Overview

[1] The Applicant seeks an order under section 8 and subsection 24 (2) of the Canadian Charter of Rights and Freedoms that his rights against unreasonable search and seizure have been violated and seeks to have the impugned evidence excluded from trial. Between October 29, 2018 and February 15, 2019, the Toronto Police Service (“TPS”) investigated Vincent Yun Hao Huan and his alleged associates for drug trafficking. The TPS obtained a warrant for a tracking device on two vehicles associated with Mr. Huang which were subsequently renewed and telewarrants to search the vehicles were granted. The Crown alleges that the applicant was in possession and control of one of the vehicles, a Hyundai Sonata, when the telewarrant to search it was obtained and executed. A handgun, ammunition, fentanyl and cocaine were recovered from the Hyundai Sonata. The TPS also obtained and executed a telewarrant for 37 Mystic Avenue, Toronto, the address of the Airbnb house at which the applicant was staying while in Toronto, which yielded items identifying the applicant and some cash.

[2] In support of his submissions that the evidence should be excluded, the applicant submits that the affiant failed to be full, frank and fair and relied on unconstitutionally obtained evidence in the Information to Obtain (“ITO”). He further submits that there were no grounds for issuing the tracking warrants or telewarrants and that the TPS failed to fulfill their post-seizure reporting obligations under the Criminal Code and the Controlled Drugs and Substances Act.

[3] The Crown concedes the failure to fulfill the post-seizure reporting obligations on time but submits that this is a minor breach which should not result in the exclusion of the evidence under s.24 (2) of the Charter.

[4] I have found that with respect to the telewarrant to search the Hyundai Sonata motor vehicle, the only s. 8 breach was in the post-seizure reporting obligations which I have concluded should not result in the exclusion of the evidence obtained in relation to the vehicle search. I have also found that in regard to the telewarrant for the search at 37 Mystic Avenue, there was a more serious s. 8 breach in addition to the breach of the post-seizure reporting obligations and that the evidence obtained in relation to that search should be excluded. My reasons are set out below.

The Indictment

[5] The Applicant is charged with the following counts:

(1) NICHOLAS ORTEGA stands charged that he, during the period from and including the 2nd day of November in the year 2018, to and including the 16th day of February in the year 2019, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, did conspire with Vincent Huang and another person or persons to commit the indictable offence of trafficking in fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act, thereby committing an offence contrary to s. 465 (1)(c) of the Criminal Code.

(2) NICHOLAS ORTEGA stands further charged that he, during the period from and including the 2nd day of November in the year 2018, to and including the 16th day of February in the year 2019, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, did conspire with Vincent Huang and another person or persons to commit the indictable offence of trafficking in cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act, thereby committing an offence contrary to s. 465 (1)(c) of the Criminal Code.

(3) NICHOLAS ORTEGA stands further charged that he, on or about the 16th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did unlawfully possess a controlled substance, to wit: fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

(4) NICHOLAS ORTEGA stands further charged that he, on or about the 16th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

(5) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

(6) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess a loaded prohibited or restricted firearm, to wit: a Smith & Wesson CZ 40 P handgun, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(7) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a Ruger P90 handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(8) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a Glock handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(9) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a black and gold Smith & Wesson handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(10) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a black Smith & Wesson handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(11) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a black and gold Smith & Wesson handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(12) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess an unloaded prohibited or restricted firearm, to wit: a black Smith & Wesson handgun, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence under which he could possess it in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

(13) NICHOLAS ORTEGA stands further charged that he, on or about the 15th day of February in the year 2019, in the City of Toronto, in the Toronto Region, did possess a firearm, to wit: a SKS rifle, knowing that he was not the holder of a licence under which he could possess it, contrary to s.92(1) of the Criminal Code.

Facts

[6] The TPS received information from what were considered to be three reliable, credible confidential sources that Vincent Yun Hao Huang was involved in drug activity. A CPIC search disclosed Mr. Huang’s address as 175 Bamburgh Circle, Unit 1416, Toronto, 3 firearm prohibitions and 12 criminal convictions including three convictions for possession for the purpose of trafficking. Between October 29, 2018 and February 15, 2019, the TPS investigated Mr. Huang and his alleged associates.

[7] Police surveillance supported that Mr. Huang and Martina Tran appeared to reside at an apartment building at 175 Bamburgh Circle, Toronto and used two vehicles, a black Hyundai Santa Fe registered to Louis Huang and a white Hyundai Sonata which was registered to Mr. Huang at the 175 Bamburgh address. Both vehicles were observed from time to time when not in use to be parked in the underground parking garage of 175 Bamburgh Circle, Toronto.

[8] Mr. Huang was observed attending at Access Storage at 3680 Victoria Park Avenue, Toronto (“the storage facility”) on numerous occasions. Mr. Huang and Ms. Tran frequently drove the Hyundai Santa Fe. On November 1, 2018, TPS observed the Hyundai Santa Fe leave 175 Bamburgh Circle, Toronto and arrive at the storage facility. Mr. Huang and Ms. Tran, each carrying a light brown box, entered the storage facility. Mr. Huang was also observed taking a black suitcase inside the storage facility. The Hyundai Santa Fe was then observed at a Fed Ex warehouse where Mr. Huang entered with a box in hand and emerged with a receipt.

[9] On November 2, 2018 the TPS received information from the Ottawa Drug Squad that a target of their investigation was travelling from Ottawa on a Via train that would be arriving at Guildwood Station at approximately 12:45 p.m. to conduct a possible drug transaction with an unknown person(s). The target of the Ottawa Drug Squad was observed meeting up with Mr. Huang at Guildwood Station. The target was observed getting into the front passenger seat of the Hyundai Santa Fe and emerging five minutes later carrying a white plastic bag with what appeared to be a takeout food container in the bag. The target then got onto a train.

[10] On November 29, 2018, Mr. Huang was observed leaving 175 Bamburgh Circle, arriving at the storage facility and entering with nothing in his hands where he spent approximately 14 minutes. He was observed meeting a tow truck at 46 Commonwealth Avenue, Toronto. The tow truck towed the Hyundai Sonata to the Kingscross Hyundai dealership where it met up with Mr. Huang and where the Hyundai Sonata was left.

[11] After leaving Kingscross Hyundai on November, 29, 2018, Mr. Huang attended at the storage facility where he remained for approximately 24 minutes, drove to the McDonald’s parking lot at 393 Bamburgh Circle and parked next to a grey Audi. Mr. Huang was then observed entering the front passenger seat of the grey Audi where he remained for approximately 5 minutes after which time he got back into the Hyundai Santa Fe and both vehicles left.

December 12, 2018 Tracking Warrant

[12] On the basis of the above facts, on December 12, 2018 the police applied for and obtained a 60 day tracking warrant for the Hyundai Santa Fe, the Hyundai Sonata and any other motor vehicle “that there are reasonable grounds to believe is being or will be resorted to or used” by Mr. Huang or Ms. Tran. The reasonable grounds to suspect set forth in the ITO for the tracking warrant was drug trafficking by Mr. Huang.

February 7, 2019 Renewal of Tracking Warrant

[13] On February 7, 2019, the police applied for and obtained a renewal of the tracking warrant for the Hyundai Santa Fe, the Hyundai Sonata and any other motor vehicle “that there are reasonable grounds to believe is being or will be resorted to or used” by Mr. Huang or Ms. Tran. The reasonable grounds to suspect set forth in the ITO were, as per the first tracking order, drug trafficking by Mr. Huang.

[14] The ITO in support of the application provided the following additional evidence.

