RULING ON THE GAROFOLI APPLICATION OF RYAN GOMBOC

MCKELVEY J.:

Introduction

[1] The applicant, Ryan Gomboc, is charged with possession of cocaine for the purpose of trafficking, as well as trafficking cocaine between December 17, 2015 and May 12, 2016. The applicant was arrested as part of a large police investigation called “Project Diablo”, which was conducted from December 2015 to May 2016. Project Diablo involved the deployment of an undercover police officer to purchase increasing amounts of cocaine with the aim of identifying suppliers of cocaine in the Barrie area. Investigators on the project also relied on information provided by a number of confidential human sources.

[2] On May 9, 2016, Officer Anthony Forrest of the Barrie Police Service swore an affidavit to obtain a number of search warrants. The Information to Obtain (“ITO”) included a request for search warrants at 32 Royal Oak Drive and 6 Gibbon Drive, in Barrie. These two residences were identified as residences in which Mr. Gomboc resided during the course of the investigation.

[3] The search warrants were granted and executed on May 12, 2016. Mr. Gomboc was at the residence on 32 Royal Oak Drive and was arrested. At the time of his arrest, he was found with approximately 6 grams of cocaine on his person. The applicant has not raised any issues with respect to the arrest of Mr. Gomboc. At the time of the search of the residence at 32 Royal Oak Drive, a cellphone alleged to belong to Mr. Gomboc was seized. At the residence of 6 Gibbon Drive, police seized a further 47 grams of cocaine.

[4] The ITO, in this case, was 126 pages long, together with a number of appendices which covered a large number of properties to be searched. The ITO covered activities by numerous individuals who were alleged to be involved in the trafficking of cocaine in Barrie. The applicant seeks an order quashing the search warrants relating to 6 Gibbon Drive and 32 Royal Oak Drive, together with an order excluding all of the evidence from those searches pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”).

[5] The issues which arise on this application are as follows:

Was there a sufficient basis to issue the search warrants for the residences at 32 Royal Oak Drive and 6 Gibbon Drive?
Was the search conducted at 32 Royal Oak Drive conducted in a reasonable manner?
If there was not a sufficient basis for the search warrants and if the search 32 Royal Oak Drive was not conducted in a reasonable manner, should the evidence seized from the two residences be excluded pursuant to s. 24(2) of the Charter?

[6] For oral reasons given at the time of the hearing, I granted leave to the applicant to cross-examine the author of the ITO, Officer Forrest, about certain information which he included in the ITO. As a result, the evidence of Officer Forrest has been considered on this application. For oral reasons given following the completion of argument, I have concluded:

There was a sufficient connection established to Mr. Gomboc’s residence at 6 Gibbon Drive to permit the issuing justice to find reasonable and probable grounds for the search at 6 Gibbon Drive.
There was insufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of an offence would be found at 32 Royal Oak Drive. The search at this residence was therefore contrary to Mr. Gomboc’s s. 8 Charter rights.
With respect to the breach of Mr. Gomboc’s s. 8 Charter rights related to the search of 32 Royal Oak Drive, the s. 24(2) analysis leads me to conclude that the admission at trial of the evidence found in the search at 32 Royal Oak Drive would not bring the administration of justice into disrepute. Accordingly, the applicant’s s. 24(2) application is dismissed.

[7] I provided the parties with a summary of my decision following completion of argument on this Garofoli application. I advised that further written reasons would follow. These are those written reasons.

General Legal Principles on a Review

[8] The law in relation to the standard to be applied by a reviewing judge is well established. The reviewing judge must find, on the record before the authorizing judge, as amplified on review, the authorization could have been granted. The reviewing judge does not conduct a de novo hearing nor substitute his or her view for that of the authorizing judge. Put another way, the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there was no basis for the authorization: see R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. No. 1421, 60 C.C.C. (3d) 161, at paras. 55, 56, and 62.

[9] In the context of an ITO for a search warrant which is made on an ex parte basis, the affiant is required to provide full, frank, and fair disclosure. The affiant should not make a misleading statement in the affidavit, either by means of the language used or by means of strategic omission of information.

[10] The statutory pre-conditions for the issuance of the warrant in this case are found in s. 11 of the Controlled Drugs and Substances Act, which provides:

A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code.

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

[11] As set out in s. 11 noted above, the standard of proof which must be satisfied for the issuance of a warrant is “reasonable grounds to believe”. In the Ontario Court of Appeal decision in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, the court notes that reasonable grounds to believe does not require proof on the balance of probabilities much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed searches. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued.

[12] The court, in Sadikov, also goes on to explain that the authorizing justice must make his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO.

[13] Warrant review begins from the premise of presumed validity. It follows that the onus of demonstrating invalidity falls on the party who asserts it; in this case, the applicant.

[14] Also as noted in the Sadikov decision, the reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire, to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge. Evidence relied upon to amplify the evidence must be available to investigators at the time the ITO was sworn, not information acquired later.

[15] The purpose of the review is to determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. This is reflected in the comments of the Supreme Court in R. v. Pires; R. v. Lising, 2005 SCC 66, 3 S.C.R. 343, where the court states at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory preconditions.

[16] In looking for reliable information on which the authorizing judge could have granted the authorization, the question is whether there was at least some evidence that might reasonably be believed on a basis of which the authorization could have issued: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

The Evidence of Officer Forrest on Cross-Examination

[17] As noted earlier, the applicant was allowed to cross-examine Officer Forrest with respect to certain information and opinions which he expressed in the ITO. I am satisfied that there was no deliberate attempt on the part of Officer Forrest to mislead the issuing justice in the ITO. Officer Forrest gave his evidence in a straightforward manner and there were no significant inconsistencies in his evidence. His explanations for why certain information was contained in the ITO and why certain information was not included, appeared reasonable. For example, Officer Forrest was cross-examined about paragraph 215 of the ITO where he expresses the view that Mr. Gomboc’s action on March 15, 2016 led him to believe that Mr. Gomboc attended his sister’s residence at 133 Columbia Road, in Barrie, to retrieve money which was used to purchase cocaine on March 17. He goes on to state, “I believe it is reasonable to believe that Gomboc uses his sister’s residence as a stash house”. Officer Forrest candidly acknowledged that there was no direct evidence of drug related activity at Mr. Gomboc’s sister’s address. He also agreed that he had no evidence that the two bags which were moved by Mr. Gomboc from his sister’s residence contained cash. However, he went on to testify that his belief that Mr. Gomboc was using his sister’s residence as a stash house was based on information received from confidential sources. As part of the ITO, there are a number of appendices setting out information from confidential sources. Most of this information has been redacted to protect the identity of informants. Thus, while there was no surveillance which would lead to the conclusion that Mr. Gomboc was using his sister’s residence as a stash house, there did appear to be a reasonable explanation for Officer Forrest’s comment in paragraph 215.

