Court File and Parties
COURT FILE NO.: CR-18-10000-191-0000 DATE: 20181024 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – STEVEN RUIZ Applicant
Counsel: Stephen Byrne, for the Respondent Leora R. Shemesh, for the Applicant
HEARD: May 22, 23, 24 and 25, 2018 and September 4, 5, and 6, 2018
Ruling Re: Charter Application
DIAMOND J. :
Overview
[1] The applicant is charged that, on or about April 21, 2016 in the City of Toronto, he:
a) unlawfully trafficked in a controlled substance (cocaine) contrary to section 5(1) of the Controlled Drugs and Substances Act (“CDSA”);
b) unlawfully possessed a controlled substance (cocaine) for the purpose of trafficking contrary to section 5(2) of the CDSA;
c) unlawfully conspired with Paul Lindo (“Lindo”) to commit the indictable offences of trafficking in a controlled substance (cocaine) and possessing a controlled substance (cocaine) contrary to sections 5(1) and (2) of the CDSA; and,
d) unlawfully possessed property of a value exceeding $5,000.00 which property had been obtained by an offence punishable by indictment contrary to section 354(1) of the Criminal Code.
[2] In addition, the applicant is also charged that, on or about June 2, 2016, in the city of Toronto, he failed to comply with a condition of his recognizance contrary to section 145(3) of the Criminal Code.
[3] At approximately 8:45 pm on April 21, 2016, Toronto police officers executed a search warrant (the “warrant”) at 72 Lou Pomanti Street (“the property”). The applicant resides at the property with his wife Elizabeth Martillo (“Martillo”) and their two sons. As at the date of the execution of the warrant, one son was approximately seven years old and the other an infant.
[4] The warrant was obtained based upon an Information to Obtain (“ITO”) sworn that same afternoon (April 21, 2016) by Detective Constable John Johnston (“Johnston”). The warrant permitted the search of the property for, inter alia, cocaine, monetary proceeds of crime, digital scales and cellular phones.
[5] Upon executing the warrant and searching the property, the following items were seized:
a) nearly 500 grams of cocaine in a vacuum sealed bag;
b) approximately 2 kilograms of phenacitin (a cocaine cutting agent) located in two separate clear zip-lock bags;
c) cash, located in three separate bundles, all totaling $15,930.00; and
d) cell phones.
[6] The applicant brings a pre-trial application seeking, inter alia, (a) an order that his section 7 and section 8 Charter rights were breached, and (b) an order pursuant to section 24(2) of the Charter excluding the evidence seized from the execution of the search warrant at the property. Specifically, the applicant argues:
a) the police lacked the requisite reasonable and probable grounds to support the issuance of the warrant;
b) by employing a dynamic entry into the property, the police executed the warrant in a manner which violated the applicant’s section 8 Charter rights; and,
c) the police’s manner of execution of the warrant and search of the property violated the applicant’s section 8 Charter rights.
[7] The applicant argues that the single or cumulative effect of the above alleged breaches should result in an order excluding all evidence obtained through the execution of the warrant pursuant to section 24(2) of the Charter.
My Prior Decision
[8] In a decision released on May 23, 2018, I granted the applicant leave to cross-examine Johnston in respect of four specific paragraphs contained in his affidavit sworn in support of the ITO. Those paragraphs specifically related to the issue of the reasonable, evidentiary basis supporting an alleged drug transaction between the applicant and Lindo. In my decision, I held as follows:
“The applicant has established a reasonable likelihood that the proposed cross-examination could generate testimony discrediting all or part of the reasonable and probable grounds advanced in support of the search warrant. In the absence of the completion of the alleged drug transaction, there is little information (be it fact or belief) in Johnston’s affidavit suggesting that drugs or drug paraphernalia were present in the applicant’s residence. The completion of the alleged drug transaction relates directly to a pre-condition for the issuance of the search warrant namely that the applicant trafficked a controlled substance to Lindo and ‘is in possession of further quantity of cocaine’ likely located at the applicant’s residence.