[15] On January 3, 2019, a GPS tracking device was put on the Hyundai Santa Fe. Both Mr. Huang and Ms. Tran were observed driving in the Hyundai Santa Fe, together and separately. Mr. Huang was observed on January 9, 2019, at the storage facility at two separate times. On the second attendance, he was observed exiting the storage facility with a large grey shopping bag. On January 12, 2019, the Hyundai Santa Fe was at 108 Whitney Place, Thornhill, where a male who also became a police target (later identified as Mark Disonglo) entered the front passenger seat and exited approximately one minute later. The Hyundai Santa Fe then left. The Santa Fe was at the storage facility on January 14, 2019 where Mr. Huang was observed exiting holding his left side as he was running. Mr. Huang is later observed parked in the Hyundai Santa Fe beside a white Ford Explorer which he enters for one minute, exits and the white Ford departed. Mr. Huang is observed approximately 20 minutes later after entering and exiting the mall with a bag in his hand, entering into a black Chevy SUV for approximately one minute, after which both vehicles leave.

[16] Information from Access Storage identified locker 3121 as the locker that Mr. Huang had rented. Ms. Tran was listed as an alternate contact and her relationship to the tenant, Mr. Huang, was listed as “wife”. Between June 11, 2018 to January 22, 2019, Mr. Huang used his code 260 times but accessed his locker only 25 times. During the period April 13, 2018 to January 22, 2019 when Daniel Siu rented locker 3143, Mr. Siu’s code was used 40 times to gain access but his locker was accessed 925 times. The only other locker other than locker 3121 that was always opened and or closed immediately following Mr. Huang’s code being used to access the storage facility was locker 3143 from which the police inferred that Mr. Huang was accessing locker 3143, the locker rented by Mr. Siu.

[17] Despite surveillance of Mr. Huang and Ms. Tran and of 175 Bamburgh Circle, there were no observations of the Hyundai Sonata after it was towed to the Kingscross Hyundai dealership on December 19, 2018 until January 22, 2019 when it was observed back in the parking garage of 175 Bamburgh Circle. On January 24, 2019, a GPS tracking device was installed on the Hyundai Sonata pursuant to the December 12, 2018 tracking warrant which was due to expire on February 12, 2019.

[18] In the ITO in support of the February 7, 2019 application for renewal of the tracking warrants on the two vehicles associated with Mr. Huang and Ms. Tran, the affiant, Detective Constable Randhawa, stated that there were grounds to arrest and charge Mr. Huang with trafficking in drugs (the person to whom the tracking warrants were in relation to) but that the purpose of the application was to ascertain the identity of the person(s) who supply the drugs as well as to locate and seize the contraband and arrest and charge all those who are connected with this enterprise. It further stated that there were grounds to believe that information obtained by the continued use of a tracking warrant will assist in the investigation into the criminal enterprise of Mr. Huang and Ms. Tran, that police:

· are unable to conduct 24 hour surveillance on them or on other people who may be involved in criminal activity;

· that Mr. Huang has been driving at excessive speeds, weaving in and out of traffic and running amber lights, making it a threat to the personal safety of police officers; and

· analysis of the data from the tracking warrant will assist police as for example assist in identifying locations where controlled substances are stored (stash house) or locations where persons of interest are meeting or assist officers in conducting physical surveillance.

February 15, 2019 Telewarrant for Hyundai Sonata

[19] On February 15, 2019, the police applied for among other things, a telewarrant to search the Hyundai Santa Fe and the Hyundai Sonata vehicles. On page 1 of the ITO, it states that this is the sworn information of P.O. Palvinder Randhawa, the informant, as follows:

“The Informant says that “he/she has reasonable grounds to believe and does believe that there is a controlled substance or precursor, a thing in which such a controlled substance or precursor is contained or concealed, offence-related property, or a thing that will afford evidence in respect of an offence under the Controlled Drugs and Substance Act (“the Act”), to wit:

See Appendix “A”

in respect of which one or more indictable offences have been committed contrary to the following section(s) of the Act, namely:

See Appendix “B”.

And that the reasonable grounds of the application are the following:

See Appendix “C”,D” “E”,”F”.”(Emphasis added).

[20] The Crown concedes that some of the terms in the warrant are not supported by reasonable grounds in the ITO as redacted. The Crown submits and the applicant concedes that defective terms may be excised from otherwise valid orders pursuant to the doctrine of severability. In this regard, the Crown relies upon R. v. Paterson (1985) 1985 CanLII 167 (ON CA), O.J. NO.28 (C.A.) and R. v. Sonne (2012) 2012 ONSC 584, O.J. No.6243 (S.C.J.) at paras. 5-16.

[21] Appendix “A” as redacted is as follows:

Term of Appendix A (Sonata telewarrant)

Description of thing{s) to be searched for

"Any documentation [etc.]...referring to the any of the subjects identified - Vincent Yun Hao Huang [etc.] II

"Any documentation...or other paraphernalia related to drug dealing activity, firearm possession [etc.]. "

"Photographs, identification...of the subjects listed - Vincent Yun Hao Huang II

"Controlled Substances."

"Packaging materials used in the storage and distribution of a Controlled Substance."

"Scales used in the illicit distribution of a Controlled Substance."

"Written records or records contained within electro-magnetic storage units in reference to the production or distribution of a Controlled Substance."

"Written records or records contained within electro-magnetic storage units in relation to moneys owed or paid for Controlled Substances (commonly referred to as a debt lists [sic])"

"Currency relating to proceeds of crime and criminal activities."

b) i) 2)

"[Bank d]eposit and withdrawal slips "

b) ii) 3)

"Insurance policies”

b) iii) 1)

"Documents relating to personal...expenses[,] namely...invoices” \

4 a) - c)

"Ownership, living arrangements or control of...175 Bamburgh Circle, unit 1416, Toronto...[and/or s]torage locker[s] 3121...[and]...3143 locat ed at 3680 Victoria Park”

Sa)andb)

"Ownership and/or control of...[a] white...Sonata...BYKD 178...[and]...[a] black...Santa Fe...CDCF 566."

[22] As redacted, Appendix B states:

“Vincent Yun Hao Huang on or about the 29th day of November 2018, in the City of Toronto, in the Toronto Region did possess a controlled substance to wit: cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.”

[23] The offences which were redacted from Schedule B to the telewarrant for the Hyundai Sonata were all for the same date of November 29th, 2018, were for additional controlled substances in the case of Mr. Huang (fentanyl and methamphetamine) and also included three alleged offences against Ms. Tran on November 29, 2018 for trafficking in fentanyl, cocaine and methamphetamine.

[24] In Appendix “C”, P.O. Randhawa states that there are grounds to suspect that the offences listed in Appendix “B” have been or will be committed. Appendix “C” repeats the information contained in the ITO for the February 7th, 2019 renewal of the tracking warrant set out above. In addition, it contains the results of surveillance, GPS trackage and video surveillance footage after that date which can be summarized as follows:

· On January 31, 2019 the Hyundai Santa Fe was at the Storage Facility at 10:14 a.m. and a male can be seen exiting locker 3143, re-entering the locker and exiting moments later after which the vehicle returns to 175 Bamburgh. At 21:02 the Hyundai Santa Fe arrives at the storage facility and the same male enters locker 3143 and appears to remove a bag from inside the locker. The vehicle leaves the storage facility at 21:10.

· On February 1, 2019, at 5:27 p.m. the Hyundai Santa Fe arrives at the storage facility and Mr. Huang enters the locker carrying a bag and leaves it in the locker. He is not seen on camera for 10 minutes. He is then seen entering the locker and the camera does not capture him exiting the locker. The vehicle leaves at 5:39 p.m.

· On February 3, 2019, the Hyundai Santa Fe arrives at the storage facility at 12:21 and a male with a light coloured shoulder bag enters locker 3143. The same male appears to remove objects from inside the locker and place them into the shoulder bag. At 12:27 p.m. the Hyundai Santa Fe leaves the storage facility.

· On February 4, 2019, the Hyundai Santa Fe arrives at the storage locker and a male carrying a light coloured shoulder bag enters locker 3143. At 8:36 a.m. the same male exits locker 3143 removing a white/black shopping bag from inside the locker and the Hyundai Santa Fe leaves the storage facility.