[18] Another example where Officer Forrest was cross-examined in detail was with respect to the observations made during surveillance, following an alleged drug transaction involving the undercover officer and Mr. Szymanski. Mr. Szymanksi attended at Mr. Gomboc’s residence at 6 Gibbon Drive. He exited his vehicle holding a red box believed to be a “Ritz Crackers” box. Mr. Szymanski was observed meeting Mr. Gomboc and another male in the residence driveway and Mr. Szymanski and Mr. Gomboc were observed going into the residence with Mr. Szymanski still holding the red box. Later, Mr. Gomboc and Mr. Szymanski were observed exiting the residence. Mr. Szymanski was observed to be no longer holding the red box. At paragraph 230, Officer Forrest states, “I believe the observations made during the physical surveillance of Gomboc and Szymanski on April 14, 2016, to be consistent with the sale of controlled substances, and it is reasonable to believe that Gomboc supplied Szymanski with the 9 ounces of cocaine sold to Detective Westlake”. He further states, “I believe Szymanski used the red box to conceal and deliver the money owed for the 9 ounces of cocaine to Gomboc”.

[19] Officer Forrest responded to questions about the red cracker box during cross-examination from the applicant’s counsel in a forthright and direct manner. He agreed that there was never any observation of money being contained in the red box. He also agreed that he had never seen Mr. Gomboc with the red box, nor did he know how long the box had been in Mr. Szymanski’s possession. Finally, he agreed that the only time the red box was seen was when Mr. Szymanski walked into Mr. Gomboc’s residence. In re-examination when asked to explain why he believed it to be money in the box, he explained that there was evidence that the undercover officer had purchased 9 ounces of cocaine earlier that day from Mr. Szymanski prior to the drug transaction. Officer Forrest believed that Mr. Szymanski attended at Mr. Gomboc’s residence after the transaction. He believed the purpose of the visit was for Mr. Szymanski to pay Mr. Gomboc the money that was owed for fronting the cocaine transaction earlier that day. While one might debate the strength of the inferences that could be drawn from the observed activity, I was impressed by Officer Forrest’s forthright answers on cross-examination and his ability to provide a rational explanation for the opinion he expressed in the ITO. I am satisfied that there was no deliberate intention to mislead the issuing justice by Officer Forrest in the ITO.

Background Information

[20] In the initial overview of the investigation, Officer Forrest explains that Project Diablo was a joint forces operation involving Barrie Police, South Simcoe Police Services and the Ontario Provincial Police. The aim of the investigation was to uncover and dismantle a ring of cocaine traffickers operating in the Barrie area. It was believed that this group was being led by Ryan Gomboc and another individual, Joseph Francel.

[21] The project began with an undercover officer making multiple purchases of cocaine from Dale Widawski. In turn, Mr. Widawski introduced him to his supplier, Christopher Szymanski. The undercover officer participated in a number of cocaine transactions with Mr. Szymanski, and there were observations of Mr. Gomboc meeting with Mr. Szymanski, either before and/or after the alleged transactions. Mr. Gomboc was seen in surveillance driving both a white and a silver Mercedes. Both of these vehicles were owned jointly by Mr. Gomboc and his father, Stanley Gomboc.

[22] The ITO contains information from a number of confidential sources, most of which was redacted for purposes of this application. The un-redacted portions of the confidential informants contains the following information:

From Confidential Informant No. 1:

(a) Gomboc is actively selling cocaine

(b) Gomboc drives a newer model Mercedes

(d) Gomboc has a supplier in Toronto

(e) Gomboc will cut his cocaine with a special cutting agent

From Confidential Informant No. 2:

(a) Gomboc is a kilogram level cocaine dealer

(b) Gomboc lives with his parents near Minet’s Point in Barrie

(d) Gomboc cuts his cocaine

(e) Gomboc delivers multiple ounces of cocaine at a time to his runners

From Confidential Informant No. 3:

(a) Gomboc is selling cocaine

(b) Gomboc and Joe Francel have received a large amount of cocaine together

From Confidential Informant No. 5:

(a) Gomboc is a kilogram level cocaine dealer

(b) Gomboc is very secretive about his trafficking operations

[23] In addition, the Crown adduced some additional evidence about Confidential Informant No. 2 which included the following additional information:

(i) Information was provided by this informer in early 2016

(ii) The information was current information at the time

(iii) The information provided was first-hand information

(iv) Specifically, that Mr. Gomboc has a cocaine press inside the residence he shared with his parents

Evidence Linking Mr. Gomboc to the Supply and Sale of Cocaine

[24] In reading the applicant’s factum, he appears to accept that the information contained in the ITO is sufficient to establish a nexus between himself and the supply and sale of cocaine. At paragraph 16 of the factum, the applicant states,

On the basis of the information received from the CHS and the surveillance conducted, there were reasonable grounds to believe that evidence could be found in the Mercedes vehicles, as well as the properties and vehicles involving other accused persons. However, there were insufficient grounds to believe that evidence could be found at 6 Gibbon Drive and 32 Royal Oak Drive on May 12, 2016 when the warrant was executed.

[25] In argument, however, there were lengthy submissions about the adequacy of the evidence linking Mr. Gomboc to the drug trade. In my view, the evidence supporting this conclusion was compelling and easily exceeded the relevant standard of a credibly based probability. However, it is significant that many of the observations do not involve any hand to hand transfers or independent verifications that Mr. Gomboc trafficked in cocaine. As noted by the Court of Appeal in R. v. Dezainde, 2015 ONCA 474, there comes a point when a pattern of conduct can rule out any thought of an innocent coincidence. In the Dezainde case, the police catalogued observations of the appellant’s movements and stops over a two day period. The trial judge recognized that some of these observations could not reasonably be said to corroborate information received from a tipster. After eliminating those observations from his list, the judge was left with a series of eight “stops” by the accused during which either someone was seen briefly entering the vehicle in which he was riding, or where the accused was seen approaching a residence for a brief period.

