Court File and Parties

COURT FILE NO.: CR 15461/20 DATE: 2021-02-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Alden Nunes

COUNSEL: George Hendry, for the Crown John Struthers, Deniz Sarikaya, for the Applicant

HEARD: February 17, 2021 via Zoom

RULING ON SECTION 8, 24(2) APPLICATION

Leibovich J.

[1] The police obtained a search warrant for 21 Redvers Street, Whitby. They executed the search warrant and discovered two guns, fentanyl and ecstasy. As a result, Mr. Nunes was charged with numerous gun and drug related offences. The target for the search was not Mr. Nunes but another individual named Mr. Moore. The defence has brought this application to exclude the evidence on the basis that Mr. Nunes’ s. 8 rights were violated. Counsel has made a facial attack on the warrant that was used to permit the search and has argued that the warrant fails to meet the minimum constitutional and Criminal Code standards for its issuance. The Crown submits that the warrant was valid and that the police had ample grounds connecting Mr. Moore to 21 Redvers Street. In the alternative, the guns and drugs should not be excluded pursuant to s.24(2) of the Charter. The state’s conduct is at the lower end given that the police obtained a search warrant they believed to be valid in the context of inherently urgent firearms investigations. The guns and drugs are real reliable evidence required for the Crown to prosecute its case.

[2] For the reasons set out below I find that there was a breach of s. 8 and the evidence should be excluded pursuant to s. 24(2) of the Charter.

Facts Pertaining to the Search

The Information to Obtain (ITO)

[3] There is no dispute that the focus of the police investigation which led to the issuance of the warrant in question was Mr. John Moore. There is also no dispute that the police first obtained a search warrant for apartment 803-3735 Dundas Street West, Toronto, nor is there any dispute that the police had sufficient grounds with respect to that warrant. The police had received a complaint that there was drugs and gun in the apartment but when the police executed the warrant, they arrested Mr. Moore and found drugs and ammunition but not the gun. The police then sought and obtained warrants to search 21 Redvers Street, Whitby and 31-225 Scarborough Golf Club Road, Toronto. Drugs and two guns were found from the search of 21 Redvers Street, Whitby. The same ITO was used with respect to the search of 21 Redvers Street, Whitby and 31-225 Scarborough Golf Club Road, Toronto.

[4] The ITO contains the following sections:

a) Introduction of Affiant; b) Suspect/Accused; c) Target Address; d) Background of Investigation; e) Grounds to Believe that Items are at Place to be Searched; and f) Conclusion.

[5] The items to be searched for was firearms and related evidence.

[6] It is evident that this ITO contains information cut and pasted from the earlier ITO. For example, the ITO states that the target address is 803-3735 Dundas Street West, Toronto. The first 21 paragraphs of the “Background of Investigation” section set out the grounds with respect to obtaining the first search warrant with respect to 803-3735 Dundas Street West, Toronto. The remaining 6 paragraphs in the section describe the arrest of Mr. Moore, the search of apartment 803 and the grounds to search 21 Redvers Street, Whitby and 31-225 Scarborough Golf Club Road, Toronto.

The grounds to search apartment 803

[7] The investigation started on July 22, 2019 when the Toronto police received a 911 call from Michelle Sophocleous. The police then obtained a statement from her. She stated that on July 20, 2019, she visited a friend at 3735 Dundas Street West, apartment 611, Toronto to have drinks and cocaine. Ms. Sophocleous’ friend arranged for a “date” with a male who lived at the same building. The “date” was for sexual service for money. Ms. Sophocleous said that she occasionally worked in the sex trade. The male arrived at unit 611 and Ms. Sophocleous performed fellatio on him. Afterwards, the male told her that the money was upstairs in his unit. They went upstairs. Ms. Sophocleous explained that the male then, in an attempt to show-off, pulled out a larger silver revolver with a brown handle from a kitchen cabinet. The male then opened the cylinder to show the gun was partially loaded with ammunition. The male then pulled out a clear plastic sandwich bag with powdered cocaine and showed her a large clear plastic package that contained a blueish substance that he said was fentanyl.