· On February 6, 2019, the Hyundai Santa Fe returns to the storage facility at 1:58 p.m. and a male carrying a dark coloured shoulder bag enters locker 3143. At 2:03 p.m. the same male exits locker 3143, removing a black and red duffle bag from inside the locker and the vehicle leaves.

· At 5:25 p.m. the same day the Hyundai Santa Fe returns to the storage facility and a male, carrying a shoulder bag and a dark coloured duffle bag, enters locker 3143. The same male exists at 5:38 p.m. still carrying the shoulder bag and duffle bag and the vehicle leaves.

· On February 8, 2019, the Hyundai Santa Fe arrives at the storage facility at 7:29 p.m. Two males enter locker 3143. At 7:43 p.m. the vehicle leaves.

· On February 9, 2019 at 1:17 p.m., a male enters locker 3143, appearing to use a key to gain access. At 1:18 p.m. the same male exits the locker and locks it behind him. Neither the Hyundai Santa Fe nor the Hyundai Sonata arrive at the storage facility at this time. At 8:15 p.m. the Hyundai Santa Fe arrives at the storage facility. At 8:27 p.m. Mr. Huang enters locker 3143 and places a dark coloured duffle bag down in front of the locker and walks past the camera. The camera skips and neither Mr. Huang nor the black duffle bag are visible. At 9:19 p.m. the Hyundai Santa Fe arrives at the storage facility and Mr. Huang enters the locker. The vehicle leaves the storage facility at 9:29 p.m.

· On February 10, 2019, the Hyundai Santa Fe arrives at the storage facility at 9:36 a.m. and a male enters locker 3143. At 9:38 a.m. the vehicle leaves the storage facility. At 3:13 p.m. a male enters locker 3143 carrying a black shoulder bag. The same male exits the locker at 3:18 p.m. and the Hyundai Santa Fe leaves the storage facility. The same vehicle returns at 11:12 p.m. and the same male enters locker 3143. He is in the company of another male, larger build with dark clothing believed to be the applicant, who also enters locker 3143. The same two males exit the locker at 11:19 p.m. and the Hyundai Santa Fe leaves the storage facility.

o On February 11, 2019, at 5:54 p.m. the Hyundai Santa Fe arrives at the storage facility. Three individuals arrive at and enter to locker 3143. The footage skips and the individuals are no longer seen. At 5:59 p.m., a large build individual with dark clothing believed to be the applicant appears to exit the locker.

· At 8:11 p.m. on February 11, 2019, the Hyundai Sonata arrives at the storage facility and remains until 8:23 p.m. At 8:13 p.m., Mr. Huang and another male of larger build wearing dark clothing believed to be the applicant entered the storage facility and attended lockers 3143 and 3121. Mr. Huang removed a black suitcase from locker 3121. The Hundai Sonata then returns to 175 Bamburgh Circle at 21:29 and arrives in the driveway of 37 Mystic Avenue, Scarborough at 21:53.

· The next day, on February 12, 2019, police observed the Hyundai Sonata parked in the driveway of 37 Mystic Avenue, Scarborough. An unknown male with a large build was observed shoveling the driveway. This was the same unknown male with a large build that was at the storage lockers on February 10, 2019 and February 11, 2019, believed to be the applicant.

· On February 14, 2019 at 5:25 p.m. the police observed the Hyundai Sonata in the driveway of 37 Mystic Avenue, Toronto, which the police learned was used as an Airbnb. The police observed the Hyundai Sonata leaving the area at 6:46 p.m. and being driven to the Fairview Mall. A larger male matching the description of the male observed with Mr. Huang accessing the storage facility lockers on February 10 and 11, 2019 believed to be the applicant, exited the driver’s seat and got into the front passenger side of a white Lexus SUV. He then exited the Lexus SUV one minute later. The Hyundai Sonata then left the area.

· On February 14, 2019 P.O. Randhawa applied for and obtained a general warrant for officers to covertly enter storage lockers 3121 and 3143 at the storage facility. Officers located 4 handguns, a rifle, a knapsack full of ammunition and approximately 3 1/2 kilograms of substances believed to be cocaine and heroin in locker 3143.

[25] Under a heading “Grounds to Believe That An Offence Has Been Committed”, P.O. Randhawa asserted that there are grounds to suspect (not the required reasonable grounds to believe) that the criminal offence(s) listed in Appendix “B” have been or will be committed. He then summarized the details set out above including:

· the alleged drug transaction on November 2, 2018 at the Guildwood train station between Mr. Huang and the target of the Ottawa Drug Squad;

· the alleged drug transaction by Mr. Huang in the grey Audi on November 29, 2018;

· the multiple trips to the storage facility lockers by Mr. Huang with items and coming out empty handed;

· Mr. Huang’s use of the Hyundai Santa Fe vehicle in conducting these activities;

· the attendance of the applicant on three occasions at the storage locker 3143 a few days before the contraband was found in locker 3143;

· the attendance of the Hyundai Sonata at the storage locker 2 days before the contraband was found in locker 3143;

· the use of the Hyundai Sonata in what was believed to be a drug transaction on February 14, 2019; and

· the contraband found in locker 3143.

[26] The telewarrant for the Hyundai Sonata was issued and executed on February 15, 2019. The Hyundai Sonata vehicle was found on the driveway of 37 Mystic Avenue, the address of the Airbnb house at which the applicant was staying while in Toronto. The vehicle was towed and searched. The police found three custom-made “traps” in the vehicle. In one of them police found a Taurus handgun, ammunition, one kilogram of fentanyl and a half-kilogram of cocaine.

February 15, 2019 Telewarrant for 37 Mystic Avenue, Toronto

[27] The ITO for the telewarrant at 37 Mystic Avenue, Toronto relies on the same ITO that was used for the telewarrant for the Hyundai Sonata other than Appendix “A” and Appendix “B” which state:

Terms of Appendix A {37 Mystic warrant)

Description of thing(s) to be searched for

"Cellular telephones, other communication devices”

"Telephone records or li.st s in the form of...[written or electronic data]..., containing names, nicknames, numbers”

"Telephone records, including those associated to cellular telephones for the subjects [Vincent Huang, etc.].

" Any documentation...telephone list s ref erring to [Vincent Huang, etc.].

"[W]ritten data or electro-magnetic data storage units, containing names, nicknames or personal information ...referring to [Vincent Huang, etc.].

11Written records or records contained within electro-magnetic data storage units in reference to the production or distribution of a Controlled Substance."

"Cellular telephone units...and recorded data associated to the use or ownership of such units."

"Currency relating to proceed s of crime and criminal activities."

3.b)i)2)

“[Bank related documents, such as]...[d]eposit and withdrawal slips..."

b) iii) 1)

“[Documents relating to personal expenses, such as]...[t]ravel documents...invoices”

“[ltems related to] [o]wnership, living arrangements or control of...37 Mystic Ave., Toronto”

Appendix “B”

“An unknown male between the 10th day of February and the 14th day of February 2019, in the City of Toronto in the Toronto Region did possess a controlled substance to wit: cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.”

[28] The telewarrant for 37 Mystic Avenue was executed on February 15, 2019. That search yielded items identifying the applicant and some cash.

Analysis

[29] The applicant submits that investigators violated his right against unreasonable search and seizure under s. 8 of the Charter. He submits that he had a reasonable expectation of privacy in the impugned evidence and has standing to challenge the impugned searches and seizures.

Tracking Warrants

[30] With respect to the two tracking warrants on the Hyundai Sonata, the applicant asserts that individuals have a reasonable expectation of privacy against surreptitious state electronic tracking of their motor vehicles. The applicant asserts that he was observed to be in possession of the vehicle on February 12 and 14, 2019 and accordingly he has standing to challenge the tracking warrants against the Hyundai Sonata. He submits that information obtained from the tracking warrants was unconstitutional and should be excised from the telewarrants.

