CITATION: R. v. Merritt, 2017 ONSC 2245

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20170411

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McGuire and Eric Taylor, for the Crown

Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

David Berg and Joel Hechter, for Melissa Merritt

Peter Zaduk, Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore

Applicants

HEARD: March 21, 22, 23 and 24, 2017 at Brampton

RULING No. 9: Section 24(2) Screening Motion

RESTRICTION ON PUBLICATION

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

[1] Melissa Merritt and Christopher Fattore are each charged with the first degree murder of Caleb Harrison on August 23, 2013. The accused are also jointly charged with the first degree murder of Caleb Harrison’s mother, Bridget Harrison, on April 21, 2010. Christopher Fattore is charged with second degree murder in relation to the death of Caleb Harrison’s father, William Harrison, on April 16, 2009.

[2] Melissa Merritt and Caleb Harrison were previously married. They had two children together. They were involved in protracted custody and access litigation relating to their two children during the time frame of all three of the alleged murders.

[3] Ms. Merritt and Mr. Fattore are common law partners. They have four children together.

[4] A more detailed description of the factual background can be found in my Ruling No. 2: R. v. Merritt, 2016 ONSC 7009.

[5] In the pretrial applications I have heard so far I have found seven s. 8 Charter violations. Those violations occurred in relation to four items or groupings of evidence which the respondent seeks to admit and the applicants seek to have excluded pursuant to s. 24(2) of the Charter. By agreement all s. 24(2) issues have been deferred to a later point in the pretrial proceedings which is now approaching.

[6] The issue before the court in this application is the extent to which the applicants should be permitted to adduce evidence on the s. 24(2) application to establish other violations of the Charter alleged to have occurred in the course of the investigation but which did not produce evidence the respondent wishes to rely upon. The applicants want to establish that other Charter violations occurred in relation to their own rights and in relation to the rights of third parties during the course of the investigation. They wish to do so for the purpose of demonstrating that the violations I have found which did result in evidence, should be viewed as more serious than they might otherwise be viewed, in order to assist them in establishing that the evidence to be considered on the s. 24(2) application should be excluded.

[7] The applicants also wish to introduce evidence that the police have obtained warrants in other cases which violate s. 8 of the Charter in the same manner that I have found two of the warrants issued in this case did. They refer to this as “constitutionally unacceptable police practices outside of this investigation”.

[8] The applicants submit that they should be permitted to proceed as they propose in order to establish that the Charter violations already found form “part of a pattern of abuse” which “tends to support exclusion” of the evidence obtained in a manner that violates the Charter : R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 75.

[9] The respondent maintains that the applicants have no standing to establish the violation of the Charter rights of third parties. The respondent further submits that, with two exceptions, the applicants are unable to demonstrate in even a preliminary fashion that the other alleged violations of their own Charter rights are sufficiently related to the evidence sought to be excluded to make these further alleged violations relevant and material to the s. 24(2) application. The respondent takes the position that permitting the applicants to proceed in the fashion proposed will add approximately two months to the pretrial applications. These applications have already been underway for almost seven months.

[10] While the applicants do not agree that the length of the pretrial applications will be increased to the extent the respondent submits, based on proceedings so far, it seems to me that the respondent’s estimate is realistic. Time will be required not only to hear the applications but to decide them. In many instances full Garofoli[^1] applications may be required. Over 30 additional Charter violations are alleged in relation to the applicants and third parties based on my assessment of the applicants’ written material.

The Nature of this Application

[11] As the parties were aware of the fundamental disagreement between them about what is relevant on the s. 24(2) application they determined to bring this preliminary application. Initially, the applicants did so by filing a notice of application and factum which set out the legal basis for their position. However, the applicants’ written material provided little in the way of a factual framework for their allegations of numerous other Charter violations. This left me in a difficult position.

[12] While I have become familiar with the aspects of this investigation related to the applications already dealt with, I know very little about the factual context for the other numerous Charter violations the applicants wish to establish. Consequently, after some argument, a brief adjournment was granted so that the applicants could prepare a chart outlining their allegations and their submissions on how their allegations are linked to the coming s. 24(2) application. I have included a copy of that chart as Appendix A to these reasons. Appendix B describes the applicants’ “categories of evidence”, represented by the number which appears before each description in the “Category” column on Appendix A.

[13] As I know little else about the additional allegations I made it clear to counsel that my decision would be based on the record they put before me.

[14] All counsel suggest that, for the purpose of this preliminary application, I should proceed on the basis that the factual allegations set out in the centre column of Appendix A can be established. Counsel have agreed to proceed in that fashion although the respondent does not agree with all of those factual matters. If I conclude the applicants may advance any other alleged violation on the s. 24(2) application, as set out in the first column of the chart, competing evidence about the facts will be called and factual disputes resolved on the s. 24(2) application itself. The current application is to be treated as a preliminary screening application.

Method of Proceeding

[15] Having regard to the manner in which the application was argued and to my legal conclusions I propose to deal first with the applicants’ submission that they should be permitted to prove that the Charter rights of third parties were violated in the course of this investigation. I will next deal with the applicants’ submission that other violations of their own Charter rights in the course of this investigation must be considered. Finally, I will deal with the submission that constitutionally unacceptable police practices outside this investigation should be considered on the s. 24(2) application.

[16] Before I finish my analysis I will ensure that each of the 21 boxes that appear in Appendix A have been dealt with.

Alleged Violations of Third Parties’ Rights as Part of this Investigation

[17] The applicants wish to demonstrate that numerous breaches of third parties’ s. 8 Charter rights occurred during the course of this investigation. Boxes 13 to 20 of Appendix A relate to the proposed allegations.

[18] Box 13 relates in part to a digital number recorder (DNR) warrant for a third party’s phone, alleging that misleading and speculative statements were included in the related information to obtain (ITO).

[19] Box 15 raises the issue that statements similar to ones I found to be misleading in a prior review of a production order for CIBC records of Christopher Fattore were repeated in three ITOs for search warrants for vehicles of third parties. It can also be seen from Box 15 that the applicants suggest that various other misrepresentations were made. Similar submissions are made in relation to other third party warrants in Box 16. I would point out that determining whether s. 8 violations resulted would require separate Garofoli reviews for each of the third party warrants.

[20] Box 14 relates to a production order for the phone records of the deceased Caleb Harrison, one of the alleged murder victims. As an aside, I point out that as a victim he may have been quite willing to have the police examine his phone records even without a warrant.

[21] Boxes 17 to 20 allege an overbroad production order for third parties’ bank records, that the police exceeded the scope of two other warrants issued in respect of third parties, that the affiant omitted information the applicants allege to be material in obtaining another third party warrant and that they entered onto a third party’s farm property without authorization.

[22] I pause to point out that the applicants have made no showing that any of the third parties involved raise any objection to what occurred. That is not determinative of what I have to decide but it is illustrative of the impact standing may have on considerations of trial economy and the appropriate use of judicial resources.

[23] In my view the applicants submissions in respect of third party Charter violations that have not been otherwise established in these proceedings cannot succeed because the applicants lack standing to establish the Charter violations alleged. This is a different situation than a case in which Charter violations of third parties have already been established because those third parties had standing in the same or a related proceeding and raised and established violations of their own rights. In such circumstances there is a line of authority in British Columbia which establishes that a court is required to take such violations of a third party’s Charter rights into account on an accused’s s. 24(2) application, at least in circumstances where the third party’s Charter rights were violated in the course of the same transaction that led to obtaining the evidence the accused seeks to exclude: R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Trieu, 2010 BCCA 540, 272 C.C.C. (3d) 237, at para. 92; R. v. Spence, 2011 BCCA 280, at paras. 51-54; R. v. Nguyen, 2013 BCSC 950, at paras. 28-36; R. v. Mauro, 2017 BCCA 45, at paras. 26-28.

[24] Assuming the British Columbia line of authority is correct and applicable, it is, however, distinguishable. The third party violations alleged in this case have not been established otherwise in these proceedings by someone having standing to do so.

[25] I point out that a similar argument to that advanced here was made before Heeney J. and rejected in R. v. Rafferty, 2012 ONSC 703, [2012] O.J. No. 2132, at paras. 35-38. I would apply the same reasoning. As Heeney J. noted in Rafferty, in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, Cory J. held at para. 33:

There are two distinct questions that must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy [citation omitted].

[26] The applicants submit that the standing cases do not apply because they have already established standing to challenge the admissibility of the evidence that was found in respect of the violation of their own rights. They submit that as we are now at the s. 24(2) stage standing issues need not be considered. I do not accept this submission insofar as it relates to s. 8 violations of third parties not otherwise established in this or a related proceeding. A s. 8 violation must first be established. In Edwards Cory J. referred to the two components of a s. 8 determination. The first is always standing. In the context of s. 8, standing requires that the applicant – the person seeking to establish the violation – has a reasonable expectation of privacy (REP) which they claim was unreasonably interfered with. That is missing here. See also the recent discussion on standing found in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, per MacPherson J.A., at paras. 26-32; and R. v. Alcantara, 2015 ABCA 259, 328 C.C.C. (3d) 293, at paras. 215-223, 246, 258, 261.

[27] There is nothing inconsistent with my conclusion in the British Columbia cases I have referred to. I conclude the effect of those cases, applied in the circumstances I am dealing with, was well summed up by Williams J. in Nguyen. Referring to Lauriente Williams J. held, at paras. 32-35:

[32] I do not see anything in that decision which meaningfully changes the necessity for the applicant at bar to prove that he has standing to seek a remedy for the breaches that he alleges. The notion of a cumulative effect of breaches is affirmed, but it seems clear that the breaches which were found there all came before the court in the usual way, that is, at the instance of defendants who had standing to allege them.