[26] In their decision in Dezainde, the Court of Appeal comments as follows, at para. 7:

The trial judge said, “If the evidence on this application involved the tip and only one of the stops by the [appellant], reasonable grounds [for arrest] would not exist.” Further, “[i]f the evidence consisted of the tip and two of the stops, reasonable grounds still would not exist.” He concluded, “However, at some point (and I need not determine where) in the eight stops … any thought of innocent coincidence disappears. A pattern of conduct emerges.” He therefore found the police had objectively reasonable grounds for arrest. We agree with this conclusion. Viewed in combination, the eight stops as described by the trial judge, together with the tip, gave rise to a credibly based probability that the appellant was engaging in drug trafficking.

[27] The following chronology supports the information of the confidential informers, on the standard of credibly based probability, that Mr. Gomboc was involved in the sale of cocaine and engaged in drug trafficking:

December 16/17, 2015

[28] Paragraph 114 of the ITO describes how on December 16, 2015, the undercover officer made contact by phone with Mr. Szymanski and inquired about purchasing two ounces of cocaine. The ITO then states that arrangements were made for the undercover officer to attend Mr. Szymanski’s residence the following day.

[29] At paragraph 115, the ITO describes how on December 17, 2015, at 11:45 a.m., Mr. Gomboc was observed arriving at Mr. Szymanski’s residence in a silver Mercedes. He proceeded to exit the vehicle, grabbed an object from the trunk and attended inside Mr. Szymanski’s residence. Four minutes later, Mr. Gomboc exited the residence, returned to his vehicle and drove away.

[30] Paragraph 117 of the ITO describes how the undercover officer received a text message from Mr. Szymanski at 11:55 a.m. asking him when he was going to arrive. A short time later, the undercover officer attended the residence when Mr. Szymanski provided him with a zip lock bag containing two ounces of cocaine in exchange for $2,600. At paragraph 117, Officer Forrest comments, “this brief visit by Gomboc inside Szymanski’s residence is consistent with a drug transaction. Further, the fact that Szymanski contacts the undercover officer 10 minutes after this visit leads me to believe that during this brief visit, Gomboc supplied Szymanski with the cocaine sold to Detective Constable Westlake”.

[31] During the voir dire, the parties introduced as an exhibit, an extraction report showing incoming and outgoing messages from the undercover officer’s phone. The messages on December 16, 2015, indicate that the drug transaction was to take place at around the lunch hour on December 17. This information is not included in the ITO. The applicant argues that this is a material omission with a serious potential to mislead the issuing justice. The applicant argues that paragraph 114 of the ITO should be amplified to include the text messages between the undercover officer and Mr. Szymanski. When cross-examined on this issue, Officer Forrest acknowledged that he was aware of the proposed timing for the transaction. He did not include this information in the ITO because he felt it was sufficient to note in the ITO that the drug deal had been scheduled for the following day. He did not feel that that piece of information was particularly relevant and therefore did not include it in the ITO. He noted that one could always add more details to the ITO but he didn’t feel it was necessary. I am inclined to agree with Officer Forrest on this issue. The observations made on December 17, 2015, are not sufficient to establish Mr. Gomboc supplied Mr. Szymanski with the drugs delivered in the transaction with the undercover officer. There is no confirmed identification of what Mr. Gomboc removed from his trunk. On its own, it is possible that Mr. Gomboc’s attendance in the time period just before the transaction is an innocent coincidence. The fact that the timing of the transaction was arranged the day before does not significantly lessen any inference which might be taken from Mr. Gomboc’s attendance. If indeed Mr. Szymanski had requested drugs from Mr. Gomboc to complete the transaction with the undercover agent, it is reasonable to assume that Mr. Gomboc was advised of the expected time of the transaction. The surveillance falls short on its own of establishing that Mr. Gomboc was supplying cocaine for the subsequent drug transaction. The observations are relevant, however, in the context of a pattern of conduct involving Mr. Gomboc. Even with the amplification requested by the applicant in the context of the pattern of conduct, I do not see how this would significantly weaken the inferences which might be drawn from this incident.

[32] Further, I do not view this omission as material non-disclosure. In Araujo, Justice LeBel comments on the need for an ex parte authorization to contain full and frank disclosure of material facts. However, he comments that there is no need for the affidavit to be as detailed as an automotive repair manual. The requirement as set out by him in the decision at para. 46, is as follows:

All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years. [Emphasis in original.]

January 28, 2016

[33] At paragraph 152 of the ITO, it is noted that surveillance revealed that Mr. Gomboc attended with his silver Mercedes and travelled to a plaza parking lot located at 237 Mapleview Drive East, in Barrie. His girlfriend was the passenger in the vehicle. Mr. Gomboc parked his vehicle next to another vehicle. His girlfriend exited the vehicle and entered into the front passenger seat of the other parked car. Approximately 30 seconds later, the girlfriend exited this vehicle and returned to Mr. Gomboc’s vehicle who immediately reversed out of the parking space and left the plaza parking lot. At paragraph 153, Officer Forrest states his belief that this interaction was consistent with a drug transaction. The applicant argues that this paragraph should be excised as it constitutes an erroneous conclusion based on speculation. I have concluded, however, that the observations made on January 28, 2016, are relevant in terms of establishing a pattern of conduct. Even if paragraph 153 is excised, the observations at paragraph 152 are relevant to a pattern of conduct which supports a conclusion that Mr. Gomboc was engaged in drug trafficking.

February 12, 2016

[34] At paragraph 154, surveillance of Mr. Gomboc reveals that he drove his silver Mercedes to the plaza parking lot located at 237 Mapleview Drive East in front of a restaurant known as Wild Wing. At 2:13 p.m., a male walked up to Gomboc’s vehicle, opened the rear driver’s side door and leaned into the interior of the vehicle. Approximately one minute later, the male removed himself from the vehicle, closed the door and walked away, last seen walking into Wild Wing. Mr. Gomboc then reversed out of the parking space and left the plaza parking lot. This paragraph also identifies the male who leaned in to the interior of Mr. Gomboc’s vehicle. He was identified as a known cocaine user and involved in drug trafficking.