[31] In this regard the following is relevant. The tracking orders were obtained against 2 vehicles associated with Mr. Huang, the primary target of the investigation. It was offences committed by Mr. Huang and Ms. Tran that were relied upon as the basis for the required reasonable suspicion. At the time both tracking orders were obtained the police had observed these vehicles at 175 Bamburgh Circle, the residence of Mr. Huang and his partner, Ms. Tran. The ownership of one of the vehicles, the Hyundai Santa Fe, was registered to Louis Huang, believed to be Mr. Huang’s father. Mr. Huang was observed operating the Santa Fe on numerous occasions which included attendances at the storage facility lockers, the suspected store of narcotics and contraband and when he allegedly engaged in drug transactions. Ms. Tran was also observed driving the Hyundai Santa Fe. The ownership of the Hyundai Sonata was registered to Mr. Huang at 175 Bamburgh Circle. It was primarily driven by Ms. Tran until December 22, 2018 when it was not seen for 29 days until it reappeared in the parking garage at 175 Bamburgh Circle and the police were able to attach the tracking device on January 22, 2019 pursuant to the December 7, 2018 order. Neither tracking warrant named the applicant. Although the November 2nd, 2018 alleged trafficking incident with the target of the Ottawa Drug Squad was mentioned in the ITO for the tracking warrants, the applicant was not identified by name. In these circumstances, it seems doubtful that the applicant who had no known association with the Hyundai Sonata until long after both tracking orders were issued and the tracking devices attached, has standing to challenge them.

[32] The applicant submits that the issuing justices could not have found that the affiant had a reasonable suspicion in investigative assistance under subsection 492.1(1) of the Criminal Code when issuing the tracking warrants for the Hyundai Sonata. In support, the applicant submits:

(1) There was a dearth of information about any connection between the Hyundai Sonata and Mr. Huang’s or Ms. Tran’s suspected involvement in narcotics.

(2) Mr. Huang was not observed operating the Hyundai Sonata, only Ms. Tran was for the purpose of running errands.

(3) The fact that the vehicle is registered to someone suspected to be involved in drug activity does not form an objectively reasonable basis for a possibility that tracking the vehicle would assist in the investigation.

(4) Even if Ms. Tran was related to Mr. Huang’s suspected involvement in narcotics, police surveillance suggests that she did not use the Hyundai Sonata in connection to these activities.

(5) The affiant failed to be full, frank and fair in the ITO for the tracking warrants. It is submitted that the police surveillance on November 2, 2018 invited the inference that Mr. Huang and the unknown male engaged in a hand-to-hand drug transaction. Specifically, the applicant complains of the description in the ITO of the item that the target carried from Mr. Huang’s vehicle as a “white plastic bag with [what] appeared to be a takeout food container in the bag” and the statement that the target entered “a train” after the alleged drug transaction. It is submitted that the ITO should have described the November 2, 2018 suspected drug transaction with the target of the Ottawa Drug Squad as leaving Mr. Huang’s vehicle to get on the “eastbound Go train” “with a plastic bag with a takeout food container inside-this has never been seen used by Mr. Huang in any other suspected drug transaction during this investigation”. It is submitted that as amplified, this police surveillance is more indicative of a lunchtime food delivery during the “layover” between the target’s inbound inter-city train and his out-bound local train.

(6) Even if there was a basis for the first tracking warrant on the Hyundai Sonata, it is submitted that the possibility that tracking the vehicle would assist in the investigation was diminished by the police surveillance and tracking data from the first tracking warrant which showed Mr. Huang always driving the Hyundai Santa Fe, and always showed Ms. Tran using the Hyundai Sonata for errands and never showed it going to the storage facility or other locations which the police suspected were associated with the drug trafficking enterprise.

[33] Whether or not the applicant has standing to challenge the tracking warrants, I have concluded that they were properly issued for the following reasons.

[34] Section 492.1(1) of the Criminal Code provides:

492.1 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

[35] In the case of a tracking warrant for a vehicle, the statutory preconditions require a showing of reasonable grounds to suspect that an offence has been or will be committed and that tracking the location of one or more transactions or the location or movement of a vehicle will assist in the investigation of the offence.

[36] The preconditions for a tracking warrant do not require that the Hyundai Sonata be directly linked to criminal activity. The ITO for the December 12, 2018 tracking warrant stated that the application sought to further the ongoing investigation into the drug trafficking enterprise of Huang and Tran. Ms. Tran was the person who appeared to be the regular driver of the Hyundai Sonata registered to Mr. Huang and located in the parking garage for their residence. The ITO for the December 12, 2018 tracking warrant included police surveillance of Mr. Huang and Ms. Tran on November 1, 2018 each carrying a light brown box and entering the storage facility. Mr. Huang was also observing taking a black suitcase inside the storage facility on that occasion. The Hyundai Santa Fe was then observed at a Fed Ex warehouse where Mr. Huang entered with a box in hand and emerged with a receipt.

[37] I do not agree that the ITO violated the obligation for full, fair and frank disclosure. The obligation for full, fair and frank disclosure does not require the affiant to ignore the other circumstances of the case and consider the observations in the most favourable light from the applicant’s perspective. In any event, I do not see a meaningful difference between the amplification sought by the applicant for the November 2, 2018 transaction and what was in the ITO. Even with the amplification, the police observation of Mr. Huang on November 2, 2018, the day following his attendance at the storage facility, with a target of the Ottawa Drug Squad briefly in his vehicle and then emerging with a package is a fact, together with the other facts in the ITO, in support of reasonable grounds to suspect a drug trafficking enterprise.

[38] I agree with the Crown’s submission that apart from the surveillance of November 1, 2018 which saw Mr. Huang and Ms. Tran attend at the storage facility together, there are other ways in which it was reasonable to suspect that tracking the Hyundai Sonata registered to Mr. Huang, regularly operated by Ms. Tran and one of 2 vehicles observed at their residence will assist in the investigation of the offence: that is, by allowing the police to deploy their investigative resources more efficiently, providing information about the whereabouts of Mr. Huang, what vehicle he is using and potentially providing evidence that could amount to useful circumstantial evidence at trial.

[39] An analogy can be made to the jurisprudence regarding the naming of parties in authorizations to intercept private communications which is arguably more intrusive than a tracking device on a vehicle. The police do not need to have reasonable and probable grounds to believe that the party is involved in the commission of an offence for a party to be named in a wiretap authorization. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of the party’s communications may assist in the investigation of the offence. The “may assist” component of the naming test does not require that investigators determine in advance precisely how the “known” person’s communications may assist in the investigation. As Watt J.A stated in R. v. Mahal: “Investigative omniscience or clairvoyance is unnecessary.” (R. v. Mahal (2012) 2012 ONCA 673, O.J. NO.4672 (C.A.) at para.72).

[40] I do not agree that the possibility that tracking the vehicle will assist in the investigation was diminished by the police surveillance and tracking data from the first tracking warrant. The Hyundai Sonata was “in storage” for 40 days of the 60 day time period for the first tracking warrant. When it reappeared back at the residence of Mr. Huang and Ms. Tran at 175 Bamburgh, all the reasons for why it “will assist” in the investigation resumed.

[41] The applicant has not demonstrated that there is no basis upon which the tracking warrants could have issued.

Telewarrant to search the Hyundai Sonata

[42] The statutory requirements for issuing a telewarrant are set out below:

Controlled Drugs and Substances Act:

ss.11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

[43] S. 487.1 of the Criminal Code:

(4) An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

(b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure;

(c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and

(d) a statement as to any prior application for a warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

(5) A justice referred to in subsection (1) may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued under subsection 487(1) if the justice is satisfied that an information submitted by telephone or other means of telecommunication

(a) is in respect of an indictable offence and conforms to the requirements of subsection (4);

(b) discloses reasonable grounds for dispensing with an information presented personally and in writing; and

(c) discloses reasonable grounds in accordance with paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence.