For these reasons, I am prepared to grant the applicant leave to cross-examine Johnston but only with respect to the issue of the reasonable, evidentiary basis supporting the alleged drug transaction between Lindo and the applicant on April 21, 2016. Cross examination shall be restricted to questions related to the above issue for my consideration during the balance of the application. Those questions shall be limited to the following paragraphs in Johnston’s affidavit:
a) Paragraph 3 - the delivery of a quantity of cocaine by the applicant to Lindo;
b) Paragraph 5 - the completion of the transaction between Lindo and the applicant;
c) Paragraph 35(d) - the “brief exchange” between Lindo and the applicant at the Chevrolet Malibu before Lindo returned to his own vehicle; and,
d) Paragraph 43 - the applicant delivering “the quantity of cocaine to Lindo”.
Viva Voce Evidence
[9] Johnston was cross-examined on his affidavit on May 23, 2018. Johnston lacked any personal knowledge surrounding the alleged drug transaction between Lindo and the applicant as his affidavit was sworn on information and belief, relying upon the observations of Detective Constables Jim Chant (“Chant”) and Mark Holland (“Holland”). It became apparent through Johnston’s testimony that Chant, Holland and other police officers were part of two surveillance teams observing Lindo and subsequently following the applicant. As a result I granted leave to the applicant to cross-examine those officers on their observations. Most of those officers were already scheduled to testify to respond to the application as it related to the employment of the dynamic entry and also the manner of search of the property.
[10] I thus heard viva voce evidence from Johnston, Chant, Holland, Detective Constable Adam Lourenco (“Lourenco”), Detective Constable Brent Johnston (“Brent”), Detective Constable Scott Ross (“Ross”) and Detective Constable Chad Younger (“Younger”). I also heard cross-examination of Martillo on her own Affidavit.
[11] Holland, Brent, Ross and Lourenco were part of one surveillance team, while Chant was part of the other team.
Review of the ITO
[12] As held by the Court of Appeal for Ontario in R. v. Sadikov, 2014 ONCA 72, the standard for review of a warrant/ITO begins from a premise of presumed validity, and assesses whether there is sufficient credible and reliable evidence to permit a Justice to find reasonable and probable grounds to believe that an offence has been committed, and that evidence of that offence would be found at a specified time and place of search of a subject property. Put another way, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued.”
[13] I am mindful of the lens through which I am to review an ITO, which is often prepared on an expedited basis. As my colleague Justice Mew held in R. v. James, 2016 ONSC 3462:
“An ITO will typically not present a shining example of the legal draftsman’s art. The ITO in this case is no exception to that reality. ITOs are often replete with repetition and, in this technological day and age, no doubt suffer somewhat from the blight of “cut and paste”. The document must be scrutinized as a whole, rather than pulled apart line by line, clause by clause or even asserted fact by fact. Furthermore, deference should be paid to the ability of a trained peace officer to draw inferences and make deductions.”
[14] I agree with the applicant that any reasonable and probable grounds in Johnston’s affidavit were wholly premised on whether the alleged drug transaction between the applicant and Lindo took place on April 21, 2016. This alleged transaction is the only true, substantive basis for Johnston’s conclusions in his affidavit.
Johnston’s Affidavit
[15] Lindo was under surveillance by the Toronto Police Services as part of a large project investigation, and it was believed that Lindo was trafficking in cocaine. On April 9 and April 14, 2016, Lindo received text messages from an individual named Jason Read (“Read”) allegedly inquiring into the purchase of cocaine.
[16] Text messages and phone calls between Lindo and a cell phone subscriber named Marcus Pay (later identified to be the applicant) ensued on April 21, 2016, and, according to Johnston, Lindo sought to purchase cocaine from the applicant that day. While Lindo was already under surveillance, the applicant was not. As such, he was a stranger to all of the officers conducting surveillance that day.
[17] Text messages ensued between Lindo and the applicant. A meeting was set up between them “to talk”. It is important to review the salient portions of Johnston’s affidavit which described the alleged drug transaction between the applicant and Lindo.
[18] In a section entitled “Executive Overview”, Johnston stated that Lindo met with the applicant and “completed a transaction”. Johnston further stated that the applicant was observed by surveillance officers driving a blue 2009 Chevrolet Malibu “while he conducted this drug transaction from (sic).”
