R. v. Leith, 2020 ONSC 2914

Court File and Parties

COURT FILE NO.: CR 10-2019 DATE: 2020-04-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Heather Vanessa Leith

BEFORE: Justice R. Raikes

COUNSEL: Counsel, for the Crown – M. Donnelly Counsel, for the Defendant – A. Prevost

HEARD: March 6, 2020

Section 8 Charter Decision

Overview

1The defendant is charged with possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), and possession of a prohibited weapon – Maximum Strength Pepper Spray – without a licence contrary to s. 91(2) of the Criminal Code. Both offences are alleged to have occurred on April 25 [sic], 2018 in the Municipality of Central Huron.

2Police found the following during a search of the defendant’s residence on April 24, 2018 pursuant to a s. 11 CDSA search warrant:

• 54.12 grams of methamphetamine in a bedroom;
• Three cellular devices in a bedroom;
• $1,120 in Canadian currency; and
• Digital scales.

3The defendant challenges the validity of the search warrant issued. She asserts that the Information to Obtain (“ITO”) did not contain sufficient information to form reasonable and probable grounds on which a search warrant could be issued. As a result, the search of her residence violated s. 8 of the Charter.

4She seeks an order:

1. declaring that her s. 8 Charter rights were violated; and
2. excluding the evidence obtained as a result of the search pursuant to s. 24(2) of the Charter.

Procedure

5As is customary, the ITO was redacted by the prosecution to prevent identification of Confidential Informants (“CIs”) before it was disclosed to defence counsel. The application brought by the defendant was based on the redacted ITO.

6On February 28, 2020, counsel for DPP advised during that call that the ITO as redacted was insufficient on its face to justify issuance of the search warrant and conceded that a step 6 hearing was required.

7Counsel for DPP subsequently provided a draft Crown summary of redactions for my consideration. I reviewed the unredacted ITO and considered the proposed summary to be provided to defence counsel.

8On March 6, 2020, the following procedure was followed:

1. After court opened, I indicated that the proposed summary of redactions was insufficient to provide defence counsel with enough information to be able to make submissions.
2. I discussed with both counsel in the presence of the defendant the process to be followed to arrive at an adequate summary of redactions;
3. Defence counsel and the defendant withdrew from the courtroom to permit a back and forth with counsel for the DPP as to changes required. That exchange took place in the courtroom in the presence of the Registrar and court reporter, and was recorded;
4. A revised summary of redactions satisfactory to me was produced and provided to defence counsel;
5. Defence counsel was given the opportunity to review the summary, discuss it with his client, and make submissions as to its adequacy;
6. Defence counsel did not seek to cross-examine the affiant of the ITO; and
7. Defence counsel indicated that he was prepared to proceed with argument of the application and the application then proceeded on its merits using the judicial summary together with the redacted ITO.

Facts

9On April 24, 2018, Det. Cst. Max Miller of the OPP swore an Information to Obtain a search warrant to search the residence at 41573 King St., in the Municipality of Central Huron, where the defendant resided and her vehicle. The affiant deposed that he had reasonable grounds to believe and did believe that there was a controlled substance or offence related property that would provide evidence of the offence of possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the CDSA.

10At para. 10 of Appendix “A”, Det. Cst. Miller deposed that:

• He was conducting an investigation into possession of methamphetamine for the purpose of trafficking by Heather Leith;
• He believed that the granting of a CDSA s. 11 warrant to search would reveal evidentiary items within the residence and a 2001 Pontiac Sunfire with Ontario licence plate CBHV 085; and
• The evidence being sought was methamphetamine, documents indicating residency, packaging materials, scales, currency, cellular telephones and debt lists.

11In Appendix “A”, Det. Cst. Miller deposed that he received CI information in January and April 2018 from other OPP and Stratford police officers that the defendant was selling methamphetamine. The information provided by the CIs was the primary information relied upon and provided to the issuing Justice of the Peace.