The justice may require that the warrant be executed within the period that he or she may order.

[44] S.487(1) of the Criminal Code:

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1

[45] The applicant submits that he has standing to challenge the telewarrant for the Hyundai Sonata on the grounds that it was observed to be in his possession on February 12 and 14, 2019 and at the time it was seized it was parked in the driveway for his rented dwelling at 37 Mystic Avenue, Toronto. The applicant also invokes the Crown’s allegation that he had knowledge and control over the contents of the vehicle as alleged in Counts 3, 4, and 5 of the indictment.

[46] The applicant’s grounds for challenging the telewarrant for the Hyundai Sonata and the telewarrant for 37 Mystic Avenue are mostly the same because the ITOs are very similar. Where there are differences, they will be dealt with separately below.

Alleged failure of the affiant of the ITO to be full, frank and fair

[47] In support of the applicant’s submission that the ITOs require amplification and excision, he relies on 6 instances where it is submitted that the affiant of the ITO failed in the obligation to be full, frank and fair.

(1) The first instance relates to allegation that the affiant did not fairly relate the meeting between Mr. Huang and the unnamed Ottawa Police Service drug target (now believed to be the applicant) on November 2, 2018 which I do not agree with as I have stated above. Moreover, the affiant did not link the unnamed target of the Ottawa Drug Squad who met with Mr. Huang on November 2, 2018 to the activities of the applicant and Mr. Huang between February 10 and 15, 2019. Accordingly, if there was any defect in which this incident was related which I do not accept, it was immaterial as nothing about it was crucial to the survival of the warrant.

(2) The second and fourth instances are similar to one another. The applicant submits that the affiant should have included information that Mr. Huang and not the applicant opened and closed the storage facility door and the doors to the lockers, that the unknown male (the applicant) wandered out of the locker twice while Mr. Huang remained and that it was Mr. Huang who was observed taking the black suitcase from the locker when leaving. It is submitted that this is pertinent to whether the applicant had knowledge and control over the contents of the locker.

I agree with the applicant’s submission that the ITO should be amplified with these additional details but I do not agree that they affect the grounds when the ITO is considered as a whole.

(3) The third instance is the tracking data from the Hyundai Sonata which showed that it attended the storage locker on February 11, 2019. The applicant submits that the tracking warrant should not have issued and this unconstitutionally-obtained evidence should be excised. As set out above, I do not agree that this was unconstitutionally-obtained evidence.

(4) The fourth instance: dealt with in #2 above.

(5) The fifth instance is a mistake in paragraph 192 of the ITO acknowledged by the Crown which stated that the applicant visited the impugned lockers once on his own which it is submitted must be excised. I agree.

(6) The sixth instance submits that paragraph 192 of the ITO failed to disclose that contraband was found only in locker 3143, not in locker 3121, and fails to disclose that the contraband was hidden in compartments and not in plain view inside the locker and that the ITO needs to be amplified accordingly. I agree.

(7) Although I have accepted some of the applicant’s submissions about amplifications and redactions to the ITO, I do not agree that this amounts to misleading or careless wording or insufficient attention to constitutional standards. The error about the applicant attending at the lockers on his own (as opposed to always in the company of Mr. Huang) occurred in a detailed and lengthy ITO which set out particulars of a three month investigation. This included pictures from footage from a security camera at the storage facility which showed different individuals coming to the lockers. It was not suggested that this error was made in bad faith.

[48] Taking into account the excisions and amplications to the ITO which I have determined are appropriate as set out above, I shall now go on to consider the applicant’s further submissions regarding a lack of basis to issue the telewarrants.

Assertion of Reasonable Suspicion vs. Reasonable Belief in Grounds in ITO

[49] The applicant submits that the issuing justice could not find that the affiant held a reasonable belief in the grounds required under section 11 of the Controlled Drugs and Substances Act because the affiant only asserted reasonable suspicion and the affiant’s grounds did not constitute a reasonable belief in the requisite grounds.

[50] In the recent decision of the Ontario Court of Appeal in R. v. West, 2020 ONCA 474, the Court found that a search warrant which relied upon information obtained pursuant to an invalidly issued production order could not stand and excluded the evidence obtained thereby. The requirement for a production order to issue under s.487.014 of the Criminal Code are reasonable grounds to believe that (i) an offence has been committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. In West, the Court set out at para. 21 that in the affidavit to obtain the production order the affiant stated:

I believe that the information set out herein constitutes the grounds to suspect that Cogeco Cable subscriber(s) with the internet protocol (IP) addresses of …

The Court found that the standard was then misstated another four times throughout his affidavit and he never asserted that he had evidence to satisfy the reasonable grounds to believe standard for the issuance of the production order. It found that as per R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at pp. 250-251, the reasonable and probable grounds standard requires that the affiant have the subjective grounds and those grounds must, in addition, be justifiable from an objective point of view. The Court in West found that there is no other way to reasonably read the ITO than to conclude that there were reasonable grounds to suspect only.

[51] The facts in West are distinguishable from the facts present here. The incorrect standard of “grounds to suspect” is employed in paragraph 5 and 192 of Appendix “C” to the ITO for the telewarrants for the Hyundai Sonata and 37 Mystic Avenue. But unlike the finding in West, the affiant in this case did assert the correct standard many times in the ITO for both telewarrants. I find that there was a sufficient basis in the ITOs, read as a whole, to find that the affiant asserted the required subjective grounds to believe.

[52] I also do not agree with the applicant’s assertion that the ITO for the Hyundai Sonata lacks sufficient objective grounds to establish a reasonable belief in the grounds.

[53] In the case of the telewarrant for the Hyundai Sonata, the offence relied upon in Schedule “B” to the ITO as redacted for reasonable grounds of belief that an indictable offence has been committed is Mr. Huang’s possession for the purpose of trafficking on November 29, 2018.

[54] It is apparent that very few of the particular events related in the ITO, standing alone, are capable of constituting reasonable grounds to believe that any particular offence had occurred. Rather, this is a circumstantial case. The true significance of any particular event can only be properly assessed by considering it in the context of the entire circumstances of the investigation. Considering the plethora of evidence in the ITO, as amplified and excised, to support that Mr. Huang was engaging in drug trafficking, I find that the ITO has more than sufficient grounds to establish a reasonable belief in offending on November 29, 2018.

[55] The applicant goes on to argue, however, that this does not lead to a logical conclusion that Mr. Huang’s “secondary” vehicle will provide a source of evidence. He submits that there is a significant break in Mr. Huang’s possession and control in that the vehicle is not seen in his possession after February 11, 2019 when it travels from Mr. Huang’s residence to the applicant’s residence and is in the applicant’s possession for 2 days prior to the execution of the warrant. The applicant invokes the Crown’s allegation that he had knowledge and control over the contents of the vehicle as alleged in the Indictment.

[56] I accept that the applicant had a reasonable expectation of privacy against state intrusion in the Hyundai Sonata after it came into his possession and standing to challenge the telewarrant. However the significant break that the applicant asserts between Mr. Huang’s possession and control and his own is not supported by the facts.

[57] In these factual circumstances where the applicant was connected to Mr. Huang’s drug dealing enterprise within a few days prior to when the telewarrant was obtained, I find that Mr. Huang’s drug dealing activities and his connection to the vehicle are part of the factual matrix which are relevant in determining whether there were grounds for issuing the telewarrant. It should not be forgotten that it was Mr. Huang’s drug trafficking which was the criminal conduct relied upon in Appendix “B” to the Hyundai Sonata telewarrant.

[58] The applicant submits that overall, the ITO lacks sufficient information to rise to the level of reasonable and probable grounds to search the vehicle or of 37 Mystic Avenue. He relies on R. v. Truong, [2020]AJ No 616, 2020 ABQB 337 where a bag was put in a trunk and surveillance consistent with a dial-a dope transaction were found not to rise to reasonable and probable grounds to search the vehicle. In Truong, it was noted that nothing was known of the man who put the bag in the trunk and none of the observations involve the owner of the vehicle.