[19] In another section entitled “Grounds for Belief”, Johnston offered his belief that the applicant trafficked cocaine to Lindo. After detailing the various text messages exchanged between both Lindo and Read, and Lindo and the applicant, Johnston set out a sub-section entitled “Surveillance” wherein he gave the following evidence based on information and belief:
a) according to Chant, Lindo parked and exited his vehicle, and walked towards and ultimately met with the applicant outside the Malibu parked on Oakwood Avenue. Lindo then left the applicant “after a brief exchange” and returned to Lindo’s vehicle.
b) according to Holland, surveillance officers observed the applicant meet Lindo, and after they “met briefly”, the applicant left the area in his Malibu, stopping briefly at a grocery store before returning to the property.
[20] In a final section entitled “Conclusion”, Johnston stated that as a result of the intercepted text messages and surveillance/investigation, he believed that Lindo purchased a “large quantity of cocaine from the applicant.” Johnston further states that the applicant was observed delivering the quantity of cocaine to Lindo.
[21] The only link between the applicant and the ultimate search of the property was the alleged drug transaction between Lindo and the applicant. As previously stated, before this meeting the applicant was a stranger to the surveillance officers, and was only known as “Marcus Pay”.
[22] Apart from Chant and Holland confirming a physical meeting between the applicant and Lindo, the only observation noted by Johnston in his affidavit was “a brief exchange” between the two men. Chant is the only source for there even being an “exchange” between the two men, but Johnston ultimately testified that this “exchange” consisted of a “large quantity of cocaine.”
[23] No further particulars are provided by Johnston’s affidavit as to this exchange. As put by counsel for the applicant, this exchange could have been no more than a conversation. Johnston did not set out any surveillance evidence identifying an actual drug transaction, i.e. the exchange of cocaine for cash. The issuing justice did not have information to confirm or deny that the “exchange” between the applicant and Lindo was observed to be a drug transaction.
Cross-examinations
[24] On cross-examination, Johnston confirmed that he had no personal knowledge of the alleged drug transaction, and characterized the above salient portions of his affidavit as “an overstatement” on his part. Johnston described those paragraphs as falling more within the ambit of a “conclusion” based upon the totality of the investigation. Johnston candidly referred to his evidence in the ITO that the applicant was observed by surveillance officers delivering a quantity of cocaine to Lindo as an overstatement. He in fact used this term on several occasions during his cross-examination.
[25] An arguable slippery slope then developed during the cross-examination of the various officers. Johnston testified that his recollection from speaking to Chant was that Chant advised him that some form of “transaction” had taken place between the applicant and Lindo. When Chant was cross-examined, he testified that he never made any personal observations of the drug transaction and was simply relaying what he had heard over the radio channel shared between the two surveillance teams.
[26] Making matters more interesting is the fact that the Surveillance Report ultimately signed by Chant as part of his surveillance team describes Lindo and the applicant “in convo” (i.e. conversation) by the front passenger side of the Malibu. There is not one entry in the Surveillance Report which describes any physical exchange between the applicant and Lindo other than them participating in a conversation. Yet Chant stated in cross-examination that he must have contacted Johnston to advise him that the applicant and Lindo were involved in “an exchange”. At its highest, Chant’s testimony confirms that Johnston’s evidence is premised on, at a minimum, double hearsay.
[27] Within the surveillance team, Lourenco was the central note taker and it was his job to take notes of what was observed and/or said during the investigation. The Surveillance Reports were based upon Lourenco’s notes taken that day. Lourenco testified that he was able to hear what others in his surveillance team said over the radio channel, but did not recall there being two channels being used and listened to by both teams. This is inconsistent with Chant’s evidence. If Chant was on a different surveillance team, and Lourenco believed that neither surveillance team could hear what the other was saying over the radio channel, how could Chant have heard the observations of an officer on the other surveillance team regarding the alleged drug transaction?
[28] Brent testified that he heard someone indicate over the radio channel that a drug transaction took place at approximately 4:20 pm, although there is nothing in his notes to confirm same. All that is noted down is that the two men were “in convo”. In fact, Brent confirmed that what gets “voiced out” over the radio channel is that two men were “in convo”.
