Court File and Parties

Court File No.: CR-18-30000129-0000 Date: 2019-01-17 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Jah-Kiyo Desmond-Robinson, Respondent

Counsel: Margo MacKinnon, for the Crown Taufiq Hashmani, for the Respondent

Heard: January 7-9, 2019

Reasons on Section 8 and 24(2) Application

G. Roberts, J.

Overview and Factual Background

[1] On 12 October 2016, the police conducted a search of Jah-Kiyo Desmond-Robinson’s home at 145 Glendower Circuit, Toronto, pursuant to a search warrant. They found a firearm, ammunition and drugs.

[2] As a result, Mr. Desmond-Robinson was charged with possession of a prohibited firearm with readily accessible ammunition without the required authorization, contrary to s.95(1) of the Criminal Code. He was also charged with possessing a firearm without the required authorization, contrary to s.92(1) of the Criminal Code in relation to the same firearm. Further he was charged with being in possession of cocaine, and marijuana, both contrary to s.4(1) of the Controlled Drugs and Substances Act.

The Garofoli Application

[3] Defence counsel challenged the legality of the search pursuant to s.8 of the Charter, arguing that the information to obtain (ITO) the search warrant was deficient, and the evidence obtained as a result of the search should be excluded pursuant to s.24(2) of the Charter.

[4] The ITO was based largely on information provided by two confidential informants (CI1 and CI2). It was heavily edited as a result, and the Crown conceded that the redacted ITO could not meet the constitutional standard. The Crown applied to have me consider the un-redacted ITO that was before the authorizing Justice pursuant to step 6 of R. v. Garofoli, [1990] 2 S.C.R. 1421. This is permissible provided Mr. Desmond-Robinson is sufficiently aware of the nature of the excised material to challenge it in argument or evidence. This in turn is accomplished, in part, through a judicial summary of the nature of the material that has been excised.

Procedure for the Garofoli Application

The Judicial Summary

[5] The judicial summary that was proved to defence counsel was created through the following procedure. The Crown provided me with the un-redacted ITO (made sealed exhibit A), a draft judicial summary (exhibit 1), and a written explanation for the redactions and the way they were described in the draft judicial summary (sealed exhibit B). I had a number of questions about the redactions and the draft judicial summary which I wrote on an extra copy of the draft judicial summary. The Crown responded in writing. The extra copy of the draft judicial summary containing this ex parte exchange was made sealed exhibit C. I then invited defence counsel to make submissions on the redactions and their descriptions in the summary. As a result of this process a number of additions were made to the Crown’s draft judicial summary. These additions were typed up and made numbered exhibits (exhibits 2-6). Together with the Crown’s draft judicial summary (exhibit 1) this material constituted the finalized judicial summary.

Leave to Cross-Examine

[6] Defence counsel also sought to cross-examine the affiant on five discrete areas. In deciding whether to grant leave to cross-examine, a reviewing judge must keep in mind the competing interests at play: the accused’s right to make full answer and defence, the court and the Crown’s obligation to protect the identity of confidential informants, and the court’s obligation to make efficient use of court resources. The applicant must show “a basis…that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.” This is not an onerous test, but the purpose of the cross-examinations must be to challenge or test the reasonableness or honesty of the affiant’s belief that grounds for issuing the warrant have been met. This is generally accomplished by seeking to contradict information in the ITO, or add relevant information that was not in the ITO, or by attempting to show that statements are sufficiently misleading to call into question the credibility of the entire ITO. See: R. v. Garofoli, supra, at p.1465; R. v. Pires and Lising, 2005 SCC 66; R. v. Green, 2015 ONCA 579, at paras. 34-36; R. v. Shivrattan, 2017 ONCA 23, at paras. 37, 54.

