COURT FILE NO.: 18-97

DATE: 20200107

ONTARIO SUPERIOR COURT OF JUSTICE

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

James Wise Defendant

COUNSEL: Dallas Mack and Jason Pilon, counsels for the Crown Ian Carter and Jon Doody, counsel for the Defendant

HEARD: November 19, 2019

REASONS FOR RULING ON THE S. 8 APPLICATION (CHALLENGE TO THE GENERAL WARRANT)

Lacelle, J.

I. Introduction

Overview

[1] The Applicant, James Wise, seeks to exclude evidence from his trial on a charge of first-degree murder. He is alleged to have murdered an acquaintance of his, Raymond Collison, sometime between 2009 and 2014. Mr. Collison’s remains were found in 2014 in the rural community where both he and the Applicant lived.

[2] The Applicant alleges police breached his right to privacy when they covertly searched his residence in 2014. As a result of that search, he says police obtained evidence that would be unfairly admitted in his trial. The most significant piece of evidence is a composition book which police believe contains a map showing the location where Mr. Collison’s remains were found, as well as other crime scenes.

[3] The Applicant submits that the police had insufficient grounds for the general warrant that authorized the search of his residence. He says that all evidence obtained as a result of the breach should be excluded from the trial. These are my reasons for my ruling on the Applicant’s application to exclude evidence from his trial.

[4] In the result, I find that the police did breach the Applicant’s right to privacy under s. 8 of the Canadian Charter of Rights and Freedoms when they searched his residence pursuant to a general warrant in 2014. I arrive at this conclusion because the Information to Obtain the warrant (“the ITO”) did not meet the constitutional standard of setting out sufficient subjective and objective grounds to establish a credibly-based probability that information concerning the murder of Mr. Collison would be found in a search of the Applicant’s residence.

[5] The grounds to obtain the warrant were deficient for a number of reasons. The grounds were deficient in part because they were based on information that was so dated as to be of little value in establishing reasonable grounds. They were also based in part on the opinion of a forensic psychiatrist that was conditional on a premise that was not supported by the remaining information in the ITO, and which even at its highest established only the possibility that certain items might be found in searching the Applicant’s residence. While the information set out in the ITO established that it was possible that information concerning Mr. Collison’s murder would be found by searching the Applicant’s residence, there was insufficient information, considered cumulatively and collectively, to demonstrate that information about his murder would probably be found, as is required by the law. The grounds to obtain the warrant were also deficient because for the most part, they did not demonstrate that the police officer who swore the affidavit to obtain the search warrant (“the affiant”) had a subjective belief that the information sought would be obtained in a search of the Applicant’s residence.

[6] Given my conclusion that the Applicant’s right to privacy has been breached, I have also considered whether evidence obtained as a result of that breach should be excluded from the trial. I conclude that the seriousness of the breach and the impact of the breach on the Applicant’s Charter-protected interests strongly favour exclusion. In balancing these factors with consideration of society’s interest in the adjudication of the case on its merits, I conclude that the appropriate remedy is to exclude the evidence obtained as a result of the breach.

[7] In arriving at these conclusions, it has been necessary to consider how a number of legal principles apply to the evidence in this case. In my reasons, I review the law as it pertains to various issues, including the proper approach to reviewing the sufficiency of an ITO, and the law pertaining to the use and requirements of general warrants. Since the parties disagree as to how other search related jurisprudence applies to consideration of the issuance of general warrants, I review the law that has developed regarding general warrants, as well as other cases that provide guidance in determining the issues in this case. It has also been necessary to consider whether the Applicant abandoned his composition book and other property in 2017 and thereby extinguished any standing he had to claim a breach of his right to privacy during the 2014 search. Consequently, these are lengthy reasons.

[8] Accordingly, I provide an overview of the structure for my reasons. They are organized as follows:

I. Introduction and overview of these reasons

II. Overview of the investigation

i. Background

ii. The composition book and weekly planner

iii. Other evidence at issue in this application

III. Overview of the positions of the parties

IV. The warrant review process

i. The legal principles

ii. The meaning of “reasonable grounds”

V. Overview of the ITO for the general warrant executed in 2014

i. The items to be searched for

ii. The information linking the Applicant to Mr. Collison’s murder

iii. The information linking the Applicant to other homicides

iv. The Applicant’s criminal record

v. The opinion of forensic psychiatrist Dr. Peter Collins

vi. The grounds to believe information concerning the offence will be obtained through the use of the technique

VI. The positions of the parties regarding the sufficiency of the ITO

VII. The legal principles that apply to general warrants

i. The purpose and scope of the general warrant

ii. The criteria for issuance of a general warrant

VIII. Analysis – the approach to assessing reasonable grounds for the general warrant

i. The reasonable grounds threshold may require a cogent link between information concerning the offence and a place to be searched

ii. Whether information is stale-dated may be relevant to the assessment of whether there are reasonable grounds to support the issuance of a general warrant

IX. The ITO has insufficient objective grounds to justify the issuance of the general warrant

i. Souvenirs from victims

ii. Writings, literature and media

iii. Personal property

iv. Firearms, ammunition, shell casings

v. Conclusion on the sufficiency of the grounds

X. The ITO has insufficient subjective grounds to justify the issuance of the general warrant

XI. The 2014 general warrant was not valid and the search of the Applicant’s residence violated his s. 8 Charter rights

XII. The Applicant has standing to claim a s. 8 violation from 2014

XIII. The evidence “obtained in a manner” that infringed the Applicant’s Charter rights includes the evidence obtained following the 2016 search and the composition book and weekly planner seized in 2017

i. The positions of the parties

ii. The legal principles

iii. Analysis

XIV. The evidence should be excluded under s. 24(2) of the Charter

i. The positions of the parties

ii. The governing principles

iii. Analysis

a. The seriousness of the Charter-infringing state conduct

b. The impact of the breach on the Applicant’s Charter-protected interests

c. Society’s interest in adjudication of the case on its merits

d. Balancing the Grant factors

XV. Conclusion on the Application

II. Overview of the investigation

i. Background

[9] As I have indicated, the Applicant is charged with first degree murder in relation to the death of Raymond Collison. Both the Applicant and Mr. Collison were residents in a small rural community. They knew each other and had a number of acquaintances in common.

[10] Mr. Collison was last seen alive on August 28, 2009. His remains were found in a culvert in a rural area years later on April 17th, 2014. The location of Mr. Collison’s remains was a few kilometres from where the Applicant was living at the time that Mr. Collison was last seen.

[11] When Mr. Collison’s remains were found, there was a Dayco fan belt around the neck area of his remains. It was ultimately determined that Mr. Collison had been shot in the head with a .22 calibre firearm. He had also been shot in other parts of his body.

[12] Police had suspected for a number of years that the Applicant was also responsible for a number of other crimes and homicides. He was officially classified as a suspect in the murder of Mr. Collison on September 16, 2014.

[13] In the days prior to classifying the Applicant as a suspect in Mr. Collison’s murder, the police learned that the 71-year-old Applicant had had a stroke. He had been taken from his residence by ambulance and was not staying there. By this point, the Applicant was living at a different address than at the time Mr. Collison disappeared.

[14] On October 15, 2014, police obtained a general warrant pursuant to s. 487.01 of the Code (“the general warrant”), which permitted them to enter the Applicant’s residence covertly. The terms and conditions of the warrant allowed a forensic identification officer to attend the residence with investigators and “document the property” by digital photography and/or digital video. The warrant was executed the next day.

[15] Various items were found and photographed during that search but were not seized. They included magazines about serial killers and violence, a spare room full of mostly violent movies and self-recorded movies about killers, including the fictitious serial killer series “Dexter”, and a human anatomy chart.

[16] The police also made observations of a composition book and a spiral bound lined paper writing book. Both books contained notations of interest to the police. The composition book had many pages ripped out. Both books had visible maps of unknown locations.

[17] Later in the investigation, on November 11, 2016, the Applicant was arrested for the murder of Raymond Collison. Police obtained a search warrant pursuant to s. 487 of the Code (“the search warrant”) and executed it on the day of his arrest. This search resulted in the seizure of a number of items, including a new serial killer novel and a new magazine about kidnapping, a hand drawn head with a trajectory arrow drawn through it, the composition book earlier identified and photographed by the police, and two unlabeled VHS tapes with “Cold Case Files” shows. Police also seized a “weekly planner”.

ii. The composition book and weekly planner

[18] The weekly planner was returned to the Applicant on February 16, 2017 pursuant to s. 489.1 of the Code. Police believed they had captured its entire evidentiary value and that its continued detention was not required for the purposes of any investigation, preliminary inquiry, trial, or other proceeding.

[19] The composition book was sent to the Centre of Forensic Sciences (the “CFS”) for analysis, and a diagram from a torn-out page was recovered. On January 11, 2017, police received a report from Jackie Osmond from the CFS in relation to the examination of the composition book. Ms. Osmond noted a diagram with circled Xs on a page that had writing impressions from a page removed from the book. The diagram had been recovered using an Electrostatic Detection Apparatus.

[20] When the composition book was returned to police from the CFS on April 25, 2017, Detective Constable (“DC”) Hyndman came to the conclusion that the diagram was an unlabeled map of an unknown location(s). The CFS examination and subsequent investigation by the police led investigators to the conclusion that there was once a map contained within the composition book. Originally a two-page map, it had been ripped out of the book. Its original existence was only discovered by the impression examination and scientific analysis by the CFS.

[21] On April 26, 2017, DC Hyndman attended the Applicant’s residence to return the composition book. This decision was also based on the requirements of s. 489.1 of the Code. For the return of the item, DC Hyndman had pasted a photocopy of the diagram in his notebook beside the property sheets the Applicant had to sign in respect of the return of his property. Police intended to use the unidentified map as a “prop” to see if or how the Applicant would react. According to DC Hyndman, when the Applicant saw the map, he began to shake uncontrollably. At point, DC Hyndman felt the unidentified map was something of criminal significance.

[22] On the same date, April 26, 2017, police began to investigate the unidentified map to determine the location depicted and the meaning of the circled Xs. An OPP Crime Analyst who had worked in the area pointed out that a certain intersection was depicted on the map. This brought the map into perspective for the OPP.

[23] Over the next several months, investigators began to link the circled Xs to locations of known arsons and suspicious fires, locations of suspicious deaths, and locations of known homicides in North Dundas Township.

[24] DC Hyndman again visited the Applicant at his residence on May 2, 2017. DC Hyndman showed the Applicant the unlabeled map from the composition book. The Applicant told the officer it meant nothing to him. After being confronted with the map, the Applicant told the officer he did not want him to return.

[25] Some time later, on June 23, 2017, police completed their work in determining the significance of locations on the map. Investigators believe the map shows the locations of known homicides, including that of Mr. Collison.

[26] On September 5, 2017, the Applicant moved into the North Dundas Manor. His sister, Phyllis Scott, advised the police.

[27] On September 6, 2017, Dr. Peter Collins, a forensic psychiatrist, reviewed the map. Dr. Collins had previously been consulted by the police in relation to the case in 2014 when the ITO at issue in this Application was prepared. In 2017, after reviewing the map provided to him by the police, Dr. Collins concluded that the map was an “aide de memoire”. Further police work on the map determined that it covered an area of approximately 520 square kilometers. The Applicant’s residence was, according to the crime analyst, 862 meters “from the centroid”.

[28] On September 7, 2017, DC Hyndman called the Applicant’s sister, Ms. Scott. She told the police that she still had to clean out his apartment at 498 Caleb Street. At that time, DC Hyndman intended to retrieve the composition book, but he did not tell Ms. Scott of his intentions.

[29] On September 8, 2017, the investigative team determined that a warrant should be sought for the composition book and weekly planner due to their “impeding loss/destruction and increasing/evolving importance as well as the desire to retain the original evidence”. Patrol officers and DC Hyndman engaged in sporadic observation of the apartment while the warrant was being authored on September 9 and 10. Neither of the patrol officers assigned noted any activity that appeared to be related to the move.

[30] On September 11, 2017, police observed activity at the apartment. They observed a male bringing items to a vehicle and some black garbage bags to the area of a dumpster. Police determined that the apartment was being cleaned out and that the evidence for which they were seeking a search warrant could be destroyed or moved in one of the vehicles involved in the move.

[31] DC Hyndman entered the building. The door to the Applicant’s apartment was open. DC Hyndman saw Ms. Scott in the kitchen area. He advised her that he was working on a warrant but feared the books would be lost as they were cleaning out the apartment. DC Hyndman could see the composition book on the counter in plain sight as he stood in the hallway. DC Hyndman advised her that he would be seizing the books if they were available. Ms. Scott and another person in the apartment (Allan Scott) indicated they had no problem with this. They indicated that, in fact, they were in the process of throwing them in the garbage. Ms. Scott gave DC Hyndman the composition book. DC Hyndman described the other book he was looking for, the weekly planner. Allan Scott told him it was “in the other room in a garbage bag”. Mr. Scott then retrieved two books from another room, one of which was the weekly planner. Mr. Scott gave both books to the officer. DC Hyndman seized the weekly planner and left the other book behind.

[32] The books were seized by police, who articulated their authority to do so as being pursuant to s. 487.11 of the Criminal Code (exigent circumstances). They were subsequently obtained by warrant from their location in a police locker.