[33] Accordingly, it is my conclusion that the requirement as it is described in Edwards remains intact.

[34] The position urged by the applicant would constitute a quite dramatic deviation from the standing requirement. To accept his position would be to essentially change the focus of the Charter inquiry from the protection of individual rights to a more general and at-large inquiry into all aspects of a given police investigation. It seems to me that that is quite strikingly at variance with the established jurisprudence. There is as well the issue of a proper economy of judicial resources. Pursuing a larger and wider approach necessarily requires a substantially greater expenditure of judicial time and energy and detracts from trial focus.

[35] In my view, there must be a reasonable limit to the extent to which the court will go in deviating from or extending the essential standing model. I see no basis in the circumstances at bar to do so.

[28] The applicants acknowledge that they have no REP in the subject matter of the searches of third parties which they contend constitute violations of s. 8 of the Charter. I find they have no standing to establish the s. 8 violations they wish to rely upon. Trial economy considerations also suggest this is an appropriate situation in which to apply the requirement that an applicant have standing.

[29] This aspect of the application fails.

Other Violations of the Applicants’ Own Charter Rights

[30] Should the applicants be permitted to attempt to establish additional violations of their own Charter rights solely for the purpose of the s. 24(2) application in relation to evidence sought to be excluded on the basis of the Charter violations already found? Questions of standing pose no impediment. In my view the answer depends upon whether the applicants can demonstrate that the further alleged violations, or any of them, are relevant to a material issue on the s. 24(2) application.

[31] That said, I emphasize that I am here using the term “relevant” in the manner which embraces both the concepts of logical relevance and legal relevance. I am of the view that by using these concepts in harmony the fair trial interests of the applicants can be protected while the need for judicial economy and the optimum use of scarce judicial resources can also be served.

[32] I refer to Sopinka J.’s well known description of logical and legal relevance found in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at para. 18:

Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibility of expert evidence. [Emphasis added.]

[33] The distinction between logical relevance and legal relevance and the use of legal relevance as a means of controlling and ensuring a fair trial process has been developed further in cases which, like Mohan, turned on the admissibility of expert evidence: R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, at paras. 76-87, R. v J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 23-24, 54; R. v. Bingley, 2017 SCC 12, at paras. 13-17. This approach has also been applied in various other circumstances. See, for example, R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 (Grant (2015)) and the cases cited at para. 19 thereof.

[34] In these cases the assessment of the various forms of prejudicial effect captured by the notion of legal as opposed to logical relevance, has come to be referred to as the “gate keeper” function of the judge called upon to consider the admission of the evidence: Abbey, at paras. 76, 79; Grant (2015), at paras. 43-44. I am of the view that a similar approach is called for in the circumstances of this application.

[35] The applicants have offered little in terms of providing a concrete rationale for the broad and far reaching s. 24(2) inquiry they propose. The applicants simply refer repeatedly to para. 75 of Grant, and in particular to the concluding words of that paragraph, which are as follows:

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[36] The applicants claim that these words open the door widely, permitting them to lead evidence of all Charter violations of the applicants and third parties which are both similar and dissimilar to the violations of the applicants’ rights found by the court and on which the s. 24(2) application will be based. The applicants even propose to file affidavit evidence that a police force in another city in an unrelated investigation obtained a warrant which was facially invalid in the same way as a warrant I found to be facially invalid in the current case.

[37] Based on the applicants’ position, s. 24(2) inquiries would become almost limitless. Virtually every major “project” case would have the potential for s. 24(2) applications to become a full inquiry into police conduct over potentially years of investigation. I cannot conceive that such a broad inquiry was what the majority of the Supreme Court of Canada had in mind at para. 75 of Grant. It seems to me significant that 35 years of Charter jurisprudence has yielded no authority to support such a broad proposition.

[38] In my view, the time versus value factor identified in Mohan as a consideration on admissibility has special significance in the current context. There is considerable potential for the quest for evidence of logical relevance to the s. 24(2) inquiry to take us, in terms of expenditure of time and resources, far beyond what the evidence renders in terms of value to that s. 24(2) analysis. It must be remembered that we are dealing with the admissibility of evidence, not ultimate trial fairness. Moreover, we are concerned with only some aspects of the admissibility test which ultimately depends on a balancing of considerations arising from a review of the three Grant lines of inquiry.

[39] The respondent propounds a different and much narrower approach. Based on a survey of cases in the s. 24(2) jurisprudence the Crown submits that the applicants should be required to establish a linkage or nexus between the additional Charter violations the applicants wish to rely upon and the evidence the applicants seek to exclude on the basis of the s. 8 violations already found by the court. In advancing its position the respondent submits that the test developed in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, [1993] S.C.J. No. 98 (Grant (1993)); R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76; and R. v. Plaha, 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.) should be applied. I will refer to this as the Goldhart test. That test was, of course, developed to determine pursuant to s. 24(2) whether evidence was “obtained in a manner” that violated the Charter.

[40] Alternatively, the respondent submits that the Goldhart test should at least be utilized as the main tool in determining whether there is an adequate nexus between the additional s. 8 Charter violations and the evidence sought to be excluded. Failing the demonstration of a linkage or nexus that would satisfy that test the respondent submits that there are few circumstances in which an applicant would be able to demonstrate that other violations of their own rights would be relevant to s. 24(2) considerations.

[41] The respondent submits that absent satisfaction of the Goldhart test the consideration of other Charter violations should be restricted to circumstances in which those violations are very similar to those already found and, in addition, have some very specific relevance or probative value based on the particular circumstances of a given case. By way of example, the respondent submits that in circumstances where it would be material to demonstrate that a police officer knew certain conduct he or she had engaged in violated the Charter it would be relevant to show that in one or more previous cases similar conduct by the same officer had been found to violate the Charter. This would be permitted only on the basis that the prior finding of a different court in another case demonstrated knowledge on the part of the police officer that similar conduct to that in which they engaged in in the case before the court was improper. Such evidence would tend to undermine any suggestion that the officer acted in good faith.

[42] The Crown refers to such cases as “outliers” and refers to R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102, at paras. 40-45, as a possible example. The respondent also refers to the judgment of Hill J. in R. v. Thompson, 2013 ONSC 1527, at para. 203, as leaving the door open to such an approach. I would add that the respondent recognizes that these authorities provide only indirect support for its position because this form of analysis was not actually applied in those cases. Aside from such unusual cases the respondent submits that satisfaction of the Goldhart test should be required before the other violations could be considered on the s. 24(2) application.

[43] Before moving on I will refer briefly to the Goldhart test. As mentioned, it was developed to determine whether evidence meets the threshold test for exclusion set out in s. 24(2) of the Charter of being “evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter …” I summarized my understanding of that test in R. v. Papadopoulos, [2006] O.J. No. 5404 (S.C.J.) as follows, at para. 179:

The first question is whether the impugned evidence was "obtained in a manner" that infringed or violated the Charter. This threshold issue requires that the entire relationship between the breach and the evidence be examined to determine whether there is a nexus between the two. The court should consider the temporal, contextual, tactical and causal relationship, if any. A temporal link will figure prominently in the assessment, particularly where the discovery of the evidence and the breach occur during a single transaction. However, the presence of a temporal connection is not determinative if the connection between the evidence and the breach is remote in the sense of tenuous. Although causation is a factor, a strict causal nexus is not required as this would unduly restrict the availability of the remedial provisions of the Charter. … As noted in R. v. Plaha [citation omitted]:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct.

[44] In what follows, when I speak of a Charter violation, unless I say otherwise I will be speaking of a violation of one or both of the applicants’ rights and not of the violation of the rights of a third party.

[45] I cannot accept the respondent’s submission. It seems to me that if an additional as yet unproven Charter violation meets the Goldhart test then it would have to be considered on the s. 24(2) application. In fact it would be an error to fail to do so, because the evidence sought to be excluded would have been obtained in a manner that violated the Charter. However, that does not mean that the opposite is true. In my view it would be overly restrictive and incorrect to apply the Goldhart test as a prerequisite to the applicants being permitted to rely upon other Charter violations on the s. 24(2) application. I have come to this conclusion despite a persuasive argument mounted by the respondent based on R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, that the Goldhart test is the appropriate test. I will deal with that specific argument momentarily. Before doing so I will briefly explain why the Goldhart test cannot be applied in the restrictive fashion suggested by the respondent.

[46] The Goldhart test focuses on whether a linkage has been demonstrated between an established Charter violation and the evidence sought to be excluded. Clearly, s. 24(2) of the Charter requires that before any evidence can be subject to exclusion on the basis of a Charter violation it must be established that it was “obtained in a manner” that violated or infringed the Charter. In the current case it is common ground that the evidence sought to be excluded is linked in this fashion to the Charter violations I have already found. The Goldhart threshold test has been satisfied. We have moved on to the second or evaluative part of the s. 24(2) analysis – whether the admission of the evidence would bring the administration of justice into disrepute.

[47] The applicants’ position is based on para. 75 of Grant. There the majority was explaining the proper approach and relevant factors to consider in relation to the first line of inquiry at the evaluative stage of s. 24(2) – the seriousness of the Charter-infringing state conduct. The court was not at that point considering the linkage between the Charter breach and the evidence.