12In January 2018, Det. Cst. Miller received information from two officers who provided CI sourced information obtained by them in 2017. I will outline that information from earliest to most recent in time. The CIs were identified by CS# in the ITO.

13CS#3 advised that:

1. Heather Leith is a meth dealer;
2. She is dealing meth from Mandie Ford’s old house in Kinburn;
3. He/she had seen her with […] ounces of meth; and
4. She drives a black Pontiac Sunfire with stickers on the back bumper.

14The information by CS#3 was provided to Det. Cst. Schuurman of Stratford Police Service in the summer/fall of 2017. CS#3 was indicated by Det. Cst. Schuurman to be a proven reliable informant.

15Appendices “B” and “C” of the ITO contain documents pertaining to CS#1 and #2. They provide information regarding the motivation for providing the information, past criminal history and whether past information provided has proven reliable. Some of the information found in Appendix “B” and “C” is contained in Appendix “A”.

16There is no similar separate Appendix for CS#3. Det. Cst. Miller deposed that he had no information as to criminal record history or identity of CS#3. Thus, the ITO does not provide the following for CS#3:

1. Whether he/she is paid for providing information; and
2. Whether he/she has a criminal record and, if so, whether that record includes any offences against the administration of justice such as perjury.

17CS#1 provided the following information to Det. Cst. Stewart of the OPP – Organized Crime Enforcement Bureau in late 2017:

1. Heather Leith is selling a lot of crystal meth right now;
2. She is selling crystal meth for Amanda Ford. Amanda Ford is currently charged with trafficking meth from a raid on her house this year;
3. She drives a black Pontiac Sunfire;
4. The crystal meth that she is selling is in big shards;
5. She is living in Amanda Ford’s house on King Street in Kinburn;
6. She has access to multiple ounces of crystal meth;
7. She uses plastic Ziploc baggies to package the crystal meth in;
8. She sells different weights of crystal meth for different prices and she uses a scale to weigh it;
9. She delivers crystal meth to customers in her black Pontiac Sunfire;
10. She sells crystal meth from her house on King St.; and
11. She is the main drug dealer in the area right now.

18The ITO also contained the following from CS#1:

f. […] purchased methamphetamine from Heather Leith […].

19The portions shown as […] above reflect that part was redacted.

20As the judicial summary indicates, the redactions contain information that confirm that the informant had personal knowledge regarding the information provided.

21The information provided in Appendix “B” concerning CS#1 indicates that:

1. CS#1 has provided intelligence in the past that has resulted in seizures of controlled substances;
2. Police consider CS#1 to be consistently reliable;
3. CS#1 is part of the drug subculture;
4. CS#1 provided the information for monetary consideration;
5. Compensation is only paid if the information is corroborated; and
6. CS#1 had no past convictions for offences against the administration of justice.

The appendix contained a CPIC printout that confirmed the presence or absence of a criminal record.

22Police investigation confirmed the following:

1. The defendant was residing in the house previously occupied by Amanda Ford on King St. in Kinburn. (It is undisputed that Kinburn is part of what is now the Municipality of Central Huron.);
2. Amanda Ford and others were arrested and charged with trafficking meth in 2017;
3. The arrest and charges against Amanda Ford followed a police search of the house on King St. in Kinburn in May 2017;
4. The charges against Amanda Ford are still pending; and
5. The defendant owned and operated a 2001 black Pontiac Sunfire with Ontario licence plate CBHV 085.

23CS#2 provided the following information on April 23, 2018 to Det. Cst. Lindsey McLaughlin:

1. Heather Leith is dealing meth and has been for a long time;
2. She is in her early 30’s;
3. On any given day she will have between […] grams to multiple ounces at a given time;
4. She will sell meth for cash;
5. She usually has meth, and if she runs out, she will re-up quickly;
6. […] buys meth from her;
7. She drives a black car, possibly a Cavalier;
8. The property that she lives at has a trailer, a large open yard, and is the third house on the left side of the street;
9. She uses a cell phone to contact people; and
10. She is busy and driving a lot.