[35] This is a further incident where there is no actual transaction witnessed. In addition, as pointed out by the applicant, the fact that the other individual opened the rear driver’s side door suggests that another person may have been in the vehicle with Mr. Gomboc. Even accepting this assumption, however, Mr. Gomboc would have been a party to any transaction which occurred. This incident is relevant as part of a pattern of conduct consistent with drug trafficking.

February 24, 2016

[36] At paragraphs 134-136, there is a record of observations relating to a cocaine transaction involving the undercover officer and Mr. Szymanski. The transaction initially took place at Mr. Szymanski’s residence. Mr. Szymanski sold the undercover officer two ounces of cocaine. When the undercover officer asked about obtaining an additional ounce, Mr. Szymanski stated that he did not have enough cocaine to fill the order, but said he would contact someone. He immediately began using his cellphone. Later, the undercover officer and Mr. Szymanski attended at the Wild Wing restaurant located at 237 Mapleview Drive, in Barrie. At approximately 1:50 p.m., Mr. Szymanski received an incoming call on his cellphone and told the caller “I’ll be right out”. Mr. Szymanski then left the restaurant. Outside surveillance observed Mr. Gomboc’s silver Mercedes pulling into the parking lot and stopping next to Mr. Szymanski. Mr. Gomboc was the driver of the vehicle. Mr. Szymanski walked up to and entered the vehicle through the rear passenger side door. The Mercedes started travelling and did a continuous loop of the building before returning and stopping in the same area that Mr. Szymanski got into the vehicle. Mr. Szymanski exited the vehicle. Mr. Gomboc then drove out of the parking lot onto Mapleview Drive East. Mr. Szymanski walked back into the Wild Wing restaurant and returned to the table he shared with the undercover officer and handed him a zip lock bag containing 1 ounce of cocaine under the table.

March 9, 2016

[37] In paragraph 162 of the ITO, there is a summary of surveillance which shows that Mr. Gomboc stopped in a parking lot located at 5 Mulcaster Street behind a “Hooters restaurant”. His girlfriend was in the car with him. At 5:20 p.m., another car attended the same parking lot and stopped near Mr. Gomboc’s vehicle. Mr. Gomboc exited his vehicle and entered into the front passenger seat of the Chevrolet. The Chevrolet then left the parking lot and drove directly to a parking lot on Victoria Street a short distance away. At that time Mr. Gomboc exited the Chevrolet and waited in the parking lot. He was picked up by his girlfriend who had followed the Chevrolet.

April 1 and 6, 2016

[38] At paragraph 217 of the ITO, it reports that the undercover officer met with Mr. Szymanski on April 1, 2016 to discuss the purchase of 9 ounces of high grade cocaine. It was agreed, at this time, that Mr. Szymanski would obtain two one grade testers of high quality cocaine. These testers were to be delivered later in connection with a plan to purchase up to 9 ounces of high grade cocaine at a later time.

[39] At paragraph 218, surveillance of Mr. Gomboc showed that on April 6, 2016, he attended at Mr. Szymanski’s residence at 10:54 a.m. At 11:00 a.m., he left Mr. Szymanski’s residence and drove away. At 11:46 a.m., Mr. Gomboc was observed in a parking lot when an unknown male got out of a silver Ford Focus and walked up to the passenger side door of his vehicle. Approximately one minute later, the unknown male returned to the silver Ford. At paragraph 220, it is noted that on April 7, 2016, the undercover officer met with Mr. Szymanski and provided him with two small zip lock bags each containing cocaine of a different purity and which were the “testers” that had been discussed earlier.

[40] I have concluded that while there was never a direct observation of Mr. Gomboc providing drugs to Mr. Szymanski or others, the pattern of conduct disclosed above defies any innocent explanation when taken in the context of the information provided by four confidential informants. There was clearly sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that Mr. Gomboc was supplying cocaine to Mr. Szymanski as well as others. The issue, of course, which remains, is to what extent there was sufficient credible and reliable evidence to make a finding that evidence of the offences would be found at either 32 Royal Oak Drive or 6 Gibbon Drive.

Were there reasonable grounds to search 32 Royal Oak Drive and 6 Gibbon Drive?

[41] The defence argues that there was no reasonable basis to believe that offence related property would be found at either 32 Royal Oak Drive or 6 Gibbon Drive. They refer to the case of R. v. Paxton, 2016 ONSC 2906, 354 C.R.R. (2d) 110. In that case there was evidence that the accused was engaged in trafficking, but there was an insufficient connection between the drugs and Mr. Paxton’s home because there were no observed drug transactions at his residence. There was also no corroborative tip or evidence that drugs were in his home or expected to be in his home on the date the search was executed. In the Paxton decision, the court states at para. 48,

With respect to the authorization to search his dwelling-unit, I am not satisfied that there was credible and reliable evidence tying the presence of the drugs to that location to justify the issuance of the warrant. It is a close call in that there is evidence he was engaged in trafficking drugs, but on the whole of the evidence, there is an insufficient connection between the drugs and the dwelling-unit. Apart from the Crime Stopper tip, there were no observed drug transactions at his residence. There was no further corroborative tip or evidence that drugs were in the dwelling or could be expected to be at that date.

[42] At para. 25 of the Paxton decision, the court summarizes the evidence of a police officer on the voir dire where it is stated that each time the police did surveillance of the defendant, he came out of his residence with boxes and then made delivery of those boxes or bags that were in the boxes. Accordingly, the police officer believed that the defendant kept the drugs in his residence. On cross-examination, however, the officer agreed that it is not unusual for people to put bags or boxes in their vehicle.

[43] There are, however, at least two Court of Appeal judgments which suggest that if a person leaves his residence and subsequently engages in drug transactions, there is a good chance that there are drugs in the residence. Thus, for example, in R. v. Soto, 2011 ONCA 828, 99 W.C.B. (2d) 94, at para. 5, the court states,

In our view, this reasoning is sound. In particular, the emphasized passage speaks to an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence.