[48] While not necessarily irrelevant in assessing the seriousness of the Charter-infringing state conduct, the linkage between a violation and the evidence is not the focus of the inquiry. In R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83, Rothstein J. said the following on behalf of the seven sitting members of the court:

The Crown further submits that the breach was not serious because there was a lack of a causal connection between the breach and the discovery of the evidence. However, a causal connection or lack thereof is not determinative. This Court has confirmed that a causal connection is not necessary in order to engage s. 24(2) of the Charter (Strachan, at pp. 1000-1002). Indeed, the Crown concedes that a temporal connection is in theory sufficient to engage s. 24(2). Moreover, the first line of inquiry in the Grant analysis is concerned with the police conduct, and is not focused on the connection or lack thereof between the police conduct and the evidence (Grant, at paras. 72-73; see also Côté, [R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215] at para. 71). [Underling added.]

In the next paragraph (para. 84) Rothstein J. quoted from para. 73 of Grant, adding emphasis to the words demonstrating that the focus under the first line of inquiry under Grant is on “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities…” (Grant, para. 73; emphasis added in Mian, at para. 84).

[49] I take two things from the foregoing. First, the considerations raised by the Goldhart test are not irrelevant to the issue of the seriousness of the Charter-infringing conduct. The tenor of what was said in Mian is that a lack of causation does not diminish seriousness because under the Goldhart test other forms of connection are also relevant. Second, as determining the seriousness of the violation is focused on the police conduct and not on the linkage between the violation and the evidence, other relevant considerations must be taken into account.

[50] This supports the conclusion that the logical relevance of the other Charter violations the applicants wish to lead must be evaluated primarily in relation to the light they shed on the seriousness of the Charter violations already found. It must be remembered, however, that the seriousness of those violations is being evaluted in the context of the evidence found. The ultimate focus is on determining whether the admission of that evidence will bring the administration of justice into disrepute. Consequently, the degree of connection between the other breaches alleged and the evidence sought to be excluded may impact the assessment of the probative value of any evidence that is logically relevant to the seriousness of the violations already found.

[51] Satisfying the Goldhart test will, however, undoubtedly make the other Charter breaches admissible on the s. 24(2) application. Once that test is satisfied the evidence sought to be excluded will also be linked to those additional Charter breaches by the “obtained in a manner” threshold test and it would be an error not to consider those additional breaches during the evaluation part of the s. 24(2) analysis. However, as I have already said, satisfaction of the Goldhart test is not a prerequisite to taking such additional breaches into consideration. Surpassing the threshold of the tests of logical and legal relevance is.

[52] In my view, this approach assists in explaining why the respondent’s submission based on Pino are not determinative of the issue

[53] In Pino the police followed a car seen leaving a residence where the police were about to execute a search warrant for a suspected marijuana growing operation. The police pulled the car over. Marijuana plants were found in a box Ms. Pino was seen placing into the vehicle. The trial judge concluded that the police had grounds to stop and search the car. However, s. 8 was violated because a high-risk take down with guns drawn was employed. That was found to be excessive rendering the search unreasonable. The s. 8 violation occurred before the evidence was found.

[54] The trial judge also found that Ms. Pino’s s. 10(b) right to counsel was violated after the evidence was found. That violation was more serious than the s. 8 violation in the circumstances. However, the trial judge concluded that he could not consider the more serious s. 10(b) violation on the s. 24(2) application because it occurred after the evidence was found. The trial judge considered that he was bound by previous appellate authority to the effect that evidence found prior to a Charter violation cannot satisfy the “obtained in a manner” threshold requirement of s. 24(2).

[55] Laskin J.A. held that the previous appellate authority did not prevent the trial judge from taking the after occurring s. 10(b) Charter violation into account during the s. 24(2) analysis. He reached that conclusion by applying the Goldhart test. The s. 10(b) violation was temporally and contextually related to the finding of the evidence. He concluded that the s. 10(b) violation formed part of the same transaction that led to the finding of the evidence.

[56] Consequently, Laskin J.A. concluded that the trial judge erred in his s. 24(2) analysis by failing to take the s. 10(b) violation into account. Including the s. 10(b) violation in his analysis, Laskin J.A. determined that the Charter violations associated with the evidence were much more serious than the trial judge thought. Laskin J.A. excluded the evidence pursuant to s. 24(2) of the Charter.

[57] The respondent submits that the approach taken by Laskin J.A. in Pino would have been completely unnecessary if the applicants’ submission that all manner of other Charter violations must be considered during the s. 24(2) analysis is correct. I agree with this submission to the extent that it demonstrates that the breadth and generality of the applicants’ approach is ill conceived. This tends to fit together with my earlier observation of the surprising lack of authority if such were the state of the law. However, despite the fact that Laskin J.A.’s approach tends strongly to refute the broad sweep of the applicants’ submission, considering my analysis based on Mian, I do not think the effect of Pino extends as far as the respondent suggests in the other direction.

[58] Consistent with my earlier analysis, once Laskin J.A. concluded that the after occurring s. 10(b) violation met the Goldhart test, that additional violation had to be considered as part of the Charter-infringing state conduct during the s. 24(2) analysis. I also observe that, as the appeal was framed in Pino, the focus was on whether the trial judge erred in concluding that evidence could not be considered to have been obtained in a manner that violated the Charter when the violation occurred after the evidence was found. Consequently, that was of necessity the focus of the court’s judgment. In my respectful view the respondent asks me to take Pino too far.

[59] I also observe that s. 24(2) of the Charter provides that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (emphasis added). The requirement that the court have regard to all of the circumstances signals a broader approach to the evaluation of the seriousness of the Charter-infringing state conduct and what must be taken into account at the balancing stage than the respondent’s submission allows for.

Testing the Admissibility of the Other Alleged Charter Violations

[60] As I have said, I agree with the respondent’s submission that the approach in Pino would have been unnecessary if the applicants’ contention that all other Charter violations are relevant to s. 24(2) is correct. A narrower focus is called for.

[61] Consistent with the foregoing analysis, I conclude it is appropriate that I first determine whether the applicants have demonstrated that the evidence they seek to exclude can be linked to the additional Charter violations they wish to establish by applying the Goldhart test. In any circumstance where that link is established the applicants must be given an opportunity to prove that violation as its consideration on the s. 24(2) application would follow from the words of s. 24(2) itself. There would be no need for the applicants to rely on para. 75 of Grant in such circumstances. Here the focus is on whether there is a sufficient nexus between the additional violation alleged and the evidence sought to be excluded.

[62] However, if the Goldhart test is not met para. 75 of Grant must still be taken into account. The applicants rely on the concluding sentence of para. 75 which refers to considering whether there is “a pattern of abuse”. The use of the word “pattern” suggests a repetitiveness of similar conduct. The context of the Grant case itself suggests that the word “abuse” was intended as a reference to an abuse of constitutional rights. Here the focus is on the relationship, if any, between the additional alleged breaches and the seriousness of the Charter-infringing conduct linked to the evidence.

[63] As any such “pattern of abuse” is to be considered in relation to the seriousness of the Charter violations I have already found, the logical and legal relevance question should be determined by comparing what I know of the other alleged violations based on the record put forward on this application, to the nature of the violations I have already found as reflected in my previous rulings. That comparison requires an evaluation of the probative value of the other alleged violations in demonstrating an enhanced seriousness to the particular violations already found by means of demonstrating a pattern of Charter abuse.

[64] This raises the question of what degree of similarity is required between the other Charter violations and those already found to give the other violations any probative value. It seems to me that this must be determined on a case by case basis. Cases where the Supreme Court of Canada has made reference to a “pattern” of Charter violations include Strachan, at paras. 50-51; R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, [1989] S.C.J. No. 5, at paras. 47-48, 56; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755, [1990] S.C.J. No. 32, at paras. 36, 50; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; and R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, per La Bel J. in dissent, at para. 101.

[65] In Genest the court was dealing with a search conducted with excessive force pursuant to a facially invalid warrant. At para. 2 the court noted that an earlier search had been conducted at the same residence the month before. Based on comments in the judgment at paras. 47, 48 and 56 it appears that the court accepted that both searches had been conducted in a very similar fashion. At para. 56 Dickson C.J. said: “There is strong reason to believe that the search is part of a continuing abuse of the search powers, since it follows so closely the pattern set the previous month.”

[66] In Greffe customs officers initiated a search of the appellant at the Calgary airport based on a tip from the police that he was carrying heroin. The court ultimately found that there were a number of violations of ss. 8 and 10(b) of the Charter. Lamer J. (as he then was) noted, at para. 50, that there was “more than one Charter violation at issue.” Although the breaches were dissimilar he referred to them as “part of a larger pattern of disregard for the appellant’s Charter rights.” He cited Genest.

[67] In Côté the court was dealing with a situation where the trial judge had found that the police engaged in numerous violations of the appellant’s various Charter rights from the first moment they encountered her until they took a statement from her many hours later at a police station. The violations were varied in nature but temporally, tactically and contextually related. Cromwell J. repeatedly referred to these findings as establishing a “larger pattern of disregard for the appellant’s Charter rights” (paras. 2, 33, 81, 88).

[68] I take from these cases that a high degree of similarity in the nature of the violations is not required in order for them to demonstrate a “pattern of abuse”. However, these cases do indicate the need for some identifiable connection or relationship between the violations. Greffe and Côté suggest that such a relationship may arise by virtue of the connection of the various dissimilar violations to the development of the evidence sought to be excluded. Genest suggests that repeating the same obviously excessive conduct on discrete occasions may also constitute a pattern of abuse. I note that the pattern of abuse in all of the cases cited was a pattern in relation to the abuse of the rights of the accused, as opposed to third parties.