[7] During argument, defence counsel abandoned his request to cross-examine about whether the full criminal record of the CIs was provided to the issuing justice if a criminal record existed, acknowledging that this was covered in the judicial summary. The Crown continued to oppose cross-examination about the alleged failure to disclose whether or not the CIs provided accurate information in the past, noting this was described in the judicial summary, and any cross-examination on this topic risked jeopardizing the informer privilege. Defence counsel acknowledged that he could make his submissions attacking the warrant on this point in the alternative. Given the Crown’s position, and this concession, I did not permit cross-examination in this area. The Crown consented to cross-examination in the remaining three areas, namely:

a. Motivation – Questions about whether the affiant took steps to consider what might have motivated the informant to speak to police, including animus toward Mr. Desmond-Robinson. b. Corroboration – a) Questions about how the affiant confirmed CI1’s statement that Mr. Desmond-Robinson lived with his mother and sisters, and specifically whether it was through the community housing records described earlier in the ITO at p.11, paragraph 4, given that the names listed in this paragraph as living in the home were Mr. Desmond-Robinson and his mother and sister and brother. b) Whether the affiant asked Constable DaSilva (who is noted as seeing Mr. Desmond-Robinson with three other men including Isiah Bartholomew on October 7, 2016) whether he knew whether Mr. Desmond-Robinson had a nickname. c. Whether the decision to include cellphones and electronic items in the items to be searched for was mere boiler plate, unconnected to the offence.

The Crown’s Application to Have the Un-Redacted Warrant Considered (Step 6 of Garofoli)

[8] Step 6 of Garofoli involves an attempt to balance 3 key interests: full answer and defence, informer privilege, and law enforcement. As noted above, the step 6 procedure is only permissible if Mr. Desmond-Robinson “is sufficiently aware of the nature of the excised material to challenge it in argument or evidence”. See: R. v. Garofoli, supra, at p. 1421. The question before me is whether the judicial summary created in this case, considered together all the other information Mr. Desmond-Robinson has, including disclosure, the cross-examination of the affiant, and his own knowledge, is sufficient to permit him to mount an meaningful and effective challenge (both facial and sub-facial) to the ITO so as to give effect to his right to make full answer and defence. In short, Mr. Desmond-Robinson must be in a position to know the general basis on which the search warrant was granted in order to permit the Crown to invoke the step 6 procedure.

[9] Even if the Crown’s application is granted, however, to the extent that some redactions are not described, or are not sufficiently described for Mr. Desmond-Robinson to be made aware of their nature, I must disregard those redacted portions when reviewing the warrant. See: R. v. Crevier, 2015 ONCA 619, at para.87.

[10] In this case, the existence of reasonable and probable grounds turns on the extent to which the information from the two CIs met the criteria set out in R. v. Debot (1986), 30 C.C.C.(3d) 207 (Ont.C.A.) at pp.218-19, aff’d (1989), 52 C.C.C. (3d) 193 (S.C.C.) at p.216 per Wilson – the so called “3Cs”. First, does the material demonstrate that the CI’s information was compelling? This focuses on the reliability or quality of the information provided – the degree of detail provided and the informer’s means of knowledge (first hand or second-hand relaying hearsay, rumour or gossip). Second, does the material demonstrate that the CI was credible? This focuses on issues such as whether the informer has a record of providing reliable information to police, whether he or she has a criminal record, and if so whether it which includes crimes of dishonesty, and his or her motivation for speaking to police, particularly if he or she has a motive to falsely implicate the target of the search. Finally, does the material demonstrate that the CI’s information was corroborated? This focuses on whether there was some independent information providing some assurance that the information the CI provided was accurate, and the quality of that independent evidence. See: R. v. Shivrattan, supra, at para. 27-28; R. v. Greaves-Bisserarsingh, 2014 ONSC 4900, at para.35.

[11] Given the centrality of the CIs to the ITO in this case, Mr. Desmond-Robinson must be able to mount a meaningful and effective challenge (facial and sub-facial) to whether the ITO meets the Debot requirements that the information from the CIs be compelling, credible and confirmed.

