Introduction

[1] Daniele Debartolo is charged with offences arising from a search of a residence conducted by the police pursuant to a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA") search warrant. The search warrant was granted pursuant to s. 11 of the CDSA on April 21st, 2016. On April 23, 2016 the police entered and searched the residence which was believed to be the residence of the Applicant. The Applicant was not in the residence when the warrant was executed. The police attempted unsuccessfully to apprehend the Applicant outside the address. The police executed the warrant and found: a quantity of heroin mixed with morphine and fentanyl (66.43 grams); 25.6 grams of cocaine; and a Glock 17, 9mm semiautomatic firearm. The police also located credit cards and driver's licenses in the names of other individuals, documents in the Applicant's name, Casino Rama receipts in the Applicant's name and two scales.

[2] The Applicant turned himself into police on April 27, 2016.

[3] The warrant obtained by the police authorized the police to enter and search the dwelling house of Daniele Debartolo at Unit 4, 133 Isaac Devins Boulevard, Toronto, Ontario for heroin, packaging, scales, debt lists and cellular telephones in respect of which the offences of trafficking in heroin and possession of heroin for the purpose of trafficking had been committed.

[4] Mr. Debartolo has applied to have all of the evidence excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter") on the basis that his rights protected by s. 8 of the Charter have been violated.

Positions of the Parties

[5] The position of the Applicant is that the search of the residence violated the Applicant's rights protected by s. 8 of the Charter, and as a result, the evidence obtained should be excluded pursuant to s. 24(2) of the Charter. Counsel for the Applicant submits that the Information to Obtain the Warrant ("ITO") contained significant omissions, and did not constitute full, fair and frank disclosure. She further argues that the police deliberately misled the issuing justice and that as a result, the reliability of the entire ITO was undermined. Alternatively, counsel for the Applicant submitted that after excision of inaccurate information, the balance of the ITO could not support the issuance of the warrant.

[6] Counsel for the Applicant also argues that the manner of execution of the warrant was unreasonable. After the Applicant drove away from the attempt of police to arrest him, the police used a ram to breach two doors and enter his residence. Counsel submits that this was unreasonable given the knowledge of the police that the Applicant was not present and that he lived with his elderly parents.

[7] The position of the Applicant is that the breaches of the Applicant's s. 8 rights by the misrepresentations in the warrant alone support the exclusion of the evidence under s. 24(2), but that the unreasonable execution of the warrant as a separate breach strengthens the argument for exclusion.

[8] The Crown position is that, after the excision of the information that is inaccurate and incomplete, the balance of the ITO supports the issuance of the warrant. The Crown argues that to the extent that there were weaknesses in the credibility of the CI and the corroboration of the information provided, the compelling nature of the information provided by the CI compensates for those weaknesses.

[9] The Crown submits that the manner of execution of the warrant was not unreasonable.

[10] The position of the Crown was that in light of the seriousness of the offences and the attenuated expectation of privacy, the evidence should not be excluded under s. 24(2) of the Charter.

The Procedure on the Application

Redacted ITO and Judicial Summary

[11] The ITO was sworn by Officer Jereme Quinlan (the affiant). His grounds for seeking the warrant relied heavily on information provided to the police by a confidential informant (the "CI") to the handler officer, Justin Zeppieri (the sub-affiant).

[12] Because of the reliance on information from a CI, the ITO was heavily redacted before being disclosed to defence counsel.

[13] As the first step in the hearing, the parties agreed that the redactions should be justified by the Crown. The procedure agreed to by the parties was for the Crown to call the sub-affiant to testify in an in camera and ex parte hearing as to the reason for each redaction. The parties agreed that, in this case, this was the fairest and most efficient way to approach 'step 2' of the procedure as outlined by the Supreme Court of Canada in R. v. Garofoli.[^1]

[14] The redacted ITO is Exhibit "A" on the application. The unredacted ITO has been marked as a sealed exhibit on the application (Exhibit "B"). I reviewed the Crown's editing of the ITO and the draft judicial summary prepared by the Crown. I heard the evidence of the sub-affiant, Officer Zeppieri and heard the submissions of the Crown with respect to the necessity for the redactions. I then prepared a draft judicial summary which was provided to counsel. After hearing the submissions of counsel for the Applicant with respect to the draft judicial summary, a final judicial summary was provided to the applicant (Exhibit "E").

Disclosure

[15] The Applicant also brought an application for disclosure of the investigative file and the notes of the sub-affiant. The Crown opposed the disclosure of the notes of the sub-affiant. I ruled that the Applicant was entitled to the investigative file and that if the notes of the sub-affiant did not fall within the investigative file, the Applicant had met the threshold for disclosure of the notes. That threshold, as outlined in R. v. Ahmed[^2] at paras. 30-32 and R. v. McKenzie,[^3] is met when the applicant demonstrates that there is a reasonable possibility that the requested disclosure would be of assistance on the application. The notes in this case are the foundational material for the ITO and in my view meet the threshold even if they are not strictly speaking part of the investigative file. The sub-affiant provided information to the affiant. He also reviewed the ITO for accuracy before the warrant was sought. As will be explained below, the sub-affiant originally indicated that he provided his notes to the affiant for the purpose of allowing the affiant to prepare the ITO. It later was revealed that the affiant did not look at the notes, but that he had received an email from the sub-affiant.