[44] In R. v. Balouch, 2018 ONCA 770, at para. 8, the court similarly states,

The trial judge specifically acknowledged that the appellant was not seen leaving the “specific apartment unit”, but from the “underground parking lot” associated with the apartment building. She concluded, however, that she could not “ignore” the totality of the evidence in the ITO, leading to the “reasonable inference that [the appellant] had been inside [the] apartment … before doing so.” That was a reasonably available inference. The trial judge was correct to look to the totality of the information in coming to her decision. There was credible and reliable information that the appellant was trafficking in drugs from his car, that his car was associated with the apartment building and seen leaving there on three occasions, two of which were followed by conduct consistent with drug trafficking. There was also information that he was associated with the apartment searched because it was his mailing address and that of his father. In these circumstances, it was open to the trial judge to conclude that there were sufficient grounds contained within the ITO upon which the apartment warrant could issue. We owe deference to that finding.

[45] In the present case, the applicant further argues that the identification of Mr. Gomboc residing at 32 Royal Oak Drive and 6 Gibbon Drive was misleading. The applicant refers to the ITO at paragraph 143 where Officer Forrest notes that a background check indicated that Mr. Gomboc had a listed residence at 114 Raymond Crescent in Barrie, Ontario, as of March, 2013. At paragraph 140 of the affidavit, the affiant identifies Ryan Gomboc’s residence as at 32 Royal Oak Drive, in Barrie. The applicant asserts that this paragraph is also misleading because by the time the ITO was sworn, there was evidence that Mr. Gomboc had moved to 6 Gibbon Drive. Having said that, the ITO clearly sets out observations which would justify a conclusion that Mr. Gomboc lived at 32 Royal Oak Drive up until around March 15, 2016, when he appeared to move into the residence at 6 Gibbon Drive.

[46] Prior to March 15, 2016, Mr. Gomboc was observed consistently leaving and returning to the residence at 32 Royal Oak Drive. This was also identified as the residence of his father who lived at the same address.

[47] On March 15, 2016, Mr. Gomboc was observed pulling into the residential driveway at 6 Gibbon Drive and then signing some paperwork on the trunk of his vehicle (paragraph 167 of the ITO).

[48] Beginning on March 15, 2016, Mr. Gomboc was observed attending at 6 Gibbon Drive on multiple occasions and moving items into the residence (paragraph 171). The affiant expresses the opinion that, “these observations coupled with Gomboc signing documents in the driveway of the residence on March 15, 2016, leads me to believe that Gomboc and Knaus [his girlfriend] are in the process of relocating their primary residence to 6 Gibbon Drive”.

[49] I am satisfied, therefore, that there was credible and reliable evidence before the issuing justice which linked Mr. Gomboc to living at 32 Royal Oak Drive with his parents until March 15/16, 2016, and to the residence at 6 Gibbon Drive after that date.

[50] There were also observations of Mr. Gomboc leaving and returning to his residence after he was seen in activities consistent with drug transactions. For example, Mr. Gomboc was observed departing 32 Royal Oak Drive and conducting activity consistent with drug trafficking on January 28, 2016, February 24, 2016, and March 9, 2016. Similarly, he was observed departing 6 Gibbon Drive and conducting activity consistent with drug trafficking on April 6, 2016, and April 14, 2016.

[51] In addition to those observations, there was additional evidence suggesting that Mr. Gomboc’s residence might have offence related property. This includes the information from Confidential Informant No. 2, that Mr. Gomboc had a cocaine press inside the residence he shared with his parents. In addition, there were the observations of Mr. Szymanski entering into Mr. Gomboc’s residence at 6 Gibbon Drive on April 14, 2016, with the red cracker box following the drug transaction between the undercover officer and Mr. Szymanski. As noted previously, there was no evidence as to what was contained in the red box. But, taking into account all the circumstances, I consider Officer Forrest’s suspicion to be reasonable from a practical and common sense perspective.

[52] Taken in its totality, I conclude there was a sufficient connection established to Mr. Gomboc’s residence at 6 Gibbon Drive to permit a justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at 6 Gibbon Drive. I therefore conclude that the search at 6 Gibbon Drive did not violate Mr. Gomboc’s s. 8 Charter rights.

32 Royal Oak Drive

[53] With respect to the search at 32 Royal Oak Drive, there is a further significant issue which needs to be addressed. The applicant points to the fact that there were no observations of Mr. Gomboc attending at 32 Royal Oak Drive after March 16, 2016. The applicant, therefore, argues that at the time the ITO was prepared on May 9, 2016, there was no longer a reasonable basis to believe that any offence related property would still be at that residence. The applicant further argues that the statement by the affiant that Mr. Gomboc still had uninhibited access to 32 Royal Oak Drive after the move to 6 Gibbon Drive was misleading (paragraph 293). The applicant submits that given the lapse of time between the date of his move and the date the affidavit was sworn, there would no longer be a reasonable basis to believe that any offence related property was at 32 Royal Oak Drive.

[54] The Crown argues that because the residence at 32 Royal Oak Drive was occupied by Mr. Gomboc’s parents, there would still be a reasonable basis to believe that he had uninhibited access to the property and that there would still be a reasonable basis to believe that offence related property would remain in that residence. In the Ontario Court of Appeal decision in R. v. James, 2019 ONCA 288, the court dealt with an appeal which considered the question of when information may be so dated that it cannot be relied upon for the purpose of seeking a judicial authorization. In his dissent, Justice Nordheimer reviews some of the relevant case law on this issue. At para. 55, Justice Nordheimer notes that there is no hard and fast rule as to how recent information has to be in order to be relevant. At para. 64, he states,

The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is “dated” does not mean it is “stale”. While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

[55] In the present case, I have concluded that at the time the ITO was sworn, there was no longer a reasonable basis to believe that offence related property would still be found at 32 Royal Oak Drive. Apart from the temporal delay, there are other factors which lead me to this conclusion. First, is the evidence that Mr. Gomboc moved his residence from 32 Royal Oak Drive to 6 Gibbon Drive. It is a reasonable inference based on the surveillance that he moved his possessions from 32 Royal Oak Drive to the new residence at this time. In addition, the ITO discloses no observation of Mr. Gomboc leaving the residence at 32 Royal Oak Drive and engaging in any activity consistent with drug transactions, after March 16. To the extent that he was observed leaving and returning to a residence after that date in connection with suspected drug activity, the residence involved was 6 Gibbon Drive. Finally, there were no observations of Mr. Gomboc attending at 32 Royal Oak Drive, whatsoever, after March 16, 2016.