[33] The composition book was again forwarded to the CFS for analysis. On January 8, 2018, CFS examination revealed a second part of the map. Police later identified more points of interest that correspond to other known/suspected crimes in the area.

[34] According to the facts agreed to by the parties for this application, the items discarded by the Scotts would have been seized by the police from the garbage.

iii. Other evidence at issue in this application

[35] Following the search and seizure in 2016, police attended at the Applicant’s residence on a number of occasions between November 2016 and May 2017. Police engaged the Applicant in conversation about the Collison murder as well as other murders.

[36] The Applicant was arrested on May 31, 2018 and interviewed by the police. During that interview, he denied drawing the head with the arrow picture and the map. He denied on multiple occasions ever seeing the unlabeled map.

III. Overview of the positions of the parties

[37] The Applicant seeks to exclude the evidence obtained from the 2014 search pursuant to the general warrant, which was the basis for the seizures made pursuant to the 2016 search warrant. The items he seeks to exclude include the map in the composition book. He further applies for the exclusion of evidence flowing from these searches and seizures, including the CFS reports and exchanges between himself and the police about the map.

[38] The defence argues that the general warrant should not have issued and that police breached his s. 8 rights in searching his residence. The defence submits that all the evidence that ultimately flowed from that search, including the evidence obtained on the authority of the subsequent search warrant, should be ruled inadmissible in the trial.

[39] The Crown emphasizes the proper scope of a review of the sufficiency of an Information To Obtain (“ITO”), and the need to consider the totality of the information available to the issuing justice in considering whether the warrant could have issued. The Crown argues that the general warrant was properly issued and that at no time were the Applicant’s s. 8 Charter rights breached. In the event the court finds otherwise, the Crown submits that the evidence should be admitted under s. 24(2) of the Charter.

[40] The Crown argues that in any case, the 2016 warrant could have issued without the observations in 2014. The Crown further argues that the composition book and weekly planner were abandoned. It submits that the police would have seized any documents about to be thrown out from the Applicant’s residence regardless of what they had observed during the covert search pursuant to the general warrant in 2014.

[41] The issues I have to decide are the following:

a. Did the police breach the Applicant’s s. 8 Charter rights because there were insufficient grounds in the ITO to permit the issuance of the general warrant;

b. If the Applicant’s s. 8 rights were breached,

i. what evidence comes within the scope of the s. 24(2) analysis, and

ii. should the evidence be excluded pursuant to s. 24(2) of the Charter?

IV. The warrant review process

i. The legal principles

[42] Prior to discussing the Charter issues, because the alleged Charter breach in this case turns on an assessment of the sufficiency of the grounds to obtain a warrant, it is helpful to review the law that applies to the scope of my analysis.

[43] A judicially authorized warrant is presumptively valid, lawful, and therefore, reasonable (R. v. Alizadeh, 2013 ONSC 5417 at para. 33). The Applicant bears the burden of demonstrating, on a balance of probabilities, that the ITO is insufficient: R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549 at para. 14; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 131.

[44] I am mindful of the law that sets out the correct approach to reviewing the sufficiency of an ITO. In conducting this review, I am not substituting my view for that of the justice who issued the warrant. The task of the reviewing judge is to consider whether the record before the issuing justice contains sufficient credible and reliable evidence to permit the issuance of the warrant once the ITO is “trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO”: see R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 at para. 99; Morelli at paras. 40-42; Campbell at para. 14; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 54 and 59.

[45] Information obtained unconstitutionally must be excised from the ITO, and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Mahmood at para. 116, Araujo at para. 52. Prior unconstitutional conduct may also be relevant to the decision about the admissibility of evidence obtained by a later Charter infringement where there is a sufficient nexus between the prior infringement and the later gathering of evidence: Mahmood at para. 117; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at para. 71.

[46] Here, there is no dispute as to the record for the review. It is contained in the Application Record and, by agreement of counsel, in the factual summaries contained in their facta. I have not been asked to amplify the record or excise information as it relates to the ITO for the 2014 general warrant.

[47] My task, then, is to undertake a contextual analysis that examines whether the ITO contains sufficient credible and reliable information that might reasonably be believed in the totality of the circumstances to support the issuance of the warrant: Araujo at para. 54; Campbell at para. 14; Morelli at para. 40.

[48] I reiterate that I am mindful that I am working “within a narrow jurisdictional compass”, and that the review is not “to take on the markings of a trial, where the truth of allegations is explored”: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 at paras. 20-21.

ii. The meaning of “reasonable grounds”

[49] In assessing the sufficiency of the ITO, the court must determine whether, in the totality of the circumstances, it discloses “reasonable grounds” to believe what is required by the legislation. In this instance, the issue is whether, given the totality of the circumstances disclosed in the ITO, there were reasonable grounds to believe that information concerning the murder of Raymond Collison would be obtained by a covert search of the Applicant’s residence.

[50] There is a subjective component to the reasonable grounds test: R. v. Lai, 2019 ONCA 420 at paras. 25-31; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 31; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 21. An affiant must have a subjective belief in his or her reasonable grounds. This is a precondition to the issuance of a warrant. A search without subjective grounds is illegal, even where objective grounds would have existed had the officer acted on those grounds: Feeney at para. 29, Lai at para. 26; R. v. Sheldrick, 2019 ONSC 5731 at para. 10.

[51] The subjective belief of the affiant is not sufficient for the issuance of a warrant, however. This explanation by Dickson J. of the need for an objective standard in determining whether to authorize a warrant in Hunter v. Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at paras. 42 and 43, bears repeating:

The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.

Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe” that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation…" The phrasing is slightly different but the standard in each of these formulations is identical. The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. [Emphasis added.]

[52] More recently, the meaning of “reasonable grounds” was efficiently summarized in R. v. McKenzie, 2016 ONSC 245 at para. 46 (where the court was considering an ITO for a search warrant):

This standard does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. Instead, this standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. At the same time, it requires more than an experienced-based “hunch” or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the [warrant] could have issued.

[53] As stated in R. v. Nguyen, 2012 ONSC 3668 at para. 36, “[w]hether or not an affiant has reasonable grounds to obtain a search warrant must be considered in the context of ‘the totality of the circumstances’. The question is not whether each particular piece of evidence, examined in isolation, establishes reasonable grounds, but whether all of the information taken in its totality satisfies the test” (citing R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) at para. 17). Further, the assessment of the facts relied upon to establish reasonable grounds is made in a practical, non-technical, and common sense-basis: R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. C.J. (Gen. Div.)) at para. 31. Reasonable grounds may be said to exist at “the point at which credibly-based probability replaces suspicion”: R. v. Liu, 2014 BCCA 166, 308 C.R.R. (2d) 336 at para. 39.

V. Overview of the ITO for the general warrant executed in 2014

[54] The ITO was sworn on October 15, 2014. It identifies the offence the affiant believes has been committed as the murder of Raymond Collison between July 28, 2009 and April 17, 2014.

[55] Over 193 pages, the ITO sets out information relating to the investigation of the murder of Raymond Collison, as well as prior investigations where the Applicant was suspected of having committed homicide and other crimes.

[56] The information in the ITO is presented, for the most part, as a chronological summary of steps taken in the investigation of Mr. Collison’s murder. Where witness accounts are referenced, bullet point summaries are provided of what appears to be the entire contents of the interviews.

i. The items to be searched for

[57] The ITO identified various items to be searched for by the police in Appendix B. They were as follows:

a. “items related to the offence of murder and/or serial murder”;

b. “souvenirs” from the victims;

c. writings, literature, media (written, video or computer) that may have a link to Raymond Collison’s murder;

d. weapons, ammunition and shell casings;

e. clothing or personal items which may belong to Raymond Collison.

ii. The information linking the Applicant to Mr. Collison’s murder

[58] The Applicant’s status in the Collison murder investigation was described as that of a suspect – he had been so classified as of September 16, 2014, which was a few weeks prior to the preparation of the ITO.

[59] Insofar as the information in the ITO linking the Applicant to Mr. Collison’s murder is concerned, it included:

a. The Applicant’s familiarity with the area where Mr. Collison’s remains were found;

b. The Applicant’s work as an auto mechanic and the fact that a fan belt similar to the make and model found on Mr. Collison’s remains was found in the Applicant’s garage;

c. Evidence that the Applicant and Mr. Collison were known to one another;

d. Evidence of animus directed by the Applicant toward Mr. Collison, including a threat to make him disappear;

e. The Applicant’s past access to and possession of firearms, including a .22 calibre firearm;

f. Post-incident conduct by the Applicant, such as:

i. Taking items belonging to Mr. Collison (his truck and trailer) after his disappearance;

ii. Lying to police and others about various issues, such as whether he knew Mr. Collison and what he had done with Mr. Collison’s trailer;

iii. Telling police they should look into another individual as a possible suspect and asserting that this individual has a .22 calibre firearm and had one when he last saw this person and Mr. Collison together – this evidence is all the more significant because the fact that a .22 calibre firearm was involved was “hold back” information that had not been released to the public;

iv. Speaking to the parent of the teen-ager who found Mr. Collison’s remains.

The alleged threat to Mr. Collison

[60] Additional information about some of these circumstances was provided in the ITO. For instance, with respect to the alleged threat by the Applicant towards Mr. Collison, this was reported by witness Tammy Smith.

[61] It appears that Ms. Smith gave a number of statements to the police in 2009 and 2014. Only her statements from 2014 are summarized in the ITO. However, the ITO notes that in 2014, Ms. Smith denied most knowledge of Mr. Collison despite a lengthy 2009 statement to police indicating how they knew each other.

[62] In her statement of May 15, 2014, Ms. Smith was asked to provide a polygraph statement and declined. During that interview, she discussed her last use of drugs, in 2009, when she was smoking crack cocaine. She said she could not remember the interview she had done with police in 2009 and that she’d been through a lot.

[63] In the May 2014 statement, Ms. Smith reported that Mr. Collison used to say people were after him. She also reported a threat Mr. Collison said was made by the neighbour on the riding mower, which had taken place a few weeks before he told her about it. She said that Mr. Collison told her that “the guy on the mower told him that he would go missing if he came back around” there and the guy did not want Mr. Collison living there. The ITO further indicates that Ms. Smith reported that this man lived beside “Betty”. Given other information available to the police, police believe that “the guy on the mower” was the Applicant.

[64] The affiant describes observing this interview with Ms. Smith. He indicates that Ms. Smith was at times deceptive and clearly wanted to distance herself from the investigation. Her report of the threat made by the “guy on the mower” was towards the end of the interview and he says he found her tone and recollection of the event to be compelling.

[65] Ms. Smith ultimately did agree to do a polygraph examination two weeks later. The results were inconclusive.

[66] Ms. Smith was interviewed again on June 26, 2014. She told police she took so long to mention the man “on the tractor” because she really didn’t remember. She said she had trauma in her life and was intimidated by police. She told police that Mr. Collison was “frigid and worried when the man on the tractor said he would disappear”.

[67] The ITO also sets out additional information from a number of witnesses, including Mr. Collison’s brother, son, former wife, and friend Paul Bourgeois, who described him as paranoid and/or schizophrenic. Several of these witnesses reported that Mr. Collison would say that people were after him. His son said his father was always afraid of people and paranoid, and would say that people were after him. His former wife said that Mr. Collison would get angry from time to time and say that people were after him, but she just thought it was his schizophrenia talking. His brother reported an incident in 1995-96 when Mr. Collison was petrified and scared saying someone was threatening to kill him. He said Mr. Collison thought people were poisoning his food. Mr. Bourgeois described an occasion when he took Mr. Collison to see his son but didn’t want to stay long because there were people after him. He did not tell him who or why.

The possession of Mr. Collison’s trailer

[68] The information about the Applicant’s possession of Mr. Collison’s trailer included the following information, which was referenced in various sections of the ITO:

a. Mr. Collison’s brother Bill reported that the trailer was moved with family permission after Mr. Collison went missing (paragraph 28 of the ITO). Bill Collison told police “apparently Raymond did not pay his lot rent to Garnett Crump and Garnett wanted to get it out of there so he got hold of mom”. He said Garnett told him about the unpaid rent on his land. He said his mother was 83-84 years old and she didn’t care what they did with it. The trailer went to the Applicant’s house, and then to another individual’s house. He said that if someone sold the trailer, it wouldn’t matter because his mother said do whatever you want with the trailer. He said his mother was pretty forgetful in relation to the trailer and may have a touch of Alzheimer’s (paragraph 126 of the ITO).

b. the Applicant told the police he took Mr. Collison’s truck and trailer after he went missing, and that he burnt the trailer. He said that Mr. Collison had never paid him for another truck, so he took his trailer and truck to his residence from Garnett Crump’s property. He said Garnett Crump told him Mr. Collison’s mother gave her permission to get Mr. Collison’s trailer off his property;

c. ultimately, the police were able to track down the trailer and it was seized for expert examination.

iii. The information linking the Applicant to other homicides

[69] The ITO contained information relating to the Applicant’s suspected involvement in other homicides. Insofar as his status in the investigation of other homicides is concerned, he was consistently described by the affiant as being a suspect.