[16] Following my ruling ordering that the notes be disclosed, the notes of the sub-affiant were redacted by the Crown and the redactions were reviewed by me in the same manner as the review of the ITO. In the ex parte, in camera hearing the sub-affiant explained the reasons for the redactions and also indicated that certain matters that appear in the ITO do not appear in the notes. A judicial summary of the notes and of the nature of the omissions was provided to the Applicant after hearing submissions.

Cross-examination

[17] The Applicant also brought an application to cross-examine the affiant and sub-affiant. The Crown conceded that some cross-examination should be permitted but did not agree with the Applicant on the permissible areas of cross-examination.

[18] The cross-examination of the sub-affiant began on January 18, 2018 on the uncontested areas. I delivered an oral ruling on January 19, 2018 on the contested areas of cross-examination.

[19] As I indicated in my oral ruling, the test to be applied in determining whether to permit cross-examination is whether "there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the warrant. The focus is on the reasonableness and honesty of the affiant's belief as to the existence of the requisite grounds and not on the ultimate accuracy of the information relied upon by the affiant."[^4] Cross-examination may undermine the grounds in the ITO by contradicting information in the ITO or by adding information that was not in the ITO. In addition, cross-examination may be permitted to challenge aspects of the ITO that are argued to be deliberately misleading.

[20] I concluded that the Applicant was not permitted to cross-examine on the connection between the target address and drug trafficking or the likelihood that drugs would be found at the address. There is no line of cross-examination on this point that would not compromise CI privilege.

[21] I permitted cross-examination on whether the Applicant was believed to have trafficked at any location other than his residence and the grounds for that belief. As indicated in the judicial summary of the notes, the ITO states that the Applicant trafficked "throughout the City of Toronto" but that information was not contained in the notes of the sub-affiant. The sub-affiant testified that information was not provided by the CI.

[22] It was conceded by the Crown that the applicant should be permitted to cross-examine on why the affiant and sub-affiant believed the CI to be credible and reliable but the Crown position was that the cross-examination could not probe the details of the reason for the belief because such cross-examination might tend to disclose the identity of the source. I agreed that the details could not be the subject of cross-examination, but that the general reasons for the belief could be the subject of cross-examination. Information about the details might tend to identify the CI.

[23] The Applicant sought to cross-examine on the criminal antecedents of the CI and the extent to which those antecedents were disclosed to the issuing justice. The Crown took the position that questions regarding the criminal record of the CI (if any) would tend to identify the source and therefore cross-examination should not be permitted.

[24] It was disclosed in the judicial summary of the ITO that the ITO contained information regarding whether the source had a criminal record, outstanding charges or involvement in criminal activity. There was, in my view, a reasonable likelihood that cross-examination on the disclosure in the ITO regarding criminality of the source would assist in determining whether grounds existed for the issuance of the warrant and whether the affiant misled the issuing justice. While I agreed with the Crown that the cross-examination had to be circumscribed to protect the identity of the source, I concluded that the area could be explored in a general way that did not compromise confidential informer privilege. I permitted the Applicant's counsel to ask the affiant and the sub-affiant: whether they obtained complete and detailed information regarding whether the source had a criminal record, outstanding charges or involvement in ongoing criminal activity; whether they recorded the information they obtained (and if not, why not); and, whether the full details of any record, outstanding charges or ongoing criminality were provided to the issuing justice.

[25] The final contentious area of cross-examination concerned the consideration sought by the CI. The Crown's position was that some cross-examination was appropriate, but that the Applicant should not be permitted to elicit details concerning the type of consideration that was sought or given because that evidence might tend to identify the CI. I permitted general cross-examination about the type of consideration sought, promised or given to the CI and whether the full details of the consideration sought, promised or given were recorded and whether the full details of the consideration sought were disclosed to the issuing justice. Cross-examination with respect to the details of the type of consideration was not permitted in order to protect the privilege.

Additional disclosure – the email

[26] The sub-affiant was cross-examined before the affiant. The sub-affiant testified that he prepared only the notes in Exhibit "H". These consist of about 1½ pages of handwritten notes from the initial in-person meeting between the sub-affiant and the CI. The sub-affiant testified that he had regular telephone and text message contact with the CI after the initial in-person meeting. He kept no notes of any subsequent contacts. He testified that the only written record he made of the contacts with the CI were the handwritten notes of the initial meeting. The sub-affiant testified that these notes were provided to the affiant to assist in the preparation of the ITO. The sub-affiant testified that he provided information verbally to the affiant in addition to providing the notes.

[27] The affiant testified that he never saw the handwritten notes of the sub-affiant and did not rely on them in the preparation of the ITO. He received and relied upon an email from the sub-affiant.

[28] As a result of the testimony of the affiant, disclosure of the email was sought by the Applicant. The email was located and redacted. An in camera, ex parte hearing was held to determine the rationale for the redactions. The redactions were finalized and a judicial summary provided. The sub-affiant was later recalled to address the issues raised by the email.