[59] The facts in Truong are distinguishable from the facts in this case. The evidence in the ITOs support that Mr. Huang was a drug dealer. He was the registered owner of the Hyundai Sonata. It had been observed at the residence of Mr. Huang and Ms. Tran and used by Ms. Tran during the period of the investigation. Mr. Huang attended to it being towed. From January 22, 2019 onwards the Hyundai Sonata was observed back at the residence of Mr. Huang and Ms. Tran.

[60] Mr. Huang attended at the storage facility locker 3143 twice on February 10th, 2019 and twice on February 11, 2019. The applicant was in locker 3143 with Mr. Huang once on February 10th, 2019 and twice on February 11, 2019. On the second attendance on February 11, 2019, the Hyundai Sonata was at the storage facility with Mr. Huang and the applicant. Mr. Huang took away a black suitcase from the locker. The reasonable inference from the evidence is Mr. Huang, the applicant and the suitcase returned together in the Hyundai Sonata to 175 Bamburgh Circle and that the applicant and the Hyundai Sonata then went on to 37 Mystic Avenue, the applicant’s temporary residence. The locker where Mr. Huang and the applicant attended on February 10th and February 11, 2019 was searched on February 14, 2019 and drugs, guns and ammunition were found.

[61] On February 12, 2019, the applicant was observed shoveling snow with the Hyundai Sonata in the driveway. On February 14, 2019, the applicant was observed driving the Hyundai Sonata to a mall, parking next to another vehicle, exiting the Hyundai Sonata, entering the other vehicle for one minute and departing.

[62] The applicant submits that with the ITO amplified and excised as set out above, there is insufficient information to rise to the level of reasonable grounds to believe. Specifically, the applicant relies on Mr. Huang and not the applicant having control of access to the storage facility and the lockers, that the applicant did not attend on his own at the lockers as was incorrectly stated in the ITO, that the applicant wandered in and out of the lockers, that the contraband was not in plain sight in locker 3143 when the police found it, that the observation of the applicant in the Hyundai Sonata at the mall on February 14, 2019 was innocuous and that the Hyundai Sonata was only observed at the storage facility on one occasion.

[63] While these facts may be relevant to the issue of knowledge at the trial itself that the trier of fact should consider, at this juncture, my job is to determine the sufficiency of the warrant.

[64] I do not agree that there is insufficient information to rise to the level of reasonable grounds to believe. It was the presence of the Hyundai Sonata at the storage facility with Mr. Huang and the applicant in the context of the drugs, guns and ammunition that were located in the locker shortly thereafter that was compelling, not the number of times the Hyundai Sonata was spotted there. When the applicant’s activities are considered in conjunction with the drug dealing activities of Mr. Huang, the applicant’s “significant break” argument is not persuasive. I find the combination of the following circumstances all of which are set out in the ITOs, to constitute reasonable and probable grounds to believe that an offence had been committed:

· It was Mr. Huang’s criminal conduct relied upon as grounds in the telewarrant for which there were reasonable grounds for belief that an offence had occurred.

· The Hyundai Sonata was owned by Mr. Huang and up to and including February 11, 2019, it was observed at his residence.

· The Hyundai Sonata was present at the storage facility on February 11, 2019 with Mr. Huang and the applicant who attended on that occasion at the locker where the contraband was found by the police just a few days later and the telewarrant to search the vehicle was issued.

· Mr. Huang and the applicant were together inside the storage lockers three times shortly before the contraband in the locker was located and the telewarrant was issued.

· On February 11, 2019, Mr. Huang in the presence of the applicant was seen removing a suitcase from the locker in which the contraband was found. The suitcase was taken by Mr. Huang. The Hyundai Sonata was then driven to Mr. Huang’s residence and then on to the applicant’s residence, the obvious inference being that Mr. Huang and the applicant left together in the Hyundai Sonata with the suitcase which had been removed from the locker and returned first to Mr. Huang’s residence and then the Hyundai Sonata was driven to the applicant’s residence.

Reasonable belief in evidence recovery in Hyundai Sonata

[65] A reasonable belief in offending does not lead inexorably to a reasonable belief in evidence recovery at the specified time and place. However, in considering whether there was a reasonable belief in evidence recovery in the Hyundai Sonata which was in the driveway at 37 Mystic Avenue when the telewarrant was obtained on February 15, 2019, it is necessary to consider the connection of the Hyundai Sonata to Mr. Huang and to the locker where the vehicle, Mr. Huang and the applicant all were in attendance shortly before the contraband was found and the telewarrant was issued.

[66] Had Schedule “B” in the ITO for the Hyundai Sonata included not only Mr. Huang’s drug trafficking of November 29, 2018, but the applicant’s drug trafficking between February 10 and February 14, 2019 which was the basis for an offence having been committed in Schedule “B” to the ITO for 37 Mystic Avenue, the reasonable belief in evidence recovery from the vehicle when the warrant was issued on February 15, 2019 would be obvious. However a reasonable belief in evidence recovery does not require reasonable grounds to believe that direct evidence of a specific target’s guilt will be found. The term “will afford evidence” is to be broadly construed. As this is a circumstantial case, the conduct of Mr. Huang and the applicant between February 10 and 15, 2019 set out in the grounds in Appendix “C”, provided reasonable grounds to believe that a search of the Hyundai Sonata for the items set out in Schedule “A” would afford evidence probative of the nature of Mr. Huang’s drug trafficking enterprise. This, in conjunction with the other evidence in the case, would enable a trier of fact to be in a better position than without it to interpret Mr. Huang’s activities on November 29, 2019. In my view, that is sufficient to satisfy the requirement for a reasonable belief in evidence recovery in the vehicle when the telewarrant was issued on February 15, 2019.

[67] The applicant submits that his rights were violated when the police went onto the private driveway of 37 Mystic Avenue to execute the telewarrant for the Hyundai Sonata. I agree with the Crown’s submissions that the vehicle was in plain view and that on the authority of R. v. Tricker, 1995 CanLII 1268 (ON CA), [1995] O.J. No. 12 (Ont CA), the law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property, until such time as the licence is withdrawn.

[68] The test to be applied by a court reviewing the validity of a search warrant is well known: does the ITO sworn in support of the warrant application contain at least some evidence that might reasonably be believed on the basis of which the warrant could have issued. (R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No.65 at para. 51). I have concluded that the applicant has not demonstrated that there was no basis upon which the Hyundai Sonata telewarrant could have issued.

Reasonable grounds for telewarrant for 37 Mystic Avenue

[69] People have a reasonable expectation of privacy in their residences. The jurisprudence indicates that this expectation is high. In R. v. Sutherland, (2000), 2000 CanLII 17034 (ON CA), 150 CCC (3d) 231 at para.15 (Ont CA), Justice Carthy held that “a search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected.” The jurisprudence also indicates that individuals have a reasonable expectation of privacy in rented dwellings, such as hotel rooms (see R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36 at paras.20-21 (SCC)) and AirBnB units. (see R. v. Manner, 2020 ABPC 104 at para.31).

[70] As noted above, the indictable offence relied upon in Schedule “B” for the telewarrant for 37 Mystic Avenue was possession of cocaine for the purpose of trafficking by the unknown male (the applicant) between February 10 to February 14, 2019.

[71] The applicant relies upon R. v. Herta 2018 ONCA 927 and R. v. Caluccio, 2019 ONSC 4559 in support of his submissions that the requisite reasonable grounds are lacking. In Herta, a confidential informant said that he saw the suspect with a firearm. Investigators believed that he possessed a firearm, that he carried it with him at all times and that the suspect approached the door of a residence. It was held that while there was case specific evidence to establish a reasonable belief in offending, there was nothing more than a bald assertion that people who possess weapons may take them from their vehicle into their home. The court held that there was insufficient case-specific evidence to establish a reasonable belief that evidence of the offence would be located in the residence.