[29] Younger testified that it was raining that day, and heavily at times. Younger did not see the Malibu, and never saw the applicant actually meet with Lindo. There is no mention of any drug transaction or exchange in Younger’s notes. On cross-examination, Younger testified that there may have been a drug transaction as there was no other reason for them to follow the applicant back to his property. He then characterized the lack of any supporting notes as “an oversight” on his part.
[30] There was nothing in Ross’ notes about any drug transaction. According to Ross, the words “in convo” likely did get spoken over the radio channel but he could not recall any specifics of what he heard other than what was indicated in the Surveillance Report. The lack of a transaction in Ross’ notes was, again, an “oversight” on his part. His notes do state that it was Younger who mentioned the words “in convo” over the radio channel, although others testified that it was Holland who had made that statement over the radio channel.
[31] Holland testified that he saw both men in conversation outside of the Malibu, and the passenger window was open. He recalled the applicant reaching into the car through the open passenger window to “retrieve a small thing and put in his hoodie” front pocket. Query whether “a small thing” that fit into a hoodie front pocket could amount to a “large quantity of cocaine”? In any event, Holland believed that he may have called out his observations over the radio channel, but is not sure whether he said anything other than the two males having “met at the car”. Holland was not sure if he talked about Lindo allegedly reaching into the car when he made his observations over the radio channel. Holland further testified that the movement of Lindo’s hands from the passenger side of the car into his hoodie pocket led him to believe that perhaps he had something in his hands, although he agreed that Lindo could have simply reached in the car to turn the radio down. Holland stated that he did not see the applicant give Lindo anything, i.e. there was likely no hand to hand transaction that he himself observed.
[32] Interestingly, Holland testified that he did not recall even speaking to Johnston, and there were no notes made by Holland confirming such a conversation with Johnston. This seems inconsistent with Johnston’s own evidence.
Did the police have the requisite reasonable and probable grounds to support the issuance of the warrant?
[33] There was no confidential informant used to prepare or support the ITO. Apart from Johnston’s experience and subjective beliefs, there is little to no direct evidence to substantiate his belief that drugs would be located at the property. As the warrant was obtained on an ex parte basis, Johnston was under an obligation to provide full and frank disclosure of all relevant facts. While Lindo was ultimately found that afternoon with cocaine on his person, the only link to the applicant is still the alleged drug transaction, especially given the fact that other text messages and surveillance confirmed that Lindo was seeking to purchase cocaine from several other sources.
[34] As held by Justice Code in R. v. McLetchie, 2011 ONSC 1016:
“Accordingly, the current state of the law is that a sub-facial defect in a search warrant Information must be analysed on a s.8 Motion in order to determine whether it was deliberate or inadvertent. If it was deliberate, then its impact on the reliability and sufficiency of the untainted balance of the Information must be assessed, including its impact on the reliability of the warrant process. If it was simply an innocent mistake, then the remedies of redacting or “amplification” can be immediately applied and the balance of the Information assessed to determine whether the warrant, nevertheless, could have issued.”
[35] I do view Johnston’s affidavit to be misleading. The facts chosen to be included (and omitted) painted a picture that police officers witnessed a drug transaction between the applicant and Lindo, and that transaction involved a “large quantity of cocaine”. Two police officers (Chant and Holland) were chosen to be the source information for Johnston’s subjective belief. Chant was portrayed as the individual who saw “an exchange”. In cross-examination, Chant confirmed he did not see any such thing, and relied upon an alleged statement over the radio channel to support his own subjective belief that a drug transaction had taken place.
[36] Holland was never a source for Johnston’s belief that a drug transaction had taken place, but rather a source for Johnston’s belief that Lindo had simply met with the applicant.
[37] It is one thing for an affiant to embellish the record through the use of language which may not fit the facts. Here, the link between the applicant and the right to search the property was the alleged drug transaction. In my view, the officers did not have first-hand, confirmatory evidence to support that fact, which is the basis for Johnston’s subjective belief.