[70] The ITO references the affiant’s knowledge of prior homicide investigations involving the Applicant. This is based, in part, on a review of an Affidavit of another officer from 1987. The affiant writes at para. 121 of the ITO:

At the time the Ontario Provincial Police investigators believed James Wise was a serial killer. It should be noted that the sufficient evidence to lay criminal charges was never attained. The investigation also has to be viewed through the lens of the standards at the time of the investigation. My ability to verify each and every item that was written in the affidavit is somewhat limited by current access and time restrictions. Although I believe this information is important to have in this application to be full, frank and fair, it has to be weighted appropriately. I have to summarized [sic] the affidavit into the following events which have a significant interference [sic] to James Wise by association, geography and police observations…

[71] The affiant goes on to provide limited information about the crimes the Applicant was suspected of having committed. One of these involved a charge of attempted murder, which resulted in a conviction for Wounding with Intent to Cause Bodily Harm. The Applicant had driven his vehicle onto a sidewalk and struck a domestic partner after she ended their relationship. He was not charged for any of the other offences detailed in the ITO.

[72] The information in support of the theory that the Applicant had committed other homicides included information about:

a. The Applicant’s fascination with serial killers;

b. The Applicant’s possession of a .22 calibre firearm after but proximate to the killing of another individual killed with such a firearm;

c. The Applicant’s statements to persons while in jail indicating that he had killed others, including a couple in New York State, which the ITO indicates matched a “potential” killing;

d. The similarity in the killings for which the Applicant was a suspect – like Mr. Collison, three of the homicide victims had been shot in the head;

e. The Applicant’s past retention of items which “could be connected” to these murders (a .22 calibre firearm, .38 or .40 calibre projectiles, and 3 spent .22 calibre shell casings);

f. The Applicant’s expression of interest in the disappearance and discovery of Mr. Collison and the fact that he had a newspaper report about Mr. Collison’s disappearance;

g. Dr. Collins’s opinion (described further below) that the Applicant had some of the characteristics of individuals who are known to be serial killers.

iv. The Applicant’s criminal record

[73] The Applicant’s criminal record was described in the ITO. It started in 1960 and ended in 1993. The list of convictions included the following: Break and enter, theft of auto, Prison Breach, Possession of Stolen Property, Escape Lawful Custody, Armed Robbery, and Wounding with Intent to Cause Bodily Harm. The affiant noted the Applicant had been involved in a prison escape in 1966, which involved the robbery of a man using a gun.

v. The opinion of forensic psychiatrist Dr. Peter Collins

[74] The ITO also includes a statement from a forensic psychiatrist, Dr. Peter Collins. In the opinion portion of his statement, Dr. Collins writes:

• Based on the material I have reviewed James Wise is a suspect in the homicide of Raymond Collison and is a person of interest in other homicides and arsons. If responsible, WISE would be regarded as a serial killer. He appears to have some of the characteristics of individuals who are known to be serial killers. …

• I have been informed, by Detective HYNDMAN that in the past WISE has been known to keep items from his alleged victims. Some of the property will be for financial gain however some of the material could be considered hiding of evidence or souvenirs. Souvenirs usually are not of intrinsic value but will serve as an aide memoire, of the event, for the perpetrator. It is within the realm of possibility that he still possesses personal items that belong to COLLISON, or other alleged victims, as well as newspaper clippings of the crime, taped news programs … In the past he has hidden a murder weapon in a tire.

vi. The grounds to believe information concerning the offence will be obtained through the use of the technique

[75] The affiant’s grounds to believe information concerning the offence will be obtained through the use of the technique are set out in Appendix C of the ITO. The affiant framed the substance of those grounds in this way:

4. Items of specific interest in this investigation include clothing or personal items which may belong to Raymond Collison. These items were in Raymond Collison’s trailer and according to Richard Fawcett clean [sic] out by James Wise. Further when Raymond Collison was found the key to his trailer door was missing but he had the key to the storage compartment [sic] was with his remains.

5. In the Collison homicide investigation Paul Bourgeois also reports James Wise attending his residence a significant distance from the residence of James Wise with a copy of the newspaper the Chesterville Record with an article related to the Raymond Collison case.

6. A search warrant was executed at Wise’s residence of [sic] the 14th of July 1987 after the King Homicide. James Wise had a .22 caliber semi-automatic rifle. D/C Ralko advises me the police had to give the firearm back to Wise who allowed his close friend at the time Richard Patenaude [sic] have it. I note from the Raymond Collsion [sic] homicide he was shot with a .22 caliber firearm. I also observed photographs from that search warrant where I observed ammunition that appeared to me to be handgun ammunition between the caliber of .38-.40 in a plastic tool drawer. In those same pictures I observed the rifle mentioned above. (Source King Homicide – Forensic Identification officer MCMS13). I would be interested in any ammunition or indicators of continued firearms interest by James Wise. Also police officers noted in the Special K affidavit that there was a small plastic head on the table in the form of a very old person, face withdrawn, veins showing, very pale and the figure resembled a death mask.

7. Further items seized from the above search warrant were film negatives, 3 spent .22 caliber shell casing, 45 live .22 caliber shell casings. I believe if James Wise continues to keep shell casing [sic] they could be documented, seized with a 487 search warrant and be linked to a murder weapon located in the future.

8. Brue Allan Lang told police Wise asked him to get him a book called Hunting Humans about serial killers and was fascinated with serial killers from the states [sic] and what they would do to their victims. I will search for books of this genre which may be used as a manual for murder.

9. I believe that James Wise will have items in his apartment in relation to the homicide of Raymond Collison. My belief is supported by Dr. Peter Collins in section 177 of the facts of the investigation. An entry into the residence of James Wise will assist investigators with the Ontario Provincial Police to gather more evidence into the murder of Raymond Collison and potentially other victims of homicide.

10. James Wise was removed from his residence on the 9th of September 2014 by ambulance. James Wise had no opportunity to hide or remove items prior to his departure. As a result of the production order at Bruyere Continuing Care I learned that James Wise has yet to return to his residence. I therefore believe that any items James Wise had at his residence will have remained at his residence.

[76] The affiant also addresses his grounds in Appendix “B”. There he writes “I believe some of the said items will be in the residence and my beliefs are supported by Dr. P. Collins. (See Appendix “C”)”.

[77] In Section “J” of the ITO at p. 190, “Grounds to believe that there are no other provisions permitting the techniques sought”, the affiant writes:

I request that this General Warrant … be granted to facilitate the investigative search of the apartment of James Henry Wise in order to obtain indicators of his lifestyle in relation to his interest and involvement in serial murder. The search will be without any knowledge of Wise. There is no other provincial or federal legislation or statutes that would allow for the police to legally, enter Wise’s residence and document evidence that will assist in the first-degree murder investigation of Raymond Collison. [emphasis added]

[78] Finally, in his conclusion, the affiant states the following:

I believe entry in the apartment of James Henry Wise … will assist in the investigation into the murder of Raymond Collison. The search for items related to Raymond Collison, weapons, ammunition, photos, literature and any souvenir [sic] that might be indicators of a serial murder would greatly assist in the on-going investigation. I have conferred with Dr. Peter Collins and he provided an opinion to me based on materials I provided him in relation to the Collison Homicide and the Special K investigation. Dr. Collins believes that it is in the realm of possibility that James Henry Wise still possesses personal items that belong to Raymond Collison, or other alleged victims.

VI. The positions of the parties regarding the sufficiency of the ITO

[79] In arguing their respective positions on this issue, both parties emphasize the nature and role of the general warrant in the panoply of legislative provisions that permit search and seizure. They disagree as to whether law that applies in the context of the assessment of reasonable grounds for a s. 487 search warrant applies to a search pursuant to s. 487.01.

The defence

[80] The defence argues that in the present case, the general warrant operated in almost exactly the same way as a traditional search warrant. The only difference was that the police could search for certain items without seizing them. There was no “anticipatory” offence. The sole offence being investigated was the murder of Raymond Collison. The police sought, and were granted, authorization to search for and document specific items: souvenirs, writings, literature, and media with a link to the Collison murder; weapons, ammunition, and shell casings; and clothing and personal items which may belong to Raymond Collison. The defence says that is the extent of the “information” that was the subject matter of the general warrant.

[81] The defence does not argue that the general warrant ought not to have been granted because it might have been granted under another provision of the Code, e.g. s. 487. However, it argues that as set out in R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, it was a precondition to searching the residence that there were reasonable grounds to believe that those items listed by police in the ITO would be present. Given that there were no anticipatory offences and the warrant was executed within a day of the authorization, those grounds needed to be established at the time the authorization was sought. In determining whether those grounds were established, the defence says concepts that have been applied to the analysis of “reasonable grounds” in the context of section 487 search warrants apply, such as the concept of “staleness” as regards the currency of the information supporting the grounds to believe.

The Crown

[82] The Crown emphasizes the language in R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751 that confirms that the general warrant has fundamentally altered the traditional search warrant paradigm. This is because the focus in a general warrant is on an offence and the probability that information about the offence will be discovered through a particular investigative technique. The Crown argues that police are entitled to use a general warrant to verify the presence of information and that this is legitimately done prior to obtaining a s. 487 search warrant. In effect, the court’s decision in Ha supports the notion that the linking of an offence to a person may lead to the conclusion that going to a place that person frequents may provide information about the offence. That logic applies here.

[83] The Crown argues that the defence has fundamentally misunderstood the requirements of a general warrant and, notwithstanding the framing of the ITO by the affiant and his itemization of specific types of items the police would search for, it was not necessary for the issuing judge to be satisfied that certain items would be found in the residence at the time of the search. The Crown argues that given the criteria listed in s. 487.01, which differ from the criteria in s. 487 in important ways, the issuing judge could have issued the warrant upon being satisfied that “information concerning the offence” would be obtained through the investigative technique the police sought authorization for, in this case, a covert search of the residence. The Crown emphasizes that “information concerning the offence” is broader in scope than “evidence”. Further, counsel argues that “information” includes determining whether the items are in the residence or not.

[84] The Crown emphasizes that while s. 487 specifically requires a belief that the item to be searched for “is in a building, receptacle or place”, that language does not appear in s. 487.01. This reflects the fact that the general warrant was intended to give police search powers to fill the gaps left by other provisions. Ultimately, the Crown argues that the reasonable ground requirement can be fulfilled in a broader number of ways with a general warrant.

[85] Accordingly, in this instance, the Crown says that the affiant did not require reasonable grounds to believe the types of items he listed in the ITO would be in the house at the time of the search. He required only reasonable grounds to believe that “information concerning the offence” would be obtained in using the investigative technique of a covert search of the residence (what the Crown refers to as a “sneak and peek”). Because of the information in the ITO that set out the affiant’s reasonable grounds to believe that the Applicant had murdered Raymond Collison, and that he was, in addition, a serial killer who was possibly keeping items related to his killings, the issuing judge could properly have concluded that the affiant had reasonable grounds to believe that information concerning the offence would be obtained through the investigative technique of searching his residence.

[86] Regardless, the Crown says that the ITO set out reasonable grounds to believe that the items sought by police would be found in the Applicant’s home, and given the totality of the circumstances outlined in the ITO, the issuing judge could have concluded that a search of the Applicant’s home would provide information concerning the offence.

[87] The Crown’s argument rests on a number of pillars, including its submission that:

a. The cases that consider the standard of issuance of a s. 487 warrant are of little, if any assistance because the statutory prerequisites for a s. 487 warrant differ from those of a s. 487.01 warrant;

b. While the scope of s. 487 is broad, the scope of a s. 487.01 warrant is even broader and permits searches for “information concerning the offence” and not only “evidence with respect to the commission of the offence”: R. v. Ongley, [2003] O.J. No. 3934 (Ont. S.C.) at para. 9; R. v. Villaroman, 2012 ABQB 630, 80 Alta. L.R. (5th) 321 at para. 125;

c. The state has a compelling interest in advancing criminal investigations and may often legitimately seek “information” as a stepping stone to evidence or other information: S. Hutchison, Hutchison’s Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2005) at p. 171;

d. There is no requirement in s. 487.01 that there are grounds to believe that “information” is in existence – a general warrant may issue to search for information concerning the offence if the precise information is not known to exist at the time of issuance: Lucas at para. 110; leave to appeal dismissed: [2014] S.C.C.A. No. 460.

e. General warrants may be used to “verify” whether information is in existence or in a place. The absence of information may lead to abandoning a course of action or part of the investigation: R. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443 at paras. 51-52;

f. The requirement for reasonable grounds to believe information concerning the offence “will be obtained” through the investigative technique does not require absolute certainty. The Crown argues that in Brand, the court equated “will” as being the equivalent of “could” (at paras. 42-43), while in Ha, the Court of Appeal equated this standard with “potential”: Ha at para. 53.

g. Where police have reasonable grounds to believe that a suspect is responsible for a crime, this is an “important contextual factor”. “An investigative technique targeted at a reasonable grounds suspect carries with it inherent value in support of issuance”;

h. In this case, the issuing judge could have concluded that information concerning the offence will be obtained through entry into the Applicant’s home, including that nothing is in the home. The absence of such material is information concerning the offence – namely that someone else may be responsible;

i. And further: “the issuing judge did not have to determine if there were reasonable grounds that any of the items discussed [in the ITO] were in Wise’s residence. Indeed, the absence of all of them is information concerning the offence – namely that Wise may not be the killer. As it turned out, the discovery of information provided support for the grounds for a search warrant”.

