COURT FILE NO.: CR-19-10000535
CR-20-10000350 CR-20-10000352
DATE: 20201015
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SUSAN KOHUT
Counsel: Tim DiMuzio, for the Crown Sorina Cojocaru for Ms. Kohut
HEARD: September 29 and 30, 2020
REASONS ON SECTION 8 and 24(2) APPLICATION
G. Roberts J
[1] Susan Kohut was charged together with Aaron Doucette and Adrian Hunwicks with a number of offences following the execution of a search warrant at unit A201, 1268 King Street West, Toronto around 10:50 p.m. on the evening of July 25, 2018. Their trial is scheduled to begin later this fall. At this point in the proceedings, Susan Kohut challenges the constitutionality of the search, and the admissibility of the evidence obtained as a result, most importantly an illegal semi-automatic handgun, loaded with an over-capacity magazine, with a cartridge in the chamber, and approximately 8 grams of powder cocaine and 14 grams of crack cocaine.
[2] The search warrant turns on information provided by a confidential source (CS). The information to obtain (ITO) has been heavily redacted as a result. The Crown concedes that the redacted ITO cannot support the search, and applied to have me consider the unredacted warrant that was before the authorizing justice pursuant to step 6 of the procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421.
[3] At the outset of the hearing, counsel agreed that I hear the application as a case management judge, pursuant to s.551.1 of the Criminal Code.
[4] Counsel agreed to the following procedure for hearing the Garofoli application. First, a judicial summary of the redactions was created and disclosed to the defence. Second, I considered the defence application to cross-examine the affiant. Third, I considered whether the defence had sufficient information that the Crown could invoke step six of the Garofoli procedure. Finally, I considered the constitutionality of the search and the admissibility of the evidence obtained as a result.
The judicial summary
[5] The first thing we did was create a judicial summary of the redactions. In advance of the hearing, the Crown helpfully provided defence counsel and me with a copy of the redacted ITO (exhibit 1) and a draft judicial summary (exhibit 2). In addition, at the outset of the hearing the Crown provided me with a copy of the unredacted ITO (sealed exhibit A). I then asked the Crown to consider each redaction and explain why it was necessary, and why it was summarized in the way it was in the draft judicial summary. The Crown provided this information in a new document. I had some further questions which I wrote on this new document, and the Crown responded in writing (sealed exhibit B). As a result of this process, more disclosure was provided in the judicial summary, and some additional redactions were made to the ITO. We arrived at a judicial summary which was provided to the defence (exhibit 3). And the Crown provided a less redacted ITO (exhibit 4).
The defence application to cross-examine the affiant
[6] Defence counsel sought leave to cross-examine the affiant on two discrete areas. First, the defence sought to cross-examine the affiant about the reasonableness of his belief that surveillance was not a viable investigative option. Defence counsel did not suggest that the affiant was misleading in explaining why he did not conduct surveillance of Ms. Kohut's home, but simply that more could have been done. As she put it, they "did do an investigation in 2017, why not now?". Second, defence counsel sought to cross-examine about the fact that the affiant did not state the outcome of the 2017 drug investigation. Defence counsel asserts that this 2017 investigation resulted in Ms. Kohut being placed in drug treatment court, and this suggests that Ms. Kohut should be viewed more as an addict than a dealer.
[7] The Crown responded that neither request met the test for leave to cross-examine. With respect to the first proposed line of questioning, the Crown noted that defence counsel did not need to cross-examine on this point in order to argue that confirmation was lacking in this case, referring in particular to R. v. Riley, [2008] O.J. No. 4893 at para.11. Respecting the second point, the Crown pointed out that there was no information before the court about the outcome of the 2017 drug investigation, or that it was even known at the time the affiant swore the ITO in support of the search warrant.
[8] During the hearing I provided a bottom line ruling that defence counsel had not met the test for leave to cross-examination. These are my reasons for that conclusion.
[9] Leave is required to cross-examine the affiant of a search warrant in order to ensure that the competing interests at stake are balanced, namely "the accused's right to make full answer and defence, the Crown and the court's obligation to protect the identity of confidential informants, and the court's obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings: R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.) at p.1465; R v. Green, 2015 ONCA 579.