Evidence on the Application

[29] The hearing of the application proceeded in two stages. At the first stage, I heard evidence and argument on the sufficiency of the warrant. At the second stage, I heard evidence and argument on the manner of execution of the warrant and on the exclusion of evidence.

[30] On the first stage of the hearing of the application I heard the testimony of the sub-affiant and the affiant and considered the following:

the unredacted and redacted copies of the ITO that were before the issuing justice, and the judicial summary of the redactions;
the unredacted and redacted copies of the notes of the sub-affiant and the email sent by the sub-affiant to the affiant outlining the information provided by the CI and the judicial summary of the redactions; and
the agreed fact that the rear entrance to the townhouse complex in which the target unit was located provided access to all 9 units in the building and not just to unit 4.

[31] I provided my decision on the validity of the warrant on January 25, 2018 and indicated that as a result of the deliberate misrepresentations and omissions by the affiant, the balance of the ITO after excision was not sufficiently credible and reliable to support the issuance of the warrant. I also indicated that I would provide written reasons. The parties then called evidence on the alleged unreasonable execution of the warrant and on s. 24(2). On January 29, 2018 I provided my decision that the evidence obtained as a result of the search was excluded under s. 24(2). Again, I indicated that written reasons would follow. These are those reasons.

The Legal Principles

General Principles Governing Review of a Search Warrant

[32] The general principles governing the review of a search warrant are not contentious and may be summarized as follows:

A search warrant is presumed to be valid and the onus is on the Applicant to show that there was not sufficient credible and reliable evidence to permit a justice of the peace to issue the warrant.[^5]
The standard of persuasion for the issuance of a warrant is reasonable grounds to believe. This standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. It requires more than an experienced-based "hunch" or reasonable suspicion.[^6]
The 'reasonable and probable grounds' or 'credibly-based probability' concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the 'sufficiency inquiry'), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the 'credibility inquiry').[^7]
The affiant must subjectively believe that there are reasonable grounds to believe that an offence is occurring and that evidence will be found at the place to be searched. The affiant's belief must be supported by enough information to enable a reasonable person to come to the same conclusion.[^8]
When the police rely upon information from a confidential informant to meet this standard, consideration must be given as to whether the information from the informant is compelling or corroborated by other aspects of the police investigation and whether the informant is credible. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another.[^9]
In a review of the validity of a warrant, the reviewing court must show deference to the issuing justice. The test to be applied is "whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued."[^10] In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO.[^11]
A search warrant is obtained ex parte and the Applicant for the warrant must provide full and frank disclosure of relevant facts.[^12] On review, the reviewing court must exclude erroneous information and may have reference to 'amplification' evidence.[^13]

Deliberate Misrepresentation

[33] In the case before me, the central issue is whether the affiant deliberately or intentionally misled the issuing justice and if so, what impact that had on the reliability and sufficiency of the balance of the ITO after excision and amplification.

[34] As set out in R. v. Garofoli, supra, at para. 56, in the review process, the "existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge."

[35] The approach to deliberate misrepresentation was addressed by Code J. in R. v. McLetchie[^14] where he reviewed and explained the Supreme Court of Canada judgments in R. v. Bisson[^15] and R. v. Araujo.[^16] At paragraphs 31 and 32 Code J. wrote as follows:

31 The Court in Araujo, supra, appears to be saying that a deliberate falsehood may be 'so subversive' of confidence in the search warrant 'process' that the reviewing judge may not be satisfied as to 'whether there was reliable evidence' in the balance of the Information. LeBel J. has certainly resurrected 'the need to protect prior authorization systems' as a relevant policy value to be considered in the search warrant review process. This was the very concern that Laskin J.A. and Lambert J.A. first raised when dealing with sub-facial defects in Den Hoy Gin [(1965), 45 C.R. 89 (Ont. C.A.)] and in Sismey [(1990), 1990 1483 (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.)]. It is a policy value that is also seen in abuse of process cases where the misconduct of a party 'disentitles that party from the judicial assistance that it is seeking' and where the courts must craft a remedy 'to preserve the integrity of their own proceedings'. See: United States v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 (S.C.C.), at 285-291.

32 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.

[36] The Court of Appeal, in R. v. Paryniuk,[^17] more recently considered the residual discretion of a reviewing court to set aside a warrant despite the presence of reasonable and probable grounds for its issuance where an affiant has been shown to have deliberately provided false statements or to have deliberately omitted material facts from an ITO. In Paryniuk, the Court of Appeal reaffirmed the principle in R. v. Lahaie, that the threshold for setting aside a warrant in such circumstances is high. In Paryniuk, the Court held that the applicant was required to demonstrate that the state conduct was such that the integrity of the process was undermined, thus evoking the "language of the residual category of abuse of process." While the Court in Paryniuk does not hold that the residual discretion to quash an otherwise valid warrant may only be exercised in circumstances that amount to an abuse of process, the standard or threshold applied is clearly comparable to that of abuse of process.

