Court File and Parties

COURT FILE NO.: CR-10-0024-000/CR-12-0024-000 DATE: 2022-03-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Breton

HEARD: March 17, 2022 by Zoom

BEFORE: F.B. Fitzpatrick J.

COUNSEL: Mr. M. Jones, for the Crown Mr. M. Johnston and Mr. J. Coulter, for Mr. Breton

Endorsement on Application to exclude evidence pursuant to s. 24(2)

[1] On March 18, 2022 I gave an oral decision granting a defence application with reasons to follow. Here are those reasons.

[2] In the decision R. v. Breton, 2021 ONSC 7312 (the “Decision”) I rendered an interim decision on a defence application to exclude certain Crown evidence. The matter proceeded for seven days in September 2021 as a blended voir dire in respect of a trial of 21 separate charges laid against Mr. Breton. In the Decision, I set out the background of the matter and summarized the evidence I had heard on the trial to that point. I made findings of fact in the Decision. I made findings that Mr. Breton’s rights under section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated by the manner in which a search of his home was conducted by police on December 1 and 2, 2009. I found the police were entitled by warrant to search Mr. Breton, and his residence and the curtilage of his residence located on a large rural property on the outskirts of Thunder Bay to attempt to locate an illegal .22 caliber handgun. However, I found that police had conducted a warrantless search of outbuildings located in the proximity of Mr. Breton’s residence. I also found a second warrant obtained by police on December 2, 2009, was not lawfully obtained.

[3] Subsequent to the release of the Decision, I entertained a Crown Step 6 application. I dismissed the application with written reasons on March 15, 2022.

[4] I rely on my recitation of the evidence, my findings of fact and my findings of breaches of Mr. Breton’s Charter rights set out in the Decision, to consider this aspect of the application to exclude or admit evidence under section 24(2) of the Charter. Further in these reasons, the warrant obtained by police on December 1, 2009, will be referred to as Warrant 1. The warrant obtained by police on December 2, 2009, will be referred to as Warrant 2.

[5] The issues to be decided at this point in the proceedings are as follows:

1. Whether property seized pursuant to Warrant 1 and Warrant 2 is excluded, in whole or in part, from the trial pursuant to section 24(2) of the Charter?
2. Whether the property seized pursuant to the Special Search Warrant obtained in March 2010 is excluded, in whole or in part, pursuant to section 24(2) of the Charter?
3. Whether the derivative evidence gathered in the investigation arising from Charter breaches is excluded, in whole or in part, from the trial.

The Law

[6] Mr. Breton bears the burden of establishing on a balance of probabilities that the admission of the evidence I have found to have been unconstitutionally or unlawfully obtained would bring the administration of justice into disrepute. Counsel agree the leading authority on the issue of the test for the admission of unconstitutionally obtained evidence is the decision of the Supreme Court of Canada in R v. Grant, 2009 SCC 32 (Grant). Grant directs the court to consider the seriousness of the state conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the determination of the case on its merits. These three factors must all be assessed independently and then weighed together. The result of the balancing exercise allows the court to determine whether the reputation of the administration of justice demands that the impugned evidence be admitted or excluded.

[7] Section 24 of the Charter states:

Enforcement of guaranteed rights and freedoms

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Seriousness of the Charter-Infringing State Conduct

[8] At paragraph 72 of Grant the Supreme Court emphasized the degree to which courts must “dissociate themselves from fruits of unlawful conduct”. This important first stage of the analysis was most recently reaffirmed by the Ontario Court of Appeal in the decision R. v. St. Clair, 2021 ONCA 895 at para. 40 saying “The more severe or deliberate the state conduct… the greater the need to dissociate … by excluding the evidence”.