[12] The redactions in this case were extensive. But, as noted above, at the outset of the proceedings the Crown very helpfully provided a confidential chart explaining the rationale behind all the redactions (sealed exhibit B). The Crown and I also had an in-writing exchange in which I probed the nature, extent and need for the redactions (sealed exhibit C). As a result of this, some further information was provided. Based on my exchange with the Crown, and the Crown’s explanatory chart, I am satisfied that the redactions, and the way they are described in the judicial summary, are the minimum necessary to protect the informer privilege of the two CIs in this case.

[13] I am further satisfied that the judicial summary, together with the cross-examination, disclosure, and Mr. Desmond-Robinson’s own knowledge, provide Mr. Desmond-Robinson with a sufficient basis to challenge the warrant. When considering full answer and defence it is important to remember that a Garofoli application is a threshold admissibility hearing, during which the ultimate issue is not guilt or innocence, or the truth of the CI’s information, but whether it was reasonable for the affiant to believe it was true. In this case, the judicial summary was drafted with the goal of explaining the nature of the information that was redacted, and in particular the need to show that the Debot requirements were met. Much of the information listed at paragraph 84 of R. v. Crevier has been provided, together with the place in the ITO where the information can be found. This “non-prescriptive and non-exhaustive list” from Crevier, and whether similar information was provided in this case, is as follows:

• The source of the informer’s information and whether first hand or second hand – The judicial summary at p. 19 indicates how CI1 obtained his/her information and whether it is first hand or second hand is provided. The judicial summary does the same for CI2 at p.25.
• The informer’s relationship with/to the accused and how they first came into contact – The judicial summary at p.19 indicates how CI1 obtained his/her information. The judicial summary does the same for CI2 at p.25.
• The length of time the informer has known the accused and frequency of contact between them – This is not addressed in the judicial summary.
• Whether the informer previously provided information to police – The redacted ITO notes that each CI is “registered with the Toronto Police Service” and has been “very accurate and has been corroborated by police investigation”. The time frame is redacted. The ITO and judicial summary address this at p.19 for CI1, and p.24 for CI2.
• Whether previous information provided (if any) has led to arrests, seizures, or convictions – The judicial summary indicates, at p.19 for CI1, and p.24 for CI2, “This redacted section contained detailed information about prior information given to police; whether this was once or more than once, and whether or not the related police investigation/s resulted in seizures or not, and/or charges. Relevant time frame or frames is/are provided.” Exhibit 5 provides, for both CIs, “there is information in this section with respect to confirmation of information previously given” by the CI.
• Whether past information provided by the informer has ever been proven unreliable or false – The judicial summary (in exhibit 3) notes that “There is no specific mention in the ITO about whether or not either CI had previously provided any information that had been found to be unreliable.”
• Whether the informer has a criminal record and, if yes, whether the un-redacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended – The judicial summary at p.27 notes “If one or both of the confidential sources has or have a criminal record/s, details are provided on this page. This entire page is redacted whether or not such a record or records exist/s. If either or both of the confidential source/s has or have outstanding charges, this is addressed in the ITO.”
• Whether the informer has convictions for offences of dishonesty or against the administration of justice – This is encompassed at p.27 of the judicial summary, as noted immediately above.
• The informer’s motivation for speaking to police, including whether consideration was sought or arranged – The judicial summary notes that CI1’s motivation is described at p.19. CI2’s motivation is described at p.24. Ex 6 provides “There is no mention in the ITO of animus by either CI towards the Applicant.”
• Whether the informer was instructed on the penalties for giving false information – The redacted ITO notes the following respecting each CI (at pp.18 and 24): “The Confidential Source was advised regarding Confidential Source status. The Confidential Source was advised that if they provided false or misleading information that resulted in a criminal investigation being undertaken they would be charged criminally.”
• Whether the descriptions provided by the informer match the accused or target location – This is not addressed in the judicial summary.
• The degree of detail of the information that the informer provided to police – The judicial summary addresses this at p.19 for CI1, and at p.25 for CI2.
• The recency or timing of the information that the informer provided to police – The judicial summary addresses this at p.19 for CI1 and at p.25 for CI2.
• Any discrepancies between the information of one informer and another – Exhibit 3 notes “Some of the information provided by each CI corroborates the other; some details that are provided by each CI are not provided by the other; none of the information given by each CI contradicts the other.”
• Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility – The judicial summary notes at p.23 that a “negative feature” is described for CI1. Exhibit 4 notes that a negative feature is also described in the ITO for CI2.
• Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors) – The judicial summary does not note any errors.