[8] Ms. Sophocleous was able to identify the male as John Moore. The police conducted a records check on Mr. Moore. The ITO states:

On Wednesday July 24, 2019 the affiant conducted a Toronto Police records check of John Moore, born 1983-10-31. He has had extensive contact with Police.

• Moore is prohibited from possessing a firearm due to multiple drug convictions.
• Moore has 23 criminal convictions.
• In 2005 he was convicted of possession of a schedule I substance for the purpose of trafficking and possession of proceeds of crime.
• In 2006 he was convicted of possession of a firearm contrary to a prohibition order, possession of a restricted firearm with ammunition, delivery of a restricted weapon without a permit and possession of a scheduled substance.
• In 2011 he was convicted of possession of a scheduled substance for the purpose of trafficking x 2.
• In 2013 he was convicted of possession of a schedule II substance.
• In 2017 he was convicted of trafficking in a schedule I substance and sentenced to 6 years in prison.
• As of December 15, 2017, Moore was serving sentence at Joyceville Penitentiary in Kingston, Ontario but was released on bail pending appeal.
• Moore's current bail conditions require him to legally reside at 225 Scarborough Golf Club Road unit 31 in Toronto on weekdays and at 21 Redvers Street in Whitby on weekends.
• Moore's bail condition required him to surrender into custody on June 28, 2019.
• Moore's bail stipulates that he cannot possess any weapons as defined by the Criminal Code, remain in your residence at all times except for medical emergencies involving you or your immediate family, attend court, meet with lawyer, complying with court order or in the presence of surety, remain in Ontario, not possess or consume any unlawful drugs or substances except with valid prescription in your name.
• Moore has multiple tattoo's including a scorpion on his neck.

[9] The police had to ascertain which apartment unit he was in as the complainant did not know. Based on the information provided the police were able to narrow it to four possibilities. They were able to further narrow it to unit 803, as that unit matched the description of the interior provided by the complainant and there was a blonde female living there, again as described by the complainant.

[10] The police contacted the correctional authorities. The ITO states:

On August 2, 2019 the affiant spoke to Federal Corrections Canada and Corrections Ontario and confirmed that despite the surrender date, Moore is still at large on bail pending appeal and is not in custody.

[11] On August 2, 2019 the police knocked on the door of unit 803 but no one answered. They heard a large dog barking. On August 4, 2019 the police knocked again on the door of unit 803 and asked to speak to Linda (the blonde female) but was told by an unknown male that she was not there. As the police left the building they saw John Moore, with a large pizza, and a large dog enter the building.

The arrest of Mr. Moore, search of apartment 803 and grounds to search 21 Redvers St, Whitby and 31-225 Scarborough Golf Club Road, Toronto

[12] Later that day the police sought and obtained a search warrant for unit 803-3735 Dundas Street West. On August 5, 2019 the police arrested Mr. Moore in the laundry room at 3735 Dundas Street West. A search of apartment 803 discovered the following:

• $4590.00 Canadian currency
• 114 rounds of .38 special ammunition
• 2 rounds of .40 caliber ammunition
• 2 rounds of .22 caliber ammunition
• 6 rounds of .357 magnum ammunition
• 16 rounds of 30-30 ammunition
• 2 rounds of 7.62 Tokarov ammunition
• Scales, cocaine and MDMA purity tests and a cocaine cutting agent test
• Fentanyl, cocaine and Methamphetamine
• 2 cellular telephones.

[13] The firearm was not located.

[14] Mr. Moore stated, upon arrest, that he did not live at 3735 Dundas Street West. He was asked upon arrest if he had any medical conditions. He replied that he had asthma and that his medication was at the Whitby address.

[15] The affiant than concluded the background section by stating:

It is reasonable to believe that additional evidence of the offences can be located at the 2 residences that he is required to live at.

[16] The affiant next set out his grounds to believe that items are at place to be searched. It states in total:

Based on the foregoing information it is reasonable to believe that the items sought in Appendix A can be located at 21 Redvers Street in Whitby and 31-225 Scarborough Golf Club Road, Toronto. These items are required to support the charges listed in Appendix B.

