Gueorguiev and the locker, while still strong, is entirely circumstantial and inferential, not direct.

[83] I find that Detective Sgt. Nichol’s actions in contacting D.C. Jones, asking him to look into the matter, and then following up and learning of the discrepancy, reflect the opposite of a conscious intention to mislead known by an ITO affiant. If Detective Sgt. Nichol had intentionally mis-described the information that had been provided to him by D.C. Jones in his ITO, the last thing he would have done is picked up the phone to call D.C. Jones to ask him what was in his notes. Detective Sgt. Nichol would not have needed to make such a call. It would have been unnecessary because if he had intentionally mis-described the information, he would be aware of it and would not have needed to contact D.C. Jones to determine or verify if there had been a miscommunication and a mis-description of what transpired. It simply makes no sense that Detective Sgt. Nichol would act as he did if he had intentionally misled the Justice of the Peace by misconstruing the information provided to him by D.C. Jones relative to Valeri Gueorguiev’s attendance at the Storage Mart locker facility. Moreover, once D.C. Jones told Detective Sgt. Nichol about the discrepancy, Jones reflects in his testimony that Detective Sgt. Nichol seemed genuinely surprised, but that they did not discuss the matter further. Instead, on his own, Detective Sgt. Nichol prepared an email to send to Crown counsel, immediately advising him of the error and correcting the information to ensure that the applicant would know of the mistake that had been made in his preparation of the ITO before the commencement of the trial and the voir dire.

[84] Finally, in considering the gravity of the conduct and whether these admitted mistakes by Detective Sgt. Nichol could or should undermine the foundation for the warrants to have been issued by the Justice of the Peace, it bears noting that the value of the incorrectly-stated information relative to both the gas canisters and the locker, as compared to the restated corrected text, is so insignificantly higher in the level of its weight that it begs the question why a thirty-year officer who had never before been challenged on an ITO would restate that information to merely gather an additional feather’s weight of sufficiency, if indeed the incorrect version even increased the weight of the ITO at all, considered as a whole.

[85] Police officers are not perfect – even thirty-year police officers who have never previously been challenged in over 100 separate preparations of ITOs to obtain search warrants. Plainly it could have been a misunderstanding or a miscommunication between Detective Sgt. Nichol and D.C. Jones, but nevertheless, the error is there on the face of the ITO. But a concern that these errors so significantly undermine the weight and viability of the ITO as a foundation to issue warrants is a fabricated concern in my mind, having regard to the context of the corrected ITO as a whole, to the fact that there is little if any alteration in the weight of that ITO considered as a whole, and given that the corrected inferences inevitably produce the same inferential results.

[86] In conclusion, I find that while regrettable, the miscommunication or misunderstanding between Detective Sgt. Nichol and D.C. Jones was not intentional, nor was it reckless. It might have been the product of minor carelessness in trying to get an ITO completed on the run. But it was hardly of such significance that this Court needs to disassociate itself with Detective Sgt. Nichol’s conduct and quash the ITO, thereby quashing the search warrants. I am satisfied at the end of this consideration that there are more than sufficient reasonable and probable grounds present in the circumstances of this case, based on the ITO as corrected, such that a Justice of the Peace considering the entirety of the evidence presented before him could have and would have issued the warrants that he did.

[87] Even if I am mistaken in reaching that conclusion that the police did have reasonable and probable grounds to obtain these warrants, such that the applicant’s Charter application must be dismissed, it would still, in my mind, not result in the evidence being inadmissible under section 24(2) of the Charter. Under step one of the Grant analysis, this is not a serious Charter breach. It is not a breach that requires the Court to disassociate itself from intentional and abusive police conduct. It is simply a mistake committed unintentionally by a senior police officer with an unblemished career in preparing what seems to have been his last ITO before taking on more senior leadership roles within the Toronto Police Service. It is not a level of a Charter breach that tips the scales in favour of exclusion of the evidence, notwithstanding that the accused may have a significant privacy interest in at least one of the locations searched. It is a low-level technical breach.

[88] Step three in Grant plainly favours the admissibility of the evidence. So given the very low level of the Charter breach that would have occurred, if indeed one did and I have specifically found that one did not, given the strong public interest in having cases like this prosecuted, then notwithstanding a medium to high level of privacy interest on the part of the applicant in the places to be searched, at least his apartment, if not the locker facility given its registration in the name of his son, and calling into question whether he even has standing to challenge that aspect of the warrant, I would not have excluded the evidence under subsection 24(2).

[89] The application is dismissed. The evidence is admissible.

Michael G. Quigley J. Released: February 14, 2017