[56] In these circumstances, I conclude that there was no reasonable basis to believe that Mr. Gomboc was engaging in any drug activity from 32 Royal Oak Drive after March 16 or that any offence related property would be found at this residence as of the date the ITO was sworn.

[57] In these circumstances I conclude that there was insufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that evidence of an offence would be found at 32 Royal Oak Drive.

[58] It follows that the warrant to search the residence at 32 Royal Oak Drive should not have issued and the search therefore constituted an unreasonable search contrary to s. 8 of the Charter.

Section 24(2) Analysis

[59] In light of my finding with respect to the s. 8 breach in relation to the premises at 32 Royal Oak Drive, I must now turn to the question of whether the evidence obtained from the search of that residence should be excluded pursuant to s. 24(2) of the Charter. The test is whether the administration of justice would be brought into disrepute by the admission of the evidence obtained contrary to the Charter, considering the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in the adjudication of the case on its merits: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

1. The seriousness of the Charter-infringing state conduct

[60] In this case the police had a legitimate reason to delay in seeking a search warrant with respect to the premises at 32 Royal Oak Drive. The investigation of Mr. Gomboc was part of a much larger investigation into cocaine trafficking in the Barrie area. The ITO in question was a lengthy one covering a significant number of persons and properties where search warrants were being sought.

[61] Further, I reject the suggestion that there was an attempt by the affiant of the ITO to mislead the issuing justice. On the contrary, the police were following what would reasonably be considered the required constitutional process by obtaining a search warrant and were acting in accordance with the search warrant which had been issued. The police could not have accurately predicted that the information contained in the ITO would be considered stale for purposes of a search warrant. All of the relevant information about the move from 32 Royal Oak Drive to 6 Gibbon Drive was included in the ITO. There was no intent to withhold relevant information from the issuing justice. These facts would suggest that the Charter breach falls to the least serious end of the spectrum and, therefore, does not support exclusion of the evidence.

[62] The applicant, however, relies upon the manner in which the search warrant was executed to suggest that the Charter breach should be viewed far more seriously. In support of their position in this regard, the Crown submitted an affidavit from Mr. Gomboc’s mother who also attended at the voir dire and gave evidence about the manner of the search. Officer Brad Breeding who was the lead officer for the search at 32 Royal Oak Drive was also called as a witness during the voir dire.

[63] Ms. Gomboc’s evidence was that when the police attended at their residence, her son was initially arrested and the other family members, including herself, her husband, and Mr. Gomboc’s sister and two children, were directed into the kitchen. They were told initially that they could not leave the home and go to work. The police took all of their cellphones following which they were asked a series of questions by the police officers. Ms. Gomboc did not recall ever being told why the police were detaining her, nor did she recall being told that she had the right to call a lawyer.

[64] Ms. Gomboc did not assert that the police officers conducting the search were aggressive or hostile. They did tell her that they were looking for cash, drugs, and weapons, and at some point, they provided her with a copy of the search warrant. She also gave evidence that the police officer allowed Mr. Gomboc’s sister and the children to go to school. Neither she nor her husband were arrested or put in handcuffs. She also recalled that the police, before the children went to school, helped prepare breakfast for the two children.

[65] Officer Breeding gave evidence that he and other members of the police services attended at the residence with a search warrant. They knocked on the door and identified themselves as police officers. Mr. Gomboc was immediately arrested and placed in hand cuffs. He was subsequently transferred back to a police station. Once Officer Breeding completed his arrest of Mr. Gomboc, he went into the residence and put a copy of the search warrant on the kitchen table where the residents of the house were located. Subsequently, the sister made a request to leave with the two children. Officer Breeding checked with his supervisor who authorized Mr. Gomboc’s sister to leave with the two children, but required that the two parents who had asked to go to work be kept until the search was completed.

[66] Officer Breeding, in cross-examination, stated that he advised the residents of the home that they were being detained. He further stated that he provided rights to counsel and a caution to them, but he had no record of how they responded.

[67] It is reasonable to conclude from the evidence at the voir dire, that there were some Charter violations for persons, other than Mr. Gomboc, who were in the home at the time of the search.

[68] Even accepting Officer Breeding’s evidence, it would appear that there was a significant delay in informing the residents of the house the reason for their detention and the right to instruct counsel. Further, the seizure of the cellphones would appear to be violations of s. 8, although the cellphones were subsequently returned to the residents at some point prior to the completion of the search.

The impact of the third-party Charter breaches on Mr. Gomboc

[69] The applicant argues that the Charter breaches of the other residents of the home should be taken into account when considering the seriousness of the Charter-infringing conduct. It is acknowledged by the applicant, that these Charter violations do not relate to Mr. Gomboc himself. The issue is to what extent they are relevant for purposes of a s. 24(2) analysis that relates only to a s. 8 breach vis-à-vis Mr. Gomboc. Neither party provided any clear authority as to whether Charter breaches unrelated to the accused should properly be taken into account.

[70] In the Grant decision, when explaining how the seriousness of the Charter infringing state conduct is to be assessed, the court states that the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the court’s to dissociate themselves form that conduct. At para. 73, the court states,

This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[71] In R. v. Wasserman, 2018 MBQB 151, the defence brought a motion to re-open the trial following a conviction, on the basis of new evidence. The evidence to be adduced related to alleged Charter violations against an unrelated third-party individual by the same officer who had breached Mr. Wasserman’s s. 8 and 9 Charter rights; breaches which did not result in exclusion of evidence. The court summarized the law at paras. 16 – 17:

In R. v. Merritt, 2017 ONSC 2245, the issue before the court was the extent to which the accused could adduce evidence on the s. 24(2) application of other third party violations by the police both during the course of the investigation involving the accused and outside of that investigation. The intent was to show that the breaches of the accused's rights were more serious and part of a pattern of abuse which justified exclusion of the evidence. The court noted that this was distinguishable from the situation in R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492, where Charter violations had otherwise been established in the proceedings by individuals having standing. In Merritt, the court concluded that the accused could not rely on allegations of third party Charter breaches within or apart from the investigation as the violations had not been judicially determined and the accused lacked standing to establish those breaches. The court stated that the Supreme Court in Grant did not intend such a broad inquiry.