[72] In Caluccio, investigators believed that the accused possessed a firearm, that he specifically possessed it in a particular vehicle and that he resided at a particular address. The court held that there was case-specific evidence to establish a reasonable belief in offending and a reasonable belief that evidence of the offence would be found in whatever vehicle in which he was driving. However, the court went on to hold that there was no case-specific evidence to establish a reasonable belief that evidence of the offence would be located in the residence.

[73] Similar to the facts in Caluccio, in this case there is case specific evidence about the involvement of the Hyundai Sonata in the drug trafficking enterprise but not that evidence of the offence would be located in the residence of 37 Mystic Avenue.

[74] The Crown concedes that there were insufficient grounds in the 37 Mystic Avenue ITO to establish a reasonable belief that evidence would be found related to drugs, drug paraphernalia, firearms and some of the documentary evidence (now redacted). There was no evidence that the applicant was trafficking drugs from his residence or that there were reasonable grounds to believe that there would be proceeds of crime present in the residence (one of the items which remained after the redactions to Appendix “A”). I find that the other items set out in Appendix “A” to the ITO for 37 Mystic Avenue are generic and that there is no reasonable basis provided in the ITO for believing that the prescribed items will be found in 37 Mystic Avenue. Accordingly, I have concluded that the telewarrant for 37 Mystic Avenue must be set aside.

Failure to file the returns of the executions of the warrant to a Justice in a timely matter

[75] As noted above, the Crown concedes on the authority of R. v. Garcia-Machado 2015 ONCA 569, [2015] O.J.No.4146 (C.A.) at paras.44-55 and 67 that the police delay of 3 weeks in filing the returns of the execution of the warrant to a justice resulted in a breach of the applicant’s s. 8 rights, albeit a “minor” and “technical” one.

[76] Subsection 487.1(9) of the Criminal Code provides for a 7 day time period for filing. Section 122.1 of the Controlled Drugs and Substances Act provides for filing “within 30 days” and subsection 489.1(1)(b) of the Criminal Code provides for an obligation to file a “report” with a justice “as soon as practicable” or “without delay.” A report was filed on April 7, 2019, 51 days after execution.

Analysis under Section 24 (2) of the Charter

[77] I will now consider whether the evidence should be excluded due to the breach of the applicant’s s. 8 Charter rights with respect to the search on 37 Mystic Avenue and with respect to the failure to file a report on the returns of execution of both telewarrants within the specified timelines. In the event that I am wrong in my analysis of the validity of the telewarrant on the Hyundai Sonata, I will also consider whether the evidence that was seized from the Hyundai Sonata should be excluded.

[78] It is well-settled under R. v. Grant, 2009 SCC 32 at para. 71, that under s.24 (2) of the Charter, in order to determine whether admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute, the application judge must (1) consider and assess three factors and (2) balance those factors in light of certain guiding principles. The three factors the application judge must consider and assess are:

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

(2) the impact of the violations on the Charter-protected interests of the applicant; and

(3) society’s interest in an adjudication of the allegations on the merits.

(1) Seriousness of the Charter-infringing state conduct

[79] First, the application judge must consider and assess the seriousness of the Charter- infringing state conduct. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held

71 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

74 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.

[80] The seriousness of the Charter-infringing state conduct is a function of several considerations, outlined below. Violations of any Charter right are considered to be more serious if they constitute major departures from Charter requirements. In R. v Harrison, Chief Justice McLachlin held that Charter violations involve “misconduct from which the court should be concerned to dissociate itself” where “the departure from Charter standards was major in degree.” (R. v. Harrison, 2009 SCC 34 at para.22).

[81] Violations of any Charter right are considered to be more serious where there are multiple, simultaneous or cumulative violations, especially where the violations display a systematic disregard for Charter-protected interests. Violations of section 8 of the Charter are considered more serious when peace officers applying for authorizations to search and seize fail in their obligation to be full, fair, and frank with the issuing justices. In R v. Morelli, 2010 SCC 8 at para.102, Justice Fish held that:

102 The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

[82] In R. v Rocha, 2012 ONCA 707 at para.43, Justice Rosenberg held that “the apparent good faith of the police in resorting to the warrant process is undermined by the misleading and careless wording of the ITO” and that even where there is “no impropriety or bad faith,” there may be “sufficient inattention to constitutional standards to tip the scales in favour of exclusion given the deleterious effect on the [applicant’s] privacy interests.”

Search of 37 Mystic Avenue

[83] I have found that there were no grounds to search 37 Mystic Avenue because there were no grounds to tie the applicant’s residence to the drug activities which formed the grounds to believe that an offence had been committed or to believe that there would be evidence located there. This was not a case of falling a little short of the mark. I would characterize this as a major departure from Charter standards. While the failure to file a report on a timely basis on the returns of execution on 37 Mystic Avenue is minor, when that breach is considered along with the lack of grounds for the search, I consider this factor supports the need for the court to dissociate itself from that conduct by excluding the evidence.

Search of Hyundai Sonata

[84] In the case of the failure to file a report on a timely basis, this is minor and would not favour excluding the evidence.

[85] If I am wrong in my conclusion that there were grounds for a reasonable belief to search the Hyundai Sonata, I consider that in the nature of a technical breach. There were clear grounds that an offence had occurred and that tied the vehicle to the illegal activities spelled out in the ITO. The seriousness of the breach, if there was a breach, was diminished by the facts set out in the ITO which form the basis for reasonable and probable grounds.

[86] Even with two violations, where both are minor, I consider this factor to favour including the evidence.

Impact on the Charter-protected interests of the accused

[87] Second, the application judge must consider and assess the impact of the violation on the Charter-protected interests of the applicant. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held:

76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter- protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.

[88] In R. v Harrison, supra, Chief Justice McLachlin, held:

28 This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry.

[89] Violations of any Charter right that result in the discovery of evidence that would not have otherwise been discovered tends to have a more serious impact. In R v Jacoy, 1988 CanLII 13 (SCC), [1988] 2 SCR 548 at para.18, Chief Justice Dickson held that the “seriousness of the violation” is determined in part by “whether the evidence could have been obtained without a Charter violation.” In R. v Collins, 1987 CanLII 84 (SCC), [1987]1 SCR 265 Justice Lamer held that:

38 … the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.

[90] In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held that:

112 Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter -infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s.24(2) inquiry.

[91] Violations of section 8 of the Charter vary in impact in accordance with the extent of the person’s privacy interest. In R. v Morelli, 2010 SCC 8 at para.104, Justice Fish held that “[t]he intrusiveness of the search is of particular importance” with respect to the impact of Charter violations and that a “search of the appellant's home, [is] in itself a serious breach of the appellant's rights under s. 8 of the Charter.” In R. v Herdsman, 2012 ONCJ 739 at para. 77, Justice Green held that “[a] person's home is one of the most assiduously protected zones of privacy” and that “[t]he impact” of an unlawful search of a person’s residence “on the applicant’s Charter-protected interests … [therefore] weighs against admission of the seizures.” In R. v Luckman-Kelly, 2013 ONSC 4460 at para.97, Justice Dunnett held that “[a] dwelling-house attracts a higher expectation of privacy and the illegal search of a house is more serious than the search of a business or vehicle.” In R. v Strachan, [2014] OJ No. 2611 at para.115, Justice Pringle held that “[t]he impact on Charter protected interests is obvious where the illegal state conduct involves entry into a person’s home.”

Search of 37 Mystic Avenue

[92] No authority was offered by the Crown for the assertion that the applicant’s reasonable expectation in privacy in 37 Mystic as a temporary Airbnb was attenuated. The impact of an unlawful search of the applicant’s residence, temporary or otherwise, weighs against admission of the seizures.

