Her Majesty the Queen v. Nicola Coluccio

COURT FILE NO.: CR-17-004202 DATE: 20190801 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NICOLA COLUCCIO Applicant/Defendant

COUNSEL: Vanessa Szirmak, for the Crown Cosmo Galluzzo and Lisa Jorgensen, for the Defendant

HEARD: April 30, May 1 and 2, 2019

RULING ON CHARTER SECTION 8 and 24(2) APPLICATION

DI LUCA J.:

[1] Nicola Coluccio is charged with a number of firearms offences stemming from the warranted seizure of a firearm and ammunition at his residence on May 25, 2017. He challenges the search warrant that was obtained to search his residence and argues that the warrant should be quashed and the evidence excluded.

[2] During the hearing of the motion, I granted the applicant leave to cross-examine the affiant on some limited issues. The affiant was cross-examined briefly. At the request of the Crown, I also engaged in a “Step 6” Garofoli proceeding that resulted in the production of a judicial summary of portions of the Information to Obtain (“ITO”) that were redacted to protect confidential informer privilege.[^1] Following submissions, I ruled that the judicial summary provided a sufficient basis upon which the defence could challenge the content of the warrant and as a result, I considered both the unredacted and redacted portions of the ITO in deciding this matter. Lastly, I received an application record containing various police notes and surveillance reports, transcript excerpts from the preliminary inquiry, and reports relating to the execution of the warrant. This record was supplemented with some additional material filed during the hearing of the application.

[3] The applicant argues that the ITO fails to provide a sufficient basis upon which the issuing justice could have issued the warrant. In particular, the applicant argues that the ITO is based on information provided by a single Confidential Human Source (“CHS”), and that the information is neither credible nor sufficiently corroborated. Further, the defence argues that the affiant failed to make full, fair and frank disclosure in the ITO.

[4] The Crown concedes that the edited ITO as disclosed to the defence does not support issuance of the warrant. Nonetheless, the Crown resorts to the “Step 6” Garofoli process and argues that the ITO passes constitutional muster once the full ITO is considered.

Background of the Investigation

[5] On May 24, 2017, police obtained a warrant to search three motor vehicles associated with the applicant; a 2014 Porsche Cayenne, a 2015 Mazda and a 2016 Infiniti QX6. At the same time, police also obtained a warrant to search the applicant’s home located in Vaughan. The warrants were all based on the same ITO. The affiant was Detective Mancuso of the Toronto Police Service.

[6] Appendix “A” to the warrants authorized the police to search for: a semi-automatic handgun, a revolver, ammunition, magazines, firearm cleaning kit and related manuals, documents for residence and vehicle ownership/use by the applicant, documents relating to firearm ownership and mobile devices believed to be used by or in the possession of the applicant.

[7] On May 25, 2017, the applicant was observed driving the Porsche Cayenne at a location in Vaughan. He was placed under arrest and searched. Police found $1,370 in cash in his front right pant pocket. Police also found keys for the applicant’s home in a cup holder in the vehicle. Police did not find any of the items they were looking for.

[8] Police later attended at the applicant’s home and found a .38 calibre revolver in a shopping bag concealed in a suspended ceiling tile in the basement of the home. The bag also contained 50 rounds of ammunition. Police also located over $400,000 in cash, as well as some diamonds. Lastly, police located documents linking the applicant to the residence.

The Information to Obtain

[9] The ITO is primarily based on information provided by a CHS in April 2017. On the basis of the information received from the CHS and a further police investigation, the affiant asserted that he had grounds to believe that the applicant was in possession of at least one firearm and ammunition for the firearm. The affiant sought four search warrants on the basis of the ITO; one for each vehicle associated with the applicant and one for the applicant’s home. The affiant set out his intention to search only the vehicle the applicant was driving at the time of his arrest and the applicant’s home. The theory behind this position was that the police believed the applicant would be carrying a firearm in whatever vehicle he was driving.

[10] In the vetted and disclosed portion of the ITO, the affiant indicated that the CHS advised police of the following:

a. That a person known as Nick Coluccio was in possession of a black semi-automatic handgun;

b. Nick Coluccio was described as male, white, in his 60’s, 5’9” in height, with a medium build, dyed black hair and a black moustache;

c. Nick Coluccio was seen in possession of this firearm as well as a black revolver on several occasions over the past year;

d. Nick Coluccio drives a grey Porsche Cayenne and resides in Woodbridge;

e. The firearm is kept in the Porsche Cayenne operated by Nick Coluccio;

f. Nick Coluccio killed his own sister when he learned that she had been dating a black man;

g. Nick Coluccio is part of the Calabrian mafia; and,

h. There are currently tensions between the Calabrian and Sicilian mafia. These tensions are a spillover of events that occurred in Montreal.

[11] A more detailed recital of information received from the CHS was contained in Appendix D to the ITO. That appendix was redacted to protect that identity of the CHS. A judicial summary provided to the defence as part of the Step 6 process reveals the following additional information:

a. The CHS indicated the number of firearms seen in the applicant’s possession;

b. The CHS indicated how long they had known the applicant;

c. The CHS disclosed when they first saw the applicant in possession of a black semi-automatic handgun and described the make and model. The CHS also specified the location from where the applicant retrieved the firearm;

d. The CHS indicated that they saw the applicant in possession of the firearm on numerous occasions. The CHS disclosed the location from where the gun was retrieved and how it was stored;

e. The CHS indicated that they had seen the applicant also in possession of a black revolver of unknown calibre;

f. The CHS disclosed the location where the firearm was retrieved on the last time the firearm was seen. This information included the recency of the observation;

g. The CHS indicated that the applicant is crazy and likes to show off his gun; and,

h. There is no information attributed to the CHS about seeing or not seeing a firearm at the applicant’s residence.