Similarly, in R. v. Rafferty, 2012 ONSC 703, the accused alleged that illegal searches of two third party vehicles in the same investigation showed a pattern of police conduct that should be taken into account in addressing a s. 24(2) motion in relation to the breach of his own s. 8 rights. The court declined to consider whether the third party searches were improper as the accused had no standing to challenge those searches. Likewise, in R. v. Nguyen, 2013 BCSC 950, the accused asserted that there were illegal searches of several third party residences in the course of the investigation which established a larger scale of police misconduct. The court held that the accused did not have standing to challenge those searches. The court stated that to accept the accused's position would be to change the focus of the Charter inquiry from the protection of individual rights to a more general and at-large inquiry into a given police investigation, which would require a substantial expenditure of judicial time and detract from trial focus. See para. 34.

[72] In Merritt, at paras. 23-25, the court stated:

In my view the applicants submissions in respect of third party Charter violations that have not been otherwise established in these proceedings cannot succeed because the applicants lack standing to establish the Charter violations alleged. This is a different situation than a case in which Charter violations of third parties have already been established because those third parties had standing in the same or a related proceeding and raised and established violations of their own rights. In such circumstances there is a line of authority in British Columbia which establishes that a court is required to take such violations of a third party’s Charter rights into account on an accused’s s. 24(2) application, at least in circumstances where the third party’s Charter rights were violated in the course of the same transaction that led to obtaining the evidence the accused seeks to exclude: R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492; R. v. Trieu, 2010 BCCA 540, 272 C.C.C. (3d) 273, at para. 92; R. v. Spence, 2011 BCCA 280, at paras. 51-54; R. v. Nguyen, 2013 BCSC 950, at paras. 28-36; R. v. Mauro, 2017 BCCA 45, at paras. 26-28.

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

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

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

[73] In R. v. Flintroy, 2019 BCSC 152, the applicant, Mr. Halstead, in the course of a s. 24(2) hearing, applied for an order permitting him to adduce evidence that police breached the Charter rights of his common law spouse, with whom he shared a home and who was present during the time of the police search. She was not an accused person in the proceeding. Starting at para. 12, the court stated:

I have examined the decision in Ferguson. In my view, it follows the decision of the Court of Appeal in R. v. Lauriente, 2010 BCCA 72 [Lauriente], to the effect that, in conducting a section 24(2) analysis, the court is entitled to take into account a pattern of Charter breaches that occurred during the course of the investigation, and their cumulative effect. This much is clear. However, the pertinent question is whether breaches of the rights of a third party, who is not and has never been a party at trial, can be co-opted by an accused as part of this holistic approach to the 24(2) analysis. This is much less clear.

In Lauriente, there were two defendants. Prior to the commencement of the substantive portion of the trial, claims of Charter breach were being adjudicated on a voir dire. In conducting the s. 24(2) analysis, the court held that the breaches as between the two defendants could be considered “communally”; that is, Charter violations against one defendant could be taken into account in respect of another defendant’s s. 24(2) claim. As well, in that case, there had originally been a third defendant, and she was part of the proceeding in the early stages of the voir dire. During the time she was a party to the application (in her capacity as an accused and a Charter claimant), she had also established a breach of her Charter rights. Proceedings against her were discontinued prior to the adjudication of the section 24(2) issue. Nevertheless, her Charter breach was included in the consideration of the hearing judge.

Of importance to the present analysis, Prowse J.A. expressly stated that the finding of the court was not predicated on the accused’s standing to allege third party breaches, but rather the accused’s ability to rely on breaches already established by parties with standing. This is a crucial distinction, as the court made clear:

[26] I do not agree with the Crown’s characterization of the trial judge’s reasons for judgment, or that the Edwards line of authority has any application here. In this case, unlike any of the standing cases relied upon by the Crown, both Mr. Lauriente and Mr. Catalano had standing to seek relief pursuant to s. 24(2) of the Charter based on the infringement of their individual Charter rights. Mr. Lauriente’s rights under s. 8, 9, and 10(a) had been infringed; Mr. Catalano’s rights under s. 10(b) had been infringed. This was simply not a case of an accused who had no standing seeking to rely on the breach of a third party’s Charter rights in order to obtain standing. There was no reason, therefore, for the trial judge to use words of standing in her analysis.

In Ferguson, the Charter breaches which were relied upon by the court were all with respect to the defendant. There was no third party Charter breach involved. As noted by Justice DeWitt-Van Oosten at para. 78, the court may have regard to the cumulative effect of “all breaches found on the evidence”. As I see it, Ms. Chan’s breaches cannot be found on the evidence as she and she alone has standing to establish such breaches on the evidence, and is precluded from doing so given her non-party status.

Similarly, in Boutros, the Charter breaches at issue were related to the defendant, not a third party. Additionally, in Boutros, Justice Doherty made reference to R. v. Harrison, 2009 SCC 34. I note that in that case, the Charter violating conduct was again with respect to the defendant himself, not a third party.

The principle that seems to me to emerge from these decisions is that the section 24(2) inquiry can properly consider the conduct of the police throughout the investigation and in the course of the prosecution, including Charter violations, and the court will take a robust approach to the examination. However, there is no clear articulation of a scope that goes beyond the Charter rights of the defendant. On the facts in each of those cases, that limitation was present.

[74] In denying Mr. Halstead the opportunity to adduce evidence to prove a breach of the rights of his common law spouse, the court stated in the Flintroy case at paras. 21-23:

My conclusion was as follows: There is nothing in Lauriente which meaningfully changes the necessity for an applicant claiming Charter relief to prove that he has standing to seek a remedy for the breaches that he alleges. The notion of a cumulative effect of breaches is affirmed, but it seems clear that the breaches which were found there all came before the court in the usual way, that is, at the instance of defendants who had standing to allege them: see paras. 32-35.