Was the Warrant Issued in Violation of Section 8 of the Charter?

[14] The attack on the warrant in this case is that the ITO failed to establish reasonable and probable grounds to believe that a firearm would be found in Mr. Desmond-Robinson’s home because the Debot criteria were not met.

The Judicial Authorization as Amplified on Review

[15] Detective Constable Pooya Ebrahimi has been a peace officer with the Toronto Police Service (TPS) for 9 years. Since 2016, he has been assigned to the Integrated Gun and Gang Task Force of the Organized Crime Enforcement Unit (OCE) investigating persons believed to be in illegal possession of firearms. He swore the ITO in support of the search warrant on October 11, 2016. He was cross-examined before me during the Garofoli hearing.

[16] As noted above, the ITO turned on information from two CIs that Isiah Bartholomew and Jah-Kiyo Desmond-Robinson, the accused in this case, were in possession of firearms.

[17] The ITO set out the information received from each CI, when the information was received, and the motivation of each CI to speak to police. The ITO also included information about whether or not each CI had a criminal record, or outstanding charges, and, if so, provided details.

[18] Both CIs were registered with the TPS. The time frame during which previous information was provided by each CI was noted. For each CI, the ITO noted “The information provided by the Source has proven to be very accurate and has been corroborated by police investigation.” The ITO then provided examples, which were redacted, but described in the judicial summary for CI1 as follows: “detailed information about prior information given to police: whether this was once or more than once, and whether or not the related police investigation/s resulted in seizures or not, and/or charges. Relevant time frame or frames is/are provided.” And for CI2 as “detailed information about prior information given to police. Whether this was once or more than once, and whether or not the related police investigation/s resulted in seizures or not and/or charges. Relevant time frame or frames are provided.”

[19] CI1 provided information that “Sneaks” kept items, including a firearm, at his home at 145 Glendower Circuit. CI1 explained how he knew this, including whether the information was first hand or second hand, and Sneaks’ motive for keeping the firearm.

[20] CI2 provided information that “Sneaks” and “Little Man” or Isiah, possessed firearms. CI2 explained how he knew that, including whether it was first-hand or second hand knowledge. CI2 also explained how Sneaks and Little Man were associated to the Glendower area.

[21] The ITO explained the efforts made by police to confirm the information received from the two CIs. Ministry of Transportation records showed that Mr. Desmond-Robinson has a G1 driver’s license, suspended due to unpaid fines. The address associated to the license was 145 Glendower Circuit, Toronto. TPS records showed three encounters between Mr. Desmond-Robinson and the police:

• On January 17, 2016, Mr. Desmond-Robinson was charged with Highway Traffic Act offences. The home address noted on this occasion was 145 Glendower Circuit.
• On July 12, 2009 TPS officers spoke to Mr. Desmond-Robinson about a case of beer and he gave 145 Glendower Circuit as his address.
• An occurrence report from June 15, 2015, about a fight at Stephen Leacock School, linked the name “Sneaks” to Mr. Desmond-Robinson (I will elaborate on this below). It showed Mr. Desmond-Robinson’s address as 145 Glendower Circuit.

[22] As of Friday, October 7, 2016, Community Housing records showed Mr. Desmond-Robinson as the only adult male living at 145 Glendower Circuit.

[23] Of the same date, Mr. Desmond-Robinson was seen with three other young men, including Isiah Bartholomew, in the Glendower Circuit area.