[37] In Paryniuk, before explaining the residual discretion to set aside a warrant, Watt J.A. discussed the reliability component necessary to ground a valid warrant, writing at paragraph 67:

67 Counsel for the respondent is on firm ground when he says Garofoli recognizes no such discretion. But Garofoli is not the last word on the subject. In Araujo, the court followed Garofoli but emphasized a reliability component in the information provided to the issuing judge or justice. When the dust settles after excision and amplification, the Araujo court said, there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.

[38] Paryniuk does not change the requirement that there must be sufficient reliable evidence after excision and amplification to provide grounds for the issuance of the warrant. Where there are deliberate misrepresentations and omissions in the ITO these defects may impact on the assessment of the reliability of the balance of the ITO even if deliberate misrepresentation and material omission has not been proven with respect to the details contained in the balance of the ITO after excision.

[39] The assessment of the impact of intentional misrepresentations by the affiant on the overall reliability of the ITO is of particular significance where the Crown invokes the Garofoli 'Step 6' procedure. In such cases significant portions of the ITO will be redacted and unavailable to be specifically challenged. Where there is a finding made that the affiant deliberately misled the issuing justice with respect to those parts of the ITO that were not redacted or those parts where the judicial summary permitted a specific challenge, the reviewing justice should consider whether the intentionally misleading conduct of the affiant impacts the reliability of the balance of the ITO.

[40] Therefore, the appropriate approach to be taken in a Step 6 case that involves an allegation that the affiant has deliberately misled the issuing justice is for excision and amplification to be followed by an assessment of whether the conduct of the affiant taints the reliability of the balance of the ITO.

[41] If the balance of the ITO is not found to be tainted by the deliberately misleading conduct of the affiant and the balance supports the issuance of the warrant, the warrant should be found to be valid subject only to a Paryniuk analysis. If the misleading conduct of the affiant renders the balance of the ITO unreliable, the ITO should be found to be invalid and the court need not consider the residual discretion in Paryniuk.

[42] In determining whether the balance of the ITO is tainted by the deliberate misrepresentations, relevant considerations will be the respective sources of information, the degree of corroboration and the nature and extent of the misleading portions of the ITO.

The Principles Applied

Summary of Conclusions

[43] In this case I have concluded that the affiant misled the issuing justice on several material matters. I will outline the misrepresentations and omissions in detail below. To the extent that I must refer to redacted privileged information I will refer to the information generally in the body of these reasons which are publicly available and I will provide more detailed reference to the evidence in endnotes which will be sealed.

[44] I have found, on the basis of the nature, extent and strategic significance of the misrepresentations and omissions, that the affiant misled the issuing justice deliberately.

[45] In deciding whether the warrant could still be supported, I excised inaccurate information in the ITO. The details of the excisions are set out below. In two areas where there were material omissions, amplification was not possible. The evidence disclosed that the affiant failed to advise the issuing justice of the full nature of the consideration sought by the CI. The applicant was not permitted to cross-examine on the nature of the consideration and therefore there is no evidence of the full nature of the consideration. Similarly, the affiant testified that a complete picture was not provided to the issuing justice with respect to the criminal antecedents of the CI. The applicant was not permitted to cross-examine on the details of the record of the CI (if any). Therefore, there is no evidence of the precise nature and extent of the omission.

[46] I have considered the nature of the misrepresentations and omissions in assessing the balance of the ITO that remains after excising the inaccurate information. I have found that the nature and extent of the misrepresentations and omissions and the explanations offered by the affiant and sub-affiant undermine the credibility and reliability of the balance of the ITO. The balance of the ITO after excision, therefore, is not sufficiently reliable to provide grounds for the issuance of the warrant.

Excision and Amplification

[47] The specific portions of the ITO that are subject to excision and amplification are set out below.

"Throughout the City of Toronto"

[48] It is conceded by the Crown that where the ITO states that information was received that the Applicant possessed and trafficked heroin "throughout the City of Toronto", the words "throughout the City of Toronto" should be excised. The sub-affiant testified that the CI did not at any time say that the Applicant trafficked throughout the City of Toronto. The affiant testified that he included this information as a result of police observations that in his view supported the statement. The police observation said to support this statement was one occasion when the applicant was seen to leave the target address and drive to a plaza where he met briefly in his car with a man who left the car with a clenched fist. The words "throughout the City of Toronto" are inaccurate and misleading and must be excised. The words appear in two locations on the redacted ITO at pages 6 and 15.

[49] There was no basis to say that the applicant trafficked throughout the City of Toronto. Moreover, the information was attributed to the CI. The evidence of the sub-affiant and the affiant was that the CI did not say this. Reading the ITO as a whole, the police observations of the alleged transaction in the plaza appears to have been included as corroborative of the CI information. This created a further misleading impression. The information inaccurately attributed to the CI coincides with the allegedly corroborative observations of the police.

"Criminal History" of the Applicant

[50] The information in the ITO with respect to the Applicant's "criminal history" must be excised. The ITO reads as follows:

DEBARTOLO'S criminal history dates back to 1996 and involves the following charges:

B(i) Dangerous operation of a motor vehicle

B(ii) Attempt Fraud

B(iii) Personation with intent

B(iv) Theft under

[51] In fact, the Applicant has only one 1998 conviction for dangerous operation of a motor vehicle. The affiant, in cross-examination, confirmed that he was aware that the Applicant had only one conviction. When questioned as to his reason for including the additional four entries in the ITO, the affiant testified that this was an error. He was relatively inexperienced at preparing search warrants at the time.