[9] Whether the agents of the state acted in good faith is often considered under this first line of inquiry. It is important to recall that “an absence of bad faith does not necessarily equate to a finding of good faith.” In R. v. Le, 2019 SCC 34 the Supreme Court noted at paragraph 147, “for state misconduct to be excused as a ‘good faith’ (and, therefore, minor) infringement of Charter rights, the state must show that police “conducted themselves in [a] manner … consistent with what they subjectively, reasonably, and non-negligently believe[d] to be the law’.”

[10] A continuum of misconduct is considered under this first branch of the test. In R. v. Harrison, 2009 SCC 34, [2009] SCJ No. 34 the Supreme Court at paragraph 22 indicated that major departures from Charter standards such as when the police knew or ought to have known that their conduct was non-Charter compliant will lead to dissociation. This is to be contrasted with circumstances where the breach was merely technical in nature or as the result of an understandable mistake which is cause for less concern.

Impact on the Charter-Protected Interest of the Accused

[11] Under this second branch of the Grant test, the court evaluates “the extent to which the breach actually undermined the interests protected by the right infringed.” At paragraph 76 of Grant the Supreme Court stated that impacts can range “from fleeting and technical to profoundly intrusive.” If the impact on the accused’s protected interest falls on the more serious end of the spectrum, there is a 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.”

[12] Specific to section 8 breaches, at paragraph 78 the Supreme Court in Grant indicated that an unreasonable search “may impact on the protected interests of privacy, and more broadly, human dignity.” The higher the expectation of privacy in the area unreasonably searched, the greater the impact of the Charter-infringing state conduct.

Society’s Interest in an Adjudication on the Merits

[13] In Grant at paragraph 76, the third branch of the test “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” The judge must 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.”

[14] The reliability of the evidence is significant, but not determinative at this stage. The Charter affirms that even reliable evidence can be inadmissible, depending on how it was obtained. In the case at bar, the impugned evidence is physical evidence. In such a case dealing with physical evidence, the Charter breach does not always damage the reliability of the evidence. At paragraph 81 of Grant the Supreme Court stated that the “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair” damaging the reputation of the administration of justice. The inquiry can be reduced to a question posed by Doherty J.A. in R. v. Kitaitchik, (2002), 166 C.C.C. (3d) 14 (ONCA) at para. 47: “whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial?”

[15] Like the reliability of the evidence, the centrality of the evidence in the Crown’s case is also relevant at this stage of the inquiry. Where evidence of “questionable reliability” comprises “the entirety of the case against the accused” it is more likely to bring the administration of justice into disrepute if it is admitted. However, in Grant at paragraph 83 the Supreme Court stated “the exclusion of highly reliable evidence” may impact the repute of the administration of justice negatively, “where the remedy effectively guts the prosecution.”

[16] The seriousness of the offence can be considered under this leg of the Grant test. Section 24(2) is focused on the “long-term repute of the justice system”. The purpose of section 24(2) applies whether the accused is charged with a serious crime or not. In an early Charter decision of the Supreme Court in R. v. Collins, [1987] 1 S.C.R. 265 at para. 50 Lamer J. said: “if the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible.” The public is interested in cases being determined on their merits where the accused faces a serious charge, but in Grant at paragraph 84 the Supreme Court stated that “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.”

Balancing The Factors

[17] Recently Moldaver J. of the Supreme Court of Canada in R v. Reilly, 2021 SCC 38 at paragraph 2 emphasized that the balancing of all three aspect of the Grant test must first occur after considering “all the circumstances” – the three inquiries under the Grant test – “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.”

Non-Bodily Physical Evidence

[18] The Supreme Court in Grant identified common categories of evidence obtained subsequent to a Charter breach and laid out questions that would pertain to assessing that category of evidence using the Grant test.

[19] In respect of non-bodily physical evidence, the outcome of the first leg of the test “will depend on the extent to which the conduct can be characterized as deliberate of egregious.”