[24] As noted above, defence counsel was permitted to conduct a limited cross-examination of DC Ebrahimi. Defence counsel was very effective.

[25] The ITO notes that CI1 advised that Sneaks lives at unit 145 (Glendower Circuit), with his mother and sisters. DC Ebrahimi noted that this was corroborated by police and Toronto community housing records, which he had outlined earlier in the ITO. It was put to DC Ebrahimi that these records actually showed that Mr. Desmond-Robinson lived with his mother, his teenage sister and his approximately eight year old brother. DC Ebrahimi frankly acknowledged that he assumed “Kayelin” was the name of a girl not a boy. In so far as Kayelin is actually a boy, and everyone accepted the defence submission that is the case, the Crown suggested that DC Ebrahimi’s note about corroboration should be excised. The Crown also fairly acknowledged that rather than confirming CI1, Toronto community housing records actually contradict CI1’s assertion that Mr. Desmond-Robinson lived with his sisters (though he apparently does live with his mother in this unit and younger sister and much younger brother).

[26] DC Ebrahimi was also cross-examined about his description of the June 15, 2015 occurrence, relating to a fight between two students at Stephen Leacock School, and his conclusion that “Tyrell referred to Desmond-Robinson with the nick name of ‘Sneaks’”. It was put to him that this conclusion was based on a teacher identifying the other combatant as Mr. Desmond-Robinson, but the teacher may have been referring to a different fight. DC Ebrahimi agreed with this. But in re-examination, he was asked to read the entire occurrence report, and it appeared to refer to only one fight, albeit one which began outside the school and moved inside the school. There was no suggestion that DC Ebrahimi was attempting to deliberately mislead in his description of the contents of the occurrence report, and counsel agreed that the ITO should be amplified to include the contents of the actual occurrence report.

The Test for Reviewing a Warrant

[27] On a Garofoli application, the reviewing judge does not substitute her view for that of the authorizing judge. Rather she asks only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the warrant were met (in this case that there were reasonable grounds to believe that Mr. Desmond-Robinson had a prohibited firearm in his home). The existence of fraud, non-disclosure, misleading evidence and new evidence are not pre-requisites for review, but rather relevant to whether there continues to be any basis for the decision of the authorizing judge. See: R. v. Garofoli, supra, at p.1452. In short, was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued? See: R. v. Araujo, 2000 SCC 65, at paras.51, 54.

Application to This Case

[28] As I have repeatedly noted, this ITO turned on the information provided by two CIs. Whether it was reasonable for the authorizing judge to rely on this information in turn depended on whether the information provided met the Debot “3Cs” (described above). These must be assessed in the “totality of circumstances”. All 3 need not be present in every case, and weaknesses in one can be compensated by strengths in the other two. The question is, does the information provided by the CIs, considered in totality and together with the other information in the ITO, rise to the constitutional level of establishing reasonable and probable grounds?

Was the Tip Compelling?

[29] I find that CI1 provided compelling information that “Sneaks” kept a firearm in his home at 145 Glendower Circuit in Toronto. The information from CI1 about this is detailed. Further, as the judicial summary notes, it is explained in the ITO how the CI came to know the information, including whether it was first hand or second hand. The information was provided by CI1 to the handler within 3 months of the date the ITO was sworn.

[30] I find that CI2 also provided compelling information about a firearm possessed by “Sneaks”. The information from CI2 is also detailed. The judicial summary also notes that the ITO explains how CI2 came to know the information, including whether it was first hand or second hand.

[31] Exhibit 3 notes that “Some of the information provided by each CI corroborates the other”. This is true with respect to particular details of the information provided by each CI. In other words, some of the particular details provided by CI1 are the same as some of the particular details provided by CI2. I find this significantly adds to the compelling nature of the information each one provides.

[32] To the extent that both CIs also provide other compelling information linking a firearm to the 145 Glendower Circuit and Mr. Desmond-Robinson, I have not relied on it because it is not included in the judicial summary.

