COURT FILE NO.: CR-17-10000475-0000

DATE: 20190204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN FILIAN-JIMINEZ

D. Mitchell, for the Crown

C. Rudnicki, for Mr. Filian-Jiminez

HEARD: October 16-17, 2018

s.a.Q. akhtar j.

FACTUAL BACKGROUND AND OVERVIEW

Factual Background

[1] On 19 March 2016 two vehicles were involved in a shooting incident at St. Clair Avenue and Laughton Avenue in Toronto. The vehicles were subsequently identified as a black Toyota Camry licence BXLA 472 and a silver Honda Civic. Police were advised that multiple shots had been fired from the Civic and aimed at the Camry. Upon inspection of the scene, police found several bullet casings as well as a spent bullet.

[2] Video surveillance identified the Camry’s licence plate. The same footage also captured images of the Civic: showing it to sport a black painted fender on the driver’s side, with tinted windows, black winter rims, and damage to the front bumper.

[3] When the police located the Camry, a rental car, they noticed six bullet holes on the driver’s side. The person who had rented the vehicle on the day in question, Jathursan Rajarubakuma, refused to provide a statement.

[4] Following the receipt of confidential informant (CI) information, police linked the applicant to the Civic and set up surveillance at the applicant’s home address of 3139 Kilbride Crescent in Mississauga. On 22 March 2016, police officers noticed a silver Civic matching the description of the vehicle on the video. The officers followed the car to a nearby mall and arrested the applicant who was driving the car. The applicant informed the police that he was at the mall to purchase baby formula for his child who, along with his girlfriend, were at his home.

[5] Police applied for a warrant to search the applicant’s residence as well as the Civic. The arresting officer became concerned that the applicant’s failure to return home within an expected time period might lead to evidence destruction. After reading the applicant his right to counsel, the police told him that they would call the applicant’s girlfriend to obtain his lawyer’s number. When the applicant asked to speak to his girlfriend personally, the request was refused.

[6] The arresting officer attended the applicant’s home accompanied by other officers to ensure that material evidence would not disappear or be destroyed. The applicant’s girlfriend answered the door, holding a baby. The applicant’s brother was also present. The police identified themselves and advised that the house was being held pending the issuance of a search warrant. They explained that this was necessary to preserve evidence.

[7] The search warrant was not conducted until sometime later. The police allowed other people, such as the applicant’s brother and mother, to enter the premises later in the evening before executing the warrant. All occupants were free to leave but were informed that they could not move around the house.

[8] When the warrant was executed, police located a .45 calibre handgun and 10 rounds of .45 ammunition stored in a safe situated in the applicant’s bedroom.

[9] When analysed, the Centre for Forensic Sciences determined that the cartridge cases found at the scene of the offence had been fired from the handgun found in the safe. Police located additional identification in the bedroom, including the applicant’s birth certificate and driver’s licence.

The Charter Applications

[10] The applicant seeks exclusion of the evidence found at the applicant’s home on the basis of three Canadian Charter of Rights and Freedoms violations.

[11] First, he says that his s. 9 rights were breached when police arrested him. Second, he submits that the police engaged in a warrantless search of the applicant’s home when they “froze” it pending the search warrant, thereby contravening his s. 8 rights. Third, the applicant argues that the Information to Obtain the warrant (ITO) was deficient resulting in the issuance of a constitutionally deficient warrant. Fourth, the applicant claims that even if the ITO was constitutionally sound, the breach occasioned by “holding” his residence prior to the search warrant sufficiently taints the warrant to justify excluding the evidence discovered after its execution.

Issues

[12] The following issues must be resolved on this application:

1. Was there a breach of the applicant’s Section 9 Rights?

2. Was there a breach of the applicant’s Section 8 Rights in that the warrant could not have issued?

3. Was there a breach of the applicant’s Section 8 Rights in that exigent circumstances did not exist to justify the police decision to hold the applicant’s residence until the warrant was issued?

4. Was the evidence obtained from the warrant connected to the breach of the applicant’s Charter rights such that Section 24(2) should apply?