VII. The legal principles that apply to general warrants

i. The purpose and scope of the general warrant

[88] The history of the general warrant is reviewed in some of the cases that have interpreted it: see for instance R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; Ha; Brand; and Lucas. The jurisprudence recognizes that s. 487.01 and other provisions relating to police investigative powers that came into force at the same time were designed to supplement the traditional search warrant power found in s. 487: Ha at para. 23; Ongley at paras. 9-13; R. v. Noseworthy (1997), 1997 CanLII 1853 (ON CA), 33 O.R. (3d) 641 (Ont. C.A.) at paras. 11-14.

[89] Section 487.01 reflects the fact that “Parliament cannot anticipate or imagine all investigative means or techniques that are or will become available to the police”: Ha at para. 26. Accordingly, it permits police to seek judicial authorization to do something that would otherwise constitute a breach of s. 8 of the Charter. In that respect, it has fundamentally altered the traditional search warrant paradigm. The result is that “[t]he state will not be denied access to investigative methods that are constitutionally justified because the relevant statute does not contemplate the specific investigative means that the police seek to use”: Ha at para. 25.

[90] The differences between the general warrant and the traditional search warrant power in s. 487 of the Code have also been considered in the jurisprudence. As noted in Ha, the search power in s. 487.01 is not limited to searches of a “building, receptable or place” and has no spatial limitations. Unlike other search provisions in the Code, the focus in s. 487.01 is not limited to a particular investigative technique or procedure: Ha at para. 24.

[91] There is also a fundamental structural similarity in the two provisions. Both sections set out statutory prerequisites that must be satisfied. These prerequisites are used to determine when the public interest in the investigation of crime is strong enough to supersede an individual’s s. 8 rights. As noted in Ha, “[w]hile the criteria are not identical, they serve the same purpose”: Ha at para. 27.

[92] To the extent that the parties both rely on cases interpreting the provisions of s. 487.01 more broadly to situate their arguments, it is of some assistance to consider the comments of the Supreme Court in Telus. In that case, three members of the court wrote reasons that touched on the scope of the s. 487.01 warrant. The issue in Telus was whether a general warrant permitting the prospective daily production of text messages from a computer database maintained by Telus was validly issued having regard to the pre-condition in s. 487.01(1)(c), which requires that there be “no other provision” that would provide for a warrant or authorization permitting the use of the technique.

[93] The justices split in their reasoning. Each set of reasons emphasizes how s. 487.01 fits into the search powers authorized by the Criminal Code. Writing for the majority, Abella J. wrote at para. 19 that “s. 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively. This is to prevent the circumvention of more specific or rigorous pre-authorization requirements for warrants”.

[94] Moldaver J., concurring in the result, took the view that the general warrant operates as an exception to the rule by allowing police to seek judicial authorization of a proposed investigative technique that is not specifically authorized by statute. In his view, the issue on appeal was whether a general warrant may properly issue where the substance of the investigative technique, if not its precise form, is addressed by an existing legislative provision. It was his view that

[t]he requirement that there be ‘no other provision’ that would provide for the search ensures that the general warrant is used sparingly as a warrant of limited resort. It guards against the general warrant becoming ‘an easy back door for other techniques that have more demanding pre-authorization requirements’: S. C. Hutchison et. Al., Search and Seizure Law in Canada (loose-leaf), a p. 16-40.3.

[95] In Telus, Moldaver J. accepted that as a technical matter, the search authorized by the general warrant was different than what could occur pursuant to a Part VI authorization. However, Moldaver J. did not accept that this was determinative in light of the identical privacy interests at stake: para. 68. He distinguished Ha and Brand because the request for covert access and temporal flexibility made clear that the substance of the investigative techniques for which authorization was sought differed from what could be authorized under a conventional warrant: para. 69. Reliance on the general warrants in those cases did not provide the police “with an easy way out from the rigours of a more demanding legislative authorization”, and so it was hard to see how the general warrant provision might be misused in those cases: para. 72. He concluded that a “mechanistic interpretation of the ‘no other provision’ requirement cannot hold because, put bluntly, a general warrant can prove easier to obtain than a Part VI authorization”: para. 74. In his view, “the ‘no other provision’ test must be given interpretive teeth if it is to serve its purpose of ensuring that general warrants do not become a means to avoid more onerous search authorizations”: para. 76. He concluded the following at para. 80:

[I]t is important for the police to appreciate that general warrants are not warrants of general application. On the contrary, they are to be used sparingly, when the investigative technique they wish to employ is truly different in substance from an investigative technique accounted for by another legislative provision. Where uncertainty exists, the police would do well to err on the side of caution. They must know – with certainty – that general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous preconditions.

[96] Finally, he held at para. 81 that when faced with an application for authorization to search under a general warrant,

[a]t a minimum, judges should look closely at the material filed and satisfy themselves that the request for a general warrant is genuine and not merely a device to escape the rigours of another authorization provision. Where careful scrutiny establishes that a proposed investigative technique, although similar, has substantive differences from an existing technique – not simply that it is similar in substance but different in form – judges may grant the general warrant, but they should be mindful of their obligation under s. 487.01(3) to impose terms and conditions that reflect the nature of the privacy interest at stake.

[97] In dissenting reasons, Cromwell J. indicated that he did not accept that the purpose of s. 487.01 was to provide authorizations only in very limited circumstances and that they must only be used “sparingly”. He emphasized the jurisprudence from the Court of Appeal for Ontario “to the effect that the general warrant provides for a flexible range of investigative procedures”: para. 162. He did not “accept as an imperative that s. 487.01 must be interpreted with a view to heavily restricting its use”: para. 163.

[98] It thus appears that the assessment of the proper scope of s. 487.01 is the subject of diverse opinion. The majority view in Telus, however, is that s. 487.01(1)(c) serves to ensure that a general warrant is not used presumptively. That provision prevents the circumvention of more specific or rigorous pre-authorization requirements for warrants.

[99] For the purposes of this analysis, I consider other general principles that have emerged in the case law dealing with general warrants. They include the following:

a. A general warrant may be obtained by police even where there are grounds for a search warrant under s. 487. A general warrant has the potential to enable police to obtain different evidence from that which they possibly could obtain with a traditional search warrant: Ha at paras. 52-53, Brand at para. 51.

b. Resort to a general warrant is only precluded when judicial approval for the proposed “technique, procedure or device or the doing of the thing” is available under some other federal statutory provision: Brand at para. 50;

c. Section 487.01(5.1) specifically recognizes that a general warrant issued under subsection (1) can authorize a peace officer “to enter and search a place covertly” and a general warrant may be used for such entries and searches: Ha at para. 34;

d. Section 487.01 has a remedial character and “provides a flexible range of investigative procedures, ranging from various forms of surveillance to the search and seizure of tangible objects”: Ha at para. 35, citing R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 37 O.R. (3d) 513 (Ont. C.A.), aff’d 1998 CanLII 804 (SCC), [1998] 2 S.C.R. 683 (S.C.C.);

e. Through s. 487.01 (and s. 487.02), Parliament has provided a “broad, plenary warrant-granting power intended to ensure that judicial authorization is legally available for virtually any investigative technique that can be brought within the Hunter conditions for judicial pre-authorization”: Ha at para. 36, citing Scott Hutchison, Hutchison’s Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2005) at p. 143;

f. As interpreted by the courts, s. 487.01 authorizes the search for evidence and other information that is not known to exist at the time the warrant is granted, although this raises issues relating to the execution of the warrant. The appropriate way to ensure that the warrant is carried out in a manner consistent with s. 8 is to limit its execution to circumstances where the police have gathered sufficient evidence to give rise to reasonable grounds that information related to the specified offences will be present: Lucas at paras. 110-115;

g. The crucial constitutional protection of s. 8 rights impacted by the issuance of warrants under s. 487.01 lies in the requirement that the judge is satisfied to the standard of reasonable grounds before granting the warrant: Lucas at paras. 121 and 125;

h. Properly interpreted, s. 487.01 is consistent with s. 8 of the Charter: Lucas at para. 126.

ii. The criteria for issuance of a general warrant

[100] As a precondition to the issuance of a general warrant, s. 487.01(1)(a) requires that the issuing judge must be satisfied that there are reasonable grounds to believe that:

i. An offence against this or any other Act of Parliament has been or will be committed; and

ii. Information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing.

[101] The issuing judge must also be satisfied that it is in the best interests of the administration of justice to issue the warrant (s. 487.01(1)(b)), and that there is no other provision in the Criminal Code or any other Act of Parliament that would provide for judicial authorization of the proposed “technique, procedure or device to be used or thing to be done” (s. 487.01(1)(c)). Here, the argument relates to the criterion that there are reasonable grounds to believe that information concerning the offence will be obtained through the use of the technique, which in this case is the covert search of the Applicant’s residence.

[102] The meaning of “reasonable grounds” is well established in Canadian criminal law. I have reviewed the meaning of that term elsewhere in these reasons. It is most succinctly described as requiring a “credibly-based probability”. Reasonable grounds to believe that information “will be obtained” similarly imports a requirement of probability, and not merely possibility.

[103] I pause here to say that I do not accept that “will” may also be equated with “could” (which has various usages that were reviewed in Brand) or “potential” as suggested by the Crown. I do not agree that either Brand or Ha support this expression of what “will be obtained” means. In Brand, one of the issues on appeal was whether the issuing judges had applied the wrong test in issuing the general warrants because the warrants stated that the judge was satisfied that information “could” be found, instead of using the word “will”, which is specified as the standard in s. 487.01. The court accepted that the issuing judges were using the word “could” in the sense that “will” is used to express habitual action or probability, or something greater than a mere possibility: Brand at para. 42.

[104] I do not take Brand as endorsing “could” as a way of expressing the standard in s. 487.01, notwithstanding that given the totality of the circumstances in that case, and the presumption that judges know the law, the court concluded that the use of that language did not mean that the issuing judges had not applied the correct test. The court went on to make comments suggesting that police and Crown counsel charged with preparing general warrants should follow the practice of ensuring that recitals in an order “track the language of the applicable statutes”: Brand at para. 47.

[105] Further, to the extent that the Court of Appeal for Ontario used the term “potential” in reference to the general warrants issued in Ha, this was during a discussion of whether the warrant could have advanced the investigation beyond what could have been achieved with a regular search warrant: see Ha at paras. 47, 52, and 53. The court was not discussing the expression of the reasonable grounds standard or the phrase “will be obtained”. It did not equate the reasonable grounds standard with “potential”.

VIII. The approach to assessing reasonable grounds for the issuance of a general warrant

i. The reasonable grounds threshold may require a cogent link between information concerning the offence and a place to be searched

[106] The Crown places great reliance on the differences between the requirements of s. 487 and s. 487.01 and argues the defence has misunderstood the requirements of a general warrant. However, the requirement of “reasonable grounds” is a statutory prerequisite for judicial authorization that is central to both provisions. In this case, the central issue is whether the ITO set out reasonable grounds to believe that information concerning the offence would be obtained through a covert search of the Applicant’s residence.

[107] There is no doubt that the words “building, receptacle or place” do not appear in s. 487.01. However, depending on the investigative technique at issue in a general warrant, the absence of these words will not necessarily relieve police from demonstrating their reasonable grounds to believe that information relating to an offence will be found in a search of a building, receptacle, or place. Here, the investigative technique was a covert search of the Applicant’s residence. Having identified this investigative technique, to obtain judicial authorization for the search, police had to set out in the ITO their reasonable grounds to believe that information concerning the offence would be in the residence.

[108] I am unable to see how, in the context of this case, police could meet that reasonable grounds threshold without doing what the affiant did – itemize the types of materials that would be the subject of the search because they would provide information concerning the offence. The affiant referenced information police had obtained that suggested a link between these types of items and the Applicant in the past, as well as a psychiatric opinion about the possibility the Applicant possessed the items of interest to the police. While the wording in s. 487.01 does not specify that the issuing judge must be satisfied that specific items sought would be in the residence, as a practical matter, that was necessary in this case. As argued by the defence, the items identified by police in the ITO were the extent of the “information” that was the subject matter of the warrant. In any event, there had to be some link between information concerning the offence and the Applicant’s residence that would justify its covert search.

[109] The Crown’s argument relies heavily on the notion that “information” is not “evidence”, and the issuing judge need not be satisfied that specific items would be present because the requirements of the general warrant are only that “information concerning the offence” will be obtained through the use of the investigative technique. The Crown says an entry into a place to verify the presence of information is available to police in these circumstances. According to the Crown, an entry that confirms nothing of interest in the place searched is “information”. In this case, then, having provided sufficient information in the ITO to permit the issuing judge to conclude that there were reasonable grounds to believe that the Applicant had committed the murder of Raymond Collison, it was open to the issuing judge to conclude that a search of the Applicant’s residence would result in information concerning the offence, because even an absence of information would be “information” that could meet the requirements of s. 487.01. On this analysis, the contemporaneity of the information relating to items of interest to police does not matter.

[110] If the Crown is correct in this position, the “sneak and peek” would be available to police regardless of the specificity and currency of their grounds to believe that a search of an accused’s residence will yield information. Police would meet the threshold to search a residence or other place associated with an individual based on the strength of their grounds to believe that person had committed (or would commit) an offence. This position is untenable. In my view, it is an expansion of the reach of the general warrant that is not supported by the jurisprudence.