[20] The second leg of the test will deal most frequently with breaches of individuals’ protection against unreasonable search and seizure. Privacy is the “principal interest” protected by section 8 of the Charter. Keeping in mind the accused’s reasonable expectation of privacy in the area in question, the court evaluates the extent to which that expectation of privacy was, in fact, infringed. The quintessential example provided by the Supreme Court in Grant is “a dwelling house attracts a higher expectation of privacy that a place of business or an automobile.”

[21] Frequently, depending on the manner of the impugned search, other interests like human dignity are also affected by the search and seizure of evidence. Once the court identifies the interests of the accused affected by the search and seizure, the question is how seriously the Charter breach impacted on these interests.

[22] The third inquiry tends to weigh in favour of admission for two reasons: i) non-bodily physical evidence tends to be fairly reliable, and ii) “[r]eliability issues with physical evidence will not generally be related to the Charter breach.”

Position of the Parties

[23] The defence submits all prospective evidence to be presented at the trial for this matter is the direct result of, or derived from, egregious breaches of the Charter. The police action described in the Decision demonstrate a willful disregard for Mr. Breton’s rights to privacy in a private residence, outbuildings, and land. The proposed evidence was otherwise not discoverable. The numerous and interrelated breaches demonstrate a pattern of willful disregard for the Charter rights meant to protect against unwarranted state intrusion. The Court must distance itself from such behaviour by excluding evidence gathered from Warrant 1 and Warrant 2 to safeguard against the long-term disrepute of the administration of justice.

[24] The Crown argues that the Charter breaches were not egregious. At best, the manner of search of Mr. Breton’s residence, authorized by warrant involved errors in judgment that were understandable in context. At all times, including the times the police were searching the outbuildings, they were acting in good faith. The search was for a handgun. It was not a search in the nature of a “Trojan Horse” as so found in the Decision. Handguns are genuinely dangerous items. They are often involved in the drug trade. There was reference to Mr. Breton possessing cocaine in the Information to Obtain Warrant 1. While illegal drugs or proceeds of crime where not specified items in the scope of the search provided for in Warrant 1, the police lawfully seized same relying both on the plain view doctrine and section 489 of the Criminal Code (the “Code”). If the police “crossed the line” they did not cross it very far. The impact on Mr. Breton of the search of the outbuilding was minimal. Despite the Decision declaring that Warrant 2 was obtained illegally, but for Sgt. Gagne circumventing the usual process for obtaining warrants, it otherwise could have been granted. At the time the police were acting in good faith under Warrant 2.

[25] As the exclusion of all real evidence would gut the Crown’s case, this result would not be viewed favourably by the public and would bring the administration of justice into disrepute.

Decision

[26] In order to determine the three issues on this phase of the application I undertake an analysis of the evidence using the framework identified by Grant.

First Branch of the Grant Test

[27] In the Decision, at paragraph 94, I identified the actions of the police during the initial interaction with Mr, Breton on December 1, 2009, as constituting “oppressive conduct” and being “patently unreasonable”. I do not agree with the Crown’s submission that the actions of the police in taking Mr. Breton’s money from him as soon as he was arrested constituted a simple error in judgment. I agree with the defence position that it was “a tell” to the true intentions of the police. The police thought Mr. Breton was a drug dealer and the cash he had in his pants pocket affirmed that belief for them. The police responded to that preconception by immediately taking Mr. Breton’s money from him. In the Decision, I found that the money in Mr. Breton’s pocket was benign at that moment of the police search. I thought the timing was significant. I saw the act was one of excessive control not of careful, necessary police work. In my view it was a Charter breach that represented serious infringing state conduct.