5. Should the evidence obtained in the search be excluded under Section 24(2)?

I. WAS THERE A BREACH OF THE APPLICANT’S SECTION 9 RIGHTS?

[13] The applicant submits that the police had no reasonable and probable grounds to arrest the applicant, and accordingly, they violated his rights under s. 9 of the Charter. I disagree.

[14] Subsection 495(1) of the Criminal Code, R.S.C., 1985, c. C-46, specifies that the police must have reasonable and probable grounds that an individual has committed an offence before they are permitted to arrest him or her. The arresting officer must first subjectively believe that they have the reasonable and probable grounds to make the arrest. However, an officer’s subjective belief is insufficient alone. In addition to a subjective belief, there must be an objective basis establishing the existence of reasonable and probable grounds: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 249-251.

[15] Reasonable and probable grounds must, however, be viewed through a flexible, contextual lens, taking into account the volatility and rapidly changing nature at play in circumstances of an arrest: R. v. Golub, (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750.

[16] The police, in arresting an individual, must be aware of a “constellation of objectively discernible facts” linking that individual to the offence being investigated: R. v. Hall, (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (C.A.), at p. 298. It is this “constellation” of facts which forms the basis of the judicial enquiry to determine whether an arrest was lawfully made.

[17] The totality of the circumstances forms the basis of an arresting officer’s objective assessment for the grounds of arrest: R. v. Lawes, 2007 ONCA 10, at para. 4; R. v. Williams, 2009 ONCA 35, at para. 5. An objective assessment carries with it a form of subjectivity as it includes the officer’s experience in forming the basis for his or her conclusions: R. v. Tran, 2007 BCCA 491, at para. 12; Lawes, at para. 4.

[18] In this case, the police had the following information which gave them knowledge of the constellation of facts required to form reasonable and probable grounds:

• A video of the shooting incident;

• A visual description of both cars involved in the shooting including that of the Honda Civic which included a distinctive colour front panel and front damage to the bumper;

• Information from a confidential source linking the applicant to the Civic - for reasons set out below I am satisfied that the CI fulfils the criteria set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140;

• Information that the visual observation of the Civic matched the description of the one seen in the video;

• Information that the applicant’s driving licence indicated that he lived at 3139 Kilbride Crescent - the area surveilled; and

• Knowledge that the Civic with which the applicant had been linked, matched the same description as seen in the video and was driving in the same area in which the applicant was known to reside.

[19] I find that the subjective component of the test in Storrey to be satisfied. Detective Constable Lukings testified on the Charter voir-dire that he believed the applicant driving the car was the individual who had been involved in the shooting.

[20] I also find the objective component of the test to be satisfied. A reasonable person in Lukings’ position would conclude, from the totality of the circumstances, that the silver Civic was the same vehicle from which the shots were fired on 19 March 2016 and that it was being driven by the applicant near his home.

[21] For these reasons, the applicant’s s. 9 Charter application is dismissed.

II. WAS THERE A BREACH OF THE APPLICANT’S SECTION 8 RIGHTS?

The Information to Obtain the Warrant

[22] The principles governing the review of a judicially authorised warrant are well known. In reviewing an authorisation, a judge does not conduct a de novo hearing of the validity of the authorisation or ITO substituting his or her own view for that of the authorising judge. Instead the reviewing judge considers the record placed before the authorising judge as supplemented by the evidence tendered on the s. 8 motion. After excising any misleading or unconstitutionally obtained evidence, the reviewing judge decides whether the ITO discloses sufficient evidence that might reasonably be believed on the basis of which the judge could have issued authorisation: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1451-52; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99.

[23] The ITO submitted for authorisation must outline reasonable and probable grounds to believe an offence has been committed and that there is evidence to be found at the place of search: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-168. An authorisation is presumed to be valid from the outset and the burden of establishing invalidity rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. The authorisation would only be held invalid if the reviewing judge concludes that, on the material before the authorising judge, as amplified by the evidence on the review, and after the excision of erroneous and unconstitutionally obtained evidence, there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorisations existed: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8.