[17] The affiant next set out his conclusion. After setting out the information with respect to how the investigation started and developed, the affiant concluded by stating:

Based on this information it is reasonable to believe that the suspect is in breach of the conditions of his release and is in possession of a firearm and narcotics. The accused has a history of trafficking narcotics and firearms possession. It is reasonable to believe that given his history he is currently in possession of both. Firearms, specifically, are not potable, consumable and are expensive. They go hand in hand with the trafficking of narcotics and are not disposed of.

On August 5, 2019 Moore was arrested and a quantity of ammunition and narcotics were recovered. Moore is also living at 2 different addresses per his conditions of bail. One in 21 Redvers Street in Whitby and 31-225 Scarborough Golf Club Road, Toronto.

Based on this information there are reasonable grounds to believe that these items sought can be found at 21 Redvers Street in Whitby and 31-225 Scarborough Golf Club Road, Toronto and can only be obtained by way of CDSA and Criminal Code search warrants.

The search of 21 Redvers Street, Whitby

[18] On August 5, 2019, shortly after the search of unit 803-3735 Dundas Street West Toronto, police applied for Criminal Code and CDSA search warrants for 21 Redvers Street, Whitby and 31-224 Scarborough Golf Club Road, Toronto.

[19] On August 6, 2019 the police executed the search warrant at 21 Redvers Street, Whitby at approximately 15:54 hrs. Mr. Nunes was seen exiting the bathroom on the second floor and was arrested. A large safe in the closet of the upstairs bedroom was located. In the same closet officers located government cheques and a Canadian passport in the name of Alden Nunes. Officers were able to gain access to the safe and inside located two Smith and Wesson 9 mm firearms with overcapacity magazines and a large quantity of Canadian currency. Also found inside the safe were documents pertaining to car ownership and banking documents in the name of Alden Nunes. Fentanyl, MDMA, digital scales, drug packaging and other evidence of drug trafficking were located in the bathroom where Mr. Nunes was seen exiting when he was first observed by the officers. The seized drugs were tested and weighed. One bag of Fentanyl weighed 31.23 grams and the other bag, .86 grams. The MDMA weighed 10.89 grams.

Law and Analysis

[20] This application raises the following two issues:

1. Were there sufficient grounds to believe that evidence would be found at the place searched?
2. If the warrant was not valid should the evidence obtained be excluded pursuant to s. 24(2) of the Charter?

Issue 1: Were there sufficient grounds to believe that evidence would be found at the place searched?

Positions of Counsel

[21] The issue in this case is whether the ITO was capable of supporting, to the requisite standard, an inference that the items sought could be found at the address.

[22] The defence submits that the warrant in this case could not have been issued because there was no evidence that the items to be searched for would be at the place of the search as there was no evidence that a firearm and related evidence would be found at 21 Redvers Street, Whitby. In addition, there was no evidence that Mr. Moore attended at 21 Redvers Street, Whitby during the relevant timeframe. The Crown submits that the affiant and the authorizing justice were permitted to make reasonable inferences relating to the investigation. The affiant provided compelling evidence that Mr. Moore was an active narcotics dealer who was in possession of a firearm and that the firearm would be expensive, non-consumable and would not be disposed of. Mr. Moore’s admission that his asthma medication was at the Whitby address, coupled with the bail condition requiring him to live at 21 Redvers Street Whitby, made it reasonable for the affiant and the authorizing justice to conclude that the missing gun could be located there.

Standard of Review

[23] A warrant is presumed to be valid and the onus is on the party seeking to invalidate it: R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421. The scope of warrant review is narrow. It is not a de novo hearing. The reviewing judge does not substitute his or her view for that of the issuing judge. “[T]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54; R v. McNeill, 2020 ONCA 313, [2020] O.J. No. 2282 at paras. 30-34.

