COURT FILE NOS.: CR-21-90000172

CR-21-90000174

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAIDYN DOWNES and BRIAN MEDEIROS

Applicants

Bari Crackower and Amanda Webb, for the Crown Respondent

Adam Boni, for the Applicant Jaidyn Downes

Daniel Rechsthaffen, for the Applicant Brian Medeiros

HEARD: May 24 to June 1, 2022

JUSTICE S. NAKATSURU

[1] Following a Toronto Drug Squad investigation named Project Oz, Mr. Jaidyn Downes and Mr. Brian Medeiros were separately charged with drug and gun offences. Under ss. 7 and 8 of the Charter of Rights and Freedoms, they challenge separate search warrants that led to those charges. The same affiant, D.C. Wilson, swore the Informations to Obtain (“ITOs”). Most of the content of the ITOs is the same.

[2] For the following reasons, the evidence obtained from the searches is excluded.

A. OVERVIEW

[3] The main target of Project Oz was Christopher Janisse. Mr. Janisse was alleged to be a high level drug trafficker who used a “stash house” at 601-105 The Queensway. While Project Oz started with information from a confidential source, it was a surveillance-driven investigation. Police surveillance was the foundation for various judicial authorizations including a tracking warrant, a production order, general warrants, and ultimately numerous search warrants of residences and vehicles.

[4] During the month of June 2019,[^1] the police observed Mr. Janisse meeting various persons in what they viewed to be clandestine meetings in motor vehicles to facilitate drug deals. The meetings took place in public streets, condominium garages, and parking lots. The surveillance sometimes detected Mr. Janisse carrying bags or retrieving bags from vehicles.

[5] Pursuant to a general warrant, the police made surreptitious entries into the alleged stash house at 601-105 The Queensway. On the first entry, safes containing nine kilograms of cocaine, two kilograms of fentanyl, a small amount of crystal methamphetamine, and other drug-related paraphernalia were discovered. The drugs were not seized. Later covert entries by the police showed that the quantity of drugs diminished after visits from Mr. Janisse.

[6] Mr. Medeiros is alleged to have been implicated in a drug deal by meeting with Mr. Janisse on June 21 in the garage of a condominium tower located at 88 Park Lawn Road.

[7] Mr. Downes is alleged to have been implicated in a drug deal by meeting with Mr. Janisse on June 12 as well as on June 27 (the day the police take-down occurred). These meetings took place in garages of condominium complexes.

[8] The search warrants contested by Mr. Medeiros were issued first, pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). On June 27, search warrants were granted for six addresses and four vehicles including the Queensway stash house, Mr. Janisse’s residence and black Mazda, 1207-10 Park Lawn Road, and Mr. Medeiros’ Ford Mustang. At 1207-10 Park Lawn Road, the police seized a substantial amount of cash from various locations inside the unit and 104 fentanyl patches from a bedroom closet. Boxes of ammunition were seized from a storage locker associated with the unit. A handgun was discovered under the front passenger seat of the Mustang.

[9] On June 27, during the surveillance of Mr. Janisse, observations were said to have been made of Mr. Janisse meeting Mr. Downes and another male in an alleged drug transaction. Mr. Janisse was arrested later that day in the stash house when the above search warrants were executed. At that time, an investigative decision was made to seek search warrants against Mr. Downes. D.C. Wilson updated his ITO. In the late evening of June 27, two CDSA search warrants were issued for Mr. Downes’ GMC Terrain SUV and his rental suite at 112-155 Legion Road North. Documents relating to Mr. Downes were seized from the unit. The vehicle was searched and a very large amount of money, two bricks of cocaine, and three handguns were discovered in a trap compartment.

B. THE ITOS

[10] D.C. Wilson was the affiant who drafted the ITOs for the various warrants and orders. The ITOs are detailed and go through the history and results of the Project Oz investigation, mainly centered on Mr. Janisse. For the sake of brevity, the contents of the ITOs will not be set out at length in these reasons. I will instead summarize the most salient points of each ITO.

[11] While the totality of the circumstances must always be considered, key to the reasonable and probable grounds for the search warrants attacked by the applicants were the observations and information conveyed to D.C. Wilson from another member of the Project Oz team, D.C. De Sousa.

1. The ITO for 112-155 Legion Road North and the Terrain (Mr. Downes)

a. The June 12 Interaction

[12] The ITO states that in the morning of June 12, the surveillance team followed Mr. Janisse in his Mazda to a condominium complex at 70-90 Queen’s Wharf Road. They saw a Terrain driven by a male who was unknown to the police at the time but was later identified as Mr. Downes. The Terrain drove into the underground garage immediately followed by the Mazda. There was no police surveillance inside the garage.