[12] The police investigation provided the following corroboration of the CHS’s information:

a. A driver’s licence search revealed that Nicola Coluccio lives in Woodbridge, with a date of birth of January 7, 1944, is 5’10” tall, has black hair and a black moustache. The affiant asserts that he was aware of Nicola Coluccio as a result of earlier investigations into Italian Organized Crime. He also asserts that “Nick” is an anglicized version of the Italian name “Nicola.” In the officer’s view, the driver’s licence photograph and person he knew as Nicola Coluccio matched description of Nick Coluccio provided by the CHS.

b. Ministry of Transportation records revealed that Nicola Coluccio is the registered owner of a 2014 Porsche Cayenne with a certain licence plate.

c. A criminal record check conducted in relation to an organized crime investigation approximately 10 years prior to this investigation, revealed that Nicola Coluccio had been convicted of manslaughter in the death of his sister and niece. The affiant indicated that the applicant had since received a full pardon and that the occurrence reports in relation to the manslaughter could not be located.

d. The affiant did a Google search on the applicant and discovered two newspaper articles on alleged mafia members living in Canada. These articles mention Nicola Coluccio as being wanted by Italian authorities for involvement with the mafia.

e. The affiant learned from Italian authorities that the applicant was wanted in Italy for a violation of article 416/Bis of the Italian Penal Code.

f. The affiant also learned that on May 23, 2017, the applicant attended at a café in Vaughan. An occurrence report dated March 10, 2017, indicates that the café is known to police as being frequented by persons associated with organized crime.

g. The affiant learned that on April 17, 2017, the applicant was involved in a minor motor vehicle collision while driving a 2014 Porsche Cayenne.

[13] The ITO also contains a summary of police surveillance conducted in response to the CHS information. In particular, the ITO reveals:

a. On April 28, 2017, D.C. Giannini conducted surveillance of the applicant’s home in order to determine what vehicle was being used by the applicant. He observed the applicant driving a 2016 Infiniti QX6 from the garage of the home. A photograph of the applicant taken that day shows he has a moustache. The physical description noted by D.C. Giannini also roughly matches the description provided by the CHS.

b. On May 18, 2017, D.C. Lemcke conducted further surveillance of the applicant’s home in an effort to determine what vehicle was being used by the applicant. On this occasion, the applicant was seen leaving the garage in a grey Mazda. Ministry of Transportation searches revealed that the Mazda was owned by Proline Recruitment Inc. at an address on Steeles Avenue in Concord, Ontario. No other vehicles were observed on this occasion.

c. On May 23, 2017, D.C. McCormick conducted further surveillance of the applicant’s home. The applicant was seen leaving the garage in the same grey Mazda. The applicant was followed by a surveillance team, and at a nearby intersection he was observed to be reaching under the driver’s seat and looking around. He was also observed to open the driver’s door while continuing to reach towards the floor area underneath the steering wheel. The applicant was followed to a café in Vaughan where he stayed for approximately two hours. While exiting the café he was seen speaking with Angelo Sudano, who is a person known to police and suspected of involvement in organized crime. The applicant then travelled to a second café, which as noted above was a café mentioned in an occurrence report dated March 10, 2017 as being frequented by members of organized crime. From the second café, the applicant next drove to Walmart. While the applicant was in Walmart, police made observations into the vehicle and noted a small beige satchel with the word “DIESEL” written on it. The satchel was on the driver’s side floor beneath the steering wheel. The surveillance team took photographs of the satchel. After leaving Walmart, the applicant returned to his residence where he was observed parking the Mazda in the garage.

[14] In terms of the background information relating to the CHS, Appendix D to the ITO, as summarized in the judicial summary, includes the following information:

a. Whether the CHS was known to police and the extent of their criminal record, if any. Their criminal record does not include crimes of perjury or obstruct justice/police;

b. The extent of the CHS’s involvement, if any, in the criminal sub-culture;

c. The CHS provided information in expectation of financial compensation;

d. The CHS has received payment in the past for providing information. While no promises or guarantees of payment were made in exchange for information, the police indicated that if an arrest was made, the CHS may be compensated;

e. The CHS was a registered CHS with the Toronto Police Service prior to providing information on this matter;

f. The details, though not the dates, of prior instances when the CHS provided information are revealed, including whether or not the information resulted in arrests or seizures and whether or not information provided was corroborated, or why certain information was believed.

[15] In the ITO, the affiant provides the following summary of his grounds to believe that an offence has been committed:

a. He believes the CHS, who has proven reliable in the past, is telling the truth that the applicant is in possession of a firearm which he keeps in his Porsche Cayenne.

b. The applicant is not licenced to possess any firearms.

[16] In terms of the location of the sought after items, the affiant indicates that while he has a basis for linking the applicant to three vehicles and is seeking a warrant for each of the vehicles, his intention is to only execute the warrant relating to the vehicle driven by the applicant at the time of the arrest.

[17] In this regard, the affiant notes that the CHS indicated that the applicant retrieved a firearm on multiple occasions from the Porsche Cayenne. The Porsche Cayenne had been reported to have been involved in an accident on April 17, 2017. Surveillance revealed that the applicant was thereafter seen driving two other vehicles, a Mazda and an Infiniti QX6.

[18] In relation to the Infiniti QX6, the affiant notes that the applicant has not been observed in possession of a firearm while driving this vehicle, but he explains that in his experience it would not be uncommon for someone illegally possessing a firearm to transfer it to whichever vehicle they may be operating. Lastly, in relation to the grey Mazda, the affiant indicates the same conclusions as with the Infiniti QX6. However, he goes further and notes that the surveillance observations of the applicant trying to reach for something beneath the steering wheel as well as the observations of the satchel, suggest that the satchel was being used to shield the firearm from public view. That said, the officer states that he is unable to say what is in the satchel, though he notes that the CHS observed a firearm being retrieved by the applicant from the same area of the Porsche Cayenne.

[19] In relation specifically to the presence of the firearm and/or related evidence at the applicant’s residence, the affiant asserts as follows:

14. f. Based on my experience as an investigator involved in firearm investigations, I further believe that it is possible that Nicola COLUCCIO could also transfer the firearm from whatever vehicle he is operating to his residence of 86 Novaview Crescent, Woodbridge. Based on my experience, it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to this [sic] residence so that the firearm is always near their person, in case of an unexpected attack. [Emphasis added]

15. 86 Novaview Crescent, Woodbridge, is the residence of Nicola COLUCCIO as indicated on his driver’s licence and as demonstrated through surveillance. Although the confidential source had not seen the firearm at this residence, based on my previous experience conducting firearm investigations I know that persons who are illegally in possession of firearms do transfer the firearms from their vehicle to their residence in an effort to ensure that the firearm is accessible to them. Additionally, I believe that along with the firearm Nicola COLUCCIO will be in possession of ammunition for the firearm as well as magazines for the weapon. If Nicola COLUCCIO is arrested in his vehicle while in possession of a firearm, I believe that ammunition is likely to be found in his residence, as well as paraphernalia, documents indicating ownership and/or possession of firearms. [Emphasis added]

16. d) There may be documents found that assist in proving ownership of the firearms.