Analysis

[69] In order to assess the relevance of the additional alleged Charter violations to the issue of the seriousness of the breaches already found, a clear understanding of the nature of the breaches already found is obviously critical. I will describe those breaches in relation to the evidence the applicants seek to exclude in consequence of them. An understanding of the issues likely to arise on the s. 24(2) application is also important to an assessment of relevance.

The Charter Violations Already Found and the Evidence Sought to be Excluded

[70] The first item of evidence the applicants apply to exclude is a PDF download of a mortise lock that was found on the applicants’ cell phone. This is the type of lock that was installed on the front door of the Harrison residence where all three deceased were found. That download was located when the police conducted a search of the cell phone pursuant to a search warrant which I found to be invalid in Ruling No. 4 (R. v. Merritt, 2017 ONSC 80).

[71] The cell phone in question was seized from Melissa Merritt when she was interviewed by the police on August 26, 2013. In Ruling No. 4 I found that the warrantless seizure of that phone was valid pursuant to s. 487.11 of the Criminal Code. The cell phone was placed in an evidence locker pending receipt of a warrant for a technological examination of the phone.

[72] The warrant obtained for the purpose of that technological examination simply authorized the police to seize a black cell phone from a police evidence locker and nothing more. A full technological search of the contents of the phone was conducted pursuant to that warrant. I ruled that the warrant, as a standalone document, did not authorize the police to do what they did. Although the warrant was invalid, I ruled that the ITO for the warrant made it clear that the police wanted to do a full technological search of the phone for certain types of information which was described in the ITO. I ruled that a warrant for such an examination could have issued on the basis of the ITO. The s. 8 violation arose from the poor drafting of the warrant. I ruled that the warrant could not be saved by reference to the ITO.

[73] The applicants refer to this Charter violation as the “locker warrant” problem. It is the only Charter breach I found in relation to the PDF download of the mortise lock.

[74] The second item or category of evidence the applicants wish to exclude are banking records for Christopher Fattore which were obtained by means of a production order. The records confirm a debit card purchase of a pair of shoes by Mr. Fattore. The police believe those shoes were worn by him when he murdered Caleb Harrison. The police recovered the shoes from the applicants’ garbage shortly after Caleb Harrison was killed.

[75] The respondent conceded that s. 8 of the Charter was violated because the ITO on which the production order was based was incapable of supporting the extensive period of time for which records were ordered to be produced. I found that the ITO could have supported a narrower production order for the records that confirmed the purchase of the shoes. However, I also concluded that the production order could not be severed into “good” and “bad” parts. Consequently, I ruled the production order invalid and that the banking records were obtained in violation of s. 8 of the Charter. There is other evidence available to the respondent to prove that Mr. Fattore purchased the shoes in question.

[76] All matters related to the purchase of the shoes, the production order and the CIBC records were dealt with in Ruling No. 6 (R. v. Merritt, 2017 ONSC 366). No other Charter violations were found in relation to the transaction that led to the evidence obtained from the CIBC pursuant to the invalid production order.

[77] The third category of evidence the applicants wish to exclude are the results of the technological examination of a Compaq CQ-10 mini laptop computer. That computer was subjected to a full technological examination pursuant to a search warrant. I found that the search warrant did not authorize a technological examination of the computer. It merely authorized the police to seize that computer, another computer and two USB drives from an evidence locker in a police building. I found the warrant suffered from the same problem as the earlier “locker warrant” for the cell phone on which the PDF download was found.

[78] The search of the Compaq CQ-10 laptop yielded evidence of internet search queries which are potentially quite incriminating. Someone made inquiries on the internet about causing death by strangulation and about inheritance in circumstances that match the facts of this case.

[79] While I found the warrant utilized to search the Compaq CQ-10 and other devices seized at the same time to be invalid, I found that the ITO on which the warrant was based made it clear that the police wanted to conduct a technological review of the devices for certain information and that the ITO was capable of supporting the issuance of a warrant for such an examination.

[80] The Compaq CQ-10 and the other electronic devices were seized without a warrant during the execution of a search warrant for a trailer located on the property where the applicants previously resided. That warrant was for items such as blood, bodily substances, documents and a potential weapon. It did not specify electronic devices. That warrant was conceded to be valid. I found that the warrantless seizure of the electronic devices was justified pursuant to s. 489 of the Criminal Code.

[81] In addition to finding the warrant the police relied upon for the technological examination of the computer and other devices invalid, I found that other Charter violations occurred during the course of the police dealing with the electronic devices. I found that Cst. Laurence Lowe conducted an unauthorized examination of some of the contents of a Lexar USB drive that was found in the trailer at the same time as the Compaq CQ-10 computer. That violation was not brought to the attention of the affiant for the warrant obtained subsequently to examine the Compaq CQ-10 which I found to be invalid. Consequently, it was not brought to the attention of the justice of the peace who issued the warrant. Nothing of note was found on the Lexar USB device and nothing found on that device was relied upon for any other step in the investigation.

[82] I also found that s. 8 of the Charter was violated because the police failed to make a report to a justice, as required by s. 489.1 of the Criminal Code, in relation to the execution of the search warrant relied upon by the police to examine the Compaq CQ-10.

[83] I found a further s. 8 Charter violation in relation to an extension of a detention order for the Compaq CQ-10. The original detention order was made pursuant to a report to a justice under s. 489.1 in connection with the valid warrantless seizure of the electronic items from the trailer. However, the police later sought and obtained an extension order from a justice of the peace for one year. The police also sought and obtained an order from the justice of the peace waiving the requirement in the Criminal Code that an extension of an initial detention order must be made on notice to interested parties. A justice of the peace has no jurisdiction to waive the notice requirement and no jurisdiction to extend an initial detention order for more than three months.

[84] All of my findings in relation to the Charter violations associated with the Compaq CQ-10 computer and other electronic devices seized from the trailer are found in Ruling No. 7 (R. v. Merritt, 2017 ONSC 1508).

[85] The fourth and final category of evidence the applicants wish to exclude are emails seized pursuant to a general warrant issued by Durno J. in May 2016. That warrant permitted the police to download the entire contents of an email account used by the applicants. I understand that thousands of emails are involved.

[86] I have not been required to make a ruling in relation to the validity of the general warrant. The respondent agreed that the issuance of the general warrant depended on the evidence obtained from the search of the Compaq CQ-10 computer. As I found the warrant used to obtain that evidence invalid the respondent agrees that when the ITO for the general warrant is edited to remove reference to evidence obtained from the Compaq CQ-10, the general warrant could not have issued. Consequently, the respondent agrees the contents of the email account were seized in violation of s. 8 of the Charter.

[87] At this point only the applicants are aware of the contents of the email account. While the police downloaded the contents of the account the emails were sealed pending the applicants’ application to appeal my Ruling No. 1 directly to the Supreme Court of Canada. Ruling No. 1 can be found at R. v. Merritt, 2016 ONSC 5401. The application for leave to appeal has now been dismissed. However, it delayed the police investigation of the emails and the results of that investigation are not yet available. As explained in Ruling No. 1, counsel for the applicants have had access to all of those emails for several months. However, the applicants have not provided any evidence in relation to the seized emails to give context to this application.

The Admissibility of the Other Charter Violations Alleged

[88] Against this background I turn to Appendix A. Boxes 1 to 12 refer to other alleged violations of the applicants’ own rights which they wish to establish on the s. 24(2) application. The applicants indicate in Appendix A that the first 10 boxes describe alleged Charter breaches which they say are similar to the violations already found which I have described above. Boxes 11 and 12 are said to describe “dissimilar breaches of the applicants’ own rights”. Box 13 is said to describe dissimilar breaches of both the applicants’ own rights as well as the rights of third parties. To the extent it relates to third parties, I have dealt with it in the first part of my ruling. As the applicants have no standing in relation to third party rights that aspect of their application has already been dismissed.

[89] Two of the boxes in Appendix A can be dealt with quickly. The respondent concedes that the Charter violation alleged in Box 2 should be considered in relation to the application to exclude the PDF download of the mortise lock. Box 2 alleges that there was no report to a justice pursuant to s. 489.1 of the Criminal Code made in relation to the warrantless seizure of the cell phone from Melissa Merritt on August 26, 2013 pursuant to s. 487.11 of the Criminal Code. The respondent agrees that this alleged failure constitutes a violation of s. 8 of the Charter which occurred in the course of the transaction in which the PDF download of the mortise lock was found. The Goldhart test is met. The respondent concedes, and I agree, that the transaction related to the finding of that evidence commenced with the seizure of the cell phone and continued at least to the point where the evidence was found and would also include the point at which a report to a justice should have been made. Therefore, there is both a temporal and contextual relationship between the violation alleged in Box 2 and the finding of the PDF of the mortise lock. I will take this violation into account.

[90] The respondent also agrees that what is alleged in the first two paragraphs of Box 9 falls within the scope of the Goldhart test and for that reason should be considered on the s. 24(2) application. Those paragraphs allege that Cst. Young and Cst. McDonald went into the applicants’ email account in February 2014, changed the passwords and downloaded the account onto a police server. They also allege that Cst. McDonald saw a “family law” folder that should have caused him to stop his review immediately due to potential claims of solicitor-client privilege.