[10] An applicant seeking leave to cross-examine must show “a basis…that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”: Garofoli, at p.1465 [emphasis added]. This is not an onerous test, but the purpose of the cross-examination must be to challenge or test the honesty or reasonableness of the affiant’s belief that grounds for issuing the warrant have been met, not the ultimate accuracy of the information relied on by the affiant. And there must be a reasonable likelihood that the proposed cross-examination will assist with that task. This is generally accomplished by pointing to a concrete basis to contradict or undermine information in the ITO, or add relevant information that was not in the ITO, with the goal of undermining the honest and/or reasonableness of the affiant’s belief that the grounds were sufficient. The cross-examination may also attempt to show that "the ITO contains statements that are deliberately misleading and sufficiently significant to call into question the credibility of the entire ITO". See: Garofoli, at p.1465; R. v. Pires, R. v. Lising, 2005 SCC 66; World Bank Group v. Wallace, 2016 SCC 15 at paras.120-21; R. v. Green, at paras. 34-36; R. v. Shivrattan, 2017 ONCA 23, at paras. 37, 54.
[11] Beginning with the defence request to cross-examine the affiant about the reasonableness of his conclusion that surveillance was not a viable investigative option, I agree with the Crown that Riley is apposite. Defence counsel does not need to cross-examine the affiant on this point in order to argue that the confirmation in this case was lacking. The confirmation is what it is. Whether or not it was sufficient in the totality of circumstances is the essential issue on the application. The proposed cross-examination would not assist.
[12] In reaching this conclusion, I note that defence counsel pointed to no basis to suggest that cross-examination could assist in showing that the affiant's statements about why surveillance was not conducted were misleading, and certainly not deliberately misleading. While the proposed line of questioning requested could assist in assessing the first branch of s.24(2) of the Charter (the seriousness of state misconduct), in the event of a breach, defence counsel did not frame her request on this basis. Nor could this reason, alone, provide a proper basis for cross-examination: Green, at paras.41-42.
[13] Turning to the defence request to cross-examine about the outcome of the 2017 investigation, defence counsel was candid that she could not point to any basis to suggest that the affiant knew or ought to have known the outcome of the 2017 investigation at the time he swore the ITO. I note that the affiant described the 2017 investigation as just that; an investigation which involved certain conduct and observations which resulted in charges being laid. There is no basis to suggest that the affiant knew or out to have known there was anything incomplete or potentially misleading about describing the conduct and observations which resulted in charges being laid. As a result, I did not permit cross-examination of this area.
Can the Crown rely on step 6 of Garofoli?
[14] Step 6 of Garofoli involves an attempt to balance three key interests: full answer and defence, informer privilege, and law enforcement. The step 6 procedure is only permissible if the defendants are “sufficiently aware of the nature of the excised material to challenge it in argument or evidence": Garofoli, at p.1421. The question is whether the judicial summary created in this case, considered together with the other information that Ms. Kohut has, such as disclosure and her own knowledge, is sufficient to permit her to mount a meaningful and effective challenge (both facial and sub-facial) to the ITO so as to give effect to her right to make full answer and defence. In short, Ms. Kohut must know the general basis on which the search warrant was granted in order to permit the Crown to invoke the step 6 procedure.
[15] Even if the step 6 procedure is permitted, to the extent that some redactions are not described, or are not sufficiently described for Ms. Kohut to be made aware of their nature, I must disregard those redacted portions when reviewing the warrant. Further, even where the nature of the redacted information has been summarized, I must bear in mind that Ms. Kohut only has a summary, and not the actual information, in considering what weight to give the redacted information in my assessment. As Justice Rouleau explained in R. v. Crevier, 2015 ONCA 619, at paras.87-88: “in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allows the accused to challenge it, and whether its nature is such that it was susceptible to being challenged on cross-examination or otherwise.”
[16] Given the centrality of the CS to the ITO in this case, Ms. Kohut must be able to mount a meaningful and effective challenge to whether the ITO meets the Debot requirement that information from a CS be compelling, credible and corroborated/confirmed (the "3Cs"): R. v. Debot, [1989] 2 S.C.R. 1140, at p.1168, per Justice Wilson's concurring reasons. See also: Shivrattan, at paras. 27-28; and R. v. Greaves-Bisserarsingh, 2014 ONSC 4900, at para.35. The challenge may be facial or sub-facial, but in this case, with the dismissal of the application to cross-examine the affiant, the challenge was facial.