17. e) Additionally, it is not uncommon for someone in possession of a firearm to possess a cleaning kit and related manuals.

18. As I have indicated in the preceding paragraphs, although no firearm was seen in the residence of Nicola COLUCCIO, it is my belief, based on my experience that it is not uncommon for an illegal firearm to be moved between an individual’s vehicle and residence. In addition, officers will be seeking related paraphernalia such as ammunition and magazines.

The Viva Voce Evidence of Detective Franco Mancuso

[20] At the time of the investigation, Det. Mancuso was employed with the Toronto Police Service and was a member of the Combined Forces Special Enforcement Unit. He had also worked in the drug squad, firearms and anti-terrorism units. He had authored “many” search warrants over his 19-year career as a police office.

[21] In relation to this specific investigation, Det. Mancuso confirmed he requested that surveillance be conducted on the applicant as part of the investigation. Once the surveillance was completed, the officers who conducted the surveillance would prepare a report setting out their observations and the report would be reviewed by Det. Mancuso.

[22] Det. Mancuso agreed that he reviewed a surveillance report prepared by Det. Giannini. He also reviewed a surveillance report dated May 18, 2017 that was prepared by Officer Lemcke, and a further surveillance report dated May 23, 2017 prepared by Det. McCormick. Det. Mancuso agreed that he reviewed these surveillance reports for the purpose of ensuring that information contained in them could be accurately relayed in the ITO.

[23] In terms of criminal record checks, Det. Mancuso confirmed that he would search the Canadian Police Information Centre (“CPIC”) and the Criminal Name Index or CNI to determine whether a particular person had a criminal record. These databases would indicate whether a person had a record and they would also indicate the type of offence the person was convicted of, the date of conviction and the sentence imposed. Det. Mancuso also stated his understanding was that if a person had been pardoned for an offence, the CPIC record check would return a negative hit. In other words, no information would be provided. Det. Mancuso agreed that this is what happened in this case, and as a result he relied on his memory of having viewed a CPIC entry for the applicant back in approximately 2007.

[24] Det. Mancuso confirmed that in 2017 he was not able to observe any occurrence reports relating to the applicant’s pardoned offence. He was then asked the following:

Q. And you’ll agree with me that you didn’t say anything in this document about having previously reviewed any occurrence reports?

A. No…

Q. Okay.

A. …other than what I’d learned back in approximately 10 years ago.

[25] Following Det. Mancuso’s evidence, counsel filed a copy of the applicant’s pardon from the National Parole Board of Canada. The pardon is dated August 21, 2006. Counsel did not seek to recall Det. Mancuso to put the pardon to him, nor was any additional evidence called regarding how long it would take for a pardon to result in the removal of records from CPIC.

[26] In terms of Det. Mancuso’s efforts to confirm the CHS’s assertion that the applicant was a member of the Calabrian Mafia, Det. Mancuso agreed that he did not seek or obtain specific details from the Italian authorities regarding the nature and facts of the offences he was sought for in Italy.

The Guiding Legal Principles

[27] Search warrants are generally issued on the basis of “reasonable and probable grounds”. This standard requires “credibly based probability”, see: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1982] 2 SCR 1140 at para. 47. The ITO must disclose reasonable grounds to believe that an offence has been committed, and that evidence in relation to that offence will be found at the place to be searched, see: R. v. Sadikov, 2014 ONCA 72 at para. 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417, at para. 9:

In sum, 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”).

[28] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250. An officer is entitled to rely on training and experience in assessing grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (ONCA) at p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 at para. 48. The obligation to make full, fair and frank disclosure is heightened by the exparte nature of search warrant proceedings; see United States of America v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. (Gen.Div.)) per Sharpe J. (as he then was).

[29] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established, see: R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (ONCA) at p. 13-16 and Church of Scientology, supra, at p. 500. That said, an issuing justice is permitted to draw reasonable inferences from stated facts, see: R. v. Nero and Caputo, 2016 ONCA 160 at para. 71. The affiant need not underline the obvious, see: R. v. Vu, 2013 SCC 60 at para. 16.

[30] On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant, see: R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, supra, at paras. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[31] The review is conducted based on the whole of the ITO, using a common sense approach sensitive to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant, see: R. v. Morelli at para. 167, R. v. Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), R. v. Ngo, 2011 ONSC 6676 at paras. 33-35, and R. v. Persaud, 2016 ONSC 6815 at para. 64.

[32] Where the core of the ITO rests on information conveyed by an informant, the issuing court must assess the credibility and reliability of the information provided by the informant. This involves asking three questions: is the information compelling? is the informer credible? and, was the information provided corroborated?; see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, R. v. Hosie, [1996] O.J. No. 2174 (Ont. C.A.) and R. v. Shivrattan, 2017 ONCA 23. In Shrivattan, Doherty J.A. provided the following guidance on this issue:

The first question addresses the quality of the CI’s information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI’s credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI’s credibility: see Crevier, at paras. 107-108.

[33] In terms of the review process, my role is not to decide whether I would have accepted the informer’s tips in combination with the balance of the investigation set out in the ITO as a sufficient basis for issuing the authorizations in question. Rather, the question is whether an issuing justice could have done so based on this record, as amplified with the permitted cross-examination.

Analysis

[34] I turn next to reviewing the contents of the ITO in accordance with the applicable legal principles.

The Debot Criteria

[35] The defence argues that the information provided in the ITO and in Appendix D fails to provide an adequate basis upon which the issuing court could conclude that the Debot criteria have been satisfied.