[91] While the respondent disputes the accuracy of some of the significant factual allegations, the respondent agrees that if these facts can be established on the s. 24(2) application the breaches alleged here would be sufficiently connected to the breach the respondent has conceded based on the invalidity of the May 2016 general warrant to satisfy the Goldhart test. These allegations should be considered in relation to the admissibility of the email seized pursuant to that warrant. I will hear evidence and submissions about this on the s. 24(2) application.

[92] It is convenient to deal with the third paragraph in Box 9 at this juncture. There it is alleged that Cst. Dawson, a forensic identification (FIS) officer took photographs of legal correspondence without apparent concern for solicitor-client privilege. I understand that photography occurred on October 2, 2013 when Cst. Dawson was one of the officers involved in the execution of three search warrants at the applicants’ former residence on Mississauga Road in Brampton. That was the same day that the trailer was searched.

[93] This part of the application is dismissed. Assuming the facts as set out on the application can be established, based on the record I do not think another Charter violation or any abuse or violation of solicitor-client privilege can be established. In addition, in my view this alleged violation is not connected to any of the evidence sought to be excluded in any fashion which satisfies the Goldhart test. A number of factors in combination lead me to these conclusions.

[94] First, by October 2, 2013 the residence where the photography occurred had been abandoned by the applicants. The applicants conceded during the hearing leading to Ruling No. 7 that they had no remaining privacy interest in the residence. The applicants had no REP in the residence or its contents. They also agreed that the warrant to search the house was valid.

[95] Assuming the letter may at one point have been subject to privilege it seems to me that the circumstances in which the letter was found demonstrate that any privilege was lost or waived. There is nothing in the record before me to suggest that this letter had not simply been abandoned. I have no evidence about the exact nature of the letter or the circumstances in which it was left in the residence. There is no basis in the record to support any violation of a REP or solicitor-client privilege.

[96] The applicants have made reference to solicitor-client privilege from time to time in other applications I have heard. However, they have never actually followed through to make a claim or establish the existence of the privilege. The applicants have failed to demonstrate that any of the breaches I have already found, none of which contain an element of solicitor-client privilege, could be viewed as more serious because of this alleged violation. I see the allegation made in the third paragraph of Box 9 as tenuous and too remote to meet the Goldhart test. I see no logical relevance to the evidence.

[97] I return to Box 1 of Appendix A. There it is alleged that Cst. Lowe reviewed the contents of an LG Flip Phone without a warrant. I understand this was a cell phone the police provided to the applicants to replace the one they seized from Melissa Merritt on August 26, 2013. When the police returned the seized cell phone to the applicants after examination they retrieved the LG Flip Phone from the applicants. The applicants claim that Cst. Lowe did not reveal his unauthorized review of the LG Flip Phone to Cst. Ciftci who was the affiant of an ITO resulting in a further “locker warrant” to search the LG Flip Phone. That phone was then subjected to a technological examination pursuant to what the applicants submit was an invalid warrant. No evidence was found.

[98] In Appendix A the applicants submit that this allegation is relevant to the application to exclude the search queries found on the Compaq CQ-10 computer. Those were also found with a “locker warrant”.

[99] The respondent submits that aside from a loose temporal connection there is no connection between this allegation and the evidence found on the Compaq CQ-10. There is no causal connection to the evidence the applicants say it is related to. The only contextual connection is that this addition alleged violation occurred during the same investigation.

[100] I agree with the respondent in terms of the Goldhart test. There is a loose temporal connection but this alleged violation really had nothing to do with the chain of events leading to the finding of the search queries. It is not part of the same transaction. I do not find that test to have been met.

[101] However, in my view, this evidence does fall within para. 75 of Grant. It is capable of contributing to a conclusion that there was a repetitiveness of certain conduct capable of being viewed as a pattern of abuse. I note the similarity between this alleged violation and the violation that occurred when Cst. Lowe reviewed the Lexar USB without authorization. There is also a repetition of the “locker warrant” problem which forms a pattern with the search of the cell phone leading to the PDF document and the search of the Compaq CQ-10.

[102] I make no comment on the extent to which this allegation may affect the outcome of the s. 24(2) application. However, this allegation appears to me to be logically relevant to the assessment of at least one other violation that occurred in the course of finding evidence that is challenged. It does not appear to me that delving into this matter will consume an inordinate amount of time. The matters covered in Box 1 may be presented on the s. 24(2) application.

[103] Box 2 had already been dealt with.

[104] In Box 3 the applicants allege that in April 2016 Cst. King reviewed metadata and files related to the clock function of the Compaq CQ-10 without authorization. The applicants submit that this shows a pattern of disregard for the scope of authority set out in a warrant and that it is relevant to the exclusion of the internet queries found on the Compaq CQ-10.

[105] The respondent submits that it is difficult to sort this allegation out. The respondent acknowledges that it could be viewed as having a tactical and contextual connection to the Compaq CQ-10 and the imaging and analysis of that computer in October 2013. However, the respondent points out that this allegation relates to events two and a half years later in 2016. The respondent also notes that when this alleged violation occurred the warrant was still presumptively valid. Therefore use of this alleged violation to aggravate the seriousness of the breach already found could constitute a form of “double dipping”, in terms of effect on a remedy. The respondent also mentions that the court could find that everything related to the examination of the Compaq CQ-10 falls within the same transaction but conclude that this allegation does not constitute a separate s. 8 violation because the police were relying on a presumptively valid warrant.

[106] The respondent’s candid acknowledgement that this allegation could be viewed in several different ways suggests that I should hear the evidence in relation to this allegation and make factual findings based on a more complete record. As there is a reasonable possibility that this could prove to be a separate violation in the course of the transaction associated with the search of electronic devices in general, and the Compaq CQ-10 in particular, the Goldhart test would be satisfied and it could also be relevant within the concluding words of para. 75 of Grant. In this situation the uncertainty suggests I should err on the side of inclusion. This matter may be pursued on the s. 24(2) application.

[107] Box 4 relates to an ITO (ITO 25) for a production order for the applicants’ cell phone records. The allegation is that the production order is overbroad because the production order extended back in time to cover the month before the phone was in use. The applicants draw a parallel to the overbroad production order for Mr. Fattore’s CIBC records. That production order was based on ITO 12.

[108] I observe that the affiants for these two production orders were different and the orders were obtained more than one and a half months apart. They are not related in any way. There is no suggestion of any consultation or connection between the two affiants. There is no connection between the evidence sought in the two production orders. To find a violation may require a full Garofoli review and a consideration of severance of the warrant. Severance considerations here may be quite different than for the CIBC production order.

[109] In my view the Goldhart test is not satisfied. Beyond a tepid temporal connection there is no nexus between this alleged violation and any of the evidence that will be the subject of the s. 24(2) application that is more than tenuous. This is not part of the same transaction that resulted in uncovering any of that evidence.

[110] While the evidence could possibly be viewed as relevant to demonstrating a pattern of abuse, having regard to the other factors I have mentioned, it has very minimal probative value in that regard. The time, effort and energy required to probe this allegation on the s. 24(2) application will substantially exceed any value to be obtained from this evidence. I use the word “substantially” advisedly, having regard to what was said in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at paras. 43-44; Grant (2015), at paras. 7, 37, 44, 47. I will not consider evidence of this allegation on the s. 24(2) application.

[111] Box 5 alleges that Cst. Hillie seized video used for billing purposes from the 407 ETR toll route without a warrant on August 29, 2013. It goes on to allege that Cst. Misener sought a production order for the same video without advising the justice of the peace the video had already been seized.

[112] In my view the material placed before the court fails to demonstrate how an examination of this issue will be of any real assistance in resolving the issues to be dealt with on the s. 24(2) application. Based on my general knowledge we are talking about a video of cars entering and/or exiting a public highway in circumstances where the occupants are aware that their vehicles will be subject to brief video surveillance for billing purposes. While the applicants may have some privacy interest in that information it is not likely to be a REP. The application of the totality of the circumstances test required to make that determination will be time consuming based on my past experience in this case.

[113] As with Box 4, I am unable to find that there is any nexus or link between the alleged Charter violation and the evidence the applicants wish to have excluded that is beyond tenuous. The Goldhart test is not satisfied.

[114] In terms of other relevance, this evidence has little probative value on the pattern of abuse issue. Again, I conclude the expenditure of judicial resources to probe this issue will substantially exceed its very minimal probative value on issues related to s. 24(2) of the Charter. This is particularly so due to the need to apply the totality of the circumstances test to determine whether the applicants have a REP in this information. This allegation will not be considered on the s. 24(2) application.

[115] In Box 6 the applicants state that on August 28, 2013 Cst. Hillie attended the probation office. Although he was told he would need a subpoena for any information, it is implicit that the probation office permitted Cst. Hillie to review files for the applicants and for Caleb Harrison. The applicants also state that Csts. Hillie and Lowe returned to the probation office on another occasion and reviewed the files. It is alleged that subsequently Cst. Ciftci swore an ITO for a production order for the probation files without disclosing the “prior seizure”. Presumably this is a reference to the examination of the files which was permitted by the probation office.

[116] The applicants submit that these facts demonstrate a pattern of disregard consisting of obtaining private information without authorization followed by an application for a warrant or production order without disclosing that prior violation.

[117] The first thing I would say is that this allegation does not pass the Goldhart test for nexus or connection between the alleged violation and any of the evidence impugned on the s. 24(2) application. While there is a temporal connection in the sense that these events occurred within the time frame of the investigation, that is the only connection. Beyond occurring during this ongoing investigation there is no contextual, causal or tactical connection between this alleged violation and the obtaining of any of the four categories of evidence at issue on the s. 24(2) application.