[38] In a situation where two full surveillance teams, consisting of numerous officers, were all potentially in a position to (a) observe the alleged drug transaction, (b) record or take notes of the alleged drug transaction, and (c) relay the alleged drug transaction to Johnston, all of them seemed to struggle during cross-examination to provide objectively sound evidence in support of the conclusions set out in Johnston’s affidavit. Johnston was quick to point to his conclusions in an effort to validate the ITO. Unfortunately, his conclusions are the last stage in an exercise built upon the foundational obligation to make full and fair disclosure of all material facts, and I do not find that he did so.
[39] Even if the misrepresentations in the ITO were innocently made, redacting the offending paragraphs would leave no evidence at all to support the link necessary to substantiate reasonable and probable grounds that drugs could be located at the property. As held by my colleague Justice Mitchell in R. v. Kofman, 2017 ONSC 2612:
“In essence, the Crown is asking me to conclude that a search of an individual’s place of residence could be justified based only on evidence of suspected drug dealing from locations connected to the individual’s residence. Such a finding would have broad-sweeping implications.”
[40] Each officer gave evidence that, despite their notes recording nothing or next to nothing regarding a transaction or exchange, such omissions were oversights and each of them maintained some form of independent recollection (two years after the fact) to support the position that someone in their teams saw the drug transaction, or at least mentioned that they saw it over the radio channel. The Surveillance Reports are silent as to any observations of a drug transaction, yet signed off by each officer.
[41] I agree with the applicant that such testimony is concerning, and in effect troublesome. Material facts were misstated or ignored in the ITO. The evidence of the alleged drug transaction is that two men stood next to each other, in public, and had a conversation, or at its highest “an exchange”.
[42] I do not believe the issuing Justice could have issued a warrant for the property in such circumstances, and as a result I find the search of the property to be unlawful and a breach of the applicant’s section 8 Charter rights.
Did the police officers’ use of a dynamic entry amount to a breach of the applicant’s section 8 Charter rights?
[43] As held by the Supreme Court of Canada in R. v. Cornell, 2010 SCC 31, absent exigent circumstances, police officers must make an announcement before entering into a dwelling house by giving (a) notice of presence by knocking or ringing a doorbell, (b) notice of their authority by identifying themselves as law enforcement officers and (c) notice of their purpose by stating a lawful reason for their entry. When a “no knock entry” is carried out, the police are under an onus to explain why such an approach was necessary in the circumstances. I must therefore assess the police officers’ decision to act as they did on the record before me.
[44] There is no dispute that the police officers decided to use a ram and break down the front door of the property without any prior warning. Once the warrant was obtained, the attending police officers (Brent, Ross, Holland, Younger and Lourenco) all met to discuss the execution of the warrant and entry into the property. None of the officers were aware of the number of inhabitants in the property other than the applicant having returned home some hours earlier with his six year old son (at the time) after grocery shopping.
[45] As the Detective Constable in charge, it was Brent who decided to have the officers employ a dynamic entry. According to each officer, they all wore ballistic vests which clearly identified (on the front and back) that they were police officers, and upon entering the property, shouted that they were police present to carry out a search warrant once the ram broke down the front door. Apart from Ross who employed the ram, the other four had drawn their pistols upon entry, but they were all pointing the pistols to the ground.
[46] Why did Brent decide to employ a dynamic entry? What were the exigent circumstances present to support such a decision? As stated, the applicant was a stranger to the police officers. While he did have a criminal record, his last conviction was possession of a prohibited or restricted firearm in 2007, more than nine years before the events giving rise to the current charges.
[47] Holland testified that during the pre-search meeting, there was no real discussion amongst the officers about the property itself or its occupants, and he doesn’t recall discussing the possibility of knocking on the front door with anyone.
[48] Brent testified that he was concerned about the safety of all involved, and he did not know how many other occupants were in the property. According to Brent, employing a dynamic entry eliminated the risk of an occupant making poor decisions, as the applicant had already displayed bad judgment in having his six year old son “accompanying him to a drug deal”.
[49] According to Lourenco, dynamic entries are more typical for drug or firearm offences, although Lourenco could not recall why Brent decided to employ a dynamic entry with respect to this property.