[28] I asked the question during submissions of both counsel as to why the police would not have included drugs and proceeds of crime in the warrant request for Warrant 1. The Crown answered that it was not necessary. The police were leading with their strongest suit. In this case it was confidential informer information related to Mr. Breton possessing an illegal handgun. In my view, the evidence I heard at this trial leads to a contrary conclusion. The police did not ask the Issuing Justice for a drugs and proceeds of crime warrant because they did not have reasonable and probable grounds to do so. In my view, this supports the “Trojan Horse” theory advocated by the defence. The only possibly helpful information the police had from their confidential informants was from C2, whom Sgt. Gagne could not confirm was reliable. The information from C1 about drugs was equivocal, vague and limited. I think it is incumbent on police in the course of the ex parte process of obtaining warrants to be completely fair and frank. The powers to seize illegal items given to police by section 489 of the Code is not an amplifier to bypass the process of judicial oversight.

[29] In this case, the evidence indicates the police were after more than a handgun when they went into Mr. Breton’s house. I agree police have an obligation to use all the tools available to them and be creative when investigating allegations of serious crime. However, here, police were searching a house and they need prior judicial authorization to do so. This was a place where Mr. Breton had the highest expectation of privacy. He had the right to carry money around in his pants pocket. Taking his money away from him as soon as he was arrested was a serious act to do to a person in their house. In the Decision, I used the metaphor of taking the clothes from his back for a reason. The manner of the search involved serious deliberate acts by the police. Whether those initial acts made the police safer it certainly did not or advance their search for a handgun. It did however give them the apparent basis to ask Mr. Breton about drugs in his garage. This led to another exchange which was not subject of evidence on the hearing.

[30] This is because the parties have agreed there was a section 10(b) Charter violation during the action of putting Mr. Breton under arrest. The remedy was that the evidence would not be relied upon by the Crown at this trial. It was excluded. Nonetheless as narrative, I became aware of this circumstance during a previous application to exclude evidence initiated by former counsel of Mr. Breton. I agree it assists the defence in its submission that the true intent of Warrant 1 was to search for drugs. I assess the Crown’s argument on the seriousness of the manner of arrest of Mr. Breton as being “circular”; it proposes to excuse or treat as minor the fact that items the police were not prepared to ask for during the initial judicial oversight process could be then immediately seized and then the investigation turned in a completely different direction by a “lucky find” during an initial interaction with a person in their house.

[31] Reluctantly I have found that the police were being, at worst, disingenuous and, at best, sloppy when going before the issuing Justice to obtain Warrant 1. This is conduct which is further along the serious misconduct continuum. If the police have authorization to look for a particular thing, that should be the focus of the search. They have incidental powers to seize illegal items. However, in this case I find this was their intent before they set foot on Mr. Breton’s property. This has an aspect of improper conduct from which this court should dissociate.

[32] In my view it was serious state misconduct.

[33] I also see the warrantless search of the garage as serious state misconduct. I appreciate the Crown’s submission that on December 1, 2009, the officers thought they were acting pursuant to Warrant 1 when they searched the outbuildings. I agree the officers were not willfully or negligently breaching the Charter when they were inside the garage. Yet I found in the Decision that the affiant “made up” something about the outbuildings in the ITO. The opinions he expressed about the outbuilding were not connected in any way to the information I saw in the ITO which could logically place the handgun in the outbuildings. C2 had information that Mr. Breton might store cocaine in underground compartments possibly in the garage. In my view, this was the highest level of information provided to the issuing Justice about allowing the police to go into the outbuildings. It was in respect of drugs, not a handgun.

[34] I have found that information was not sufficient to support a warrant for the outbuildings. If state actors had no lawful basis or reasonable and probable grounds to be in a place, distinct and separate from where they were lawfully allowed to be, then they simply should not have been there. I indicated in the Decision my view that the rural nature of the property had a material impact on the focus of the material placed before the issuing Justice. I saw a distinct difference between the outbuildings and the residence. The outbuildings were not incidental to the residence. They were a stand-alone “fortress” using the metaphor favoured by the defence arising from the ancient but still applicable findings of the English court in Semanyne’s Case. The material in the ITO was not clear on care and control of the outbuildings. The buildings could not be seen from the road, on a drive by. On the material I had in respect of Warrant 1, there was the possibility of ownership by another person. I think the police bootstrapped information about title from documents they should not have been looking at in the first place in attempting to obtain Warrant 2. However, I found that Warrant 2 was not lawfully issued. There was a high reasonable expectation of privacy for the outbuildings. The police did not have a lawful basis to search it. Searching a place where there is a high expectation of privacy, and which needed keys or a combination to enter without prior judicial authorization are actions that cannot be ignored when assessing state misconduct.