[52] The ITO was misleading with respect to the criminal history of the Applicant. In addition to the misleading portion set out above, the affiant in the 'Overview" section the warrant stated that "DEBARTOLO is known to the police and has been previously charged with numerous driving related offences". While this statement on its own would not cause great concern, it must be read in the context of the ITO as a whole. The effect of the misrepresentations and omissions is cumulative.^i

Frequency of trafficking

[53] On page 8 of the ITO a redacted portion of the ITO states that the CI advised that the Applicant trafficked with a particular frequency. The sub-affiant testified that the CI did not say this. The affiant testified that he believed that the sub-affiant would have provided this information to him. He could not say for certain, however, where the information came from. The affiant made no notes of information that he received verbally from the sub-affiant. He never reviewed the notes of the sub-affiant. The only written material from the sub-affiant that he relied upon to prepare the ITO was the email from the sub-affiant. The information regarding frequency is not contained in that email. The statement is inaccurate and must be excised.

Police Observations of Activity said to be drug trafficking

[54] At pages 9 and 10 of the ITO the affiant describes observations made by the police on March 26, 2016 and March 29, 2016.

[55] The ITO describes two instances of persons approaching and entering the rear entrance of 133 Isaac Devins Boulevard on March 26, 2016. At 11:45 a female is described as entering the rear of the building and remaining inside for 45 seconds. At 13:23 two males are described as driving to the rear of the building. One male entered the building from the rear entrance and remained inside for 40-45 seconds before exiting and leaving in the car with the other male.

[56] On March 29th at 12:15 a male was observed approaching the front door of the 'target address'. He was seen in the front of the address for 5 to 10 seconds having a brief interaction with a male who could not be identified. At 12:20, the Applicant is seen to leave the target address and drive away in a vehicle identified by the police as the target vehicle. He was observed returning to the address at 16:04. At 17:09 the Applicant was again seen leaving the address. The police followed him to a nearby plaza. Police observed a male entering the passenger side of the vehicle. The male remained in the car for approximately 20 to 30 seconds and then was seen to leave the car with a clenched fist which he placed inside his windbreaker.

[57] Having recounted these observations, the ITO states: "It should be noted that based on Policing experience, the observations that were made are indicative of narcotics transactions. All observations were brief in nature, consisted of minimal interaction and are believed to be drug related."

[58] The observations of the police set out above must be read in conjunction with the description of the address to be searched. At page 12 of the ITO under the heading "ADDRESS TO BE SEARCHED" the following description is set out:

"133 Isaac Devins blvd is located in the Weston Rd and Sheppard Ave W area in the City of Toronto. This is a stacked townhouse complex located approximately 1 km south of Sheppard Ave W just west of Hwy 400. The unit in question, unit #4, can be accessed directly from Isaac Devins Blvd or through a rear laneway. From the rear laneway, unit #4 is accessed through the main public entrance. Once inside this common area, turning slightly to the right allows for a visual of the door to #4. The only other door on the right hand side is a storage door for the complex that is secure." [Emphasis added]

[59] The affiant testified that he was not aware of any officer ever entering the address from either entrance. He testified that it was possible to see 1 to 2 feet inside the glass entrance doors. He believed that the front entrance provided access to all 9 units in the building. He agreed that there was no direct access from unit #4 to the street.

[60] The affiant testified that he did not know if any other units could be accessed from the rear entrance. The affiant testified that in describing the rear entrance it was his intention to convey to the issuing justice that only unit #4 could be accessed from the rear entrance. He did not know what officer provided him with the information regarding the entrances to the building or the location of unit #4,

[61] It is an agreed fact on this application that multiple units may be accessed through both the front and rear doors of the building.

[62] The Crown submits that while the police observations of March 26, 2016 are not capable of supporting an inference of drug trafficking on the part of the Applicant, they are not misleading and are simply neutral. The Crown relies on the observations of March 29th as supportive of the inference of drug trafficking on the part of the Applicant.

[63] I have concluded that the observations of March 26, 2016 must be excised. I have further concluded that the observations, read in conjunction with the description of the address, are misleading. The issuing justice was lead to believe that individuals entered an entrance that led exclusively to the unit associated with the Applicant and remained for very brief periods of time. The affiant asserted that the observations were indicative of drug trafficking.

[64] The observations of a person speaking to another person at the front entrance of the building on March 29, 2016 must also be excised. Observations of two unknown persons speaking at the entrance to a multi-unit building are not supportive of an inference that the Applicant was involved in drug transactions. The observations read in conjunction with the description of unit #4 being accessed directly from Isaac Devins Boulevard at the front gives the misleading impression that there is a direct front entrance from unit #4 to the street. The description of two men talking briefly at the front entrance, read with the opinion that brief meetings with minimal interaction are indicative of drug trafficking, gives the inaccurate and misleading impression that the brief interaction at the front of the building involved a male occupant of unit #4 engaging in a probable drug transaction. The only male occupant of unit #4 mentioned in the ITO was the applicant.