[33] In finding the information from each CI compelling I do not rely on DC Ebrahimi’s opinion at p.14 of the ITO that “In amongst [individuals involved in drug trafficking] and their associates the presence of a firearm is routine as they seek protection due to the inherent danger of their illegal business”. Defence counsel complains that this opinion should be excised as it is a bald opinion without support. I do not entirely agree. The case law from this Court and the Ontario Court of Appeal is replete with examples of drug traffickers using firearms, and drug trafficking being a very dangerous business. DC Ebrahimi is extremely well placed to be aware of this from his experience as a police officer generally, and in particular with the guns and gangs task force. As for the presence of a firearm being routine among those who associate with drug traffickers, however, this is less clear. In fairness to DC Ebrahimi this opinion does not stand alone and must be considered in the context of the entire ITO. But in fairness to defence counsel and Mr. Desmond-Robinson, given that much of this context is redacted and the details not summarized, I will not rely on this opinion. The Crown frankly acknowledges that this opinion is not necessary for the issuance of the warrant.

Was the Source Credible?

[34] Both CIs were registered with the TPS. The ITO noted that each one had a track record of providing information that “has proven to be very accurate and has been corroborated by police investigation”. The judicial summary outlined when, in relation to what, and whether the information resulted in seizures and/or charges. Whether or not convictions also resulted is not particularly helpful as these may result, or not, for reasons quite apart from the reliability of information provided by a CI. Exhibit 3 notes that “There is no specific mention in the ITO about whether or not either CI had previously provided any information that had been found to be unreliable.”

[35] The judicial summary notes that the motivation of each CI is addressed in the ITO. Exhibit 6 notes “There is no mention in the ITO of animus by either CI towards the Applicant [Mr. Desmond-Robinson].” DC Ebrahimi was cross-examined about whether he asked the handler about animus. He testified that he asked, and was told, about the motivation of each CI to provide information, and did not specifically ask about animus. He explained that he relied on handler to vet whether animus was present and to tell him if it was. I do not find it unreasonable for DC Ebrahimi to assume that animus was included in the concept of motivation, and he would be told if it was present when he asked about motivation.

[36] The judicial summary notes that whether or not the CIs had a criminal record and/or outstanding charges is addressed in the ITO.

[37] In so far as Sneaks is Mr. Desmond-Robinson, the CI was wrong that he lived with his mother and sisters. As noted above, Mr. Desmond-Robinson lived with his mother and teenage sister and approximately 8 year old brother. However, considered in context, I do not find the error in this detail to significantly mar the credibility of CI1. CI1 was right about the mother and sister, and the fact that Mr. Desmond-Robinson was the only adult male living at this residence.

[38] In sum, the ITO provided a reasonable basis to conclude that both CIs were credible.

Was the Information Confirmed?

[39] The Crown was frank that this was the weakest of the Debot criteria. There was no direct confirmation about the criminal aspect of the information provided by the CIs. But one would not necessarily expect this either, and it is not required. See eg. R. v. Rocha, 2012 ONCA 707, at paras.22-24.

[40] CI1 also provided other information about criminal activity not directly associated to Sneaks. The judicial summary notes that the police were able to independently confirm some of it.

[41] Ministry of Transportation records, TPS records and Toronto Community housing records all linked Mr. Desmond-Robinson to 145 Glendower Circuit. The Toronto Community housing records showed him as the only adult male living at this address.

[42] Considering the occurrence report that was made exhibit 7 in its entirety, I find it was reasonable for DC Ebrahimi to conclude that it referred to one fight between Tyrell and Mr. Desmond-Robinson, albeit one that began outside the school and then moved inside the school. There are only ever two combatants mentioned. Defence counsel never suggested that DC Ebrahimi intended to mislead in how he described this occurrence report in the ITO, but rather that his description had this effect. Reading the occurrence report in its entirety, I do not agree. Nor do I find the description was careless. To the contrary, the description in the ITO accurately conveys that Tyrell described his adversary as “Sneaks”, and it was only through further investigation that the police identified this person as Mr. Desmond-Robinson.