[35] I also am of the view that the actions around Warrant 2 are evidence of overreach and improper actions by the police in the execution of the search. In the Decision, I noted there was no logical basis to seek or be given authority for seizure of documents relating to a handgun when the police had information Mr. Breton had no legal basis to possess a handgun. Therefore, I see it as misconduct for the police to have been looking around for papers and documents inside Mr. Breton’s house absent any other indication that these might have some connection to criminal activity. Because of the flagrant disregard of the usual process to obtain a warrant, I found in the Decision the police did not have a lawful basis to seize any documents or things they did pursuant to Warrant 2. As noted above I also found there was no basis for Warrant 1 to include any documents. I agree with the position of the defence that simply because they police thought they could grab documents in Mr. Breton’s house as their focus changed based on what they were finding does not automatically excuse their actions when a later finding determines they had no lawful authority to be seizing those documents. I appreciate the Crown argument that police searching a house for a non-drug related item and finding debt lists and scales could form a reasonable conclusion that these were items related to drug trafficking. However, a review of the documents the police sought to seize under Warrant 2 is instructive.

[36] The list is as follows:

• Hydro one bills – “Serge Gallant”
• Receipt for Polaris Snowmobile
• Registration for “01 Red Polaris”
• TD Canada Trust Receipts
• RBC deposit receipts x15
• Receipt for “Shell” for tank fill 30 Sept 09 “Kevin Gerrard”
• Change of address First Notice – “Canada Post”
• Property Tax Receipts “Kevin Gerrard”
• Receipt for 2009 Polaris Dragon “Raymond Gardner”
• Vehicle purchase agreement 08 GMC Sierra “Terry Hascher”
• Touch System Computer Tower S/N v4018313
• Toshiba Laptop S/N 88493837Q
• “Purtek” Memory Stick PT25001
• Canada Post Receipts for Hydro One “Serge Gallant”
• Documents relating to residence ownership of “Irene Breton”
• Record of Employment “Marcel Breton”
• Receipt relating to vehicle “81 camaro”
• Various records relating to “9082 Mapleward Road and 7500 Mapleward Road” multiple years
• Property tax records relating to “9082 Mapleward Road and 750 Mapleward Road”
• School tax records relating to “9082 Mapleward Road”
• Financial records pertaining to “Joseph Timmermans”
• Personal documents relating to “Marcel Breton”

[37] The personal documents related to Mr. Breton description is vague but indicative of what I see as a cavalier approach to the manner of search. What were the documents? The description of them being personal suggests that a high degree of privacy would attach to them. Yet there is no connection of any of these documents to a handgun at that stage in the investigation. The focus of the investigation had changed by about 3:30 in the afternoon on December 1, 2009 because of the big item found in the garage at that time. However, this was a place I have found the police had no lawful place to be.

[38] Also, electronic devices were seized pursuant to Warrant 2. I heard no evidence about what was found in those devices. I do not know if they were searched. Again, computers are not obviously relevant if searching for a handgun. They might be for drugs or proceed of crime. Nevertheless, even in December 2009 there was a recognition that computers were places where intimate and personal life details were stored and could be easily revealed. Three months after the search at issue, In March 2010 in R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 at paragraph 195, Fish J. wrote:

[I]t is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

[39] Police seized two computers and other business-type records over which there is a high expectation of privacy.