[36] In particular, the defence argues that the ITO reveals insufficient corroboration of the CHS’s information. In this regard, I note that there is no fixed degree of corroboration that is required in order to permit reliance on an informer’s tip. The assessment of corroboration is case and fact specific. The corroboration need not be about the core criminality revealed in the tip, though as the corroborative information moves away from the core criminality towards facts that are commonly known or readily discovered, the value or corroborative effect of the information may be diminished; see R. v. Caissey, 2008 SCC 65 affirming 2007 ABCA 380 at para. 25, R. v. Eftekhari, 2012 ONSC 5140 at para. 24 and R. v. Boussoulas, 2014 ONSC 5542 at para. 35.

[37] The defence challenges certain aspects of the allegedly corroborative information. First, the defence argues that I should put little weight on the purported corroboration of the CHS’s statement that the applicant had killed his sister because he learned she was dating a black man. On this issue, the defence argues that the affiant misled the court when he indicated that he recalled conducting a CPIC and criminal record check some 10 years prior to the current investigation, wherein he learned that the applicant had in fact been convicted of manslaughter in relation to the shooting deaths of his sister and niece. The defence argues that it is highly unlikely that a police officer would remember this fact 10 years later. Moreover, the defence suggests that the facts of the underlying offence would not be revealed by simply conducting a CPIC or criminal record check. While the underlying facts might have been revealed in an occurrence report, there was no suggestion in the ITO or in the evidence before me that this information was gleaned from an occurrence report.

[38] I agree with the defence that this is not information that would have been gleaned from a CPIC entry or criminal record search. It seems more likely that the officer would have at some point reviewed an occurrence report or received other information. The officer hinted that this was the case in his evidence and there was no follow up questioning to clarify exactly how he came to learn this. Ultimately, while I am concerned about the clarity of the affiant’s evidence in this regard, I am not prepared to find that this aspect of the informant’s tip was uncorroborated. I accept that in some fashion the affiant learned about the applicant’s prior criminal history.

[39] I note two further features about this evidence. First, there is no suggestion that the information conveyed by the informant or understood by the affiant is wrong. In other words, there is no issue that the applicant actually killed his sister. Second, while this aspect of the informant’s tip may have be corroborated, I do not place significant weight on the fact that the informant knew that the applicant had killed his sister. This is the very type of information that would be commonly known especially in a criminal setting. In any event, it was also likely a matter of public knowledge if not media attention.

[40] Next, the defence argues that reliance on two newspaper articles that mention the applicant as a person wanted for mafia related offences in Italy, does not offer significant corroboration for the informant’s suggestion that the applicant was a member of the Calabrian mafia. The defence links this submission with the further submission that the officer’s efforts to corroborate the mafia membership through communication with Italian police forces also provides little substantive corroboration of the informant’s claim of mafia membership.

[41] I agree that these corroborative steps add little to the analysis. Taken together, the information available supports an inference that the applicant is wanted in Italy for some type of mafia related crime. Again, it is hard to see how publicly available newspaper articles corroborate the informant’s assertion that the applicant was a “member” of the Calabrian mafia. Similarly, mere reference to a section of the Italian penal code for the offence of “mafia association” does little to establish “mafia membership.” At best, this information provides some but not significant corroborative support for the informant’s assertion about mafia membership.

[42] In terms of other corroboration, the defence does not challenge that aspects of the informant’s information, such as his physical description of the applicant, the type of vehicle the applicant drove, and the applicant’s city of residence were corroborated by police. However, the defence asserts that overall, the degree of corroboration is minimal at best.

[43] I agree that the degree of corroboration of the informant’s information is not significant. While there is some degree of corroboration, the bulk of it is on matters that would be readily discoverable, if not public knowledge. Viewed as a whole, I would place the degree of corroboration in this case towards the lower end of the spectrum.

[44] In terms of the compelling nature of the information provided, I am mindful of the fact that I have viewed the full unredacted ITO and Appendix D. Without revealing information that might identify the informant, I am satisfied that the nature of the information provided is compelling. The information provided is detailed, has an appropriate degree of frequency and recency, and is, for the most part, neither conclusory nor based on rumour or gossip.

[45] In relation specifically to the applicant’s possession of a firearm, the information provided relates mainly to a black semi-automatic handgun and provides details regarding the location where the gun was seen and how the gun was produced. While the information also mentions a second firearm, a revolver, few details are provided in relation to that the firearm and indeed, the ITO suggests the affiant’s focus was on “the firearm” which I take to mean the black semi-automatic handgun.

[46] One limitation on the compelling nature of the tip relates to whether the applicant is a member of the Calabrian mafia. The basis for this information is not provided and it appears to be simply a bald assertion or perhaps rumour or gossip. While not central to the tip, the informant’s indication of rising tensions between the Calabrian and Sicilian mafia is similarly a bald assertion without any specific supporting detail. On this issue I note that paragraph ii on page 5 of Appendix D purports to set out what involvement, if any, the confidential source has in the criminal sub-culture. This paragraph is incomplete and ends mid-sentence. As drafted, this paragraph is also essentially a bald assertion without supporting detail.

[47] Notwithstanding these limitations, when I consider the relevant authorities which discuss whether a tip is “compelling”, I am prepared to find that the tip in relation to the black semi-automatic handgun was clearly compelling; see R. v. Greaves-Bissesarisngh, 2014 ONSC 4900 at para. 40-42, R. v. Rocha, 2012 ONCA 707 at para. 28 and R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at 392 (Ont.C.A.).

[48] I turn last to the informant’s credibility. In this regard, I note that the issuing justice was advised of the informant’s criminal record, if any. The record, if any, does not include offences of perjury or obstruct justice/police. The informant had provided information on several earlier occasions. On some occasions, the evidence resulted in arrests and charges. On other occasions, the information was corroborated by police investigation but does not appear to have resulted in anything further. On yet other occasions, information provided did not result in arrests or seizures, though on one such occasion police learned that an item of interest had been moved prior to the search. Apart from this information, no specific details relating to the assessment of information provided by the informant were placed before the issuing justice.