[24] The question to be determined by this Court is whether the justice could have issued the warrant. To comply with the constitutional standard, this requires at the time of the granting of the authorization there must be reasonable grounds to believe that an offence has been or is being committed and that the authorization will afford evidence of the offence. Reasonable grounds to believe does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. It requires more than an experienced-based "hunch" or reasonable suspicion. The statutory and constitutional standard is one of “credibly-based probability”: In making this evaluation, the issuing justice must consider the ITO as a whole, in a “common sense, practical, non-technical way, and may draw reasonable inferences from its contents.”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Sadikov at paras. 81 and 82; R. v. McNeil at paras. 32 and 33. As summarized recently in R. v. McNeil at paras. 32 and 33:

The standard of "reasonable grounds to believe" does not require proof on a balance of probabilities, but rather only a credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Sadikov, at para. 81. The ITO must provide "reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. ... If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued": Sadikov, at para. 81; see also R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

In making this evaluation, the issuing justice considers the ITO as a whole, in a common sense, practical, non-technical way, and may draw reasonable inferences from its contents: Sadikov, at para. 82; Vu, at para. 16. The record on a facial challenge is limited to the ITO: Sadikov, at para. 37; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

Applying the legal principles

[25] There is no dispute that the ITO contains no evidence that a gun was seen at 21 Redvers Street, Whitby nor does it contain any evidence that Mr. Moore was seen at 21 Redvers Street. The Crown seeks to compare this case with the situation referenced in Fairburn J.A.’s comment in R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721 at para. 54:

If 1670 Clover Avenue had in fact been Callahan's residence, it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place. That inference falls away when the true state of facts is known.

[26] The Crown asserts that there is evidence that 21 Redvers Street was Mr. Moore’s residence. Therefore, since he was unlikely to dispose of a gun the issuing justice could find that he would have secreted the gun at this location. To support his position the Crown relies on the following pieces of evidence found in the ITO:

a. Mr. Moore was required by the terms of his bail pending appeal order to live on weekends at 21 Redvers Street, Whitby; b. He told the police upon arrest that his asthma medication was at the Whitby address; and c. The affiant’s assertion that “Firearms, specifically, are not potable, consumable and are expensive. They go hand in hand with the trafficking of narcotics and are not disposed of.”

[27] I disagree with the Crown’s submissions. The best that can be said about the evidence contained in the ITO was that Mr. Moore had at one point lived at 21 Redvers Street, Whitby. When and for how long is unknown. This connection is insufficient to authorize the search. As stated by Fairburn J.A. in R. v. Herta at para. 48:

Relying upon Delchev, the respondent emphasizes that the fact that the CI said that he saw Callahan with the gun was enough, standing on its own, to pass the compelling threshold in Debot and justify the search. I agree with the sentiment expressed in Delchev, at paras. 73-75, that an inference can be drawn that "criminals who are illegally in possession of guns" may have them for long periods of time. I do not read Delchev as saying, though, that the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future. To the contrary, the CI in Delchev actually saw the firearms at the locations that were ultimately searched. That is quite unlike this case. [Emphasis added]

Also see R. v. Donaldson, 2020 ONSC 4611 at para. 28, R. v. Coluccio, 2019 ONSC 4559 at para. 61.

[28] The affiant stated that he believed that there would be evidence found at the two addresses because Mr. Moore was required to live there. However, leaving aside the issue of where Mr. Moore actually lived, as opposed to where he was required to live, the ITO does not contain any information as to why the affiant believed that the evidence would be there as supposed to some other unknown location. The investigation started from a specific complaint that a person, later identified as Mr. Moore, had a firearm and drugs at the Dundas apartment. The search of that apartment showed that Mr. Moore had in fact set up his criminal shop at that apartment. The ITO does not contain evidence of Mr. Moore’s habits or movements. The ITO does not even contain a generalized assertion with respect to the movement of guns as seen in R. v. Coluccio at para. 76. The Crown points to the affiant’s comment that guns are expensive and are not disposed of. However, this assertion does not assist in explaining why the gun would be at those addresses as opposed to anywhere else.

[29] Critically, there was no evidence that Mr. Moore was in fact currently living at 21 Redvers Street. The ITO contains no evidence that Mr. Moore was seen at that address. It is correct that the conditions of his bail pending appeal required Mr. Moore to live at 21 Redvers on the weekend and at 31-224 Scarborough Golf Club Road during the week but the ITO contains significant amount of evidence that Mr. Moore was living at the Dundas apartment and that he wasn’t following the terms of his bail. With respect to where he was living, the ITO revealed that:

i. According to the complainant, her friend told her that Mr. Moore lived upstairs at the Dundas apartment; ii. According to the complainant, Mr. Moore told her that he lived upstairs at the Dundas apartment; iii. Mr. Moore was seen by the police entering the Dundas building with a pizza with a large dog. A large dog was heard in apartment 803; and iv. Mr. Moore was arrested in the laundry room of the Dundas apartment building.