[24] As mentioned above, the existence of errors within the ITO does not, of itself, destroy its validity. Those errors must be excised as erroneous and unconstitutionally obtained evidence. Whatever remains after excision then forms the basis of review for sufficient material justifying the authorisation. Not every error is excised - only those that an affiant knew or ought to have known were false or erroneous: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 119.

[25] As well, any information redacted from the ITO on grounds of privilege cannot be considered unless the court engages in the so-called “Step Six” analysis pursuant to the rules set out in Garofoli. This method permits the reviewing judge to look beneath the redactions to decide whether the test for issuance is satisfied. However, before doing so, a judicial summary of the redacted material must be disclosed to the defence so that they are able to mount a sub-facial challenge to the warrant as part of their right to make full answer and defence: R. v. Crevier, 2015 ONCA 619, at paras. 89–90.

[26] In this case, there were a number of redactions applied to the ITO in order to conceal information that might lead to the exposure of a confidential informant’s identity.

[27] In R. v. Garofoli, at p. 1461, Sopinka J. set out the following procedure to deal with redacted ITOs:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4. After the determination has been made in (3), the packet material should be provided to the accused.

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfil that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence of the confidential informant’s identity.

[28] An ex parte hearing, to which the defence consented, took place to discuss the nature and justification of the redactions so that the applicant could fully participate in the process. In my view, the ex parte nature of the hearing is far more beneficial to court procedure and the defence as it allows a far greater and more frank discussion of the redacted material than would be possible if an accused were present. It is also more beneficial because it allows the Crown to hand up notes in response to questions from the court. I have found that the ex parte procedure fully allows the Crown to attempt justification of the redactions and a judge to ask extensively about why the redactions are necessary.

[29] As a result, many of the redactions originally applied by the Crown were removed. Moreover, in compliance with Crevier, a judicial summary was provided to the applicant describing the nature of the remaining redacted material as the Crown argued that even though the final version of the redacted ITO provided to the defence was, of itself, sufficient to satisfy the test of review, they would apply under Garofoli Step Six using the redacted material to demonstrate the warrant could have issued.

[30] I agree with the reasons of Campbell J. in R. v. Burgher, 2014 ONSC 4527, at para. 30, that this “cumulative” style application is open to the Crown so long as a Crevier compliant judicial summary is provided to the defence, which was done in this case.

The Confidential Informant

• A significant amount of information used in the ITO derived from the CI including:

• The applicant was known by the nickname “Doughboy”;

• The victim’s nickname was “Yadi”;

• The applicant and the victim had been involved in a long running feud;

• The applicant used to live on Pritchard Avenue but now resided somewhere in Mississauga;

• The applicant drove a silver Honda hatchback; and

• The applicant had been arrested and charged for possession of a firearm in the past.

[31] When shown photographs, the CI identified the applicant as “Doughboy” and the victim as “Yadi”.

[32] In Debot, at para. 53, the court set out a reviewing court’s litmus test for reliance upon any information obtained from an informant: the information must be compelling, credible, and confirmed. The three factors comprise a single test rather than separate components to be satisfied on an individual basis. Weaknesses or absence in one area may be compensated by strengths in the other areas: Debot, at para. 53. The important point is that the totality of the circumstances must be examined before deciding whether the CI information passes muster.

Was the CI Information Compelling?

[33] The CI provided several pieces of information providing dates, names, history of the relationship between the applicant and the shooting victim, and the colour and make of car that the applicant drove - which matched the car seen in the shooting video. I find the information to be of a compelling nature.

Was the CI Credible?

[34] The ITO disclosed that the CI had also been the source of information in the past which had, on each occasion, successfully yielded evidence accurately described by the CI. I find that there is no doubt that the CI was a credible source of information.

Was the Information Corroborated?

[35] The ITO provided specific examples corroborating the CI’s information. For example, the source identified that the victim driving the Camry was known as “Yadi”. A police CPIC query revealed that Mr. Rajarubakumar, used an alias of “Yadi”. As noted, the CI also told police that “Doughboy” used to live on Pritchard Avenue and that his name was Jiminez. This information was also confirmed using police records of prior occurrences. The CI also told police that “Doughboy” had previously been arrested for possession of a firearm. This fact was confirmed by the applicant’s criminal record which shows two prior convictions for possession of a firearm. Finally, the CI told officers that “Doughboy” drove a silver Honda hatchback, the same type of car involved in the offence. On 22 March 2016 the applicant was stopped and arrested whilst driving a silver Honda Civic hatchback.