[111] A similar argument was found by Doherty J.A. to have dangerous implications for the reach of search warrants under s. 487 of the Code: see R. v. Campbell, 2010 ONCA 588, 270 O.A.C. 349 at para. 85, majority aff’d R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549. While he was writing dissenting reasons, his analysis is nevertheless of assistance here. He wrote:

A search warrant cannot issue under s. 487 on the basis that even though there may be no reasonable grounds to believe that “anything” will be found in the place to be searched that could “afford evidence” of the crime, the failure to find evidence will afford evidence of the crime in the sense that it will increase the probative value of other evidence already in the possession of the police. That approach to granting a search warrant is inconsistent with the language of s. 487 and would significantly, and I suggest dangerously, expand the search powers of the police.

[112] Similarly, the following view was expressed by Scott Hutchison in Hutchison’s Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2005), at pp. 176-77:

One especially ingenious, but constitutionally suspect, form of s. 487.01 warrant that has been proposed and issued on occasion (usually involving offences of possession of drugs or property obtained by crime) is the “confirm or deny” warrant. Such warrants authorize the police to enter a dwelling (sometimes surreptitiously) to confirm or deny the presence of the contraband articles (stolen goods or controlled substances). Generally, these warrants are sought before the police have crystallized reasonable grounds to believe that the articles are at the place to be entered. They do, however, have grounds to believe that entering the house will provide them with “information concerning the offence” which they believe has been committed. The information in question is the confirmation or refutation of the theory that the contraband articles are at the location to be entered. Where entry confirms the presence of the articles the police then use that information to obtain either a s. 487 warrant or a Controlled Drugs and Substances Act s. 11 warrant.

These peculiar warrants are not the same as valid “sneak and peek” warrants that authorize entries to permit some record to be made of crimes in progress without taking down a criminal organization. A valid “sneak and peek” warrant is based on a reasonable belief that the evidence to be observed is at the place to be entered but the police, for legitimate investigative reasons, do not wish to conduct a conventional seizure of that evidence at the relevant time.

In the case of the questionable “confirm or deny” warrant the police seek to enter locations where they cannot say whether evidence will be discovered, on the theory that finding out whether evidence is there or not, is “information” that should be available to the police for further investigative steps.

It is, of course, possible to have the words of s. 487.01 surrender such an interpretation if sufficient brute force is applied. There is no other technique and there will be information in the form of the confirmation or refutation of the location as a place involved in crime. But such a tortured approach is problematic at best.

First, if the police lack the grounds to ender the location under s. 487, it is hard to see how it is in the best interests of the administration of justice to let them engage in the same entry to get grounds. The ambivalent state objective (uncertain whether it will inculpate or clear the location) is so vague or uncertain that it cannot justify the intrusion proposed.

Second, carried forward logically, such an approach would permit searches of any location which might be associated with criminality. Neighbourhoods with high crime rates might be entered and “swept” with such “confirm or deny” warrants. The prevalence of grow operations in some locations in Canada might justify entries into a number of homes to determine which of the houses on a street had the ubiquitous basement marijuana farm.

While such a warrant would be a powerful weapon for those involved in protecting the community from crime, it is difficult to imagine what privacy would look like if such warrants were readily available. [Emphasis in original.]

[113] To be clear, the general warrant permits covert searches of private residences in addition to other investigative techniques not otherwise authorized by the Criminal Code. The general warrant provision also does not require reasonable grounds to believe that “evidence” will be obtained as a result of the search. But depending on the context for a search of this kind, to demonstrate reasonable grounds to believe information will be obtained through the search, some specificity may be required to link the offence to that place (for instance, as in the case of an ongoing drug operation) or to items that could provide information concerning the offence that are in that place. The currency of that information, as it has been in the context of the analysis of reasonable grounds in cases involving s. 487, may be relevant to determining whether the reasonable grounds standard has been met.

[114] The case law is illustrative. To the extent that a search of a residence or building was authorized in the cases cited by counsel, grounds had been set out in the ITO linking the place to be searched to specific items that would provide information concerning the offence or suggesting that the place to be searched was itself the venue for an ongoing offence.

[115] For instance, in Ha, police were granted authorization to covertly enter storage units and an office. The accused had been observed over the course of the prior two years making purchases of large amounts of chemicals and other substances used in the production of ecstasy tablets. He was observed driving from Mississauga to Ottawa and unloading one of his purchases into a commercial office space containing one of the storage units police sought to search. He was observed at that location on repeated occasions, including 8 days prior to the issuance of the general warrant. Based on the quantities involved in the accused’s purchases of chemicals and other substances, police had obtained an expert opinion that the street value of the drugs that might be produced from those purchases was $22, 000, 000. The Court of Appeal accepted that the information in the ITO “pointed strongly towards a potential large prohibited drug laboratory”. It held that the search under the general warrant had the potential to confirm the stage of production of the lab. Noting that the warrant did not involve the search of a private residence, it held that it was in the best interests of the administration of justice to issue the warrant. It held that the general warrant was valid.

[116] Similarly, in Brand, general warrants were issued in relation to an ongoing offence, this time a suspected grow-operation. Police had information from confidential informants (at least one of whom had direct personal knowledge) that the proposed properties to be searched contained marijuana grow operations. The nature of the geography of the surrounding area made it impossible for police to conduct surveillance without risking detection, and elaborate preparations would be required to execute a search warrant. Police sought general warrants to “verify the presence of controlled substances”. The Court of Appeal for British Columbia confirmed that notwithstanding the police had the grounds for a s. 487 warrant, it was permissible for police to obtain a general warrant for the purpose of verifying the presence of drugs on the properties and held the general warrants were valid. There was no issue about the currency of the information contained in support of the grounds in the ITO.

[117] Finally, in Lucas, general warrants were obtained permitting searches into a number of residences, motor vehicles, and a storage locker. Officers were authorized to copy documents, photograph or seize weapons and controlled substances, examine or record data contained in cellular telephones, and covertly retrieve keys. At trial, Nordheimer J. (as he then was) concluded that the searches pursuant to the general warrants were valid. He further held that the grounds “to believe that the items that they were authorized to search for would be found in Mr. Lucas’ residence” and that those grounds were “reasonably contemporaneous with the execution of the warrant” (emphasis added): R. v. Lucas, [2009] O.J. No. 3420 (Ont. S.C.) at paras. 20, and 24-26. He rejected the Crown’s argument in that case that there is no limit to the currency of reasonable grounds. He reasoned as follows at para. 18: “At some point, the passage of time will render a reasonable ground to believe no longer reasonable. At what point that change is reached will depend on the nature of the grounds and will differ from case to case” (emphasis added).

[118] The accused and co-accused in Lucas argued on appeal that the general warrant provision was unconstitutional, and in any event, the searches conducted pursuant to its authority in their cases were unreasonable. The Court of Appeal found that properly interpreted, s. 487.01 was consistent with s. 8 of the Charter. It held that “[t]he crucial protection lies in the requirement that the [issuing] judge is satisfied to the standard of reasonable grounds before granting the warrant”: para. 121.

[119] However, the court recognized that permitting a search for an offence that has not yet been committed raises issues about its execution. It held that “[t]here must be some way of ensuring that the warrant is only executed when there are reasonable grounds to believe that information about a specific offence will be obtained”: para. 114. The appropriate way to ensure that the warrant “is carried out in a manner consistent with s. 8 is to limit its execution to circumstances where the police have gathered sufficient evidence to give rise to reasonable grounds that information related to the specified offences will be present” (emphasis added): para. 115; see also para. 182.

[120] As for the sufficiency of the grounds to issue the general warrants, some discussion of the factual background in the case is helpful. In regard to the general warrant permitting the search of a storage unit associated with a co-accused, Rosa, the police suspected Rosa had information or items relating to criminal activity in his residence. He was seen apparently removing something from his residence after a failed attempt by police to execute a covert search. Rosa and Lucas then drove to the storage facility that the police sought to search. Taken with all the other information in the ITO, this was a sufficient basis for the general warrant to issue: paras. 192-194.

[121] Lucas further challenged the searches of his residence pursuant to two general warrants. His complaint was that the information in the ITO was not sufficiently current to justify reasonable grounds for entry. Moreover, Lucas complained that nothing had happened after the execution of the first warrant to give police grounds for a second search of his residence. Citing information that the accused had been observed between the two warrants leaving the residence of a person believed to be one of his drug distributors and taking a package to his home, in addition to other information that had been obtained within weeks of the first search, the Court of Appeal held that the trial judge had correctly concluded that there was sufficient contemporaneous information to establish reasonable grounds for both searches of the accused’s residence: paras. 224-228. The court held at para. 228:

Given the information in possession of the police, there were reasonable grounds to believe that evidence relating to the offences named in the ITO would be found in Lucas’ residence. As found by the trial judge, the evidence in possession of the police was sufficiently recent to justify the search. Events had taken place since the March 25 search to give grounds for believing further evidence would be found at Lucas’ residence on April 29. [Emphasis added.]

[122] There was no debate in Lucas as to whether the currency of information in an ITO was relevant to the assessment of reasonable grounds. Further, there was specific and contemporaneous information in the ITO that suggested “information concerning the offence” would be in the residence police sought to search (e.g. the accused’s attendance at the residence with items believed to be associated with the criminal offence under investigation). The search was not justified on the basis suggested by the Crown in this case, that is, that there were reasonable grounds to believe the accused was involved in weapons trafficking, that he had a history as a weapons trafficker, and given the strength of that information, there were reasonable grounds to conclude that information concerning his ongoing offences would be obtained by searching his residence. The analysis in Lucas by both the experienced trial judge and the Court of Appeal demonstrates that information of some currency and specificity was required, at least in the context of that case, to justify the conclusion that “information concerning the offence” would be found in the accused’s residence.

[123] Finally, the case of R. v. Liu, while not a general warrant case, is instructive. In that case, the residence of the two accused persons was searched as part of an investigation into drug trafficking. The defence argued that the police could not obtain a search of their residence based only on “the proposition that because they are believed to be trafficking in drugs there must be drugs in their home” (emphasis in original): at para. 42. The Crown in that case acknowledged that “reliable information that an individual is trafficking in drugs is not, without more, sufficient to justify a search of his or her home” but argued that the conclusion that evidence would be found in the residence could be drawn on the facts of that case by inference and “the process of elimination”. Ultimately, the Court of Appeal concluded that the trial judge had erred in her assessment of the sufficiency of the ITO. In the absence of a demonstrated link between the residence and the offence under investigation, there was nothing more than supposition that drugs were being stored at the residence: at para. 45.

Conclusion

[124] Whether or not there are reasonable grounds to support the issuance of a general warrant will be context specific. This is necessarily so given the broad language of the provision and its potential use in a wide variety of circumstances. However, the broad purpose of s. 487.01 does not eclipse the specific requirement for reasonable grounds as it relates to whatever search technique or investigative procedure has been chosen as the means for the search. As noted above, it is the reasonable grounds requirement that is critical to the constitutionality of searches pursuant to a general warrant.

[125] In the context of this case, the investigative technique being used was a search of the Applicant’s residence. In these circumstances, notwithstanding the absence of language in s. 487.01 referring to a search of a specific place, police were asking to employ the technique of searching a specific place. Their grounds had to justify the belief that information concerning the offence would be in that place. Those grounds needed to rise above a belief that the Applicant had committed the offence alleged, or other similar offences, and to provide a cogent link between information concerning the offence and the search of the residence.

ii. Whether information is stale-dated may be relevant to the assessment of whether there are reasonable grounds to support the issuance of a general warrant

[126] As I have said, in my view, the jurisprudence relating to general warrants supports the conclusion that the currency or staleness of the information in the ITO may be relevant to determining whether the affiant has reasonable grounds for the search.

[127] The dissenting opinion of Nordheimer J.A. in R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, dissenting reasons aff’d 2019 SCC 52, discusses the law that has developed regarding stale-dated information and its impact on the assessment of reasonable grounds. As he states at para. 55, “there is no rule as to how recent information has to be in order to be relevant”: R. v. Dionisi, 2012 ABCA 20, 66 Alta. L.R. (5th) 40 (C.A). Further, “[t]he approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account”: para. 64. Dated information is not necessarily “stale”. While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor: R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418 at para. 54, cited in James at para. 64.

[128] The court is also “entitled to draw common sense inferences regarding the activities of persons” and “it is important to keep in mind the investigative objective and the nature of the alleged criminality involved.” For instance, “[o]ngoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.”: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 at para. 113; James at para. 65.

[129] Further, referring to cases where there was evidence the accused had been engaged in a pattern of conduct in the context of a drug prosecution, Nordheimer J.A. noted that it would be “open to the issuing justice to infer from the earlier transactions that there was a probability that drugs would be found in the apartment on the later date” and “Notwithstanding the time lapse this court held that the information was sufficient.”: R. v. Breton (1994), 1994 CanLII 939 (ON CA), 74 O.A.C. 99(Ont. C.A.); cited in James at para. 62.