[30] With respect to his bail conditions the ITO revealed that:

i. Mr. Moore was in possession of weapons contrary to his bail pending appeal conditions; and ii. Mr. Moore was out without a surety, contrary to his bail pending appeal conditions; and

[31] There is also an issue regarding the currency of the residency conditions and if Mr. Moore’s bail pending appeal had lapsed. Mr. Moore was supposed to surrender into custody at the end of June 2019. The police checked to see if he was in custody. The correctional authorities said that Mr. Moore was “at large on bail pending appeal and is not in custody” which could mean that he was unlawfully at large or his bail pending appeal was extended. I appreciate that from the police perspective at the time they obtained this information they were working up the grounds for a search of the Dundas apartment so the relevant piece of information was that Mr. Moore was out of custody. However, in support of the 21 Redvers warrant the police did not follow up and confirm if Mr. Moore’s residency conditions, assuming his bail pending appeal was extended, had changed or not.

[32] Crown counsel submits the following with respect to the currency of the information that Mr. Moore lived at 21 Redvers Street:

The information regarding the currency of the Whitby address was corroborated when the affiant was advised by Federal corrections Canada and Corrections Ontario that despite the surrender date, Mr. Moore was still at large on bail pending appeal and not in custody on August 2, 2019. Furthermore, Mr. Moore confirmed his residency when he advised his medications for his current medical condition were at the Whitby address.

[33] Again, the correctional authorities did not corroborate the currency of the Whitby address. Rather, they just informed that Mr. Moore did not surrender into custody and that he was at large on bail pending appeal. They provided no information regarding where he was required to live let alone where he in fact lived. I agree with Crown counsel that Mr. Moore’s comment that his asthma was at the Whitby address showed that at one point he was living there. But given that he had been on bail pending appeal since December 2017 this information does not assist with respect to when he was at that address. Further the Crown seems to submit that one can infer that Mr. Moore was recently at the Whitby residence since he wouldn’t be long without his needed asthma medication. That, in my view, is giving much more importance to Mr. Moore’s brief comment about his asthma medication than is reasonable. Mr. Moore was required to live the majority of the time, during the week, at the Scarborough address yet the medication was left at the weekend location. Also, while the affiant does refer to Mr. Moore’s comment in the background section, he did not reference it elsewhere. Rather the sole basis that the affiant relied upon to believe that a firearm and related evidence could be found at the place searched was his bail pending appeal conditions.

[34] Again, the question I must answer is not whether I would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were "reasonable grounds" justifying the issuance of the search warrant. In my view there were not. At its highest the evidence set out in the ITO gives rise to a hunch. That is not sufficient.

[35] I find that the applicant's s. 8 rights have been violated and the warrant is quashed.

Issue 2: Should the evidence be excluded pursuant to s. 24(2) of the Charter

[36] The s. 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (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 the adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.

(1) The seriousness of the Charter-infringing state conduct

[37] The task with respect to this factor is to situate the state conduct on a scale of culpability. In assessing the seriousness of the conduct, the Supreme Court in R. v. Grant at paras. 74 and 75 provided the following guidance:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[38] This is not, in my view, a case of deliberate misconduct. In oral submissions the defence agreed that the ITO does not contain errors or misleading information. The police sought and obtained a search warrant. I also do not find the fact that the affiant cut and pasted information from the earlier warrant, in itself, to be an issue. There is no bad faith.

[39] However, the absence of bad faith does not establish good faith. There were no grounds to issue the warrant. Contrary to the careful manner in which the police went about to confirm the account given by the complainant and to build their case for a search of the Dundas apartment, the police conducted no investigation at all to try and establish the requisite grounds to support the search of 21 Redvers. The police relied on the listed address contained in the bail conditions even though the grounds for the Dundas warrant was built on establishing that Mr. Moore lived at the Dundas apartment and was not following the terms of his release. Given that Mr. Moore was supposed to surrender at the end of June 2019 the police did not even check if he was subject to new conditions even though it would have been relatively easy to do so.