24Additional information was provided by CS#2 but redacted for disclosure by the prosecution. Per the judicial summary, the redactions relate to the source of the CI’s knowledge, a phone number used by the defendant, and the name of one of her associates. The CI’s information was based on personal knowledge that the defendant was selling drugs and the source of that information.

25Some of the information contained in Appendix “C” pertaining to CS#2 is set out at para. 28 of Appendix “A”. In addition, the information in Appendix “C” indicates that:

1. CS#2 has provided information in the past that has proven reliable and resulted in a seizure of controlled substances;
2. CS#2 is considered reliable by police;
3. CS#2 is part of the drug subculture;
4. CS#2 has no past convictions for offences against the administration of justice; and
5. CS#2 is paid for the information provided.

The appendix contained a CPIC printout that confirmed the presence or absence of a criminal record.

26Det. Cst. Miller drove by the residence at 41573 King St. in Central Huron (Kinburn) on April 23, 2018 after receiving and reviewing the email from Det. Cst. McLaughlin with the CI information. He observed a trailer parked at the rear of the property. He had already confirmed that the defendant resided at that address.

27He did a further drive by on April 24, 2018. He observed the Sunfire parked in the driveway. The car had bumper stickers on the rear of the vehicle. The vehicle was registered to the defendant.

28He also received an email from Cst. Federko of the OPP that day advising that Ms. Leith was pulled over on April 23, 2018. She was driving the same Sunfire.

29Police did not undertake any surveillance, physical or electronic, of the defendant or her residence before April 24, 2018.

30Det. Cst. Miller deposed that from his training and experience, he knew that:

1. In order for drug dealers to complete transactions, various denominations of money are required;
2. It is common for customers to attend the drug dealer’s residence to purchase drugs or the drug dealer will meet customers at a certain location;
3. When drug dealers purchase large quantities of drugs, they sometimes weigh-out and pre-package those drugs for sale, usually in their residence;
4. It is common practice for drug dealers to record the names of customers and amounts owing for drugs not yet paid for;
5. It is common for drug dealers to keep debt lists on their cell phones;
6. The use of cell phones is a common way among drug dealers and customers to arrange drug transactions;
7. Drug dealers who traffic in controlled substances must keep the drugs readily available;
8. Drugs need to be weighed so that they are sold at the appropriate price; and
9. Drugs such as methamphetamine are put in a packaging material like Ziploc bags.

For each of the items to be searched for, he believed that it would be located at Ms. Leith’s residence based on information from confidential sources and his experience and training in drug investigations.

Defence Position

31The defendant’s position is:

1. While there is evidence of some connection between the defendant and the King St. address, the facts in the ITO do not rise above “mere suspicion” to form objectively reasonable grounds upon which a justice acting judicially could issue a search warrant for that address;
2. The information provided by the CIs was not compelling, credible or corroborated;
3. Para. 27 of the ITO should be excised from the ITO because it is irrelevant and prejudicial;
4. The search warrant was improperly issued and, accordingly, the search of the defendant’s residence violated her s. 8 Charter right to be free of unreasonable search and seizure; and
5. The admission of the evidence obtained from the search of the defendant’s residence would bring the administration of justice into disrepute. That evidence should be excluded pursuant to s. 24(2) of the Charter.

Prosecution Position

32The prosecution took the following positions:

1. There was sufficient credible and reliable information before the issuing justice to establish a connection between Heather Leith and the residence that was searched;
2. The evidence from the CIs was credible and reliable and sufficiently recent to establish reasonable grounds;
3. The information provided by the CIs was corroborated both by police investigation and by internal consistencies between the three informants;
4. The search warrant to search the residence at 41573 King St. in the Municipality of Central Huron was valid. The search did not violate the defendant’s s. 8 Charter rights. There is no basis to exclude the evidence obtained from that search; and
5. In the alternative, if the warrant was invalid, the evidence should nevertheless be admitted upon application of the Grant factors.