[40] I also think Mr. Breton did have an interest in the process leading to Warrant 2. It was a court process seeking to give police the right to seize his property from his residence. The proper process was avoided by police in the obtaining of Warrant 2. It is difficult to treat this as a mere error in judgment. The defence did not expressly reference a Charter breach in regard to this action. There was no express claim of a breach under section 7 of the Charter and the connection to principles of fundamental justice contained in the current notice of application before the Court. The argument on this point was not fully developed by either party. However, it is an aspect of the conduct of the state actors that impacts my assessment under the first branch of the test.

[41] The Crown also seized nine motorized items pursuant to a Special Search Warrant. The parties referred to this as Warrant 3. It was issued on March 9, 2010. The items were seized on March 11, 2010. I did not hear any evidence during the trial concerning the actual execution of the warrant or the process the affiant used to obtain the warrant. The Crown conceded that given the excisions in Warrant 1 and the quashing of Warrant 2, the corresponding excisions in the ITO for Warrant 3 would not have allowed it to issue. For the purposes of this hearing all the items seized under Warrant 3 were seized on a warrantless basis. All these nine items, including a vintage car and a Bobcat have remained in the possession of the Crown since 2010. In view of the lack of evidence it is difficult to say how this conduct is to be assessed on the continuum. I think a warrantless seizure of a significant number of motorized vehicles is not a good thing.

[42] I see all of these breaches noted above as constituting a kind of snowball rolling down a hill. It was not a happy snowball. It was not a state of affairs the state should be proud of. I note I do not think the “snowball” started small. It was big and it got bigger as things progressed. The Crown has an answer for all of the breaches assessed individually. I was not persuaded by those arguments that the breaches were not serious either individually or collectively. The breaches are connected in assessing the seriousness of state conduct. I do not accept that the breaches become permissible just because they happened and at the time the police thought they had the right to do what they did.

[43] In my view, the analysis on the first branch of the Grant test would tend toward exclusion of all of the evidence obtained by the police starting at 9:00 a.m. on December 1, 2009.

Second Branch of the Grant Test

[44] I agree with the defence submission that in this matter the focus on this aspect of the Grant test concerns the impact on Mr. Breton’s reasonable expectation of privacy. I find the entirety of the search actions of the police on December 1 and 2, 2009 had a high impact on Mr. Breton.

[45] First, the manner of search at first instance was personally demeaning. I saw the taking of his money from his person in his house in the first minutes of the interaction with police as unnecessarily oppressive at that particular moment of the search. It did not need to happen. It did not happen because the police thought it was connected to a handgun. It happened because the police were looking for other things. I have noted that this preconception was not proper conduct. I see the manner of search as having a significant impact on Mr. Breton.

[46] Second, the warrantless search of the outbuildings was of a place where Mr. Breton had a high expectation of privacy. In submissions it was reiterated that the outbuildings were locked. This has meaning. It meant somebody who had control did not want anybody else to go in there without keys or a combination. I appreciate the police thought they had the right to go in there. But they did not. Accordingly, I see the search of the outbuildings as having a negative impact on Mr. Breton.

[47] Third, the degree to which the police looked in places they clearly should not have, while on the property, like in Mr. Breton’s mailbox, an aspirin bottle in the kitchen and on the windows of cars sitting outside the house also indicates to me a negative impact. The searches of these places had no connection to a handgun. It was overreach by police. This is impactful.

[48] In my view the analysis on the second branch would tend toward exclusion of all of the evidence obtained by the police starting at 9:00 a.m. on December 1, 2009.

The third branch of the Grant test

[49] The evidence sought to be excluded is reliable, physical evidence. It is critical to the Crown’s case. Mr. Breton is charged with very serious offences. The defence concedes that society’s interest in adjudication on the merits militates in favour of inclusion of this evidence.

[50] In my view the analysis on the third branch would tend toward inclusion of all of the evidence obtained by the police starting at 9:00 a.m. on December 1, 2009.