[40] The Crown submits that the police were clearly pressed for time given the urgent need to find the gun. However, the police in seeking a warrant still had to put forward a sufficient basis for it to be issued. It must be remembered that while pursuing that same gun the police still took the time to build its case for the Dundas warrant.

[41] Finally, the ITO in this case was used to obtain warrants to search not one but two houses.

[42] The Charter infringing conduct was serious. This line of inquiry tips towards exclusion.

(2) The impact of the breach on the Charter-protected interests of the accused

[43] The second line of inquiry demands a consideration of the seriousness of the breach from the perspective of the accused. The impact of a breach may range from fleeting and technical to profoundly intrusive. The Crown properly concedes that a search of a dwelling house attracts a high expectation of privacy and would fall on the higher end of intrusiveness. This line of inquiry tips towards exclusion.

(3) Society's interest in the adjudication of the case on the merits

[44] The defence acknowledges that the drugs and guns found are reliable and relevant to the truth-finding function of the courts. Excluding this evidence will lead to the accused being acquitted without a trial on its merits. “It must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, "thus bringing the administration of justice into disrepute": Grant, at para. 81” R. v. Herta, at para. 72.

[45] Furthermore, this case involves the discovery of guns and drugs, a toxic combination that is a scourge to the community. As stated by Varpio J. in R. v. Beauchamp, 2021 ONSC 164 at para. 35:

Offences involving guns and drugs have a heightened level of seriousness, and thus society has a heightened interest in adjudicating such charges: R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32; Ontario Court of Appeal reasons at 2018 ONCA 975, [2018] O.J. No. 6346. Brown J.A.'s dissenting reasons at the Ontario Court of Appeal in Omar (which were adopted by a majority of the Supreme Court of Canada in a brief endorsement) make clear that the courts must recognize both the level of danger associated with firearms and their unfortunate prevalence in Canadian society (at paras 128 to 130):

Although Collins puts judges into the position of acting as the reasonable person fostering "long term community values" when deciding under s. 24(2) whether to admit or exclude evidence, such as an illegal handgun, practical limits exist on the perspective judges bring to that task.

Why is that?

Because the lethal problem posed by illegal handguns often seems remote from our daily judicial lives: we tend to live in safe residential areas; and we work in highly secure courthouses. The problem may directly touch others in the community; but for most of us it is a problem only read about in the media. As a result, we judges can be tempted to conceptualize issues under 24(2) in a somewhat abstract fashion, making decisions in an environment some distance removed from that where their real-life impact will be felt.

[46] This factor tilts towards inclusion.

The balancing

[47] The s. 24(2) analysis requires a balancing of all these factors and all these circumstances, there are no automatic rules, there is no mathematic formula. As stated by the Court of Appeal in R. v. Thompson, 2020 ONCA 264 at paras. 106 and 107:

The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.

If, however, the first two inquiries together make a strong case for exclusion, the third inquiry "will seldom if ever tip the balance in favour of admissibility": Le, at para. 142; Paterson, at para. 56; and McSweeney, at para. 81.

[48] In my view, despite the serious charges that cry for an adjudication on their merits, the combination of all the factors and all the lines of inquiry require that the evidence be excluded. The police did apply for a warrant and there was no material omission or misleading of the issuing justice, but they conducted no investigation to support their grounds for a search warrant of not one but two private residences. The police conduct while not an act of bad faith was still serious. The impact of their conduct, the lawless search of a private dwelling house with its heightened expectation of privacy was also serious. As stated by Fish J. wrote in R. v. Morelli, at para. 111, "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."

[49] I have concluded that the admission of the evidence in this case would bring the administration of justice into disrepute. The evidence is excluded.

[50] The next court appearance is March 12, 2021. I am available earlier if counsel wish to co-ordinate a date in order to deal with the disposition of the charges.

The Honourable Justice H. Leibovich

Released: February 24, 2021

COURT FILE NO.: CR 15461/20 DATE: 2021-02-24 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALDEN NUNES REASONS FOR RULING Justice H. Leibovich

Released: February 24, 2021