[130] Nordheimer J.A. also noted the lessons from Lucas on that issue. The concept of staleness and its relationship to the reasonable grounds standard was discussed in the court’s assessment of the grounds for the issuance of a wiretap authorization. The Court of Appeal in Lucas accepted that “a gap in time between an event referred to in an ITO and an authorization” would be important in some situations “because the dated aspect of the information would make it less reasonable to believe” that the interception of the person’s communications would afford evidence of a specified offence: Lucas at para. 140.

[131] Importantly, the court in Lucas also considered the sufficiency of the evidence relating to the accused’s possession of firearms having regard to the staleness of the information in the ITO. While this analysis arises in the context of the validity of a wiretap authorization, the analysis is nevertheless instructive. It lends support to the notion that while firearms may be items that are less likely to be discarded, the currency of the information about the accused’s possession is still relevant.

[132] In Lucas, the wiretap authorization was obtained in February 2006 (the general warrants were issued in February and March of 2006). The ITO contained information from a gun smuggler in the United States who identified the accused as someone who had purchased 110 firearms from him between October 2002 and October 2003. By 2006, police had only recovered 20 of those firearms. The Court of Appeal agreed with the trial judge that the dated nature of the information from the gun smuggler did not undermine the grounds for issuing the ITO. It found that the ITO provided reasonable grounds to believe that the accused had not disposed of all the guns that had been delivered to him. The ITO further provided reasonable grounds to believe that the accused continued to be involved in the organized trafficking of a substantial number of weapons, such as surveillance evidence from January 2006 that suggested the accused may have been transporting firearms: Lucas at para. 140.

[133] I see no reason to limit the application of this body of law to the assessment of whether there are reasonable grounds to believe that information concerning the offence will be obtained by the use of the investigative technique identified in a general warrant. The language used by Nordheimer J.A. at para. 64 of James, which references a consideration of that issue in the context of “a judicial authorization”, as opposed to a specific type of warrant, supports that view.

IX. The ITO has insufficient objective grounds to justify the issuance of the general warrant

[134] Ultimately, the issue to be determined in this case is whether the issuing judge could conclude there was a credibly-based probability that information concerning the murder of Raymond Collison would be found through a covert search of the Applicant’s residence.

[135] The affiant specified in the ITO that certain types of items were of interest to the police and would be sought during the search. I deal with the evidence as regards each in turn.

i. Souvenirs from victims

[136] The support for the objective grounds to believe that souvenirs will be obtained in a search of the residence rests on the opinion of Dr. Collins. One problem with the opinion is that it is conditional. It turns on the premise that the Applicant is responsible for a number of other homicides. Since the ITO supports only the suspicion that the Applicant is responsible for other homicides, the opinion of Dr. Collins does not support a credibly-based probability to believe souvenirs from victims will be found in a search of the Applicant’s residence.

[137] Dr. Collins does not opine that the Applicant is a serial killer. The language he uses is as follows: “Based on the material I have reviewed James Wise is a suspect in the homicide of Raymond Collison and is a person of interest in other homicides and arson. If responsible, WISE would be regarded as a serial killer. He appears to have some of the characteristics of individuals who are known to be serial killers”.

[138] Further, Dr. Collins’ opinion relies upon information from police that the Applicant has kept souvenirs in the past. There is no evidence in the affidavit about what souvenirs the Applicant is alleged to have kept. I agree with the defence that without any underlying information, it would be impossible for the issuing judge to assess the reliability of this foundation for the expert opinion, particularly in light of the fact the Applicant has never been arrested or charged with any other murders.

[139] In any case, the second problem with Dr. Collins’s opinion is that at its highest, the opinion is that “it is within the realm of possibility” that the Applicant still possesses personal items that belong to Mr. Collison or other alleged victims. Even considered in the totality of the evidence of the ITO, and in recognizing that the issuing judge was not restricted to reliance on Dr. Collins’ opinion, at most, the information in the ITO justified the conclusion that there was a possibility that souvenirs would be kept by the Applicant. Even assuming it was reasonable to conclude that he would keep those souvenirs at his residence and not elsewhere, the ITO only allowed for the conclusion that it was possible such items would be found. This falls short of the standard of a credibly-based probability.

ii. Writings, literature, and media

[140] To the extent that a search for these items was premised on the opinion of Dr. Collins, the strength of that evidence falls short of the requisite standard.

[141] The grounds to believe this type of information would be found in the residence may also have derived from two other pieces of information set out in the ITO.

[142] First, there was information from Bruce Lang. He had given police a statement in 1993. Mr. Lang and the Applicant had been in jail together. Mr. Lang says the Applicant asked him in 1989 to get him a book about serial killers called Hunting Humans. Mr. Lang reported at that time that the Applicant was fascinated with serial killers.

[143] There is no indication in the ITO that the Applicant received this book. In any event, this information was obtained 21 years prior to the ITO being drafted. By itself, it could not support a conclusion that it was probable that this book, or others like it, would be obtained in a search of the Applicant’s residence 21 years later.

[144] The affiant cites in his grounds in the ITO the fact that the Applicant had attended at the residence of Paul Bourgeois, who lived a significant distance away, with a copy of the local newspaper with an article related to Mr. Collison’s case. Mr. Bourgeois had been interviewed by police on July 31, 2014. In that statement, summarized in the ITO, Mr. Bourgeois told police that he had heard from the Applicant that Mr. Collison had gone missing and the Applicant showed him the newspaper at the time. No other detail is provided about this meeting.

[145] The Crown says this is information that provided an objective basis to believe that the Applicant was keeping items related to the murder of Mr. Collison. The defence says that having a copy of the local paper is hardly an unusual circumstance, but in any event, it was not likely that a single newspaper would be kept after a move between residences. As mentioned previously, the only inference available given the information provided in the ITO was that the Applicant had moved since the disappearance of Mr. Collison.

[146] Considering the evidence in its totality, I do not find the information sufficient to conclude that this newspaper article, or items like it, would probably be obtained in a search of the Applicant’s residence in 2014.

[147] Collectively, this information, considered against the background information in the ITO about the Applicant, establishes grounds to suspect the Applicant might have writings, literature, and media that could constitute information about the murder of Mr. Collison in his residence in 2014. The information falls short of reasonable grounds to believe such information would be obtained by searching the Applicant’s residence.

iii. Personal property

[148] Other than the opinion of Dr. Collins, the only other evidence set out in the ITO relating to personal items of Mr. Collison’s that might be obtained from a search of the Applicant’s residence relates to items of Mr. Collison’s that were in his trailer. In Appendix C, setting out the grounds supporting the search of the residence, the affiant writes the following:

Items of specific interest in this investigation include clothing or personal items which may belong to Raymond Collison. These items were in Raymond Collison’s trailer and according to Richard Fawcett clean [sic] out by James Wise. Further when Raymond Collison was found the key to his trailer door was missing but he had the key to the storage compartment was [sic] with his remains.

[149] The ITO sets out the following information given by Mr. Fawcett about the trailer:

a. Fawcett bought the trailer four or five years ago but was not sure of the exact date;

b. Fawcett had put out “the word” indicating he was looking for an old camper trailer and a lad came by one day and asked if he was interested in a trailer for $600. The trailer was down at Jim Wise’s place;

c. Fawcett did not know who stopped by his house about the trailer;

d. Fawcett went down to Wise’s place by himself and looked at the trailer. There was a bunch of stuff in the trailer that Fawcett did not need, like old clothes. He did not know what happened to the stuff;

e. Fawcett said he dealt with Jimmy only and gave him $600. He said Crump owned it;

f. Jim Wise gave Fawcett keys to the trailer that open the trailer. The keys were on the counter when Wise was selling the trailer;

g. There was a mess in the trailer when Fawcett purchased it. There were a couple of old garbage bags and old dishes, and Fawcett told Wise to throw it out, he did not need that stuff;

h. Jim Wise cleaned the trailer out for Fawcett, but it was not really clean.

[150] I agree with the defence that there is an inference that arises from these facts that the Applicant was prepared to sell the trailer to Mr. Fawcett with at least some of what it contained still in it. This goes against the idea that Mr. Collison’s personal property was being kept as souvenirs.

[151] Ultimately, there was no evidence as to what happened to any of the items in the trailer. There is no evidence that items from the trailer might provide other information about Mr. Collison’s homicide because, for instance, the trailer had been involved as a crime scene.

[152] On the information available in the ITO, the statements made to Fawcett by the Applicant about who had owned the trailer are confusing. Even so, the fact that the Applicant had the trailer and its keys was suspicious. However, given all the information about the trailer in the ITO, including Mr. Collison’s brother’s statement that the family had given its permission for the trailer to be removed from its location at Garnett Crump’s, that suspicion is somewhat attenuated, at least insofar as his possession of the trailer is concerned. Therefore, the evidence from Fawcett was that the keys had been given to him. There was no reason to believe the keys missing from the key chain found with Mr. Collison’s remains would be found in the Applicant’s residence. It seems that Mr. Fawcett had them.

[153] Ultimately, while the Applicant’s possession of items belonging to Mr. Collison was undoubtedly of interest to the police and a suspicious circumstance, the information in the ITO did not establish a credibly-based probability to believe that any items of Mr. Collison’s would be found in the Applicant’s residence four years after the Applicant sold his trailer.

iv. Firearms, ammunition, shell casings

[154] The information in the ITO relating to the Applicant’s possession of firearms is dated. The grounds portion of the ITO sets out, for instance, that a search warrant executed 27 years earlier in 1987 resulted in police locating a .22 caliber semi-automatic rifle. During the execution of that search warrant, police also photographed ammunition between the caliber of .38-.40 in a tool drawer. They seized 3 spent .22 caliber shell casings and 45 live .22 caliber shell casings. The ITO fairly discloses that police were aware that when that firearm was returned to the Applicant, he allowed one of his close friends to have it. There was no evidence that this firearm or another .22 subsequently came into the possession of the Applicant.

[155] I find that there is no objective basis to believe that firearms, casings, or ammunition would be found in a search of the Applicant’s residence. This appears to have been clear to the affiant, who did not swear to his subjective belief that they would be. Indeed, he stated that he was interested to see if there were any “indicators of continued firearms interest” by the Applicant. He stated that if the Applicant continued to keep shell casings, they could be linked to a murder weapon located in the future.

[156] The affiant’s belief as it relates to the Applicant’s possession of firearms was, in fact, that he had “learned from his earlier mistakes and found better hiding places”. This was based on information that the Applicant had told Carl Kavanagh that he buries his weapons and ammunition near a farm, in addition to other information, suggesting that in 1984, the Applicant had kept two handguns in a tire.

[157] In light of this, the information in the ITO does not support a credibly-based probability to believe that a search of the Applicant’s residence would obtain information about firearms, ammunition, or shell casings.

v. Conclusion on the sufficiency of the grounds

[158] This was a lengthy ITO – over 195 pages. While it may be that the affiant was attempting to be full, frank, and fair in his account of the investigation, and I appreciate that police officers are not lawyers, there was a great deal of unfocused information to be reviewed in this ITO. There are errors throughout the document. It seems relatively little effort went into organizing the information of significance. As I have indicated, where witness accounts are referenced, bullet point summaries are provided of what appears to be the entire contents of the interviews. For instance, the summary of one of the interviews of witness Tammy Smith consists of 8 pages (pp. 107-115) of bullet points that appear not to have been edited with a view to the purpose of the ITO (e.g. “On a scale of 1 to 10 on the pain scale, she is at a 6”).

[159] This type of drafting was the subject of some criticism by Hill J. in Re Application for an authorization to intercept private communications, 1997 CarswellOnt 4317. He held, at para. 16, that

…there is an obligation on an affiant, intent on developing a comprehensible document, to not include virtually every piece of investigative data acquired. The art of the task is to discriminate as to that information which must be included in order to provide an accurate, fair and fulsome account from that information which is unnecessary surplusage or indeed irrelevant.

[160] He wrote the following at para. 7:

…[T]he application affidavit/information must be reasonably comprehensible. This factor engages a consideration of such sub-factors as organization of the document, spelling, grammar, punctuation and language, including word choice.… The court should not find itself in a position of endlessly re-reading the application document in order to discover whether the statutory pre-conditions are satisfied. I accept that in some cases the complexity of the investigation and the relevant quantity of investigative data will contribute to a lengthy application document. However, the creation of undue complexity and unnecessary length in the application document can obscure, even for sophisticated readers, the presence of all necessary pre-requisites. The inherent danger is that one or more of the orders sought will issue despite the absence of a valid supporting record.

[161] The tenor of the ITO made clear the affiant’s belief the Applicant was a serial killer. And the ITO does set out a number of suspicious circumstances relating to the Applicant’s possible involvement in prior homicides. It sets out disturbing utterances attributed to the Applicant by persons with whom he had served jail time years earlier. As the affiant observed, however, “information from persons in custody has to be treated with caution”. The affiant also fairly included in the ITO the fact that the information connecting the Applicant to other homicides never reached the weight where police believed they had grounds to charge him.

[162] In any case, the focus of this general warrant was the murder of Raymond Collison. It was this offence that police cited in seeking their authorization to search the Applicant’s residence. The requirements of a general warrant required that reasonable grounds be set out for a search in relation to that offence, notwithstanding the interest police clearly had in searching for evidence of other offences.