Search of Hyundai Sonata

[93] The reasonable expectation of privacy in a vehicle is much less than in comparison to that expected of a home and it is further reduced when the car belongs to another. (R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.J. No.81 at paras. 3 and 38-41). Even if it is determined that the affiant did not adequately assert his subjective belief in the reasonable grounds for belief in the ITO, there were reasonable and probable grounds to search the vehicle set out in the ITO which mitigates the effect on the applicant. The failure to make a timely report on the execution of the warrant had no effect on the applicant. Accordingly this factor weighs in favour of admission of the seizures.

Society’s interest in an adjudication on the merits

[94] Third, the application judge must consider and assess society’s interest in an adjudication of the allegation on its merits at trial. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held:

79 Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s.24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[95] Society’s interest in an adjudication of the allegation on its merits at trial is a function of several considerations. The application judge must consider whether the relative seriousness of the alleged offences makes the potential exclusion more or less desirable. However, the seriousness of the offence for which the defendant is charged does not justify the admission of evidence obtained in a manner that seriously violated a right and would impact the fairness of the trial. In R. v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at paras.20 and 39, Justice Lamer held that “if the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible” and that “[i]f any relevance is to be given to the seriousness of the offence in the context of the fairness of the trial, it operate in the opposite sense: the more serious the offence, the more damaging to the system's repute would be an unfair trial.”

[96] In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held:

84 … In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s.24(2) judge to the longer-term repute of the administration of justice. Moreover, 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.

[97] In R. v Harrison, supra, at paras.34-35, Chief Justice McLachlin clarified that “[w]hile the charged offence is serious, this factor must not take on disproportionate significance” and that “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.” In other words, the seriousness of the alleged offence may favour admission or favour exclusion, depending on the circumstances of the case.

[98] The application judge must consider how important the impugned evidence is to the prosecution of those allegations. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held:

83 The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. … [W]e view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[99] If the impugned evidence is not central to the prosecution’s case, then exclusion of that evidence would not impact the repute of the administration of justice. If the impugned evidence is central to the prosecution’s case, then the impact of exclusion on the repute of the administration of justice is a function of the reliability of the evidence – excluding central but unreliable evidence is desirable while excluding central and reliable evidence is undesirable.

[100] The application judge must consider whether the truth-seeking function of the trial would be impaired or enhanced by the exclusion of the impugned evidence. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held:

80 The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272 ) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

81 This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable 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.

[101] If the impugned evidence is reliable, then exclusion would impair truth-seeking. If the impugned evidence is unreliable, then exclusion would serve truth-seeking.

Search of 37 Mystic Avenue

[102] Although reliable, excluding evidence from 37 Mystic Avenue is not central to the prosecution’s case. Exclusion of that evidence would not impact the repute of the administration of justice and accordingly, this factor favours exclusion.

Search of the Hyundai Sonata vehicle

[103] Society has an interest in an adjudication on the merits. The evidence is highly reliable. Excluding the impugned evidence from the search of the vehicle where the drugs, gun and ammunition were found would be fatal to some of the counts and substantially weaken the prosecution against the applicant for the remaining counts. This factor tends to favour inclusion.

Balancing the three factors

[104] Having considered and assessed the three factors, the application judge must balance them to determine whether the exclusion of the impugned evidence would bring the administration of justice into disrepute. In R. v Grant, supra, at para.86, Chief Justice McLachlin and Justice Charron held:

85 To review, the three lines of inquiry identified above -- the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits -- reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

Guiding principles on balancing

[105] There is no prescribed formula for how to balance the three factors. In R. v Grant, supra, at para.85, Chief Justice McLachlin and Justice Charron held:

In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.

[106] In R. v Harrison, Chief Justice McLachlin further elaborated:

36 The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth- seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

39 … To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant's rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it.

[107] The jurisprudence has suggested several principles for guiding the application of the judge’s balancing of the three factors.

[108] The jurisprudence suggests that a serious Charter violation that seriously impacts the corresponding Charter-protected interests warrants exclusion, notwithstanding society’s interest in an adjudication of grave allegations on their merits. In R. v Paterson, 2017 SCC 15, Justice Brown held:

55 … As the Court observed in Grant 2009 (at para. 84), “seriousness of the alleged offence . . . has the potential to cut both ways. [W]hile 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.” The public interest in maintaining a justice system “above reproach” has helpfully been explained by Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365, at para. 73:

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 [Citations omitted.]

56 It is therefore important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant’s Charter right. In this case, I find that the importance of ensuring that such conduct is not condoned by the court favours exclusion. As Doherty J.A. also said in McGuffie, at para. 83, “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence This unpalatable result is the direct product of the manner in which the police chose to conduct themselves.”

[109] In other words, where the first and second factors favour exclusion, the third factor will not typically outweigh them on account of the seriousness of the allegations.

Application to different kinds of evidence

[110] In R. v Grant, supra, at para.86, Chief Justice McLachlin and Justice Charron “[took] comfort in the fact that patterns emerge with respect to particular types of evidence” and offered that “[t]hese patterns serve as guides to judges faced with s.24(2) applications in future cases,” such that “a measure of certainty is achieved.”

[111] There is no general rule in favour of admitting or excluding non-bodily evidence obtained in violation of a Charter-protected right. In R. v Grant, supra, Chief Justice McLachlin and Justice Charron held that:

113 … under the first inquiry, the seriousness of the Charter-infringing conduct will be a fact-specific determination. The degree to which this inquiry militates in favour of excluding the [non-]bodily evidence will depend on the extent to which the conduct can be characterized as deliberate or egregious.

114 With respect to the second inquiry, the Charter breach most often associated with non-bodily physical evidence is the s. 8 protection against unreasonable search and seizure: see, e.g., Buhay. Privacy is the principal interest involved in such cases. The jurisprudence offers guidance in evaluating the extent to which the accused's reasonable expectation of privacy was infringed. For example, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile. An illegal search of a house will therefore be seen as more serious at this stage of the analysis.

115 Other interests, such as human dignity, may also be affected by search and seizure of such evidence. The question is how seriously the Charter breach impacted on these interests. For instance, an unjustified strip search or body cavity search is demeaning to the suspect's human dignity and will be viewed as extremely serious on that account: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 516-17, per Dickson C.J.; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. The fact that the evidence thereby obtained is not itself a bodily sample cannot be seen to diminish the seriousness of the intrusion.

116 The third inquiry, whether the admission of the evidence would serve society's interest in having a case adjudicated on its merits, like the others, engages the facts of the particular case. Reliability issues with physical evidence will not generally be related to the Charter breach. Therefore, this consideration tends to weigh in favour of admission.

[112] In other words, since non-bodily evidence is typically reliable, the result normally depends on the strength of the first two factors. Where the Charter-infringing conduct is serious and the impact on the Charter-protected interests is high, the impugned evidence should be excluded notwithstanding its reliability. Where the Charter-infringing conduct is not serious and the impact on the Charter-protected interests is low, the impugned evidence should be admitted because of its reliability.

Search of 37 Mystic Avenue

[113] In accordance with the jurisprudential principles set out above, based on the seriousness of the first and second Grant factors, the evidence obtained on the search of 37 Mystic Avenue shall be excluded.

Search of Hyundai Sonata

[114] The three Grant factors favour inclusion of the evidence. The applicant’s privacy interest in a borrowed vehicle was low. There was no issue of human dignity. The breach was technical and minor. Accordingly, all police observations and property seized from the Hyundai Sonata shall be included in evidence.

Backhouse J.

Released:March19,2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

NICHOLAS ORTEGA

Applicant

REASONS FOR JUDGMENT

Backhouse J.

Released: March 19, 2021

R. v. Ortega, 2021 ONSC 1965

Case Summary

Overview

Facts

December 12, 2018 Tracking Warrant

February 7, 2019 Renewal of Tracking Warrant

February 15, 2019 Telewarrant for Hyundai Sonata

February 15, 2019 Telewarrant for 37 Mystic Avenue, Toronto

Balancing the three factors

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 6