Discoverability

[51] The defence submits none of the evidence was discoverable but for the Charter-infringing conduct. All of the evidence placed before the court thus far (except for the three vehicles parked outside the residence and a letter found in a mailbox) where contained in buildings. They could not be seen from outside the buildings. Also the evidence indicates the outbuildings could not be seen from a drive by of the property. In my view, the majority of the evidence seized was not otherwise discoverable.

Balancing of the Grant Factors

[52] As noted previously in R. v. Reilly, 2021 SCC 38 Moldaver J. at para. 2 stressed that the balancing of the factors occurs at the end of the assessment of all three factors. In R v. McGuffie, 2016 ONCA 365 Doherty J.A. in discussing the third branch of the Grant test stated at paras. 62-63;

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

In principle terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward exclusion of the evidence: see e.g. Harrison, at paras. 35-42. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favor of admissibility [citations omitted]. Similarly, if both of the first two inquiries provide weaker support for the exclusion of evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[53] In my view in this case, the first and second inquiry pulls strongly toward the exclusion of the evidence. The pull of the third inquiry is strong towards inclusion as the nature of the evidence is reliable and critical to the Crown’s case. Balancing all three leads me to conclude that the administration of justice would be brought into disrepute by the admission of all the evidence obtained by police after 9:00 a.m. on December 1, 2009.

[54] The most serious evidence against Mr. Breton was located in the outbuildings, a place where the police had no right to be. I see the process leading to obtaining permission to go on to Mr. Breton’s property as being less than completely fair and forthright. The true aim of the search was not clearly and fully identified to the Issuing Justice. I do not accept the argument that the incidental powers of section 489 of the Code or the common law plain view doctrine can otherwise permit the seizure and inclusion of evidence at trial that would not have been discovered or obtained but for serious Charter breaches. I see it as a serious breach of section 8 for the police to be relying on evidence obtained from a distinct place where the police had no lawful place to be.

[55] The manner of the personal search of Mr. Breton was unacceptable in ways described previously. It was conduct from which the court should dissociate.

[56] There was no reasonable excuse offered for the manner in which Warrant 2 was obtained. Cutting a corner like that cannot go without consequence. Our system is rules-based. Sometimes exigent circumstances dictate alternative means to an end. Those were not present in this case.

[57] Overall, I am of the view that the police did significantly cross several lines in the search of Mr. Breton’s person and residence. These breaches cannot be excused. On the first branch of the Grant test, this serious state misconducts tends toward exclusion of the evidence.

[58] I see the breaches of Mr. Breton’s Charter rights under the second branch of the Grant test as severe and impactful. I do not accept that the breaches were technical or minor. On the second branch of the Grant test the impact on Mr. Breton was significant. This would tend toward exclusion of the evidence.

[59] I have noted the seriousness of the charges at issue and the reliability of the evidence improperly seized tend toward inclusion of the evidence in this matter.

[60] To summarize, I saw the state Charter infringing conduct as serious. I saw the Charter breaches as being particularly impactful on Mr. Breton’s person and his sense of privacy. Therefore, on both of the first two branches in this case there is a strong pull for exclusion of the evidence. In my view the reliability and the societies interest in having the matter adjudicated on the merits in accordance with the third branch of the Grant test is not sufficient to tip the balance back in favour of the exclusion of the evidence.

[61] For the reasons above I would resolve the issues to be decided at this point in the proceedings are as follows:

1. The property seized pursuant to Warrant 1 and Warrant 2 is excluded, in whole from the trial pursuant to section 24(2) of the Charter of Rights and Freedoms.
2. The property seized pursuant to the Special Search Warrant obtained in March 2010 is excluded, in whole, pursuant to section 24(2) of the Charter of Rights and Freedoms.
3. The derivative evidence gathered in the investigation arising from Charter breaches is excluded, in whole from the trial.

[62] Accordingly, the application by Mr. Breton is granted. The timing for any appeal of my oral decision rendered on March 18, 2022, runs from today’s date.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick DATE: March 21, 2022