[65] The observations of the police with respect to the Applicant leaving the address and driving away in the vehicle should not be excised. The interaction at the plaza should not be excised. The opinion of the affiant that observations are indicative of narcotics transactions should be excised. It is based on a series of brief interactions at the residence and is not supported by only one interaction at the plaza.

[66] Although I conclude that the observations by the police on March 29, 2016 of the Applicant leaving the address and driving to the plaza to meet with another person should not be excised, I have concerns about the observations as a whole, including the observations at the plaza because of the overall misleading impression that is created when the section is read in conjunction with redacted information from the CI. I will explain my concerns in the sealed portion of these reasons.[^ii]

Address to be Searched

[67] For the reasons noted above, the descriptions of the entrances to the building should be corrected. They are inaccurate and misleading. There is no direct access to Isaac Devins Boulevard from unit #4. Unit #4 can be accessed from the front door which serves all units of the multi-unit building or, it can be accessed from the rear entrance which serves multiple units of the building.

[68] As noted above, the corrected description of the address renders the police observations meaningless with the exception of the observations in a nearby plaza on March 29, 2016.

Appendix "D" –Confidential Source Information

[69] Information is redacted under paragraph 1(b) on page 14 of the ITO relating to the history of the CI in providing information to the police. The language used is ambiguous in describing the number of times the CI provided information that proved reliable. The evidence on the application disclosed one previous occasion. The CI acted as an agent and not as a CI. The matter resulted in arrests and prosecution. The sub-affiant testified that he did not ask whether there were convictions. The source of the information regarding the history was Detective Bond, the officer directing the investigation of the Applicant. Detective Bond was also present at the meeting with the CI. The paragraph should be amplified to say that there was one prior occasion that the CI, acting as an agent, proved credible and reliable.

[70] Under paragraph 1(c) the ITO sets out 'Negative features' regarding the CI. As indicated above, the Applicant was not permitted to cross-examine on the details of the criminal record of the CI (if any), the outstanding charges of the CI (if any) or the ongoing criminal activity of the CI (if any). The Applicant was permitted to cross-examine the affiant on whether there was full disclosure to the issuing justice. There was not. The affiant had no explanation for the failure to provide a complete picture. There can be no amplification to correct this deficiency in the ITO because there is no evidence of the nature and extent of the omission.^iii

[71] In paragraph 1(e) information is redacted with respect to the motivation of the CI to provide information to the police. One type of consideration is disclosed in the ITO as motivating the CI. It was revealed through cross-examination of the affiant and the sub-affiant that two types of consideration were sought by the CI. The fact that the CI sought another type of consideration in addition to the type stated in the ITO was not disclosed to the issuing justice. The affiant had no explanation for the failure to disclose.

[72] The record cannot be amplified to state the other type of consideration sought by the CI because I have no evidence of the nature of the consideration. The record can be amplified to indicate that another type was sought.

[73] In paragraph 1(f) the affiant sets out the information provided by the CI to the sub-affiant. At subparagraph (a) it is noted that the CI said that a male known as 'Danny' sells heroin [redaction] throughout the City of Toronto. As indicated above, the CI at no time said that 'Danny' sold heroin throughout the City of Toronto. The affiant offered no explanation for this inaccuracy. The information was not contained in the email from the sub-affiant. The affiant testified that he relied on the police observations of the possible drug transaction in the plaza on March 29, 2016. This does not explain attributing the information to the CI.

[74] In subparagraph (b) redacted information is set out that had to have been recorded in writing at some point by the sub-affiant and the affiant.[^iv] Neither the affiant nor the sub-affiant had a note of the information. Neither could say when or how they received it.

[75] Subparagraph (c) describes the appearance of the male identified as 'Danny' by the CI. The age, weight, hair and ethnic background match the Applicant. The height that is described by the CI is 4 to 6 inches taller than the police checks indicate for the Applicant. The paragraph also notes that the male named Danny drives a black BMW. Police observed the Applicant driving a black BMW registered to his mother^v.

[76] Subparagraph (d) describes 'Danny' as living in the area of Weston Road and Sheppard Avenue West. The address at which the Applicant was seen is in this area.

[77] Subparagraph (e) describes redacted detail(s) relating to the background of the applicant and to the quantities of drugs sold.[^vi]

[78] Subparagraph (f) sets out redacted details regarding the gambling of the Applicant.^vii

[79] Subparagraph (g) describes the usual packaging of the heroin as being folded within blank lottery paper.

[80] Subparagraph (h) contains redacted detailed and specific information of the modus operandi of the Applicant. The information appears to be firsthand information.[^viii] There is a one word modifier used that is inaccurate. This inaccuracy, while minor in itself, is part of a cumulative pattern that creates a false impression of consistency and corroboration.

[81] Subparagraphs (i), (j) and (k) contain redacted details concerning the quantities of drugs sold and modus operandi. The information is specific, detailed and, except for one part, it is firsthand^ix.

[82] On page 16 of the ITO at paragraph 1(h) the affiant describes information provided by the CI with respect to the circumstances of a purchase of heroin by the CI. The information is specific, detailed and firsthand.