[163] Given the Crown’s argument in this case, it is worth noting that in the Appendix setting out his grounds, the affiant references that the Applicant was removed from his residence by ambulance in September of 2014 (the warrant was issued mid-October). The affiant states that the Applicant had no opportunity to hide or remove items prior to his departure. He writes: “I therefore believe that any items James Wise had at his residence will have remained at his residence”.

[164] I take from this language that the affiant was aware that his grounds to believe that the items of interest would be in the Applicant’s residence at the time of the search needed to reflect consideration of the passage of time and any circumstances that might make it less likely that the items would be present. And yet, a great deal of the information relied upon in the grounds portion of the ITO is so remote in time that its value in establishing reasonable grounds is significantly diminished.

[165] Ultimately, while there were reasonable grounds to suspect the items of interest to the police might be found in the Applicant’s residence, I conclude that the ITO did not contain sufficient reliable and credible information to support reasonable grounds to believe those items would be present. On a reading of the totality of the information in the ITO, there was insufficient evidence to establish a credibly-based probability that the items, or any additional “information” sought would be obtained in a search of the residence.

[166] I pause here to say that I am mindful that the proper inquiry here is whether there were reasonable grounds to believe information concerning the murder of Mr. Collison would be found, and that in the strictest sense, the police did not have to establish that belief as it related to any of these items individually. But as a practical matter, as I have said, they had to believe that some information concerning the murder of Mr. Collison would be there. While the information they could seek was not limited to the items listed in the ITO, it is not clear what other information they believed would be obtained from the search, or what the grounds were to believe a search of the residence would yield it.

[167] My role is not to substitute my view for that of the issuing judge, and I have given my best consideration to the assessment of the strength of the totality of the evidence. While I have itemized the deficiencies in the evidence in support of individual items of interest to police, I have considered the weight of these grounds collectively and cumulatively. With respect, I conclude that the information is insufficient, on an objective basis, to find that the warrant could have issued.

X. The ITO has insufficient subjective grounds to justify the issuance of the general warrant

[168] Nor, for the most part, are there any indications that the affiant had a subjective belief that the information to be searched for would be obtained.

[169] In many instances, the format of the ITO will follow a template. In this case, the first page of the ITO, which is the page signed by the affiant, declares: “AND THAT the grounds for believing, and which (s)he does believe, are as set out in the Appendix “C” (and attachments thereto, if any) that follows” (emphasis added). The wording of this paragraph, which allows for the possibility of a female affiant in this case, and an Appendix “C” which may, or may not, have attachments, reflects that this portion of the ITO uses what is sometimes called “boilerplate” language.

[170] The difficulty in relying on such language to establish reasonable grounds for belief was recently considered by Phillips J. in R. v. Sheldrick, 2019 ONSC 5731. In that case, Phillips J. found at para. 9 that “a fair reading of the plain and ordinary meaning of the simple and easily understood language used by the affiant when she speaks to her subjective mind-set shows only that she was merely suspicious…”. He went on to consider that “[t]he words she chose throughout her summative section speaking specifically to her subjective state of mind in RPG are so equivocal and uncertain that they can only be read as showing her to be at the suspicion threshold only and not at the level of credibility-based probability the law requires.” He concluded that “the words chosen by the affiant are incompatible with and eclipse the boiler plate ticked off boxes in the documents’ early goings. That is the only conclusion that I can see as having been available to the issuing justice on the materials before her.”

[171] I agree with the defence that this conclusion applies in this case. Ultimately, the affiant expresses his subjective belief that information will be found through the search of the Applicant’s residence as follows: “I believe some of the said items will be in the residence and my beliefs are supported by Dr. P. Collins”. I take this to be a reference to his belief that souvenirs from murder victims, including Mr. Collison, will be found. However, the affiant’s choice of language as regards other items reflects no subjective belief that such items will be found:

a. “Items of specific interest in this investigation include clothing or personal items which may belong to Raymond Collison”;

b. “I would be interested in any ammunition or indicators of continued firearms interest by James Wise”;

c. “I believe if James Wise continues to keep shell casing [sic] they could be documented, seized with a 487 search warrant and be linked to a murder weapon located in the future.”

d. “I will search for books of this genre”.

[172] Accordingly, I find that the ITO is also deficient in establishing the affiant had subjective grounds to believe that much of the information he sought concerning the murder of Mr. Collison would be obtained by the search of the Applicant’s residence.

XI. The 2014 general warrant was not valid and the search of the Applicant’s residence violated his [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights

[173] As I have explained, to meet the reasonable grounds standard to justify a search, grounds must be established on both an objective and subjective basis. While police may have a legitimate investigative interest in conducting a search, it will not be justified unless it is supported by reasonable grounds: per Doherty J.A. in dissent in Campbell at para. 84.

[174] I have considered the totality of the information contained in the ITO and the inferences that could reasonably have been drawn by the issuing judge. I have considered the cumulative effect of that evidence. I find the ITO did not contain sufficient credible and reliable evidence to permit an issuing justice to authorize the warrant. Accordingly, the general warrant was not valid.

[175] A search conducted pursuant to a valid warrant is “authorized by law”. Here, I have determined that the general warrant was not valid. Accordingly, the search conducted of the Applicant’s residence in 2014 was warrantless and the Applicant’s rights under s. 8 were violated: Morelli at para. 97.

XII. The Applicant has standing to claim a s. 8 violation from 2014

[176] In arriving at the conclusion that the 2014 search constituted a breach of the Applicant’s s. 8 rights, I have considered the Crown’s argument that the Applicant abandoned his privacy interest in the composition book and weekly planner when he left it in his residence for his sister to clean out in September 2017. The Crown argues that where an accused asserts a breach of s. 8 because the state has violated his privacy interests, abandonment “may be a full answer”. This is because where an accused has abandoned their privacy interest, s. 8 is no longer engaged, and any search or seizure is not subject to Charter scrutiny: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 at paras. 22-25. Further, abandonment is a factual determination and can arise through discarding, disowning, disavowing, or disregarding one’s privacy interest: R. v. Plummer, 2011 ONCA 350, 279 O.A.C. 359; R. v. B. (L.), 2007 ONCA 596, 86 O.R. (3d) 730.

[177] The defence submits that whether or not the Applicant had abandoned his privacy interest in 2017 is irrelevant to the application because it is not alleging a separate Charter breach in 2017. The Applicant is asserting a privacy interest in the items in his home at the time the general warrant was executed in October 2014. The Applicant seeks to exclude the evidence of the seizures of the items seized by the police in 2016 (and in the case of the composition book and weekly planner, re-seized in 2017) because there was a temporal, contextual, and causal connection between these seizures and the breach in 2014. Investigators would not have seized the composition books in 2016 and been at the Applicant’s residence in September 2017 to re-seize this material if it were not for the prior unlawful search. Counsel highlights that the Crown has provided no authority in support of the proposition that the Applicant must have a continuing privacy interest in this material in 2017 in order to seek its exclusion. A new s. 8 violation is not alleged in 2017, and it is not required in order for the evidence to be excluded.

Analysis

[178] In essence, the Crown argues that there is no breach of the Applicant’s section 8 rights because having abandoned his property (specifically the composition book and weekly planner), he has no reasonable expectation of privacy in it and no standing to assert his s. 8 claim.

[179] This case is not like other “abandonment” cases relied upon by the Crown in support of its position. The Crown appears to acknowledge this in its written submission when it says that even if the Applicant “had not abandoned his privacy interest at large, he had at least done so vis-a-vis his sister – it follows that she had equal and similar ability to abandon the privacy interest in the composition book. She did so”.

[180] I am not sure that this argument can be reconciled with recent case law. I am doubtful that a finding of abandonment is justified on these facts where the property was handed to police by third parties (raising issues discussed in R. v. Reeves, 2018 SCC 56, 367 C.C.C. (3d) 129) and where the police identify the basis for their seizure as exigent circumstances. Regardless, I am satisfied that the Applicant may advance a complaint about police compliance with his s. 8 Charter rights in the earlier stages of the investigation. He had not abandoned his property at the time of the searches in 2014 or 2016. Considerable evidence was obtained as a result of those searches while the Applicant had a privacy interest. This is not a case, like those relied upon by the Crown, where the police only gained possession of the evidence after the accused’s abandonment and without reliance on information obtained from a previous breach.

[181] There is no authority that would support the conclusion that the Applicant has no standing to challenge the searches of his residence in 2014, at which time he clearly had a reasonable expectation of privacy. The cases relied upon by the Crown do not stand for the proposition that the analysis under s. 24(2) of the Charter of whether the evidence was “obtained in a manner” that infringed or denied his rights requires a privacy interest at the particular time the object is obtained by police when that moment is not contemporaneous with the breach itself.

[182] The Applicant has standing to challenge the 2014 search. Having found his s. 8 Charter rights were breached by that search, the court must turn to consideration of what remedy for the breach is appropriate pursuant to s. 24(2) of the Charter.

XIII. The evidence “obtained in a manner” that infringed the Applicant’s [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights includes the evidence obtained following the 2016 search and the composition book and weekly planner seized in 2017

[183] Section 24(2) of the Charter provides that

where… 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. [Emphasis added.]

i. The positions of the parties

[184] Here, the Applicant submits that the entirety of the grounds to believe items would be in the Applicant’s residence in 2016 arises from the unlawful search in 2014. Once that information is excised, there are no grounds to obtain the search warrant, and any items seized during the search in 2016 were obtained unlawfully. Further, subsequent to the seizures in 2016, a significant amount of work was done both by investigators and scientists at the CFS. None of this work could have been carried out if not for the unlawful searches in 2014 and 2016.

[185] The Applicant further argues that investigators would not have attended at the Applicant’s residence in September 2017 and re-seized the composition book and weekly planner but for the two prior unlawful searches. In summary, the 2014 general warrant was integral to the investigative process that ultimately led to the acquisition of all of this evidence.

[186] The Crown argues that the police had grounds for the 2016 search warrant that were independent of the evidence obtained from the search pursuant to the general warrant and it could have issued regardless. The Crown further argues that the police would always have been interested in seizing documents from the Applicant’s residence and they would have moved to seize any items being discarded from the Applicant’s residence in 2017 regardless of any breach in 2014.

ii. The legal principles

[187] The threshold requirement for determining whether evidence should be excluded pursuant to s. 24(2) is a finding that the evidence was obtained in a manner that infringed a right under the Charter. The approach to that determination was considered in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.). The court held the following at paras. 44 and 45:

There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence … must be obtained “in a manner that infringed” a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) — could the admission of the impugned evidence bring the administration of justice into disrepute?

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 1996 CanLII 214 (SCC), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.).

[188] The Court of Appeal has more recently directed that a court should consider whether any of the Charter breaches that occurred before the police obtained the evidence were “integral to the investigative process” that ultimately led to the acquisition of the evidence: R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240 at paras. 17-22.

iii. Analysis

[189] I am satisfied that the evidence the Applicant seeks to exclude was obtained in a manner that infringed a right under the Charter. The search in 2014 violated his right to privacy. That unlawful search was integral to the investigative process that ultimately led to the acquisition of the evidence by police.

[190] I am not satisfied that there were grounds to issue the search warrant in 2016 once the information obtained from the execution of the general warrant is excised. The portion of the ITO listing the “grounds to believe that the things are in the place to be searched” are based on the fact that these items were present at the time of the execution of the general warrant. While the police had obtained additional information in the intervening two years that strengthened their grounds to believe the Applicant had murdered Mr. Collison (for instance, the detection of blood at various locations in a truck that had been owned by the Applicant at the time of Mr. Collison’s disappearance), none of this information was cited by the affiant as augmenting the grounds to believe that the items they sought were in the Applicant’s residence. Nor did the additional information augment those grounds.

[191] Nor am I satisfied that police would have inevitably obtained the evidence when the Applicant allowed his sister to clean out his apartment in 2017. In 2017, the police only seized the material they knew to have significance because of the CFS analysis and their subsequent investigative efforts to determine the meaning of the map. On the facts before me, it is clear that DC Hyndman left another book that had been provided to him by Mr. Scott. It was not any written material possessed by the Applicant that was of interest to the police – it was the material whose significance they already understood. To the extent that police believed exigent circumstances justified seizing this material, it was because they knew the composition book and weekly planner had significant evidentiary value. This knowledge was based on DC Hyndman’s confrontation of the Applicant with the composition book (when he says he first appreciated the significance of the map), and the results of the CFS analysis. None of this information could have been obtained but for the unlawful search in 2014.

[192] It is therefore necessary to go on to consider the next stage in the s. 24(2) analysis.

XIV. The evidence should be excluded under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

i. The positions of the parties

[193] The Applicant argues that the evidence should be excluded. This is because the first two lines of inquiry make a strong case for exclusion. The Applicant submits that when that occurs, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 at paras. 62-63. As for the third factor, the Applicant submits that the evidence flowing from the unlawful search is not critical to the Crown’s case, as it is just “one piece in the puzzle of the circumstantial evidence” against him. The exclusion of the evidence therefore does not end the prosecution.

[194] The Crown argues that the balancing of the s. 24(2) factors favour admission of the evidence. The Crown contends that the breach is not serious. It submits that the seriousness of the breach is mitigated by the fact that the police obtained judicial authorization, and their conduct was presumptively valid. This is also not a case where police misled the judge issuing the ITO or held back pertinent information. The Crown concedes that the second factor, the impact on the Charter protected right, favours exclusion. However, the third factor, society’s interest in adjudication on the merits, favours admission. The evidence obtained in the composition book and in subsequent “conversations” with police about the map are a significant and important aspect of the case against him.