[17] The redactions in this case were extensive. But, as described, the Crown provided confidential explanations for all the redactions and the way they were described in the judicial summary, and responded to my questions about both these things (sealed exhibit B). As noted, this process and exchange resulted in more disclosure being provided, and a less redacted ITO being disclosed. Based on the Crown’s explanations, I am satisfied that the redactions are the minimum necessary to protect the informer privilege in this case.
[18] Almost all of the topics outlined for consideration at paragraph 84 of Crevier have been addressed, either in the redacted warrant or the judicial summary. Together with disclosure and the assistance of Ms. Kohut, these permit defence counsel to make a substantial attack on the warrant. For example, the judicial summary permitted defence counsel to make "in the alternative" arguments about many things, such as whether or not the CS had a criminal record, and, if so, what it contained. However, the nature of some detail provided by the CS could not be summarized so as to allow defence counsel to challenge the confirmatory power of the information in police records. To the extent this was the case, following paragraph 87 of Crevier, I did not rely on this detail in support of the authorization. I will come back to this below.
[19] A judicial summary is always going to be an imperfect substitute for redacted information. But it is important to remember that a Garofoli application is a threshold admissibility hearing. The essential issue is whether it was reasonable for the authorizing justice to rely on the information from the CS based on what was known at the time, not whether the CS was right, nor whether Ms. Kohut is guilty or innocent. Subject to the caveat I identified, I am satisfied that for the purposes of this hearing, the judicial summary, together with all the other information defence counsel has, enabled a meaningful challenge to the sufficiency of the ITO. Defence counsel could, and did, highlight weaknesses in the confirmation, and the need for more. Defence counsel could argue that these failings were significant, and potentially very significant, depending on the information provided about the credibility of the CS. For example, it appeared that there was no history of the CS providing reliable information in the past. Defence could and did argue that this heightened the importance of confirmation. Defence counsel could also argue, for example, that the need for confirmation would be further heightened if there was a criminal record, and if it contained crimes of dishonesty, and if there were pending charges. In short, I am satisfied that the Crown could rely on Step 6 of Garofoli.
Was the search constitutional?
[20] Defence counsel attacked the facial sufficiency of the ITO, arguing that it did not meet the "3 Cs" from Debot because of a lack of confirmation.
[21] The Crown argued that when the totality of circumstances were considered, including the judicial summary, there was a sufficient basis for the justice to authorize the search.
The test for reviewing a search warrant
[22] On a Garofoli application, the reviewing justice does not substitute her view for that of the authorizing judge. Rather she asks only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the warrant were met - in this case that there were reasonable grounds to believe that there was cocaine and/or other specified indicia of drug dealing in unit A201, 1268 King Street West. The existence of fraud, non-disclosure, misleading evidence and new evidence are not pre-requisites for review, but rather relevant to whether there continues to be any basis for the decision of the authorizing judge. A reviewing judge should intervene only if there was no basis upon which the authorizing judge could be satisfied that the pre-conditions for granting the authorization existed: Garofoli, at p.1452; R. v. Araujo, 2000 SCC 65, at paras.51, 54; R. v. Morelli 2010 SCC 8 at para.40.
[23] The standard is of one of “credibly-based probability”, requiring proof of reasonable probability or reasonable belief. The standard is lower than proof beyond a reasonable doubt or even the establishment of a prima facie case, but higher than an experience-based “hunch” or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable in all the circumstances set out, then the warrant could have been issued.
The Debot "3 C's" analysis of information provided by a CS
[24] In assessing whether it is reasonable to rely on information provided by a CS, the totality of circumstances must be carefully analyzed in light of the "3Cs" described by Justice Wilson in Debot (see citations above). First, was the information provided by the CS compelling? This concern focuses on the reliability of the information including considerations like the degree of detail provided and the informer’s means of knowledge (first hand or second hand relaying hearsay, rumour, or gossip). A detailed tip, based on first hand observations that are reasonably current, is generally seen as compelling. In contrast, a vague or conclusory tip, based on gossip or second hand knowledge, is not: R.v. Rocha, 2012 ONCA 707, at para.28; Greaves-Bisserarsingh, at para.40. Second, was the CS credible? This concern focuses on issues such as whether the informer has a record of providing reliable information to police, whether he or she has a criminal record, and if so whether it includes crimes of dishonesty, whether there are outstanding charges, and his or her motivation for speaking to police, particularly if he or she has a motive to falsely implicate the target of the search. Finally, was the information from the CS corroborated or confirmed? This concern focuses on whether there was some independent information providing some assurance that the information from the CS was accurate. Confirmation of the criminal aspect of information provided by a CS is not required: R. v. Caissey, 2008 SCC 65, aff'g 2007 ABCA 380, at para.22; R. v. Herta, 2018 ONCA 927 at para.38; Rocha, at paras.22-24. At the same time, confirmation of well known, innocuous, or general information is of limited value in the analysis: Debot, at pp.218-219; R. v. Zammit (1993), 13 O.R. (3d) 76 (C.A.), at paras.117, 121. The crucial question is whether the confirmation provides meaningful support for the credibility and reliability of the confidential informant.