Notes of the Affiant and Sub-Affiant

[83] The notes of the sub-affiant and affiant were ordered disclosed in this case subject to redaction to protect privilege. The notes of the sub-affiant comprised about 1½ pages of handwritten notes. The notes were all taken on one day when the sub-affiant had an in-person meeting with the CI. There is nothing in the notes about the criminal antecedents of the CI. There is nothing in the notes about the discussion of consideration. The affiant testified that he asked a 'huge variety' of questions about the background of the CI. He agreed that the matters discussed were matters that would be relevant to credibility of the CI. He made no note of the questions or answers.

[84] The sub-affiant testified that he had provided his notes to the affiant for the affiant to prepare the ITO. He testified that he provided no other written material to the affiant.

[85] The affiant subsequently testified that he did not at any time see the notes of the sub-affiant. He relied on a short email from the sub-affiant and he relied on information conveyed to him verbally by the sub-affiant.

[86] The sub-affiant, upon being recalled to testify, said that he had forgotten about the email that he sent to the affiant. He said that he provided his notes to the affiant, but did not know if the affiant referred to the notes. Later, he said that his notes were accessible to the affiant. Still later, he said that by 'accessible' he meant that he had the notes and the affiant could have asked to look at them.

[87] The ITO contained information that was not in the email relied upon by the affiant. The affiant testified that he would have received that information verbally from the sub-affiant. He made no note of any information conveyed to him verbally by the sub-affiant that he relied upon for the ITO.

[88] As noted above, in subparagraph (b) on page 15, redacted information is set out that had to have been recorded by the sub-affiant and the affiant[^x]. Neither the affiant nor the sub-affiant had a note of the information. Neither could say when or how they received it.

[89] There is an important piece of information set out at page 16 of the ITO that does not appear in the notes of the sub-affiant nor does it appear in the email. The sub-affiant explained that he received that piece of information from the CI when the sub-affiant was on a day off. He did not have his memo book with him. He did not have a pen and paper. He did not at any time after receiving the information commit it to writing. He called the affiant and gave him the information. The affiant made no note of it.

[90] The sub-affiant was cross-examined on his failure to make notes of any of the numerous telephone conversations he had with the CI. He testified that he was trained to take as few notes as possible in order to protect the identity of the CI. He was asked about the fact that he had recorded a name and telephone number for the CI that would tend to disclose the identity, but had failed to record information about discussions of matters that went to credibility. He testified that sometimes the CI would call him on days off when he did not have his memo book. He conceded that there were also times that the CI called him when he was on duty. He testified that he did not always have his memo book with him when he was on duty. He testified that he did not have his memo book with him when on duty and using the washroom.

[91] The sub-affiant ultimately agreed that there could have been times that the CI called and he had access to pen and paper but chose not to record the interaction. He reiterated that his training dictated that as few notes as possible should be kept regarding contact with a CI.

Findings on the sufficiency of the Warrant

[92] After excision and amplification, I have concluded that there is not sufficient reliable evidence that might reasonably be believed on the basis of which the warrant could have been issued.

[93] After excision and amplification there remains the following:

Information relating to the modus operandi, including price and quantity, originating with the CI that is detailed and firsthand.
Corroboration of non-criminal matters such as name, description and car.
Some support for the credibility of the CI in that the CI acted once previously as an agent and was said to have been credible and reliable in that role.

[94] In assessing whether the balance of the ITO set out above is sufficiently reliable to support the issuance of the warrant, I have considered the misrepresentations and omissions. I have concluded that the misrepresentations and omissions were deliberate. I reach this conclusion because the misrepresentations and omissions were strategic and calculated. They were not isolated instances that could be explained by carelessness or inexperience.

[95] The deliberate nature of the misrepresentations is illustrated by the following:

The criminal antecedents of the Applicant were exaggerated while the CI's criminal antecedents were left incomplete;
The alleged corroboration of criminal activity by police observations was not only inaccurate (because of the misleading description of the premises), but it was fashioned to dovetail with the information of the CI (see sealed endnote (ii));
Information was attributed to the CI which did not originate with the CI and which was tailored to coincide with police observations ("throughout the City of Toronto" and material referenced in sealed endnote (viii));
Only one type of consideration sought by the CI was disclosed to the issuing justice. There is no explanation for the failure to disclose the second type of disclosure sought. Depending on the nature of the consideration and the personal circumstances of the CI, this undisclosed motivation is capable of seriously undermining the credibility of the CI;

[96] In addition to the inaccuracies and omissions in the ITO, the approach of the affiant and sub-affiant to note-taking is troubling. It raises concerns about the credibility and reliability of the information passing from the CI to the sub-affiant and then to the affiant for inclusion in the ITO.

[97] The affiant could not identify the source of information concerning the Applicant's alleged trafficking "throughout the City of Toronto". The affiant could not identify the source of his erroneous information about the rear entrance of 133 Isaac Devins Boulevard leading exclusively to the unit of the Applicant. The affiant could not explain where he noted the information on page 15 subparagraph 1(f)(b) or why he no longer had that note.