[118] I point out that the applicants do not point to any form of specific connection in Appendix A. I agree with the respondent’s submission that it is not for the court to go looking for one which the applicants have not advanced.

[119] Given this conclusion, if the allegations are to be considered on the s. 24(2) application it will have to be on the basis that they have sufficient relevance to meaningfully assist in establishing a pattern of abuse apart from any relationship to the impugned evidence.

[120] In this regard, I note two things. First, the probation office obviously felt it was appropriate to allow the police involved in a murder investigation to have access to the files even if they would not produce any of their records without a subpoena or court order. That does not mean that a REP on the part of the applicants was not violated but it is of value in characterizing the seriousness of any alleged violation which occurred at the probation office. That impacts the analysis of the probative value of this alleged violation on the seriousness of the breaches I have already found which are dissimilar in nature.

[121] Again, I note that determining marginal claims to a REP has been a time consuming part of the pretrial applications heard so far and this will not likely be different. A balancing of societal and individual interests would figure significantly into the analysis required under the totality of the circumstances test for a REP.

[122] Second, what would tend to make these circumstances into more of a pattern, thereby increasing their probative value in relation to the issue I am concerned with, is the suggestion in Box 6 that Cst. Ciftci attempted to obtain a production order without disclosing that the information had already been viewed by the police. The ITOs for all of the warrants and production orders are before the court and therefore, form part of the record. When I examined ITOs 47, 48 and 49 I found that at pp. 91-92 Cst. Ciftci made specific reference to reviewing briefing notes dated August 29, 2013 that disclosed that Cst. Hillie attended at the probation office on August 28, 2013. In a series of lettered paragraphs Cst. Ciftci then set out details that must obviously have come from viewing the probation records. While he did not specifically say that Cst. Hillie viewed the probation records, that inference is inescapable. While there is no mention that officers returned to the probation office for a second viewing of the records it may be that that was not “briefed in”. In any event, prior viewing of the records was disclosed.

[123] While it was agreed that I should proceed as if the facts as alleged in Appendix A can be established, I cannot ignore that on this point there is clearly contradictory evidence before me in the record in the form of a sworn affidavit. That substantially impacts my assessment of the probative value the allegations in Box 6 could have pursuant to para. 75 of Grant.

[124] I am not persuaded that in view of these circumstances what occurred in relation to the probation office records will be of any real assistance to me on the s. 24(2) application. Once again, I feel that the minimal probative value of this evidence in terms of its impact on the seriousness of the Charter violations I have already found, will be significantly exceeded by the time and expenditure of resources that will be consumed in untangling it. The rulings I have produced so far describe that reality in the context of this case. Many days and weeks have already been spent arguing about and deciding whether there is a REP in marginal circumstances. It is the cost benefit analysis that leads me to conclude this evidence should not be heard on the s. 24(2) application. Any benefit to considering this evidence is substantially outweighed by the cost of acquiring it.

[125] Box 7 alleges that in ITO 31 for a tracking warrant on the applicants’ cell phone Cst. Ciftci said it was needed because the applicants kept moving around. The applicants complain that Cst. Ciftci did not include in the ITO that the applicants were impoverished and that the police had arranged to pay their rent for three months by means of a ruse related to an undercover operation the police were conducting as part of the investigation. The applicants submit this was relevant to whether a tracking warrant was necessary.

[126] I would point out that the record in the pretrial applications so far establishes that the applicants moved often and with some unpredictability. After leaving Ontario they had planned to live in Prince Edward Island. That fell through and then they decided to live in Nova Scotia. They were looking at various places in Nova Scotia.

[127] Based on my understanding of the circumstances, it is not at all apparent that there were potential material omissions in this ITO. A full Garofoli review will be required in order to determine whether there is a s. 8 violation.

[128] If such a violation can be established, in my view it is not related to any of the four categories of evidence sought to be excluded in a fashion which would satisfy the Goldhart test. At best there is a temporal relationship arising only from the fact that it is part of the same investigation. The alleged violation also post-dates most of the seizures. Only the email was seized afterwards. This alleged violation was not part of any of the transactions that led to the discovery of the evidence to be dealt with on the s. 24(2) application.

[129] Assuming that this violation can be established, I find that it would be of very minimal probative value. The time and consumption of judicial resources to sort this out will far exceed its value to determining the seriousness of the Charter violations already found. This will not be considered on the s. 24(2) application.

[130] In Box 8 the applicants refer to Cst. Young contacting the Peterborough General Hospital looking for records in relation to Melissa Merritt. The hospital would not confirm whether Ms. Merritt was a patient. The applicants then note that when Cst. Ciftci swore ITO 60 in order to obtain records from that hospital he swore that there were records there which would only be released pursuant to a court order. The applicants say Ms. Merritt was never a patient at the hospital and that ITO 60 is “speculative and facially invalid”.

[131] The first thing I would note is that if Ms. Merritt was never a patient at the hospital her privacy interests could not have been violated. There can be no s. 8 Charter violation in these circumstances. This eliminates any need to consider the Goldhart test.

[132] I have reviewed ITO 60. In that ITO, at pp. 20-21, Cst. Ciftci refers to briefing notes from Cst. Young. In those notes Cst. Young referred to reviewing the cell phone records of Christopher Fattore’s father. Those records revealed 31 incoming calls from the Peterborough Regional Health Centre between April 16 and June 3, 2009. Bill Harrison was found dead on April 16, 2009. In a police interview Christopher Fattore said he and Melissa Merritt had left the province for Alberta by that time. This was the occasion on which Melissa Merritt had abducted the two children she and Caleb Harrison had together.

[133] At that time the applicants were staying off the radar. Cst. Ciftci swore that Melissa Merritt was pregnant at that time and that he believed the hospital records would contradict Mr. Fattore’s police statement that he and Ms. Merritt had left the province. In making that assertion Cst. Ciftci swore, at pp. 21-22 of the ITO, that the same briefing notes from Cst. Young said that the hospital records department confirmed that records existed for 2009 but that the hospital would not release them without a court order.

[134] I understand there may be a factual dispute between the applicants and the respondent about all of this. It seems to me that the facts surrounding this incident can be examined without the need for a great deal of evidence. Even though there can be no Charter violation in the circumstances, if the applicants are able to establish that the police deliberately misled the justice of the peace that could be significant in assessing the seriousness of the other Charter violations. What seems to be alleged is that either Cst. Young, Cst. Ciftci, or both, have not been truthful. Misleading conduct of the type alleged is potentially relevant and worthy of inquiry in the context of the s. 24(2) application. This avenue may be pursued.

[135] Box 9 was dealt with earlier in this section.

[136] In Box 10 the applicants refer to “breaches by other state agencies”. They claim that the Canada Revenue Agency (CRA), the health care department at the Vanier Centre for Women (a correctional centre) and Melissa Merritt’s family physician all released information of one sort or another to the police without proper authorization. In the case of the CRA, it was Ms. Merritt’s marital status.

[137] The applicants submit that this has a “contextual nexus” to the evidence to be considered on the s. 24(2) application because it shows a pattern of unconstitutional behaviour on the part of the police as well as other state agencies. The applicants seek to increase the significance of this by tying it to the other agencies involved.

[138] The record before me is scant. On the basis of what I have I am not persuaded the Goldhart test is met. I cannot assess the potential privacy interests or the potential seriousness of the alleged violations on this record. It is not possible to draw the necessary connection to conclude there is any relationship between these additional alleged violations and any of the four categories of evidence sought to be excluded that is more than tenuous.

[139] In terms of relevance, it is again difficult to determine whether there is any significant probative value on this record.

[140] I conclude these alleged violations will be time consuming to establish and that the cost to the proceedings of properly looking into them will substantially outweigh any minimal probative value the evidence has to the more specific issue I am dealing with. This may not be pursued.

[141] In Box 11 the applicants allege that the police violated s. 8 of the Charter by trespassing on the rented property where the applicants had been living at 8568 Mississauga Road, Brampton. It is said the police went onto the property without authorization on September 9 and September 23, 2013. They made certain observations.

[142] I will deal first with September 23, 2013. By that date the applicants had left the premises and were in the process of moving to Nova Scotia. It seems clear that they had no REP in the property at that time. Arguing about that could, based on my knowledge of the record and experience in this case so far, be time consuming. It seems unlikely that a s. 8 violation can be established.

[143] Beyond a weak temporal connection there is no relationship or nexus between this alleged Charter violation and any of the evidence that is subject to the s. 24(2) application that is more than tenuous. This was not part of any transaction that resulted in finding evidence. It has been conceded that the search warrants issued on October 1, 2013 for the house, garage and trailer at 8568 Mississauga Road were valid. No one has suggested that any editing of ITOs is required based on information gathered by the police from a perimeter search on September 23, 2013. The Goldhart test is not met.

[144] For the same reasons I do not see that what is alleged on September 23, 2013 is relevant to the issue at hand. The likely absence of a REP eliminates or renders trivial any probative value. The time and effort required to make the necessary determination substantially exceeds any probative value the evidence may have.

[145] With respect to September 9, 2013 the applicants’ privacy interest in the property would seem to have been in place. However, there is no suggestion that any of the observations the police made were utilized to advance the investigation. No editing of ITOs has been sought on this basis. Assuming a violation is established on the basis that the police walked around the property it is likely that the valid warrant issued considerably later on October 1, 2013 severed any connection to the evidence found on the Compaq CQ-10.