[25] The "3 Cs" must be assessed in the totality of circumstances. All three need not be present in every case, and weaknesses in one can be compensated by strengths in the other two. The question is whether it was open to the authorizing justice to conclude that the information provided by the CS, considered in totality and together with the other information in the ITO, established reasonable and probable grounds that cocaine and/or other specified indicia of drug dealing would be found in unit A201, 1268 King Street West.
Analysis of the information provided by the CS
As noted, this ITO was based on information provided by a CS. Whether it was open to the authorizing judge to rely on this information turns on the extent to which the information met the Debot “3Cs”, considered together in the totality of circumstances.
Was the tip compelling?
[26] The CS provided confidential information that Ms. Kohut was currently selling crack out of Unit A201, 1268 King Street West. The CS described where unit A201 was located and what Ms. Kohut looked like (though fairly generally and omitting her age), and identified Ms. Kohut from a police photograph. The unredacted warrant also described the manner in which Ms. Kohut sold crack cocaine, how the CS obtained their information, including whether or not it was first hand, and the time period in which it was obtained. When I consider the unredacted ITO, I am satisfied that the information provided by the CS amounted to a fairly detailed and compelling tip.
Was the CS credible?
[27] Almost all the information bearing on the credibility of the CS has been redacted. The redacted ITO together with the judicial summary suggest that the CS has no history of providing the police with reliable information. In addition, the judicial summary indicates that the following information was placed before the authorizing justice: information related to whether or not the CS was before the courts on any charges; the CS's motivation for providing information; whether or not the CS had a criminal record, and if so what it was; the fact that the CS has acknowledged that they will face criminal charges for making false reports to police. I cannot disclose what the redacted information contains, but I can say credibility was an issue in this case.
Was the information provided by the CS confirmed/corroborated?
[28] The fact that the credibility component of the "3 Cs" was lacking was not necessarily fatal, as reasonableness is assessed in light of the totality of circumstances, and a weakness in one Debot component may be compensated by strength in the others. But it meant that the police had to take careful steps to confirm the information provided by the CS before it would be reasonable to rely on it. Unfortunately, I find the steps taken, and the confirmation obtained, insufficient in the circumstances.
[29] The steps actually taken to confirm the information provided by the CS were limited to the police checking their databases, and obtaining a photograph of the exterior of 1268 King Street West. These steps revealed the following:
- Ms. Kohut matched the description given by the CS (though, as noted, the CS had not indicated how old Ms. Kohut was).
- Ms. Kohut lived at A201, 1268 King Street West and was bound by a recognizance of bail which required her to remain in her home every night between 9 pm and 7 am.
- There are steps leading up to the front door of 1268 King Street West.
- Ms. Kohut had a prior conviction for being in possession of crack cocaine.
- Ms. Kohut was facing a number of charges relating to possession of crack cocaine, possession of crack cocaine for the purpose of trafficking, and trafficking in crack cocaine. The charges stemmed from two investigations:
- One in June of 2017, during which an undercover officer purchased crack cocaine either directly or indirectly from Ms. Kohut on four different days, outside, in the area of King West and Dufferin.
- The other investigation dated from April 2016 when the police found Ms. Kohut and two others inside a basement apartment at 1409 King Street West when they executed a search warrant. Police found "several pieces of crack cocaine throughout the room", scales and cellphones, and a further quantity of crack cocaine was found on Ms. Kohut during a strip search.
[30] In a section entitled "INVESTIGATIVE LIMITATIONS" the affiant acknowledged that normally when a CDSA warrant is sought, surveillance is conducted in order to attempt to observe drug transactions and drug customers. The affiant explained that surveillance was not attempted in this investigation for the following reasons:
1268 King Street West is a residence with multiple units that has a steady stream of visitors and tenants entering and exiting the residence. Subsequently without being inside the residence it is not possible to witness a "take away"….