Conclusion on the CI Information

[36] I find that the Debot criteria is satisfied in this case and that the CI’s information is sufficiently reliable to be used as part of the police’s reasonable and probable grounds basis to obtain the authorisation.

Did Reasonable and Probable Grounds Exist to Issue the Warrant?

[37] Accordingly, based on the above, the police had information providing the applicant with a motive to commit the offence: his long running feud with the victim. They also knew that he drove a silver Honda Civic, the same make of car that had been identified as containing the person who fired the shots.

[38] Moreover, the silver Honda Civic that the applicant was driving when he was arrested had the same matching damage to the front passenger bumper seen on the surveillance video capturing the event. The vehicle had the same black winter rims and tinted windows seen on the video. Finally, as noted in Debot, at para. 57, the prior antecedents of a suspect may also be taken into account as an additional factor in deciding the existence of reasonable and probable grounds. Here, the police confirmed the applicant’s prior firearms history through his criminal record.

[39] Based on the accumulation of these factors, I find that the police had reasonable and probable grounds for believing that evidence relating to the offence of discharging a firearm, the offence with which the applicant was charged, could be found at his home address. It follows that I find that there was sufficient information that the authorisation could have issued and no Charter breach when the police executed the warrant.

III. CAN THE CROWN RELY ON EXIGENT CIRCUMSTANCES?

Background

[40] The applicant further argues that by entering his home and remaining there whilst awaiting the warrant, the police contravened s. 8 of the Charter.

[41] As a warrantless entry, the onus falls on the Crown to demonstrate that what the police did was reasonable in the circumstances: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 101; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 35; R. v. McDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 29. In seeking to do so, the Crown, submits that the entry was conducted in exigent circumstances, pursuant to s. 529.3(1) of the Criminal Code: the police had to enter the residence to prevent the possible destruction of evidence, namely the firearm and ammunition used in the 19 March 2016 shooting incident.

[42] Section 529.3(2) clarifies exigent circumstances as including instances where a police officer:

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

[43] In R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 30, the court held that “when considering the loss or destruction of evidence, the exigent circumstances doctrine should be confined to cases where the officer had grounds to obtain the prior judicial authorization but could not do so because of the risk of imminent loss or destruction of the evidence.” See also: R. v. Phoummasak, 2016 ONCA 46, 346 O.A.C. 9, at paras. 11-12.

[44] When invoking exigent circumstances, the Crown must also show the existence of grounds to obtain a warrant: Kelsy, at para. 29. For reasons previously set out in this judgment, I find that the police did have the requisite grounds to obtain a warrant prior to entering the applicant’s residence.

[45] This ground, therefore, turns on whether exigent circumstances actually existed.

[46] On the Charter voir-dire both Lukings and Detective Constable Kirby Reddin testified that even though the police had commenced the application for a warrant to search the applicant’s house, they were concerned about the possible destruction of evidence. Their concern arose from the applicant’s explanation that he was at the shopping plaza to buy baby food. The fact that he had chosen to shop at a store near his house generated the belief that the applicant’s girlfriend and baby were at his home. The officers reasoned that if the applicant did not return within a reasonable period of time, his girlfriend, or others inside the premises, would conclude that he had been arrested and dispose of the firearm and related evidence. To prevent this possibility, officers decided to enter the applicant’s home to “hold” the premises pending the arrival of the warrant.

The Case Law on Exigent Circumstances

[47] The Crown relies upon a series of cases to demonstrate that the police action in this case fell within the exigent circumstances doctrine.