[98] The sub-affiant's testimony that he did not have a pen and paper or opportunity to take notes anytime that the CI called him was not credible. The sub-affiant's testimony that he was trained not to take notes is more credible but troubling. He took notes of matters that could tend to identify the CI, but took no notes of matters that were central to the assessment of the credibility of the CI.

[99] The affiant gave no explanation for his failure to note the sources of the information in the ITO.

[100] The nature and extent of the misrepresentations and omissions and the absence of any explanation, lead me to conclude that the affiant deliberately misled the issuing justice.

[101] The extent to which the issuing justice was misled on the issues of the motivation of the CI and the criminal antecedents of the CI cannot be measured with precision on the record before me. Because of CI privilege I have no way to determine the actual motivation of the CI or the actual criminal antecedents of the CI. I infer that the true motivation and criminal antecedents of the CI would have had an adverse impact on the assessment of the credibility of the CI.

[102] Given the nature and extent of the deliberate misrepresentations and omissions in the portion of the ITO that could be challenged effectively by cross-examination and evidence, the balance of the ITO which was redacted cannot be relied upon to sustain the warrant.

[103] As a result, I find that there was not reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.

[104] Given the invalidity of the warrant, I find that the warrantless search of the residence breached the rights of the Applicant to be free from unreasonable search and seizure under s. 8 of the Charter.

Unreasonable Execution of the Warrant

[105] As a separate ground, the Applicant argues that the manner of execution of the warrant was unreasonable and a breach of the s. 8 rights of the Applicant. I do not agree.

[106] Police forced their way into the residence after an unsuccessful attempt to arrest the Applicant outside the residence. The police had reason to believe that the Applicant could contact occupants of the residence to destroy evidence. The police had a reasonable basis to conclude that the warrant had to be executed as quickly as possible and with little warning to the occupants.

Exclusion of Evidence

[107] Section 24(2) of the Charter of Rights and Freedoms provides that evidence that is obtained in a manner that infringed or denied an accused person's Charter rights "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."

[108] In R v. Grant,[^18] the Supreme Court set out at para. 71 the approach to the exclusion of evidence 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.

[109] Doherty J.A explained the Grant analysis in R. v. McGuffie,[^19] at paras. 62-63:

62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. 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. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

[110] In this case, the seriousness of the Charter infringing state conduct and the impact on the Charter protected interests of the accused pull strongly in favour of exclusion. As Fish J. wrote in R. v. Morelli:[^20]

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.

[111] The third inquiry, society's interest in the adjudication of this case on its merits, pulls in favour of admission. The offences in this case are extremely serious and are of concern to the community. The Crown will be unable to prosecute the offences without the evidence seized in the search.

[112] However, as the Supreme Court of Canada observed in R. v. Paterson,[^21] the third Grant Factor cannot be allowed to trump all other considerations, particularly where the impugned conduct is serious and has had a substantial impact on Charter protected interests.

[113] As Doherty J.A. wrote in McGuffie, at para. 83, "[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. This unpalatable result is the direct product of the manner in which the police chose to conduct themselves."

[114] In this case, I reach the conclusion that given the conduct of the police in deliberately misleading the issuing justice, the Charter infringing conduct is so serious and the impact on the Charter interests of the accused so substantial that the evidence must be excluded.

Conclusion

[115] For these reasons, the application is allowed and the evidence obtained as a result of the search of the residence is excluded.

Forestell J.

Released: February 8, 2017

R. v. Debartolo

Court File No.: CR/17/90000/1850000

TO BE SEALED

Endnotes –

COURT FILE NO.: CR/17/90000/1850000

DATE: 20180208

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

DANIELE DEBARTOLO

RULING ON APPLICATION TO EXCLUDE EVIDENCE

Forestell J.

Released: February 8, 2018

[^1]: 1990 52 (SCC), [1990] 2 S.C.R. 1421 [^2]: 2012 ONSC 4893 [^3]: 2016 ONSC 242 [^4]: R. v. Green, 2015 ONCA 579 at para. 40 [^5]: R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 30 [^6]: R. v. Sadikov, 2014 ONCA 72 at para. 81; R. v. Boussoulas, 2014 ONSC 5542 at paras 21 and 22 [^7]: R. v. Floyd, [2012] O.J. No. 3133 at paras. 14-16 [^8]: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at 250; R. v. Floyd, [2012] O.J. No. 3133 at paras. 14-16 [^9]: R. v. Debot (1986), 1986 113 (ONCA), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-219, affirmed, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1168-1171 [^10]: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 [^11]: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 at para. 16 [^12]: R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at paras. 46-47 [^13]: R. v. Morelli, supra [^14]: 2011 ONSC 1016 [^15]: 1994 46 (SCC), [1994] 3 S.C.R. 1097 [^16]: 2000 SCC 65 [^17]: 2017 ONCA 87 leave to appeal refused R. v. Paryniuk, 2017 36654 (S.C.C.) [^18]: 2009 SCC 32, [2009] 2 S.C.R. 353 [^19]: 2016 ONCA 365 [^20]: 2010 SCC 8 at para. 102 [^21]: 2017 SCC 15 at para. 55

R. v. Debartolo, 2018 ONSC 916

Case Summary