Legal Principles

33Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

34A warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In that case, the onus rests on the Crown to rebut the presumption of unreasonableness. Where, as here, the search is conducted pursuant to a judicially authorized warrant, the onus rests on the defendant (applicant) to establish on a balance of probabilities that there is an absence of or insufficient reasonable grounds to support or justify the authorization: R. v. Bui, 2014 ONSC 8, [2014] O.J. No. 16 (S.C. J.) at para. 45; R. v. Felix, 2013 ONCJ 261, [2013] O.J. No. 2219 at para. 33.

35In R. v. Garofoli, [1990] S.C.J. No. 115 (S.C.C.), Justice Sopinka set out the standard of review:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Italics added]

36In Bui, Justice Goodman provides a helpful summary of the applicable legal principles at paras. 47 – 50:

47. It is clear that on a s. 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99.

48. In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:

    (1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45 (aff’d, 2011 SCC 32).

    (2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application: R. v. Nguyen, 2011 ONCA 465, at para. 57.

    (3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135:

    The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, and a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168).

    (4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 11 C.C.C. (3d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364.

    (5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

    (6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470.

49. In the context of a search warrant ITO, the overarching principles may be summarized as follows:

    (1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

    (2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R. v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85 – 87.

    (3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).

    (4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request for a search warrant: Nguyen (2011) at para. 48. In R. v. N.N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.

    (5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

    Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501;

    (6) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences”: R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370.

50. There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, over-emphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.

37Where confidential informant information is at issue, the court must weigh whether the informant was credible, whether the information predicting the commission of an offence was compelling, and whether the information was corroborated by police investigation: R. v. Debot, [1989] 2 S.C.R. 1140. The totality of the circumstances must meet the standard of reasonableness: R. v. Dhillon, 2016 ONCA 308, at para. 30. Weakness in one area is not fatal and may be compensated for by strength in another: Debot, at pp. 1170-1171.

38Relevant considerations to assessing a CI's credibility include (1) whether the source has provided reliable information in the past, (2) whether the source has a criminal record including convictions suggesting dishonesty, and (3) the source’s motivation, particularly whether he or she received any benefits for providing the information: R. v. Felix, 2013 ONCJ 261, [2013] O.J. No. 2219 (O.C.J.), at para. 47.

39Reliability of an informant may be established by past performance as an informant or by confirmation from other investigative sources of part or all of the informant’s information: R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (Alta. C.A.), at para. 22.

40In Felix, at para. 44, Justice A.J. Hall set out a non-exhaustive list of questions to be asked in assessing whether the information provided was compelling:

1. Was the CI’s information first-hand knowledge or hearsay?
2. Was the information common knowledge, easily obtained or was it suggested by the very nature of the information that the CI had personal knowledge of the criminal activities?
3. Was the information provided by the CI precise, detailed and specific?
4. Was the nature of the information such that it could be said to be based on more than just rumors and gossip?
5. Was the information from the CI such that it clearly revealed how he or she had the opportunity to obtain the knowledge?
6. Was the information from the CI current or not?

41Even where an offence is allegedly ongoing, dated information is less compelling than fresh, current information: R. v. Floyd, 2012 ONCJ 417, at para. 58.

42There is no need to confirm the very criminality of the information provided by a CI, but there must be more than corroboration of innocent or commonplace conduct when police are relying on an untested informant: R. v. Lewis (1998), 38 O.R. (3d) 540 (Ont. C.A.), at pp. 547-548. The level of corroboration may be higher if police rely on an informer whose credibility cannot be assessed or if fewer details are provided and the risk of innocent coincidence is greater: Debot, at p. 1114.

Analysis

a. Should para. 27 of the ITO be excised?