[49] The issuing justice was also advised of the informant’s financial motivation. While I question the officer’s assertion that he believes the informant because the informant is seeking compensation, I accept that the fact that possible compensation was contingent on an arrest stemming from information provided, suggests the financial motivation is at least to some degree connected to the provision of reliable information.

[50] I should note that there is some confusion on this issue in the ITO. At paragraph 6, the affiant states “[t]he confidential source has not been paid, nor have any considerations been offered”. This sentence is not entirely accurate. Appendix D to the affidavit reveals that while the confidential source had not been promised or guaranteed compensation, an attempt to pay the source would be made if the information provide resulted in an arrest. Viewed as a whole, it is clear that the confidential source was offered contingent consideration of some unspecified amount. While this discrepancy should not have appeared in the ITO, I am not overly troubled by it in view of the content of Appendix D which would have been before the issuing justice.

[51] On the whole, I am satisfied that the ITO reveals a basis upon which the issuing justice could have been satisfied of the informant’s credibility.

[52] When I assess the confidential source’s tip in this case against the Debot criteria, I am satisfied that despite some limitation in terms of corroboration, the tip was otherwise compelling and credible. Viewed cumulatively, I am satisfied that the tip provided an adequate basis upon which the issuing justice could be satisfied there were reasonable and probable grounds to believe that the applicant was in possession of a black semi-automatic firearm. I am further satisfied that the ITO and Appendix D provided a basis upon which the issuing justice could have been satisfied that the applicant would have the firearm in whatever vehicle he was driving.

[53] The more difficult question is whether the ITO, including Appendix D, provided a basis upon which the issuing justice could be satisfied that the items sought would be at the applicant’s residence. I turn to that issue next.

Grounds Relating to Presence of Items in the Home

[54] I note that in Appendix D to the ITO, the CHS makes no mention whatsoever of the applicant’s home. In other words, there is nothing in the confidential tip that sheds light on whether the informant knew or believed that the applicant had a firearm in his home. This is a significant limitation on the informant’s tip in this case.

[55] The affiant’s primary basis for seeking the warrant to search the applicant’s home appears to be the belief that the applicant will carry the firearm with him into the home. While the warrant lists both the semi-automatic handgun and a revolver as items sought, the ITO does not appear to be focussed on the revolver. Indeed, I take the affiant’s repeated use of the term “the firearm” to relate to the black semi-automatic handgun. Moreover, in paragraph 18, where the affiant suggests that if the applicant is arrested while driving and found to be in possession of a gun, the affiant further asserts that ammunition, paraphernalia and documentation relating to the gun, will nonetheless be found in the residence. Importantly, the affiant does not suggest that if one gun is found with the applicant in a vehicle, the other gun will probably be at the home.

[56] In terms of the affiant’s belief that the gun may be in the residence, the defence argues that the affiant relies on bald assertions and unsupported conjecture about how certain types of persons act to support his belief that the applicant may have transported the firearm into the residence.

[57] The defence notes that the affiant initially asserts at para. 14(f) of the ITO that it is “possible” the applicant could also transfer the firearm from whatever vehicle he is driving to his residence. This statement, according to the defence, suggest “possibility” and not a reasonable probability. The defence further notes that the affiant’s stated reason supporting this “possibility” is that “it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to this [sic] residence so that the firearm is always near their person in case of an unexpected attack”.

[58] The defence then notes that the affiant attempts to draw a connection between this general belief and the facts of this case by stating at paragraph 14(g):

The confidential source stated that Nick COLUCCIO is part of the Calabrese Mafia and there appear to be rising tensions between the Calabrese Mafia and Sicilian Mafia in the Toronto area. I therefore believe that Nicola COLUCCIO is in possession of a firearm for his own personal protection.

[59] The defence argues that this portion of the ITO provides no real support for the belief that the applicant may have brought the firearm from his vehicle into his home. I agree.

[60] While the affiant may have had a sufficient basis for believing that the applicant was in some fashion connected with the Calabrian mafia, the further assertion about the rising tensions between the Calabrian mafia and Sicilian mafia being somehow related to the applicant’s need to carry a firearm for self-defence is based on unsupported speculation. The CHS’s bald assertion regarding rising tensions between the Calabrian and Sicilian mafia in Toronto as a result of some unspecified violence over the past few years in Montreal is not supported by any corroborative information. Moreover, there is nothing in the CHS information suggesting or even hinting at the fact that the applicant was in possession of the firearm for the purposes of defending himself from the Sicilian mafia. To the contrary, the CHS indicates that the applicant is “crazy and likes to show off his gun”.

[61] When this portion of the ITO is placed in its proper context, there is little to no case specific support for the affiant’s assertion that people who possess firearms may take them from their car into their home so that the weapon is at the ready in case of an attack. As such, the officer’s assertion that some people do that is simply an unsubstantiated assertion about how some people act in certain circumstances. On the facts of this case, the officer’s assertion in this regard adds little to the reasonable grounds analysis; see R. v. Morelli, 2010 SCC 8 at paras. 70-73 and R. v. Aboukhamis, 2015 ONSC 2860 at paras. 35-38.

[62] The defence next argues that the affiant also failed to make full, fair and frank disclosure in a number of ways.

[63] First, the defence argues that the affiant made a material omission in reviewing the surveillance report relating to the applicant’s use of the Mazda. The affiant noted in the ITO that the applicant was observed driving the Mazda from his garage. He was followed and was observed, while at an intersection, to be reaching for something beneath the steering wheel in the front foot well of the car. Surveillance officers noted that the applicant even opened the door to the car while apparently searching for something in the front foot well. Once the car was followed to a Walmart, surveillance officers observed and photographed a satchel in the foot well. The observations and photographs were included in the ITO. The ITO also conveyed that after leaving Walmart, the applicant drove the vehicle back to his home and parked it in the garage.

[64] While the affiant indicates in the ITO that he does not know what was in the satchel, the clear impression that is conveyed to the issuing justice is that the satchel probably contains a firearm. This impression is obvious given the language used by the affiant and the context of the ITO, including the information provided by the CHS.

[65] The surveillance report which conveys the observations of the surveillance team that followed the applicant from Walmart back to his home contains the following notations:

GREY MAZDA BWYC 340 ON parks in the driveway of 86 NOVAVIEW CR, COLUCCIO exists on the cell phone and enters the front door.