The unit is highly frequented by potential customers of the drug dealers who are in a constant heightened state looking out for plainclothes officers who are attempting to conduct surveillance on the drug activity in the building.
Additionally any unfamiliar people in the building are easily identified by the drug dealers and potential drug buyers in the lobby and hallways. Officers would have to be in the hallway of Susan KOHUT's unit to observe the drug activity but this scenario can not only jeopardize the investigation but also put tenants and officers safety at risk. There are no known areas of concealment to afford officers first hand observations.
The affiant concluded this section as follows:
It is for these reasons that the drugs being sold and the dealers living inside, make this scenario so sensitive in nature and why I request this search warrant under less than ideal conditions. It is inherently difficult for officers to conduct static surveillance due to the structure of the premise.
[31] The information that the affiant obtained from police records about Ms. Kohut's criminal history and previous involvement with police was credible and reliable and appropriately formed part of the totality circumstances bearing on whether it was reasonable to rely on the information provided by the CS. But it was not enough in the circumstances. Not only was there a heightened need for confirmation in the circumstances of this case, given weakness in the credibility strand of the Debot inquiry, but the information in police records provided little meaningful confirmation. I will explain why. In doing so, I want to be clear that I appreciate that circumstances cannot be parsed, considered in isolation, and then separately discounted. Relevant circumstances must always be considered in totality. In separating them out, I am simply trying to explain why they do not provide meaningful support for the credibility and reliability of the CS:
- The fact that police records confirmed that Ms. Kohut lived at unit A201, 1268 King Street West provided some confirmation of the CS, but this was fairly public information.
- The photograph of the front of 1268 King Street West, showing steps leading up to the front door, provided some confirmation for the CS's information that unit A201 "is on the second floor and to the right, after entering the main entrance. A number of stairs lead to the front entrance". But the fact that steps lead up to the front door of the building is public information. And the ITO is silent on what the inside of 1268 King Street West looks like, and whether A201 is in fact on the second floor, and to the right, after entering the main entrance.
- The description the CS provides of Ms. Kohut as "female white, 5'6", 140-160 lbs, with dyed brown hair and brown eyes" was confirmed by police records and is consistent with Ms. Kohut's appearance. But again, what she looks like is fairly public. The description also lacks mention of her age (close to 60 at the time the ITO was sworn).
[32] The general fact that Ms. Kohut has a history of selling crack cocaine provides some circumstantial confirmation of the information provided by the CS. But I do not believe that there is anything about this history that can provide specific support for the information provided by the CS. I reach this conclusion for two reasons. First, the nature of the information provided by the CS is not summarized in sufficient detail for defence counsel to challenge whether aspects of Ms. Kohut's criminal history could provide specific confirmation. In saying this, I am not faulting the Crown, or the judicial summary. This is simply a function of the step 6 process. But to the extent that the nature of portions of the CS's information could not be summarized, these portions could not be relied upon in upholding the warrant: Crevier, at para.87. Second, in any event, having looked at the unredacted information provided by the CS, I do not believe that there is anything about Ms. Kohut's criminal history that could provide specific support for details provided by the CS. While I cannot explain more than that for fear of revealing information that could jeopardize the identity of the CS, I can note that the information provided by the CS involved Ms. Kohut selling crack cocaine inside unit A201. The criminal history involves observations of her selling it outside, and possessing it for the purpose of sale at a different location.
[33] There were no exigent circumstances at play in this case. There was no imminent danger to anyone. Nor was there a concern about the imminent destruction of evidence. While it is true that crack cocaine "is a consumable substance", as the affiant put it, he also believed that Ms. Kohut was in the business of dealing it, suggesting that what was consumed would be replaced. The constitutional standard that had to be met was whether there were reasonable grounds to believe that crack cocaine, and related paraphernalia connected to drug dealing, would be found in unit A201, 1268 King Street West. The fact that the affiant believed that one obvious source of potential confirmation was not available did nothing to change the relevant constitutional standard, and the resulting need for confirmation, in order for it to be reasonable to rely on the tip received.
[34] When I consider the totality of circumstances, I find it was not open to the authorizing justice to conclude that there were reasonable grounds to believe cocaine and paraphernalia associated with drug trafficking would be found in unit A201, 1268 King Street West. Accordingly, I find that the search conducted in reliance on the warrant violated Mr. Kohut's s.8 right to privacy.
Should the evidence obtained as a result of the search be excluded under s.24(2)?