43Paragraph 27 of the ITO states:

27. On April 23rd, 2018 I read RMS Police Occurrence RM17006360. I have intimate knowledge of this occurrence as I was the lead investigator. At the time of this application, Keon ADAMS, Amanda FORD and Scott POYNTON are still awaiting disposition while Draper CULL has pleaded guilty to various CDSA offences. I read the following:

    a. Police executed a CDSA warrant to search on May 29th, 2017; b. Amanda FORD, Keon ADAMS, Draper CULL and Scott Poynton were arrested for CDSA offences as a result of the investigation; c. Amanda FORD, Keon Adams and Draper CULL were residents of the address (41573 King Street) at the time; and d. Police seized a large amount of drugs, including 26.14 ounces of methamphetamine.

44The defendant submits that para. 27 was included not only to bolster the credibility of the informant but also to prejudice the issuing justice. It may corroborate para. 21c – Mandie Ford’s old house in Kinburn – but that is not explained in the ITO and the paragraph should be excised.

45I disagree. The evidence in para. 27 is provided as corroboration for the information provided by CS#1 that the defendant was living in the same house previously occupied by Ms. Ford; that Ms. Ford was charged with selling controlled substances; and, that she was charged following a raid of that home by police. The information provided is not extraneous irrelevant information that casts the defendant in a bad light so as to draw the justice into an improper conclusion as was the case in R. v. Cao, 2020 ONSC 300, at paras. 29-34. If para. 27 casts anyone in a bad light, it is Ms. Ford, not Ms. Leith who was not charged nor is she even mentioned in that paragraph as having any connection to that search or the charges that followed.

Credibility of CI Informants

46CS#1 and CS#2 have each previously provided information to police that has proven to be reliable. Police indicate that each is considered a consistently reliable source. Both are paid for the information provided. CS#1 is only paid if the information is corroborated. Neither CI has a previous conviction for an offence against the administration of justice.

47The information provided for CS#3 indicates that he or she is also a proven reliable source; however, the ITO lacks any information as to the informant’s motivation (eg. payment) and past criminal record including offences against the administration of justice. I observe that the information provided by CS#3 is consistent with later information provided by CS#1 and CS#2. The defendant owned and operated a black Pontiac Sunfire with stickers on the back. She was residing in the home previously occupied by Amanda Ford.

Compelling Information

48With respect to the information provided by CS#1, I note the following:

1. It is based on direct first-hand knowledge;
2. The information is specific as to what the defendant was doing, where, how, and timing;
3. The information indicates how he/she had the opportunity to obtain that knowledge; and
4. The information was current when provided in late 2017. That information was roughly four months old when the ITO was sworn.

49With respect to CS#2,

1. The information was current at the time the ITO was sworn;
2. The information was based on direct first-hand knowledge;
3. The information revealed how he/she came to have that information; and
4. The information was specific and detailed as to what the defendant was doing, her product and supply, the manner that she sold the controlled substance, and how she conducted business. This was not information based on rumour and gossip.

50Finally, with respect to the information provided by CS#3, I note:

1. The information is most distant in time from the ITO. It was provided to police in the late summer/fall of 2017 - approximately 7-8 months before the ITO and search.
2. The level of detail provided is less specific; and
3. The information as to possessing and selling meth is based on direct first-hand knowledge.

Corroboration

51As mentioned, police did not conduct any surveillance of the defendant or her home. Nevertheless, there is corroboration by police of the following information provided by the CIs:

1. The defendant was residing at 41573 King St., in Kinburn;
2. There was a trailer in the yard;
3. The home was previously occupied by Amanda Ford;
4. The home was “raided” by police in May 2017;
5. Amanda Ford was arrested and charged with trafficking methamphetamine as a result of the search of that house;
6. That charge is still before the court;
7. The defendant owns and operates a black Pontiac Sunfire;
8. The vehicle has stickers on the rear of the car; and
9. The defendant is in her 30’s.