COLLUCCIO exits 86 NOVAVIEW CR removes groceries from the trunk and a bag from the passenger side of GREY MAZDA BYWC 340 ON and enters the front door of 86 NOVAVIEW CR.

COLUCCIO boards GREY MAZDA BWYC 340 ON and moves it forward into the garage, parks and enters the house empty handed. The BEIGE SATCHEL remained in the car. [Emphasis in original]

[66] The fact that the satchel was left in the car is not mentioned in the ITO, despite being noted in bold in the surveillance report. Det. Mancuso agreed that he would have read the surveillance report in preparing the ITO, and he would have done so knowing that he was required to fairly put the information before the issuing justice.

[67] I agree with the defence that this is a significant material omission. The narrative of the ITO conveys the clear impression that the police believed the satchel contained a firearm. Viewed in context of all the information, including the CHS information, this belief was a reasonable one. However, the fact that the satchel remained in the car and was not taken into the house was a material fact that clearly detracted from the grounds supporting a belief that the firearm would be taken inside the house. This is a fact that was known to the affiant and should have been made known to the issuing justice. Had the fact been provided to the issuing justice, it would have provided a basis upon which the issuing justice could assess the affiant’s general opinion that it is “not uncommon” for people to transfer a firearm from a vehicle into a house in order to have it at the ready in case of an attack.

[68] The defence further argues that the affiant mischaracterized a further aspect of the surveillance report dealing with an alleged interaction between the applicant and a person known as Angelo Sudano. The ITO, at para 13(iv), notes that while the applicant was exiting the Yuppie Du Café in Vaughan, he was seen “speaking with Angelo Sudano”. This paragraph continues by noting that Mr. Sudano is known to members of the surveillance team as being suspected of involvement in organized crime. The affiant adds he has personal knowledge of Angelo Sudano from an earlier investigation, wherein Mr. Sudano was meeting with a person of interest who was later murdered. The earlier investigation dealt with organized criminal activity, specifically drug and gun trafficking.

[69] The surveillance report relating to the observations of the applicant and Mr. Sudano states:

COLUCCIO exits YUPPI DU CAFÉ and walks away from known male, ANGELO SUDANO who was out front having a cigarette both males shake hands and say goodbye. COLUCCIO boards GREY MAZDA BWYC340 ON and drives…

[70] The defence argues that the affiant mischaracterizes the information relayed in the surveillance report. According to the defence, the surveillance report does not suggest that the applicant was “speaking with Angelo Sudano”. At best, the surveillance report suggests that the applicant encountered Mr. Sudano as he was leaving the café, they shook hands and waved goodbye. According to the defence, this interaction does not suggest a meeting or discussion between the two.

[71] While it is perhaps a question of degree, I am not prepared to find the description of this interaction as materially misleading. The difference between “speaking with Angelo Sudano” and shaking hands and saying goodbye while leaving a café is not manifestly significant. That said, it would have been preferable for the affiant to convey information in the surveillance report more accurately. Indeed, I find that this is an instance where the picture painted by the affiant is less than objective on the available evidence. In particular, I note that the affiant places before the issuing justice his personal knowledge that Mr. Sudano was involved in an earlier investigation where he was seen speaking with a person of interest who was later murdered. The affiant notes that this was an organized crime investigation dealing with drug and gun trafficking.

[72] In the absence of some connection to the applicant, the affiant’s recollection of Mr. Sudano’s involvement in another investigation does little more than add suggestive colour to the reasonable grounds exercise in this case. To be clear, there is nothing improper from a policing perspective for an investigator to note degrees of connection between persons suspected of engaging in organized criminal activity. Indeed, this is the very type of police intelligence that leads to solving crime. However, the difficulty is that in this case this paragraph of the ITO does little more than show that the applicant shook hands with and said goodbye to a suspected wise guy. In short, despite the colour, it adds little or nothing to the existence of reasonable grounds in this case.

[73] In considering the ITO, I note that this case has some similarities with two decisions decided by the Court of Appeal; R. v. Rocha, supra and R. v. Herta, 2018 ONCA 927.

[74] In R. v. Rocha, an informant provided information about some drug dealing activities at a restaurant and at a home connected to the accused. While the informant’s tip about the activities at the restaurant was compelling, the informant’s tip about drugs at the home was based on a simple bald assertion that the house was used to store cocaine. The trial judge found a violation of s. 8 and excluded the drugs found in the home. The Court of Appeal upheld the trial judge on this issue, noting that the ITO provided no basis upon which the warrant to search the home could have issued.

[75] In R. v. Herta, police obtained a warrant for a home where a suspect they were following was seen entering. The police had an informant tip that the suspect was armed and they obtained a warrant on that basis. As it turns out, the home they searched belonged to Mr. Herta and not the suspect. On appeal, Fairburn J.A. found that the warrant should be quashed and explained as follows at paras. 45-51:

The appellant argues that the CI information about Callahan being in a dispute and carrying the gun with him at all times was conclusory in nature. He maintains that we should ignore that information.

The respondent submits that the information about the dispute and Callahan carrying the gun was not conclusory. Even if it was conclusory, though, the respondent relies upon R. v. Delchev, 2011 ONSC 1994, for the proposition that the CI’s personal observation of Callahan with a gun the day before the search made the information sufficiently compelling that the issuing justice could satisfy herself that Callahan would take the gun into 1670 Clover Avenue the next day.

I agree that the CI information about the dispute and Callahan not being anywhere without his gun is somewhat conclusory in nature. There is no basis upon which to assess the veracity of those claims because, as Martin J.A. put it in Debot, no “details” were provided and the CI did not disclose his or her “source or means of knowledge”. Was the information about the dispute mere gossip, or did Callahan tell the CI that he was in a dispute? Did someone else tell the CI that fact? Was the information about Callahan carrying the purported gun at all times gossip or conjecture on the part of the CI? Although the details supporting those claims may have been in the appendix to the ITO, the contents of the appendix were redacted. Thus, while I would not discount the claims about the dispute and Callahan carrying a gun altogether, I would not characterize them as “compelling”.