[48] In Phoummasak, an undercover officer purchased drugs from a dealer at his apartment. A second purchase was arranged but the dealer claimed that he had to obtain the drugs from his supplier. The dealer was seen to go into a specific apartment unit and return with the drugs. After a third transaction where the dealer again entered the same building, he was arrested when he returned. Shortly thereafter, the dealer’s mobile phone received a call from “Vic”, who police believed was the dealer’s supplier in the apartment. Worried that “Vic” might become suspicious if the dealer did not answer his phone, the police entered the apartment to “freeze” it until a search warrant was issued. The Court of Appeal for Ontario found the police actions to be justified under the exigent circumstances rule.

[49] In R. v. Brar, 2014 ONSC 4291, the police investigated a complaint that the accused had been offering money to a minor in exchange for sex. After voluntarily attending the police station for an interview, the accused was asked to remain there whilst the police obtained a warrant to search the accused’s computer. The accused refused to stay at the station or sign a consent form to release his computer. In response, police attended the accused’s home and “froze” the premises preventing entry into the room where the computer was located. When the accused ordered them out of the house, police seized the computer alleging exigent circumstances pending the issuance of a warrant. The trial judge found no s. 8 violation, holding that exigent circumstances existed.

[50] In R. v. Harris, 2018 ONSC 4298, police arrested a suspected drug dealer outside his apartment. Upon arrest, his bag was found to contain a large quantity of cash and three mobile phones. The police heard sounds from the apartment including audio from a television and noises from a clothes dryer. Using a key taken from the accused, they entered the apartment, and although the television and clothes dryer were switched on, they found no occupants. The police testified that they entered the unit to ensure there was no one inside and to prevent the destruction of evidence. There was no attempt to search the unit or touch anything, with the police waiting until a search warrant issued. The court found that the police had a reasonable concern that someone else was in the apartment and there was a risk that evidence could be destroyed thereby providing the police with exigent circumstances to enter the apartment. However, the court also found that the police had no right to remain in the apartment pending the issuance of the search warrant.

[51] Finally, in R. v. Zekarias, 2018 ONSC 4751, police entered a residential apartment after finding a bag containing a woman’s torso in a nearby wooded area. The bag held a receipt with the name of a female who lived with the accused, some 500 metres from where the body was found. Police attended the apartment intending to question the accused about the whereabouts of the female that resided with him. When they knocked on his door, they noticed that someone had looked through the peephole and moved away. Peeking through the mail slot they saw someone lying on a bed and moving. The police continued to knock on the front door and were heard by a neighbour, who, when shown a photograph of the female, confirmed that she was the accused’s girlfriend and had not been seen for some days. Police entered the apartment relying on exigent circumstances. The court found that they had grounds to obtain a search warrant but could also rely on exigent circumstances as the police intended to preserve evidence rather than conduct a search.

[52] These cases, however, do not assist the Crown. Whilst I accept that the police only entered the apartment to secure it and ensure that no evidence was moved or destroyed, I am unable to agree that they had grounds to believe that the destruction of evidence was “imminent”.

Did Exigent Circumstances Exist?

[53] In R. v. Paterson, 2017 SCC 15, at para. 33, the court remarked that the common theme arising from the jurisprudential description of “exigent circumstances” was “not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety.” Moreover, in the circumstances of each case, obtaining a warrant must be “impracticable” in light of the exigent circumstances i.e. impossible in practice or unmanageable to obtain a warrant. In other words, the urgency must be shown “to have been such that taking the time to obtain a warrant would pose serious risk” to the objective of preserving evidence, officer safety, or public safety: Paterson, at para. 37.

[54] In the cases relied upon by the Crown, the police had reason to believe that someone was in the target residence. Moreover, there were additional grounds to believe that waiting for a warrant would be impracticable as there was an imminent danger that evidence would be destroyed without intervention.

[55] In this case, however, the police were unaware if the apartment was occupied. Indeed, they knocked on the front door to enquire if that was the case. I found nothing in the officer’s testimony that would lead me to believe that there were reasonable grounds to think there was an imminent risk that evidence would be destroyed pending the obtaining and arrival of a warrant.

[56] Accordingly, I find that the police cannot rely on s. 529.3 of the Criminal Code and, accordingly, that there was a breach of the applicant’s s. 8 Charter rights.