[50] In my view, police officers must take reasonable steps to assess and arrive at a decision to employ a dynamic entry into a residence. A review of the facts in Cornell discloses that in that case the police took necessary steps to determine who and what was in the residence prior to the search, including many hours of surveillance.
[51] In the case before me, it appears the police officers simply showed up at the property, which was previously uninvestigated, and employed a dynamic entry. The warrant was good for an additional three days, and none of the officers gave any evidence to support the presence of alleged exigent circumstances. Nobody knew who lived at the property or how many individuals were there. I do not believe there to be any reasonable basis upon which the police officers could believe weapons were present in the property. The mere possibility that the applicant or someone could have destroyed evidence cannot, on its own, justify the use of dynamic entry, as to support such a position would permit dynamic entry any time drugs are alleged to be present.
[52] Dynamic entry is the exception, and not the rule. It can be justified if significant concerns for the safety of police officers are present. No such real concerns have been shown to have existed here. I do not find the risk of destruction of evidence, together with an allegation of drug trafficking to warrant the use of dynamic entry in the circumstances of this case.
[53] Accordingly, I find that the applicant’s section 8 Charter rights were breached by reason of the use of dynamic entry.
Did the police officers’ manner of search constitute a breach of the applicant’s section 8 Charter rights?
[54] The applicant submits that the manner in which the police officers searched the property caused unnecessary damage, disorder and disarray, and as a result the search was rendered unreasonable and in breach of the applicant’s section 8 Charter rights. The applicant relies upon the decision of Justice Code in R. v. Thompson, 2010 ONSC 2862, and in particular the following passages:
“There is some deliberate damage to property in the case at bar, namely, the cuts to the fabric on the back of the couch and the door removed from the living room cabinet and left lying on the floor. However, this damage is not of the same magnitude as that found in Gogol and Rosales.
The more prominent issue in the present case is simply the method of searching. As described earlier in this Judgment, the photographs and the testimony of the officers reveal a method of searching that essentially involves dumping all of the household property on the floor and leaving it there. In R. v. Edwardson, 2005 BCSC 463 Justice Halfyard concluded that this manner of search was “unnecessary” and in violation of s.8.
As stated by Justice Fairgrieve in Gogol, the power to search is not “a license to ignore the property rights of the occupant of the premises”. I am not persuaded that it is necessary to dump everything on the floor, in order to search effectively for drugs. The officers’ evolving explanations for this practice were never persuasive. Mr. Mitschele essentially conceded in argument that this manner of search was not necessary. In any event, if a particular officer thinks that this is the only way that he/she can search effectively, there is no excuse for failing to put the item back where it was found. Once an item has been searched, and it is determined to be lawfully possessed and not subject to seizure, it should be returned to where it was found. The officers’ attitude, that returning lawfully possessed items to where they were found is not police work, but is for “Molly Maid” or is for someone who is trying to be “polite”, betrays a serious misunderstanding of the limits of their powers.”
[55] After the dynamic entry into the property, Ross videotaped the state of the premises both before and after the search was carried out. There is no dispute that the front door was damaged through the use of the ram. Martillo testified that the police officers entered the property with shotguns drawn and pointed at her and her son, demanding that they “put their hands up”. She stated that damage was caused to the basement walls in the form of unnecessary holes, with vents removed without unscrewing the securing bolts. The contents of bedrooms, bathrooms and other rooms were “completely turned upside down … and destroyed.” She also stated that her Gucci purse was stolen along with the applicant’s Gucci pouch. Finally, Martillo testified that her older son’s piggy bank (in the form of a cookie jar kept in a kitchen lower cupboard) was stolen containing approximately $2,000.00 in coins.
[56] Martillo was cross-examined on her affidavit. I believe that she overstated her evidence in certain key areas. This may have been due to her recollection of the events that day and the fact that the experience was somewhat of a whirlwind given the police officers’ dynamic entry into the property.
[57] The hole in the basement wall was actually caused by the police officers removing duct work to search for drugs and related items covered by the warrant. Her older son’s bed (a hidden lower mattress under a top desk) was damaged due to police officers pulling the hidden mattress component too far past its hinges.