[35] The modern approach to whether or not evidence should be excluded under s.24(2) of the Charter following a finding of a Charter breach was established in R. v. Grant, 2009 SCC 32, which set out the now well-established three lines of inquiry.
The seriousness of the Charter-infringing conduct
[36] This line of inquiry involves situating the state conduct on a continuum from inadvertent, reasonable mistakes through negligence to deliberate or systemic misconduct.
[37] In this case, the police obtained a search warrant prior to searching Ms. Kohut's home. This normally tells in favour of admitting evidence, unless the warrant was obtained through false or deliberately misleading information, or the drafting of the ITO somehow subverted the warrant process: R. v. Rocha, 2012 ONCA 707 at paras.28-31.
[38] There is no evidence that the police provided false or deliberately misleading information. To the contrary, the affiant explicitly flagged for the authorizing justice the fact that the usual confirmation that is done in most CDSA investigations was not done, explaining that "the sensitive nature of Ms. Kohut's address" prevented direct surveillance, and that was why he was requesting the search warrant "under less than ideal conditions".
[39] Accepting, as everyone did, that this was an honest explanation for why direct surveillance was not conducted, it did not mean that further confirmation was not required for it to be reasonable to rely on the information provided by the CS. This was a case where credibility concern respecting the CS meant that significant confirmation was required. As noted, the fact that one obvious form of confirmation was difficult or unavailable did not change the need for confirmation. In the circumstances of this case, if the police were not able to obtain more meaningful confirmation of the tip they received, it was simply not reasonable for them to rely on it to request a search warrant.
[40] Instead, however, the affiant appeared to rely on his explanation about the difficulty conducting surveillance to obviate the need for more confirmation. And the authorizing justice appeared to accept this implicit conclusion. This effectively subverted the warrant process by encouraging reliance on information from a CS in circumstances where reliance was not reasonable.
[41] The danger of the affiant's approach was exacerbated by the need to protect the identity of the CS. While the credibility concern was visible to the authorizing justice, the exact reason for the concern was cloaked by the editing process, and then sanitized with general descriptive labeling during the Garofoli application. But credibility remained an issue. It meant that the police should not have relied on the information provided by the CS to apply for a search warrant without taking more steps to confirm the information. And the authorization justice should not have signed off on the search warrant application.
[42] At a minimum, the state conduct in this case reflected negligence: R. v. Szilagy, 2018 ONCA 695 at para.52. I am inclined to situate what happened here as closer to deliberate misconduct as it appeared to reflect a choice not to do more investigation where more investigation was required before it would be reasonable to rely on the tip received: R. v. Chioros, 2019 ONCA 388. That choice reflected either a mis-understanding of the requisite constitutional standard, or an arrogance towards it. It could not be re-written, or ignored, because it was difficult to meet.
The impact of the breach on the Charter-protected interests of the accused
[43] Ms. Kohut, like all Canadians, had a strong expectation of privacy in her home. It was deeply infringed by a search that should not have been permitted based on the information that the police had. The seriousness of the breach pushes toward exclusion.
Society's interest in the adjudication of the case on its merits
[44] The search revealed drugs and a loaded handgun. This was reliable evidence, essential to the Crown's case. It hardly needs saying that possessing a loaded handgun in downtown Toronto is a particularly serious offence giving rise to a heightened interest on the part of the public in a determination on the merits. At the same time, however, the penal stakes for such conduct are extremely high, emphasizing the need for a justice system that is above reproach: R. v. Grant, at para.84.
[45] In R. v. McGuffie, 2016 ONCA 365 at paras. 62-64 Justice Doherty considered the nature of the Grant lines of inquiry, and how they interact. He explained that the first two inquiries tend to push toward exclusion. They work in tandem in so far as their sum (not average) determines the "strength of the claim for exclusion". The third inquiry tends to pull toward inclusion, especially where the evidence is reliable and critical to the Crown's case.
[46] In all the circumstances of this case, particularly where the first two lines of inquiry push strongly in favour of exclusion, I conclude that the evidence obtained as a result of the search in this case must be excluded.
Gillian Roberts J.
RELEASED: October 15, 2020
COURT FILE NO.: CR-19-10000535 CR-20-10000350 CR-20-10000352
DATE: 20201015
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SUSAN KOHUT Defendant
REASONS FOR JUDGMENT
G. ROBERTS J.
RELEASED: October 15, 2020