[195] The Crown further argues that the court’s assessment of the admissibility of the composition book and weekly planner warrants consideration of additional circumstances. The seriousness of the breach must have regard to the circumstances in which police came to seize those items in 2017. At the time of the seizure, the composition book was “about to be disposed of by throwing it in a shared dumpster”. When the book was seized by DC Hyndman, he reasonably believed he was relying on the authority of a valid search. Further, even if the police had not obtained and executed the general warrant in 2014, a composition book and weekly planner kept by the Applicant would have been of interest to and seized by police in 2017.

ii. The governing principles

[196] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 sets out the modern approach to the analysis of the admissibility of evidence under s. 24(2) of the Charter. The re-iteration of the purpose of s. 24(2) at paras. 67-70 is worth repeating:

The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.…

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. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It 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.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[197] The court confirmed that a trial court should consider and balance three lines of inquiry in determining whether evidence obtained in breach of the Charter would bring the administration of justice into disrepute. In doing so, it must take a long-term, forward-looking, and societal perspective: see Grant at para. 71. The lines of inquiry are: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in adjudication of the case on its merits.

[198] Following consideration of these lines of inquiry, a trial judge must “weigh the various indications”. Ultimately, the balancing inquiry is qualitative in nature and not to be subjected to a mathematical formula. That is, it is not simply a question of whether the majority of the relevant factors favour exclusion or inclusion in a particular case. The ultimate issue is whether, considering all the circumstances, on balance, the admission of the evidence would bring the administration of justice into disrepute: see Grant at paras. 85-86, and 140.

[199] To the extent that a general rule could be formulated, the Supreme Court provided the following guidance in Grant at para. 127:

[W]here reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.

[200] McGuffie provides further direction in the balancing that s. 24(2) requires. Writing for the Court, Doherty J.A. explained the following at paras. 62-63:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[201] This approach has been re-affirmed by the court in subsequent cases: see e.g. Lai at para. 40; R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700 at para. 81.

iii. Analysis

a. The seriousness of the Charter-infringing state conduct

[202] The defence urges the court to find a serious Charter breach because the police were negligent in the drafting of the ITO. This is because there was no objective basis for their grounds, and, in relation to most of the information they sought authorization to search for, there was not even an assertion of a subjective belief that the items would be present at the time of the search.

[203] The Crown argues that the breach was not serious, in large measure because police had obtained judicial authorization for the search. Further, police did not mislead the issuing judge in any way.

[204] The Crown also argues that the seriousness of the breach insofar as the admissibility of the composition book and weekly planner are concerned is mitigated by the circumstances in which police ultimately came to possess these items. I do not agree. The focus of the analysis is on the circumstances of the breach in 2014. The subsequent events in 2017, even assuming that seizure was lawful, do not alter the focus of the analysis under s. 24(2).

[205] In determining how to characterize the 2014 breach of the Applicant’s s. 8 rights, I take direction from the case law. In Harrison, which was released concurrently with Grant, and more recently in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 43, the court approved of the idea of placing police conduct on a spectrum of behaviour for the purposes of assessing the first s. 24(2) factor. The Harrison court approved (at para. 23) of the following explanation of the issue by Doherty J.A. in R. v. Kitaitchik (2002), 155 C.C.C. (3d) 14 (Ont. C.A.) at para. 41: “Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights…. What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.”

[206] On the lower end of the spectrum, there are breaches that are merely of a technical nature or that were the result of an understandable mistake. In those cases, the court’s dissociation from the state conduct is much less of a concern: Harrison at para. 22. Similarly, where police have acted in good faith, for instance, in relying upon legal advice given in the face of inconsistency in the law, this will affect where the conduct is placed on the spectrum. Conduct that is deliberate in its disregard for Charter rights will be placed at the higher end of the spectrum.

[207] The absence of a deliberate disregard for Charter rights does not equate good faith by the state. In Grant, the Supreme Court confirmed that “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”: para. 75. “Inattention to constitutional standards” or an “insufficient regard for Charter rights” is conduct that may warrant the exclusion of evidence: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4 at para. 33; see also Harrison at para. 24; Paterson at paras. 44 and 53.

[208] Given that the breach here is rooted in the insufficiency of the ITO, the decision in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 is important. In that case, the accused had been acquitted on drug and weapons charges following a ruling ordering the exclusion of evidence seized following the execution of search warrants at his residence and at a restaurant he operated. The Court of Appeal affirmed the trial judge’s ruling that one of the ITOs at issue in that case had been insufficient to justify granting a warrant to search the accused’s home. As regards the seriousness of the state conduct, however, Rosenberg J.A. acknowledged the importance of the fact that police had obtained a warrant. He wrote at paras. 28-29:

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence.…

I should not be taken as holding that whenever a search warrant has been granted, the first Grant inquiry favours admission of the evidence. But the approach is not, as held by the trial judge, to hold in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way.

[209] The Rocha court found that, in giving full weight to the fact that police made use of the warrant procedure, the police conduct giving rise to the breach could not be described as “egregious”. However, the court also found that there were “problems with the wording of the ITOs that are so significant as to situate the conduct here toward the serious end of the continuum”: Rocha at para. 32. These issues related to the failure to provide the criminal record of the informer, misleading drafting in the ITO, and the failure of the affiant to swear “to the basis of his belief on reasonable and probable grounds that drugs would be found at the house; only that they would be found at the restaurant.” The court held that this was likely a product of carelessness on the part of the officer and the decision to use the identical language for searches at two locations. However, it held that this error was “symptomatic of the lack of care that is demonstrated by the wording of important parts of the ITOs.”: Rocha at para. 36. Ultimately, the Court of Appeal held at para. 37 that “the ITO in this case in relation to the house is of such a quality as to put this case towards the serious end of the continuum in considering the first Grant inquiry.”

[210] Szilagyi is also instructive. In that case, on review, it was determined that although the police apply for and obtained a warrant, the ITO was seriously deficient. It was deficient in that it did not provide the information required by clearly settled law, it used misleading language, and police had failed to corroborate any meaningful information they had obtained from a confidential informant. In these circumstances, the seriousness of the breach was described as falling “at the more serious end of the spectrum” and favoured exclusion of the evidence: Szilagyi at para. 77.

[211] Most recently in R. v. Lai, the court considered the application of s. 24(2) in a case where the trial judge had found that the Crown had not established the subjective grounds necessary for a Godoy search. The Court of Appeal agreed with the trial judge’s conclusion that conducting a search without subjective grounds is a “serious breach”: Lai at para. 35.

[212] In determining where to place the breach in this case on the spectrum of conduct, it is somewhat helpful to consider what this breach is not. It is not the product of a drafting error (as in R. v. Ellis, 2019 ONSC 317, 428 C.R.R. (2d) 113), nor a decision made quickly where public safety issues were implicated (as in R. v. Nolan, [2001] O.J. No. 4736 (Ont. S.C.)). In my view, this breach cannot be characterized as being at the lower end of the spectrum of seriousness, notwithstanding the adherence to the warrant process. Given the global deficiency in the grounds set out in the ITO, this is not a case to find good faith on the part of the police.

[213] The drafting of the ITO was inattentive to constitutional standards. Negligence is defined in the Concise Oxford Dictionary as the “failure to take proper care over something” or a “breach of a duty of care which results in damage”. The police conduct here was negligent.

[214] I conclude that the Charter-infringing state conduct was serious. The court cannot be taken as sanctioning the failure by police to comply with a mandatory statutory requirement to establish reasonable grounds for the authorization they obtained. This factor pulls towards exclusion of the evidence.

b. The impact of the breach on the Applicant’s Charter-protected interests

[215] The case law has long recognized the heightened expectation of privacy people have in the places where they live. As noted by Trotter J. (as he then was) in R. v. Chen, 2007 ONCJ 177, 155 C.R.R. (2d) 163 at para. 44, “The Supreme Court has recognized that, second only to searches of the person, there is an extremely high expectation of privacy in a person’s home.” A warrantless search of a home should be treated as a very serious breach, which strongly favours exclusion: Chen at para. 44; R. v. Stevens, 2011 ONCA 504, 106 O.R. (3d) 241 at para. 61; Rocha at para. 41; Szilagyi at para. 78; Lai at paras. 28 and 38.

[216] The Crown acknowledges that this factor favours exclusion of the evidence in this case for all evidence aside from the composition book and weekly planner. With respect to these items, the Crown says the impact of the breach was minimal because even if the Applicant had not abandoned them, he did not exercise significant control over them and left them behind after moving out of his residence.

[217] Once again, here, the focus of the analysis is on the impact of the breach in 2014. The warrantless search of the Applicant’s residence gave the police access to exceptionally private information that lies at the core of privacy interests protected by s. 8 of the Charter. The impact of the breach was very significant. The Crown acknowledges in its factum that the composition book and weekly planner were turned over to the police by the Applicant’s sister. The police interest in seizing those specific items was causally related to the 2014 search. The suggestion that the items were otherwise discoverable by the police is speculative. On the record before me, the interest police had in those items cannot be divorced from the 2014 search and the investigation that flowed from it.

[218] I conclude that this factor strongly favours exclusion of all the evidence obtained as a result of the 2014 search: Szilagyi at paras. 78 and 80; Lai at para. 38.

c. Society’s interest in adjudication of the case on its merits

[219] At this stage of the analysis, I consider that the evidence seized may be characterized as real, relevant, and reliable, and that the exclusion of such evidence “may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: Grant at para. 81. The evidence is also an important piece of evidence in the Crown’s case. These are important factors for consideration in the third line of inquiry: Paterson at para. 51; Rocha at para. 39.

[220] As regards the seriousness of the charges and society’s interests in adjudication of the case on its merits, this factor must not overwhelm other factors relevant to the s. 24(2) analysis. The court must be vigilant in maintaining respect for Charter rights and ensuring that Charter protections apply to everyone, including persons charged with serious criminal offences: McGuffie at para. 74.

[221] I am mindful of the modern approach to the consideration of this issue, as set out in para. 73 of McGuffie:

The seriousness of the charges to which the challenged evidence is relevant, does not speak for or against exclusion of the evidence, but rather can “cut both ways”: Grant, at para. 84. On the one hand, if the evidence at stake is reliable and important to the Crown’s case, the seriousness of the charge can be said to enhance society’s interests in an adjudication on the merits. On the other hand, society’s concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious: see Grant, at para. 84; R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[222] There is no debate about the seriousness of the offence with which the Applicant is charged in this case. First degree murder is at the highest level of seriousness of offences in Canadian law. The serious nature of the charge enhances society’s interests in the adjudication of the case on its merits.

[223] This factor would more strongly favour admission, however, were the evidence necessary to continue with the prosecution. The Crown has characterized the evidence as “significant and important”. It takes no issue with the defence assertion that the prosecution will continue even if the defence succeeds on this application.

[224] Nevertheless, given the damage to the repute of the administration of justice that is occasioned by excluding important and reliable evidence, even when it is not necessary to continue a prosecution, I find that on balance, this factor pulls toward the admissibility of the evidence.

d. Balancing the Grant factors

[225] In recognizing that the seriousness of the offence with which an accused person is charged “has the potential to cut both ways” in assessing whether evidence should be excluded, the court in Grant offered a cogent explanation for why this is so. It explained that “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” (Emphasis added): at para. 84; Harrison at para. 34.

[226] I am mindful that in balancing the Grant factors, a trial court must not turn the s. 24(2) inquiry “into a contest between the misdeeds of the police and those of the accused.” As noted by McLachlin C.J.C. in Harrison, “The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2). We expect police to adhere to higher standards than alleged criminals.”: Harrison at para. 41. It is foundational to our law that Charter protections “must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences.”: Harrison at para. 40.

[227] Ultimately, the focus of the s. 24(2) analysis is whether admission of the evidence obtained in a manner that infringed a Charter right would bring the administration of justice into disrepute. As the Supreme Court noted in Morelli at paras. 110-111, where its decision to exclude child pornography found on the accused’s home computer resulted in the accused’s acquittal,

[j]ustice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

[228] Balancing all three Grant factors, and in giving consideration to the prospective interests of the repute of the justice system, I conclude that the analysis favours the exclusion of the evidence at trial. The seriousness of the violation and the impact on the Charter-protected interests, considered together, strongly favour exclusion. While excluding the evidence will have an impact on the prosecution of the case, it will not end it. The exclusion of the evidence is the appropriate remedy for the Charter breach in these circumstances.

XV. Conclusion on the Application

[229] The Application is granted. The evidence obtained as a result of the unlawful 2014 general warrant, as itemized by defence at para. 89 of its factum, is excluded, with the exception of the subsequent statements the parties have agreed will be subject to a further application.

The Honourable Justice Laurie Lacelle

Released: January 7, 2020

COURT FILE NO.: 18-97

DATE: 20200106

ONTARIO SUPERIOR COURT OF JUSTICE

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

HER MAJESTY THE QUEEN

– and –

James Wise

REASONS FOR RULING ON THE S. 8 APPLICATION (CHALLENGE TO THE GENERAL WARRANT)

The Honourable Justice Laurie Lacelle

Released: January 7, 2020