Relying upon Delchev, the respondent emphasizes that the fact that the CI said that he saw Callahan with the gun was enough, standing on its own, to pass the compelling threshold in Debot and justify the search. I agree with the sentiment expressed in Delchev, at paras. 73-75, that an inference can be drawn that “criminals who are illegally in possession of guns” may have them for long periods of time. I do not read Delchev as saying, though, that the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future. To the contrary, the CI in Delchev actually saw the firearms at the locations that were ultimately searched. That is quite unlike this case.

In this case, although the CI said that he saw Callahan with a firearm, the CI did not connect the firearm to 1670 Clover Avenue. The redacted ITO does not enlighten the reader as to where the CI saw the gun, e.g. in a house, a car, a place of business, a park or any other location. The redacted ITO merely says that Callahan and the gun were seen in the east end of Windsor. The redacted ITO does not even address whether the appellant’s home rests in that part of Windsor.

Furthermore, other than the affiant seeing Callahan walk toward the front door of 1670 Clover Avenue a few hours before the warrant issued, there is nothing in the redacted ITO that draws a connection between Callahan and that residence. There is no information about who owned, lived at or frequented that home. Nor is there any information about whether a firearm had ever been associated with that location, or whether the police had ever investigated anyone living there or attended at that place in the execution of their duties. Moreover, there is no suggestion that the affiant saw anything in Callahan’s hands as he walked toward the residence.

Accordingly, the only information that could support the reasonable grounds to believe that Callahan took a rifle into 1670 Clover Avenue rested on the CI’s statement that Callahan was in a dispute and would not go anywhere without the gun. If those statements were compelling enough to give rise to a credibly-based probability that Callahan took a rifle into the location searched, then they would be compelling enough for a search warrant for any location that Callahan attended. This would have turned Callahan into walking, ready-made grounds for belief. That is a sweeping proposition, particularly in light of the weak and conclusory nature of those statements in the ITO, the minimal information about credibility and the weak nature of the corroboration.

[76] The facts in this case sit somewhere between Rocha and Herta. In my view, the facts here are worse than in Rocha, though not as bad as in Herta. In Rocha, there was a bald assertion by the CHS linking drugs with the home searched. Here, there is no such link. Instead, there is a generalized assertion by the affiant that people move guns around and will take a gun inside their home from their car in order to have it ready in case of an attack. This generalized assertion is undermined by a significant material omission relating to the presence of the satchel inside the car. Moreover, the assertion is not supported by the case specific information provided by the CHS.

[77] In Herta, the police had a basis to believe that a suspect would be carrying a firearm wherever he went. For a variety of reasons, the court was not prepared to turn grounds to believe that the suspect would be carrying a gun into sufficient grounds for believing that a gun would be present at an address the suspect attended. Unlike Herta, the police in this case had a connection between the applicant and the home. However, like in Herta, while the police may have had grounds to believe that the applicant would travel with a firearm in whatever car he was driving, I find that they had insufficient grounds for believing the firearm would be in the house.

[78] On the evidentiary basis revealed in the ITO, I conclude that no justice could issue a warrant to search the applicant’s home for the black semi-automatic handgun. I further conclude that the officer’s assertions relating to the presence of ammunition, a cleaning kit, and documentation relating to the firearm in the home amounts to no more than bald assertions based on generic beliefs. I would not sever and save these portions of the warrant.

[79] I am not prepared to find that because grounds exist demonstrating that an accused drives around in a car with a handgun, a warrant could also issue for a search of the accused’s home. This comes perilously close to the “roving grounds to believe” scenario discussed in Herta.

[80] I find that the applicant’s s. 8 rights have been violated and the warrant to search the applicant’s home is quashed.

The Section 24(2) Framework

[81] The applicant bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.

(a) The Three Lines of Inquiry in R. v. Grant

[82] As the Supreme Court of Canada sets out in R. v. Grant, 2009 SCC 32, the focus of the s. 24(2) analysis is on the overall repute of the administration of justice and the public’s confidence in the justice system in view of the long term consequences of admission of unlawfully seized evidence.

[83] The analysis is necessarily prospective in nature. The various breaches of s. 8 of the Charter have already damaged the administration of justice. The issue is whether further damage to the administration of justice will be occasioned by the admission of the evidence.

[84] The focus of the analysis is not a case specific administration of punishment on the police or compensation for the accused. The analysis is objective. It asks whether a reasonable person informed of Charter values would find that the admission of the evidence in question would bring the administration of justice into disrepute.

[85] The analysis is comprised of three lines of inquiry. The first line of inquiry addresses the seriousness of the Charter-infringing state conduct. In this regard, I note the guidance of the Supreme Court in R. v. Grant at paras. 74 and 75:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[86] The second line of inquiry assesses the impact of the violation on the accused’s Charter- protected interests. This line of inquiry requires an assessment of the nature of the Charter- protected interests engaged and the degree to which the Charter violation impacts those interests. A person’s home is subject to a very high expectation of privacy; see R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 at para. 140. The impact on an accused’s Charter-protected interests following an unconstitutional search of a home is generally viewed as significant; see R. v. Morelli, 2010 SCC 8 at para. 104, and R. v. Paterson, 2017 SCC 15 at paras. 46 and 50.

[87] The third line of inquiry assesses the societal interest in an adjudication on the merits. This line of inquiry recognizes that society generally has an interest in having criminal charges adjudicated on their merits. In this regard, the court must ask whether vindication of a Charter violation exacts too great a toll on the truth-seeking function of the trial process: see R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.) at para. 47. In cases involving guns, the societal interest in adjudication on the merits is informed by the fact that firearms present an often lethal affront to the safety of the community; see R. v. Omar, 2018 ONCA 975 at para. 135-138, per Brown J.A. dissenting, appeal allowed at 2019 SCC 32 essentially for the dissenting reasons of Brown J.A. That said, there is no special or categorical s. 24(2) rule when it comes to guns; see R. v. Dunkley, 2016 ONCA 597 at para. 53 and R. v. Fountain, 2015 ONCA 354 at para. 55.