52I observe that the information provided by the three CIs is substantially consistent in that: 1) each indicated that the defendant was dealing methamphetamine; 2) the defendant was residing in Amanda Ford’s previous house in Kinburn; 3) two of the three indicated that she was selling methamphetamine from that house; 4) they described the form in which the methamphetamine was held by the defendant; and 5) two of three provided details of how she conducted business, and that she used her car which they described.

53There are slight differences and certainly CS#1 and CS#2 provided more detailed information, but there is a significant overlap in the information provided by three confidential informants over a roughly 7/8-month period.

54On the whole, the evidence of the three CIs, particularly CS#1 and CS#2, appears reliable and compelling.

Is there evidence that might reasonably be believed on the basis of which the authorization could have been issued? Does the evidence rise above the level of “mere suspicion”?

55The evidence in the ITO established a clear connection between the defendant and the residence and vehicle to be searched.

56The evidence also established a reasonable basis for a justice of the peace to issue a search warrant for the residence at 41573 King St.. The evidence of the CIs showed an ongoing trafficking operation by the defendant from her residence spanning a number of months. The information provided to police was based largely on first-hand knowledge and observation from past reliable sources. Although police investigation did not corroborate the criminal activity alleged, the three CI reports are consistent over time and provide detailed information concerning the defendant’s alleged trafficking of methamphetamine. The limited external corroborating evidence was consistent with details provided by the CIs.

57Further, the affiant deposed that based on the information from the CIs and his training and experience in the investigation of drug trafficking, he reasonably believed that methamphetamine and/or evidence of items consistent with trafficking of methamphetamine would be found in the residence.

58I agree with the prosecution that the evidence before the justice of the peace demonstrated a reasonable and objective basis to believe that the controlled substance and/or other materials used in trafficking methamphetamine including a scale and cell phones would be found in that residence on April 24, 2018.

Section 24(2) Analysis

59If the ITO is deficient on its face, the evidence obtained from the search of the defendant’s residence may be excluded where its admission would “bring the administration of justice into disrepute”: s. 24(2) Charter. The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).

60The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. In considering s. 24(2), the court must have regard to the following factors:

1. the seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones serious state misconduct);
2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and
3. society's interest in the adjudication of the case on its merits.

The court must balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant.

Seriousness of Breach

61Police searched the defendant’s home pursuant to a judicially authorized warrant. The information provided to the justice of the peace in the ITO was based on three CIs considered by police to be past proven reliable. The information in the ITO is not misleading nor does the defence suggest that the information provided is less than frank, fair and honest. Police followed the appropriate protocol to first obtain a warrant before entering onto the defendant’s property and into her home.

62In these circumstances, the seriousness of the breach is at the lower end of the spectrum. Admission of the evidence obtained in these circumstances would not be turning a blind eye to serious state misconduct. This factor favours admission.

Impact on Charter-protected Rights

63The defendant had a significant interest in protection from intrusion on her privacy and sanctity of her home. The search of her home violated her right to privacy. Although time limited, the impact was high. This factor favours exclusion.

Adjudication on Merits

64The evidence obtained from the search is highly probative and is essential to the prosecution’s case. Without it, there is no case. The charges before the court are serious. The truth-seeking function of the criminal process will be directly impacted by the exclusion or admission of this evidence.

65Although the public almost always has an interest and desire to see cases proceed to trial on their merits, the public has an over-riding interest in ensuring public confidence in the justice system. In my view, the admission of this evidence would serve the public interest in an adjudication on the merits. This factor favours admission.

Balancing of Factors

66I am satisfied that, on balance, the admission of this evidence would not bring the administration of justice into disrepute. Its exclusion in these circumstances would undermine public confidence in the justice system.

Conclusion

67The evidence was obtained through a search pursuant to a valid search warrant. Although strictly speaking it is unnecessary to consider whether the evidence should be excluded under s. 24(2) of the Charter, I find that the evidence is admissible in the event the ITO was deficient.

68Therefore, the application is dismissed.