[58] I reviewed the entry and exit videos. Several rooms in the property were indeed left in disarray. Children’s clothes were piled up in the middle of their rooms. In the older son’s room, the clothes and other items were left everywhere, precluding the opportunity for the child to enter and sleep in his own bed. Some furniture was flipped over, although that may have been as part and parcel of the search for drugs and other items covered by the warrant. Nevertheless, that furniture was not turned right side up at the conclusion of the search.
[59] The basement was left in an extremely messy state, along with the main bedroom, bathroom and adjoining closet rooms. None of the police officers gave any evidence explaining why they left the property in such a state of disarray. For his part, Holland testified that while items could have been returned after the completion of the search, they simply weren’t and that did not show respect to Martillo or the applicant.
[60] Younger testified that the exit video shows exactly how the “scene” was left, and that there is evidentiary value to creating a record of the property in an “as is state” upon the completion of the search.
[61] Lourenco confirmed that while returning searched items would be “very time consuming”, the property was quite neat and tidy upon their entry, and was certainly not left in that state when the police officers exited the property.
[62] I agree with the applicant that the manner of the search of the property was excessive and unnecessary. Upon their eventual return to the property, Martillo and the applicant would certainly have had a large mess to clean up, and some furniture to repair or replace.
[63] While it is expected that a searched residence would likely not be put back in its complete, pre-search state, I find that the manner of this search of this property caused unnecessary disorder and disarray and rendered the manner of search unreasonable and in breach of the applicant’s section 8 Charter rights.
Should the evidence seized from the property be excluded pursuant to section 24(2) of the Charter?
[64] I have found that the applicant’s Charter rights were infringed upon for three separate reasons, and thus I am to assess the cumulative effect of these breaches when deciding whether to exclude the evidence under section 24(2) of the Charter. As held by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32:
“When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.”
[65] The more severe, deliberate or reckless the state conduct is, the greater the need will be for the Court to disassociate itself from such conduct by excluding the evidence so as to preserve public confidence in the justice system and ensure conformity to the rule of law. Trivial or minor violations and/or the existence of good faith will typically favour the Court admitting the evidence into the record.
[66] In R. v. Morelli, 2010 SCC 8, the Supreme Court of Canada stated:
“The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.”
[67] I have found the ITO to have been misleading. The use of dynamic entry into the property was not reasonable. The conduct of the police executing the warrant, specifically leaving the property in a state of disarray, was also unreasonable.
[68] In Kofman, Justice Mitchell was faced with a misleading ITO. While she did not find the presence of bad faith, she found that the affiant acted in a “reckless, careless and negligent manner and with complete disregard with the basic requirement that the ITO contained at least some grounds upon which the issuing Justice could reasonably believe evidence of drug trafficking” would be found at the subject residences. I come to a similar conclusion. The ITO in this case was deficient and misleading insofar as creating the necessary link between the alleged drug transaction and the property. The unlawful search of the property was a serious infringement upon the applicant’s Charter rights.
[69] The police searched the property based on an invalid warrant, and such conduct falls at the more serious end of the spectrum in terms of the first Grant factor.
[70] Dealing with the second Grant factor, the applicant had a high expectation of privacy in this property, and the impact upon his liberty and privacy interests is thus quite significant.
[71] The first two Grant factors thus favour the exclusion of the evidence found at the property. As noted by the Court of Appeal for Ontario in R. v. McGuffie, 2016 ONCA 365, “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”
[72] Nearly half a kilogram of cocaine was located at the property. Society’s interest in the adjudication of this case on its merits does favour the admission of the evidence. However, as held by Justice Forestell in R. v. Debartolo, 2018 ONSC 1083:
“The third Grant factor cannot be allowed to trump all other considerations particularly whether the impugned conduct is serious and has a substantial impact on Charter protected interest”.
[73] I believe that the cumulative effect of the Charter breaches is substantial, and warrants the exclusion of the evidence. Accordingly, the application is allowed and the evidence obtained as a result of the search of the property is excluded.
Diamond J.