[43] DC Ebrahimi acknowledged that he could have and probably should have asked DC DaSilva-Christopulo whether Mr. Desmond-Robinson has a nick name or street name. He explained that he did not want to suggest the name “Sneaks” to DC DaSilva-Christopulo. He was candid that he did not think to ask the simple open-ended question, but, in hind-sight, he should have. I do not think this speaks to any bad faith or carelessness on his part. Perfection is not a requirement of the warrant process. In any event, as noted above, there was sufficient evidence linking Mr. Desmond-Robinson to the address of the search.

[44] This is the weakest of the three Debot criteria, but I find that the weakness is compensated by the strength of the other two criteria, especially the compelling nature of the information, in particular the fact that the two CIs independently describe very similar details.

Could the Warrant Have Issued?

[45] When the information provided by the two CIs is measured against the Debot “3C” criteria, even reduced to just what is summarized in the judicial summary, I find that it provided a reasonable basis for the authorizing justice to issue the warrant. The search conducted as a result was lawful, and there was no violation of s.8 of the Charter.

In the Alternative, if There Was a Breach of Section 8 of the Charter, Should the Evidence Be Excluded Under Section 24(2) of the Charter?

[46] Given my finding that there was no violation of s.8, it is not necessary for me to consider s.24(2). But given that it was fully argued by counsel, I can indicate that, had I concluded that there was a breach of s.8 of the Charter, I would have found that the evidence obtained as a result of the search admissible under s.24(2) of the Charter.

Seriousness of the Charter-Infringing State Conduct

[47] If this search warrant had fallen short on review, it would have been because the extensive editing of the CI information would not permit greater reliance on it.

[48] While defence counsel made no suggestion that DC Ebrahimi was deliberately misleading, he did argue that DC Ebrahimi was careless and this had the effect of misleading. As I have explained above, I do not agree. In particular, I found that DC Ebrahimi was careful in how he described the occurrence report (exhibit 7).

[49] DC Ebrahimi was candid that he assumed Kayelin was a girl’s name when he checked the Toronto community housing records. To the extent he was wrong, and we all accepted defence counsel’s submission that he was, it was clearly a mistake. But it was an honest and reasonable one.

[50] There is nothing to suggest that the warrant was “obtained through the use of false or deliberately misleading information”, or that DC Ebrahimi was negligent, or somehow “subverted the warrant process”. To the contrary, I find that DC Ebrahimi acted diligently and in good faith in his drafting of the ITO. As a result, there is no reason to depart from the principle that applying for and obtaining a search warrant from an independent judicial officer speaks to respect for Charter rights, and in particular the right to privacy, and “tells in favour of admitting the evidence.” R. v. Rocha, supra at paras.28-29.

Impact of the Breach on the Charter-Protected Interests of Mr. Desmond-Robinson

[51] The search took place in Mr. Desmond-Robinson’s home and inside what was apparently his bedroom. There is no question that he had an extremely high privacy interest in this area. The impact of any Charter breach on his privacy interest, accordingly, was serious, and this factor favours the exclusion of the evidence.

Society’s Interest in the Adjudication of the Case on its Merits

[52] The firearm and the drugs found during the search are highly reliable evidence. They are central to the Crown’s case. Indeed, without them, the Crown has no case against Mr. Desmond-Robinson.

[53] Society has a strong interest in the prosecution of cases involving the illegal possession of drugs and firearms. It hardly needs saying that illegal firearms pose a grave threat to the safety of the people living Mr. Desmond-Robinson’s neighbourhood, and in this city.

[54] To exclude reliable evidence, central to the Crown’s prosecution of such a serious offence would tend to bring the administration into disrepute. This factor favours the admission of the evidence.

Conclusion

[55] When all three factors in the s.24(2) analysis are considered, I conclude that the gun and the drugs should be admitted into evidence.

G. Roberts, J. Released: January 17, 2019