IV. WAS THE EVIDENCE OBTAINED BY THE WARRANT CONNECTED TO THE BREACH?

Background

[57] Although no evidence was found as a result of the initial entry, the applicant argues that the evidence found after the execution of the warrant should be excluded under s. 24(2) of the Charter as the initial unconstitutional entry led to the discovery of the evidence being obtained in a manner that violated the Charter.

[58] Section 24(2) provides that:

24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Does R. v Pino Apply to this Case?

[59] The law has moved away from the notion that only a causal connection between the breach and the evidence obtained is determinative of the issue: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 24. In Goldhart, at para. 40, the Supreme Court of Canada approved an approach which requires examining the whole of the relationship between the evidence and the breach: the court has to examine both the temporal and causal link between the two.

[60] In R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, the Court of Appeal for Ontario held that evidence discovered prior to a breach may still be subject to scrutiny under s. 24(2) if the temporal connection is sufficiently strong. Writing for the court, Laskin J.A., at para. 72, outlined the factors to be taken into account when deciding whether evidence had been “obtained in a manner” for the purposes of s. 24(2):

• 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; and

• The connection cannot be either too tenuous or too remote.

[61] The applicant relies upon Pino as authority for deciding that the link between the “freezing” of the apartment and the finding of evidence is sufficiently connected to cause the evidence found in the apartment after the execution of the search warrant to be subject to s. 24(2) notwithstanding the propriety of the search warrant itself. I agree.

[62] The “holding” of the apartment was a key action in relation to the warrant itself. It was both causal and temporal in finding the evidence and the s. 8 violation must therefore trigger the application of s. 24(2) to decide admissibility.

V. SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2)?

[63] The test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, directs the court to weigh the following three factors in deciding whether evidence is to be excluded:

(1) the seriousness of the Charter infringing conduct;

(2) the impact of the breach on the Charter protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.

[64] Here, both parties agree that the second limb of the Grant test favours exclusion of the evidence whilst the third limb weighs in favour of admission. I agree. The entry into a person’s home is a significant intrusion of privacy and this factor mandates exclusion. On the other hand, the evidence discovered is highly reliable, and exclusion would effectively end the Crown’s case. Thus, the third limb demands admission of the evidence.

[65] With respect to the first limb, I find that the police did not act with bad faith when they entered the applicant’s home. Having heard the testimony of both Lukings and Reddin, I find that they honestly believed that the applicant’s failure to return to his residence would result in the destruction of evidence. I also note that when the police entered they acted only to “freeze” the location: they did not attempt any search and were prepared to allow visitors to enter the residence and occupants to leave. The police only began to search when the warrant arrived and that search was conducted in a reasonable manner.

[66] I reject the applicant’s submission that the police conduct was symptomatic of a systemic pattern of behaviour of disregarding Charter rights: Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. Mr. Rudnicki based this argument on Reddin’s testimony that out of 100 or so residential searches, there had been 7 instances in which the police “froze” a location. As I have already described, case law provides for the use of exigent circumstances to “freeze” locations pending a search warrant. I do not find this number to be indicative of any systemic disregard of Charter rights. Moreover, I heard no evidence regarding the nature of the 7 “freezes” that Reddin had been involved with, all of which could have been perfectly justified.

[67] For these reasons, I find that the police actions in this case could be classified on the lower end of the seriousness spectrum. It is worth noting that in Paterson the court found the police action of entering the accused’s residence on a “no-charge basis” to be a serious infringement. Notwithstanding that finding, the court declared its decision to exclude the evidence to be a close call. I find the police conduct in this case to be of a less serious nature. This is not a situation where “the court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence”: McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83.

[68] Accordingly, balancing the three factors I find that the admission of the evidence obtained pursuant to the execution of the search warrant would not bring the administration of justice into disrepute and it is admissible as evidence.

[69] The s. 8 application is accordingly dismissed.

S.A.Q. Akhtar J.

Released: 4 February 2019

COURT FILE NO.: CR-17-10000475-0000

DATE: 20190204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN FILIAN-JIMINEZ

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.