[146] Assuming that this alleged violation can be established it is difficult to see how the Goldhart test can be satisfied in relation to any of the four categories of evidence sought to be excluded on the s. 24(2) application. While there may be a temporal connection, it is tenuous. The applicants seek to link this to the search on October 2, 2013 which led to seizure of the Compaq CQ-10. However, that computer was seized lawfully on October 2, 2013. It is conceded that the three warrants issued on October 1, 2013 which gave the police access to the property were valid. The evidence on the Compaq CQ-10 was not located until much later in October when the police examined the computer pursuant to an invalid warrant. There were five to six weeks between the alleged trespass on September 9, 2013 and the location of the internet search queries on the Compaq CQ-10. Looking at all of these circumstances I am unable to find that the Goldhart test for a connection between the violation alleged on September 9, 2013 and the evidence sought to be excluded has been demonstrated by the applicants.

[147] That said, it does seem to me that if the violation alleged can be established it would be logically relevant to the assessment of the seriousness of the Charter-infringing state conduct I have already found. It seems to me that this allegation can probably be dealt with by hearing from two or three witnesses. Doing so should not be overly time consuming. This may be pursued on the s. 24(2) application.

[148] In Box 12 the applicants allege violations of s. 7 of the Charter on the basis that at various and numerous points throughout this extensive investigation of three homicides occurring over the course of four years one police officer or another failed to keep adequate notes or to carefully add to the major case briefing notes. In oral submissions Mr. Hechter submitted this has made it more difficult for the applicants to defend the case.

[149] This allegation is amorphous and unwieldy. Pursuing it would be like undertaking a court supervisory review of the entire police investigation. The applicants have failed to demonstrate that there is any real connection between this almost boundless complaint, which they acknowledge is not similar in type to the s. 8 violations I have found, and the evidence in this case that will be subject to a s. 24(2) application. The suggestion of a contextual connection here demonstrates that the applicants consider everything that occurred in the course of this investigation to be contextually related. That is clearly a much broader conceptualization of the meaning of “context” than is employed in the governing authorities. See Pino, at para. 74.

[150] Balancing fairness considerations and the need for some reasonable management of this trial, as well as the principles I have been applying on this application, I conclude this line of challenge will not be permitted on the s. 24(2) application.

[151] Box 13 raises one matter that relates to the applicants and one in relation to a third party. I have already ruled that the applicants have no standing in relation to third parties.

[152] The applicants allege that a s. 8 Charter violation of their own rights occurred when Cst. Ciftci responded to the reasons given by a justice of the peace for refusing a DNR warrant for the applicants’ cell phone. That warrant was based on ITO 18. The applicants submit that Cst. Ciftci’s response contained statements which were “subfacially misleading and facially speculative”. I gather the DNR warrant then issued.

[153] The applicants only say that this is “contextually” related to the evidence that will be the subject of the s. 24(2) application because it “shows disregard for the rights of the applicant.” No other specifics are advanced. This is insufficient to satisfy me that the Goldhart test has been satisfied in relation to this additional alleged violation.

[154] Assuming the accuracy of the allegation, this alleged violation would be logically relevant to establishing a pattern of abuse. However, I again conclude that the cost of obtaining this evidence would substantially outweigh any minimal probative value which it has. The record does not tell me what the allegedly misleading or speculative statements are and I am not in a position to assess their impact on the validity of the ITO. A full review of those allegations and their impact or lack of impact on the ITO and whether the warrant could have issued would have to be undertaken. Any such application could include an application for leave to cross-examine the affiant. Only by conducting a full review would the court be able to determine whether there is a violation of s. 8. This allegation may not be pursued on the s. 24(2) application.

[155] Before moving on I wish to mention that while the foregoing analysis appears to be compartmentalized, in the sense that the balancing of logical and legal relevance considerations has been undertaken separately for each additional alleged Charter violation, I have also considered this balancing exercise in a cumulative fashion. When I do so I come to the same conclusion. Combining the minimal probative values of the various additional violations alleged does add to the usefulness or probative value of the pattern of abuse evidence on the issue of the seriousness of the violations already found. However, the same exercise must be undertaken on the cost side of the scale. When I do that I am firmly of the view that the expenditure of time and judicial resources that will be required very substantially exceeds the combined probative value of this evidence in relation to determining the seriousness of the breaches I have found.

[156] I also wish to mention again that the cases from British Columbia which I referred to earlier often refer to the evidence of other violations as being taken into account in relation to both the seriousness of the Charter violations and to the ultimate question of whether the admission of the evidence would bring the administration of justice into disrepute. I have taken that into account in the balancing exercises I have described above.

Other Constitutionally Unacceptable Police Practices

[157] This issue is raised in Box 21 of Appendix A. There the applicants submit that “the police continue to apply for, and get, locker warrants”.

[158] In oral submissions the applicants refer to a recent decision by my colleague Fairburn J. in R. v. Nguyen, 2017 ONSC 1341 as an example of their concerns. I am prepared to consider submissions based on Nguyen in the course of the s. 24(2) application. However, I will bear in mind those authorities which limit the relevance of conclusions of another court’s findings respecting a police officer’s compliance with Charter rights. See the cases referred to by Hill J. in Thompson, at para. 204. It also seems to me that what occurred in Nguyen may be distinguishable but I will hear what counsel have to say about that.

[159] The only other information I have been provided with so far is as follows. During oral submissions I was advised that the applicants wish to file an affidavit concerning a search warrant obtained by a police service in the Stratford, Ontario area which is alleged to be similar to the so called “locker warrants” in this case. I have not been provided with the affidavit, the warrant or any other particulars.

[160] On the record put before me the applicants have failed to demonstrate that there is any merit in the court receiving such evidence. I am of the view that what little I have heard about this demonstrates that the probative value of such evidence would be substantially outweighed by its prejudicial effect to a fair but reasonably efficient trial. Obviously, this is completely unrelated to any evidence which was developed in the case I am dealing with.