As recently confirmed in R. v. Vickerson, 2018 BCCA 39 at paras. 46-49, the Edwards framework is the appropriate context to determine if a person has standing to challenge a Charter violation. Under that framework, a claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. In my view, this precludes Mr. Halstead from claiming s. 24(2) relief based on breaches to Ms. Chan’s Charter rights, given that: a) Mr. Halstead has no standing to do so; and b) Ms. Chan has not established a breach of her own Charter rights as a party to this action: R. v. Merritt, 2017 ONSC 2245 at paras 23-28; and R. v. Wasserman, 2018 MBQB 151 at paras. 16-17.

In the matter before me, I am not persuaded that the authorities relied upon by Mr. Halstead provide a basis to expand Lauriente to include third party rights or to otherwise make the change he seeks.

[75] In the Ontario Court of Appeal decision in R. v. Pino, 2016 ONCA 389, the court dealt with the proper interpretation of s. 24(2) and in particular, whether the “obtained in a manner” requirement could only be met by a causal connection between the Charter breach and the discovery of the evidence. At para. 51 of the decision, the court noted that the Supreme Court has taken an increasingly generous and broad approach to the “obtained in a manner” requirement in s. 24(2) and stated that their approach, “looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.” The court in Pino noted that a causal relationship between the breach and the impugned evidence is not necessary. As a result, the court found that a Charter breach after discovery of the evidence sought to be excluded could properly be considered in the s. 24(2) analysis.

[76] In the Pino case, the Court of Appeal set out the following principles which should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2). These principles are as follows:

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire “chain of events” between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

• But the connection cannot be either too tenuous or too remote.

[Emphasis added]

[77] I have concluded based on the case law referred to above that courts will properly take into account the context in which a Charter breach occurs. This can include evidence of other Charter breaches which are not considered too tenuous or remote. However, the focus for considering when evidence was obtained in a manner that infringed the freedoms guaranteed by the Charter, the proper focus will be on Charter violations which involved the accused or another party with standing in the action. Charter breaches against persons other than the accused or persons who are not parties to the litigation should not be given significant weight. I agree with the suggestion that to consider potential Charter breaches against non-parties would change the focus of the Charter inquiry from the protection of individual rights to a more general and at large inquiry into a given police investigation which detracts from the trial focus. In a case like the one before me, the police investigation took place over many months and focused on a large number of potential suspects. Opening up the s. 24(2) analysis to police actions at large is not consistent with the Supreme Court of Canada direction in the Grant case which “necessitates an evaluation of the state conduct that lead to the breach”.

[78] For these reasons I conclude that Mr. Gomboc does not have standing to claim relief under s. 24(2) based on potential Charter breaches to other third party persons who were present at the time of the search of 32 Royal Oak Drive where none of those persons were a party to this action. The connection between those potential breaches and Mr. Gomboc is simply too tenuous or remote to deserve consideration.

[79] Even if the Charter breaches suffered by the third parties were considered on a s. 24(2) analysis, those breaches would in my view have only a very modest impact on the court’s analysis given the considerations described above. In this case I do not find that the Charter violations relating to the third parties, whether considered independently or alongside the s. 8 breach of Mr. Gomboc’s rights, constitute a pattern of abuse such that exclusion of the evidence would be warranted on this prong of the test.

[80] In these circumstances, I have concluded that, on the facts of this case, the seriousness of the breach, relating to the s. 8 violation, is towards the less serious end of the spectrum and does not favour exclusion of the evidence.

2. The impact of the Charter-protected interests of the accused

[81] In this regard, both the applicant and the Crown agree that a search by police, subsequently determined as invalid, involves a serious impact on the Charter-protected interests of the accused persons and thus, favours exclusion of the evidence.

3. Society’s interest in adjudication on the merits

[82] As noted in the Grant decision, society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, this third line of inquiry seeks to determine whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence is an important factor in this line of inquiry. If a breach undermines the reliability of the evidence, this would, in turn, point in the direction of exclusion of the evidence. Conversely, exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair from the public perspective.

[83] In this case, the relevant evidence which the Crown seeks to rely on are text messages which, according to the Crown, provide circumstantial evidence of the relationship between Mr. Gomboc, Mr. Francel, and Mr. Szymanski, and which may provide circumstantial evidence relating to the trafficking allegation. The Crown notes that this is a circumstantial case and there is a very high threshold to establish proof beyond a reasonable doubt. They, therefore, suggest that every piece of available circumstantial evidence is important.

[84] I have concluded that the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, than by its exclusion. In considering this issue, I have considered not only the importance of the evidence to the prosecution’s case, but also the seriousness of the offence. The defendant is charged with serious drug offences. The applicant is alleged to have been dealing significant quantities of cocaine and supplying it through a distribution network in the City of Barrie. He is alleged to be a high level back end supplier in a dealer network. This third factor strongly favours the admission of the evidence. It is reliable and important to the Crown’s case.

[85] Based on an overall analysis of the three factors set out in Grant, I conclude that the evidence should be admitted.

Conclusion

[86] There was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at 6 Gibbon Drive, and thus, the search at that address did not violate Mr. Gomboc’s s. 8 Charter rights.

[87] There was insufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that evidence of an offence would be found at 32 Royal Oak Drive, and thus, the search of that address constitutes an unreasonable search.

[88] Having regard to the factors established in the Grant decision, I conclude that the admission at trial of the evidence found in the search at 32 Royal Oak Drive would not bring the administration of justice into disrepute. Accordingly, the applicant’s s. 24(2) application is dismissed.

Justice M. McKelvey

Released: August 2, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RYAN GOMBOC

Defendant/Applicant

RULING ON THE GAROFOLI APPLICATION OF RYAN GOMBOC

Justice M. McKelvey

Released: August 2, 2019

R. v. Gomboc, 2019 ONSC 4627

Case Summary

RULING ON THE GAROFOLI APPLICATION OF RYAN GOMBOC

Introduction

General Legal Principles on a Review

The Evidence of Officer Forrest on Cross-Examination

Background Information

Evidence Linking Mr. Gomboc to the Supply and Sale of Cocaine

Were there reasonable grounds to search 32 Royal Oak Drive and 6 Gibbon Drive?

32 Royal Oak Drive

Section 24(2) Analysis

1. The seriousness of the Charter-infringing state conduct

The impact of the third-party Charter breaches on Mr. Gomboc

2. The impact of the Charter-protected interests of the accused

3. Society’s interest in adjudication on the merits

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2