[88] The factors assessed in this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence. On this last factor, the Supreme Court in Grant at para. 84 has noted that the seriousness of the offence is a factor that cuts both ways:

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) ‘operate independently of the type of crime for which the individual stands accused’ (para. 51). And as Lamer J. observed in Collins, ‘[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[89] Once the various lines of inquiry have been determined, the role of the court is to assess whether on balance the admission of the evidence would bring the administration of justice into disrepute.

(b) Analysis

The Seriousness of the State’s Charter-Infringing Conduct

[90] The first line of inquiry looks at the seriousness of the state’s Charter-infringing conduct. I start my analysis on this issue by noting that the police applied for and obtained a warrant to search the home. This is not a case where the police failed to obtain prior judicial authorization. I also note that the ITO validly supported the search of the applicant’s vehicles, though not his home.

[91] That said, the ITO did not come close to providing a basis for searching the home. The home was searched in the absence of reasonable and probable grounds supporting a belief that the firearm was in the house. The affiant relied on bald conclusory statements about rising tensions between mafia factions as somehow creating a need on the part of the applicant to arm himself for protection. This was used to lend credence to the affiant’s assertion that people who carry guns would bring them into their home to be ready in case of an attack. There was no evidence supporting this position.

[92] Moreover, the ITO contained a significant material omission that undermined the stated basis for searching the home. The affiant in this case was an experienced police officer who knew the importance of making full, fair and frank disclosure to the issuing justice. He failed to mention that the satchel which was believed to contain a firearm was left behind in the applicant’s vehicle.

[93] The defence argues that the affiant intentionally misled the issuing justice by omitting this information. I am unable to find, on this record, that the failure to include the information amounts to deliberate or intentional misleading. While the applicant was granted leave to cross-examine the affiant on this issue, the suggestion that the omission was deliberate or intentional was never put to the affiant. Indeed, he was not asked at all why he failed to include the reference. When challenged on this issue, counsel advised that the decision to not ask was tactical and considered so as to not give the officer an opportunity to explain away the omission. That may well be the case. However, in order to sustain the allegation of deliberate or intentional misleading, counsel should have confronted the affiant with the suggestion and obtained his answer; see R. v. Chertin, 2006 ONCJ 19 per Trotter J. (as he then was). While not a fixed or invariable requirement, confrontation on a key matter of credibility is all the more pressing in a case where the accused bears the burden of proof on a balance of probabilities.

[94] While I am not prepared to find that the officer intentionally or deliberately mislead the issuing justice, I am prepared to find that the material omission was serious. In the circumstances of this case it amounts to carelessness. The officer acknowledged that he reviewed the surveillance reports in order to make sure that he was placing accurate and complete information before the issuing justice. If the affiant was being careful and diligent, the fact that the satchel remained in the car would have been noted in the ITO. Officers seeking judicial authorization must take particular care to ensure that information placed before the court is accurate, fair and not exaggerated; see Morelli at para. 102 and Boussoulas, at para. 12. The officer failed in this regard.

[95] The officer also failed to be objective in stating his basis for believing the gun would possibly be in the house. Leaving aside the fact that the affiant states a belief based on both possibility and probability within the same sworn document, the affiant’s stated position for believing that the gun would be in the home was not based on evidence. It was based on generalized supposition and bald conclusory statements. The affiant also injected a measure of colour into the ITO by including things such as Mr. Sudano’s background.

[96] When I assess this line of inquiry cumulatively, I find that while the affiant did not set out to defeat Charter standards, he simply did not comply with long settled Charter standards. A significant material omission was made, the search of the home was premised on nothing more than generalized supposition about how certain people act, and there were some attempts to shade or colour the facts placed in the ITO.

[97] This line of inquiry tips towards exclusion.

The Impact of the Violations on Mr. Coluccio’s Charter-Protected Interests

[98] The Crown accepts that the unconstitutional search of Mr. Coluccio’s home result in a significant impact to his Charter-protected interests. That said, the Crown notes that the search itself was conducted within Charter bounds. Police entered the home using a key and there is no suggestion of any impropriety in relation to the conduct of the officers who executed the search. While I accept that the search of the home was not accompanied by other aggravating features, it remains a serious intrusion on Mr. Coluccio’s privacy interests.

[99] On the whole, this line of inquiry squarely supports exclusion of the evidence.

Society’s Interest in Adjudication on the Merits

[100] Mr. Coluccio is alleged to be in unlawful possession of a revolver and ammunition. In the context of the evidence before me, the possession of a handgun and ammunition suggests a significant risk to public safety. At the profound risk of stating the obvious, handguns kill.

[101] There can be no issue that there is a significant societal interest in having this case tried on the merits.

[102] The evidence sought to be admitted is reliable evidence and its exclusion will terminally impact the Crown’s case.

[103] When I consider the importance of the truth seeking function in this case, I find that excluding the evidence in order to vindicate the breach of Mr. Coluccio’s Charter rights will exact a toll on the administration of justice.

[104] In my view, this line of inquiry tips towards admission.

Final Balancing

[105] In my view, the first line of inquiry tips towards exclusion of the evidence. The second line of inquiry squarely supports exclusion. The third line of inquiry supports admission. While there is no hard and fast rule that where the first two lines of inquiry support the exclusion the third line of inquiry will rarely if ever swing the result towards inclusion, it is nonetheless often the outcome; see R. v. McGuffie, 2016 ONCA 365, R. v. Paterson at para. 56 and R. v. Omar, at paras. 109-121. Ultimately, the court must consider “all the circumstances” in deciding whether the evidence ought to be excluded.

[106] This case is a close call. When I balance the three lines of inquiry and consider all of the circumstances, I am satisfied that admission of the evidence will bring the administration of justice into disrepute. While I do not relish excluding the evidence, it is the result warranted in the circumstances.

[107] The evidence is excluded.

[108] The parties are to appear before me on the date scheduled for trial, or at any other time agreed upon with the trial co-ordinator, in order to address the disposition of the charges.

Justice J. Di Luca

Release Date: August 1, 2019

[^1]: The final Judicial Summary was entered as Exhibit 8. While this version is titled “Draft Judicial Summary #4”, it became the final version following submissions and an oral Ruling delivered on May 1, 2019.