F. Dawson J.

Released: April 11, 2017

APPENDIX A

BOX	Category	Alleged Breach/Behavior	Nexus/Relevance
1	2 – Other similar breaches/behavior (also category 3, 5)	Sept. 3 - Cst. Lowe reviews/analyzes the contents of the LG Flip Phone provided to the applicants by the police. On Nov. 4/5, Cst. Ciftci gets a locker warrant (ITO #27) and does not disclose the fact of the previous review to the issuing justice. ITO #27 was also disclosed with a sealing order, but the request was for a tracking warrant, and not a search warrant, and the Sealing order was for a production order.	Same sort of breach – entry into an electronic device without pre-authorization and subsequent authorization that doesn’t disclose the earlier entry Also shows a failure of the Justice of the Peace to attend to significant details which should have been a pattern – this is a contextual nexus – and it is our position that it is a repeated problem Same officers (Lowe/Ciftci) Applicants’ rights Temporally bookends the entry and subsequent authorization for the USB key Temporal/contextual nexus Relevant to exclusion of the data from the computers
2	2 – Other similar breaches/behavior	There was no return to justice for the contents of the phone seized from Ms. Merritt which included the Mortise lock pdf, and there was no return to a justice for the contents of the flip phone.	Contextual nexus – there was no return to a justice for the CQ10 in ruling #7 Applicants’ rights Relevant to the exclusion of data from the computers.
3	2 – Other similar breaches/behavior	Cst. King, in April 2016, reviewed the metadata and files related to the clock function of the Compaq CQ10. There was no authorization to examine that data. This search was done after meeting with the Crowns, and based on questions from the preliminary hearing. Cst. McDonald’s searches of that computer, also in April of 2016, were also as a result of conversations with the Crown and outside the scope of the warrant: he relied on subsection (f) of the ITO.	Contextual nexus– shows a pattern of disregard for the scope of authority set out by a warrant, and a fundamental misapprehension of the difference between a warrant and an ITO Applicants’ rights Relevant to the exclusion of the internet searches
4	2 – Other similar breaches/behavior	ITO #25 is a production order for the applicants’ cell phone records. It is overbroad; there was no basis for anyone to believe that the phone records existed for August. In fact they didn’t – the applicants didn’t have that phone until mid-September	Shows a pattern of speculation that is relevant to ITO #12 and the exclusion of the banking records Applicants’ rights Contextual nexus – similar to other overly broad ITOs including that for #12 and the CIBC records
5	2 – Other similar breaches/behavior	Cst. Hillie seized video from 407 ETR on August 29, collected for the purpose of billing, and Cst. Misener sought a Production Order on September 13 for the video (among other things) with the issuing justice not being told that the video had already been seized without authorization.	Same sort of breach – seizure of personal information without pre-authorization and subsequent ITO that doesn’t disclose the earlier seizure Different officers, however also an investigating officer and an affiant Applicants’ rights Contextual nexus – similar pattern of unconstitutional behavior
6	2 - Other similar breaches/behavior	Cst. Hillie attends probation on August 28, he reviews the files of both applicants and Caleb Harrison. Before reviewing the files he is told that he will need a court order (subpoena) for any information. On September 12 he returns with Cst. Lowe and they scour the files. On March 18, 2014 Cst. Ciftci attempts to get a production order for the probation files. It is denied. The ITO (#47, 48, 49) does not disclose the prior seizure.	Same sort of breach – seizure of personal information without pre-authorization and subsequent ITO that doesn’t disclose the earlier seizure Some of the same officers Applicants’ rights Contextual nexus – similar pattern of unconstitutional behavior
7	2 - Other similar breaches/behavior	Cst. Ciftci in ITO #31 for a tracking warrant on the applicants’ cell phone swears that they need the warrant because the applicants keep moving. Cst. Ciftci does not disclose that at the time the applicants were impoverished; and that their rent had been paid in advance for three months at the address the police knew of. There was virtually no chance that the applicants could move house.	Material omission in the seeking of a warrant Contextual nexus – similar pattern of unconstitutional behavior Same officers Applicants’ rights Not directly referable to any particular breach, but shows a pattern of material omissions
8	2 - Other similar breaches/behavior	Cst. Young speaks with someone in records at Peterborough General Hospital. They will not confirm whether or not Ms. Merritt was a patient, however Cst. Ciftci swears in ITO #60 that there are records that will only be released with a court order. Melissa Merritt was never a patient. ITO #60 is also speculative and facially invalid.	Materially misleads the judicial officer in the issuance of a warrant. Contextual nexus – similar pattern of unconstitutional behavior showing a disregard for privacy rights. Same affiant Applicant’s rights Not directly referable to any particular breach, but shows a pattern of disregard for the duties of an affiant.
9	2 - Other similar breaches/behavior	Cst. Young and Cst. McDonald go into the applicants’ emails in early February 2014, change the passwords, download the entire email account, copy it onto a police server, and then Constable Young does hours of analysis. They also access the accounts, and change passwords for somewhereandnowhere@gmail.com. Over 2 years later, Cst. Ciftci gets a general warrant (2016 Gen Warrant) to go into and download the contents of the applicants’ fattorefamilyrocks@gmail.com account. He does not disclose remotely the full extent of what was done in 2014. Cst. McDonald had seen the folder with the family law folder, continued to review the files after he got the download from gmail without consideration of the privilege issue. He eventually stopped, but there is no indication that he got any new information regarding privilege. In addition Cst. Dawson took photographs of legal correspondence without apparent concern for privilege. This happened after the junk service had been contracted. None of the ITOs make any reference to any privileged material found in the home.	Same sort of breach – seizure of personal information without pre-authorization and subsequent authorization that doesn’t disclose the earlier seizure Cst. Ciftci is the affiant Applicants’ rights Contextual nexus – similar pattern of unconstitutional behavior Insufficient concern over issues of privilege Relevant to exclusion of the data from the general warrant, and exclusion of the searches from the CQ10
10	2 - Other similar breaches/behavior	Breaches by other state agencies Disclosure of the applicants’ marital status from the CRA (on verbal request of Dawe and Young: no authorization) Disclosure of the applicant’s personal health information by officials at Vanier (on request of Det. Arnold and Det. Leach: no authorization) Disclosure of the applicant’s personal health information from Ms. Merritt’s family doctor (on request of Young: no authorization)	Contextual nexus – pattern of unconstitutional behavior on the part of the police in addition to other state agencies including those that are entrusted with the personal care of the applicant
11	3 – Dissimilar breaches of the applicants own rights	Warrantless trespasses onto the applicants’ residential property on September 9 and 23 by Csts. Parent, Hillie, and Birnie. They make observations into the windows of the house, they look into outbuildings, they walk all over the property, and they photograph locks on the house and text them to Cst. Walker.	Temporal nexus – leads up to the issuance of the search warrant, which leads to the seizure of the computers and usb key. Contextual nexus – pattern of abuse of the applicants’ Charter rights Again, some of the same officers involved Breaches of the applicants’ rights Relevant to the exclusion of the internet searches
12	3 – Dissimilar breaches of the applicants own rights	Failure to make/preserve adequate notes (breach of section 7). We have no notes for Cst. Shaidle or Cst. Duquette, who dealt with many of the tech items; Cst. Lancaster – we have no notes, and one report that pre-dates the completion of his analysis of the CQ10 by months. Cst. Riguero has no notes, but was the source of the information about wireless internet. We don’t have any disclosure of attempts to get the IP address from 8568 Mississauga Road. Cst. Walker notes that on September 12, all 3 of the applicants’ phones were turned off. There was nothing in place that would have authorized the seizure of that information. Cst. MacDonald, who entered the email account and downloaded the contents in February 2014 has no notes from 2014. There is also a failure to “brief in” information from certain officers, including Cst. Lowe and Cst. Young. In addition there are discrepancies between the notes of Det. Rice on September 3, and the briefing notes, and the notes of Rice and Lowe on August 31st and the briefing notes. Specifically there is a failure to brief in the information about the animal hair by Hillie, there is a failure to brief in the information about the door by Rice and Arnold, and there was a failure by Lowe to brief in the fact that he had reviewed the USB, and the conversations he had as a result These failure led to the affiant’s failure to disclosure information in ITOs to the issuing justices.	Contextual – failure to disclose shows an unacceptable disregard for the rights of the applicants Breaches of the applicants’ rights Some of the same officers involved Also leads to misrepresentations in ITOs – the 2016 general warrant, ITO #24 (the second locker warrant) Temporal (at least in relation to the briefing in by Lowe) All relevant to the exclusion of the internet searches
13	3 - Dissimilar breaches of the applicants own rights (but also 4 – Breaches of the rights of 3rd Parties)	ITO #18 for a DNR for the applicants’ cell phone and Agnes Merritt’s cell phone. The ITO was previously rejected by Justice Jensen. Cst. Ciftci responded to Justice Jensen’s concerns with statements that were sub-facially misleading, and facially speculative.	Contextual – shows disregard for the rights of the applicant The violation of the rights of the third party are aggravating Part of a pattern of abuse
14	4 – Breaches of the rights of 3rd Parties	Jurisdictional Irregularities re: Production Order #1 in relation to Caleb Harrison’s cell phone– the Issuing Justice and the Police failed to recognize the lack of jurisdiction to get a production order by way of fax.	Contextual nexus to the overholding of the electronic items seized from the trailer, where the detention order was extended for one year without the police or the issuing Justice recognizing the lack of jurisdiction. Relevant to the exclusion of the internet searches as a result of the detention order made with a lack of jurisdiction
15	4 – Breaches of the rights of 3rd Parties	In ITO #12 the references in relation to Donna MacCormack’s statement were found to be misleading. Those references are repeated in ITO #7, #9, and #20 in relation to Agnes and Michael Merritt’s vehicles. They also relied on a misrepresentation of Mr. Merritt’s statement, and a misrepresentation of Doug Blackwell’s statement. There is speculation in those ITOs as well, similar to that found in ITO #12 (See para 191-198 of Ruling #6)	Contextual nexus of using misleading claims to violate privacy rights. Relevant to the exclusion of the results from production order #12 for the CIBC records.
16	4 – Breaches of the rights of 3rd Parties	ITO #11 for Agnes Merritt’s cellphone relies heavily on the same misleading statements and material omissions found in ITO #12 (see above)	Contextual nexus of using misleading claims to violate privacy rights. Relevant to the exclusion of the results from production order #12 for the CIBC records.
17	4 – Breaches of the rights of 3rd Parties	ITO #26 – production order for Agnes and Michael Merritt’s Bank of Nova Scotia records. The ITO is overbroad and misleading, similar to the others discussed above	Contextual nexus of misleading claims that violate privacy rights Relevant to the exclusion of the results from production order #12 for the CIBC records.
18	4 – Breaches of the rights of 3rd Parties	In the execution of warrants #7 and #9, the police were authorized to look for a number of things, which did not include data. However officers in the execution of those warrants, also downloaded the GPS data without any prior authorization, and they never got authorization to review the downloaded info.	Contextual nexus – overreaching the scope of the warrant in relation to the seizure of data Relevant to the exclusion of all electronic information seized by the police including the USB key, the computer searches and the general warrant for the fattorefamilyrocks@gmail.com.
19	4 – Breaches of the rights of 3rd Parties	In ITO #14 Cst. Ciftci omitted material information that the Chevy Van that formerly belonged to the applicants was full of garbage that had been placed there at the wrecking yard including broken glass, a gas tank, and wheel rims when swearing an affidavit to obtain a warrant to search the vehicle for trace evidence.	Contextual nexus: very significant material omission Causal nexus – that the information obtained from the vehicle was included in ITOs #30 (the Part VI), and #24 (the locker warrant) without the context of the condition the vehicle was found in. Relevant to the exclusion of the computer evidence
20	4 – Breaches of the rights of 3rd Parties	The entry onto Kooner farms without authority from proprietor is similar to the warrantless trespasses onto the applicants’ property at 8568 Mississauga Road.	Contextual nexus – shows disregard for the applicants’ and others property rights. Relevant to the exclusion of the internet searches
21	5 – Constitutionally unacceptable police practices	The police continue to apply for, and get, locker warrants	Relevant to the exclusion of the internet searches and a pattern of unconstitutional behavior.

APPENDIX B

5 Categories of Evidence to Consider

1. The breaches that this Honourable Court has already found,

2. Other similar or identical breaches of, and disregard for, the Applicants’ rights,

3. Other dissimilar breaches of, and disregard for, the Applicants’ rights,

4. Other similar breaches of, and disregard for, third parties’ rights as part of this investigation, and

5. Constitutionally unacceptable police practices outside of this investigation.

CITATION: R. v. Merritt, 2017 ONSC 2245

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20170411

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

MELISSA MERRITT and CHRISTOPHER FATTORE

Applicants

RULING No. 9: Section 24(2) Screening Motion

F. Dawson J.

Released: April 11, 2017

[^1]: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421