[13] Later that day D.C. De Sousa reviewed CCTV security footage from cameras inside the indoor parking garage at 70-90 Queen’s Wharf Road. The ITO states, “From CCTV video, both vehicles attended parking spots C99-C98; nothing, if anything could be seen happen at this time.” Three minutes later, the Terrain left the garage followed by the Mazda. A screenshot taken from the CCTV video, capturing the two vehicles exiting, was placed into the ITO.

[14] Mr. Janisse was then followed to the garage of 105 The Queensway. CCTV video showed him entering the elevator lobby area carrying a brown knapsack and a grocery bag. He got off the elevator on the eighth floor.

[15] D.C. Wilson opined in the ITO that in his experience as a drug investigator, underground parking lots are commonly used for illicit transactions and meetings to prevent detection by law enforcement, “as they are areas that often provide more privacy, protection, and typically have to be accessed with a fob.” He stated his belief that this June 12 meeting between Mr. Janisse and Mr. Downes was “for an illicit purpose[…] believed to be drug related” due to the two going into the garage together, the short duration of the meeting, and the background knowledge about Mr. Janisse and the investigation. Moreover, he stated that in his experience, bags such as backpacks are commonly used by mid-to-high level drug traffickers to conceal and transport illicit drugs or money. At paras. 64 and 68 of the ITO, D.C. Wilson described this “notable” meeting, among others that Mr. Janisse had, as being “consistent with a drug related interaction/meeting”.

b. The June 27 Interaction

[16] The ITO states that at about 11:15 a.m. on June 27, the surveillance team observed Mr. Janisse leaving his home and driving to the stash house in his Mazda. A covert camera installed earlier by the police showed him entering unit 601 with a brown backpack. He soon left and drove to the parking lot of the Walmart at the Sherway Gardens Mall. His car was found a short time later parked next to a black car. An individual named Minja Ljumovic was sitting in the Mazda next to Mr. Janisse. Mr. Ljumovic exited the Mazda holding a duffle bag and got into the car. Both cars left. Around the same time, a covert police entry into unit 601 revealed that two kilograms of cocaine were missing from the safe. D.C. Wilson believed that Mr. Janisse had trafficked those two kilograms of cocaine to Mr. Ljumovic.

[17] At 3:40 p.m., the surveillance team again saw Mr. Janisse leaving home. Para. 57(i) of the ITO states:

At approximately 3:55 p.m., JANISSE entered the parking garage for 155/165 Legion Road North. At that time, D/C DE SOUSA observed JANISSE attend level 2 of the parking garage and park his Mazda in a parking spot. D/C DE SOUSA observed two SUV's — a brown GMC Terrain with licence plate: CJHP817 and a silver Nissan Murano with licence plate: CJSP530 — parked behind JANISSE. Both SUV's were parked side by side with their trunks open. A short time later, D/C DE SOUSA observed JANISSE walking away from the trunk area of both SUV's carrying a big, black duffle bag and walked back to his Mazda. JANISSE immediately left the parking garage in his vehicle, followed by the silver Nissan Murano moments later. The brown GMC Terrain remained.

[18] Para. 82 of the ITO repeats that D.C. De Sousa observed Mr. Janisse, “a known kilo level drug dealer[,] walk away from the open trunk area of the brown GMC Terrain with a big black duffle bag”.

[19] Mr. Janisse was followed back to the stash house where the covert camera captured him entering unit 601 carrying a black duffle bag. The search warrants previously issued were then executed. The police found Mr. Janisse in the bedroom. There was an empty, large black duffle bag on the bed, with three kilograms of cocaine next to it. There were also nine kilograms of cocaine on a table and three kilograms of cocaine still in the safe. He was arrested.

[20] That same day, members of the team attended 155/156 Legion Road North to follow up on the Terrain and the silver Nissan. Police viewed the CCTV footage with the help of building management. Para. 60(b) of the ITO states:

D/C DE SOUSA reviewed CCTV video which showed the following:

(i). The brown GMC Terrain (CJHP817) and the silver Nissan Murano (CJSP530) drive into the parking garage of 155/165 Legion Road North in tandem approximately 5 minutes before JANISSE arrived. Both vehicles parked on level 2 of the parking garage, and they parked side by side, backed into parking spots. Two individuals could be seen at the rear of the SUV's; and

(ii). JANISSE arrive into the parking garage on level 2 and park trunk to trunk with the two SUV's.

[21] The ITO goes on to state that D.C. De Sousa reviewed CCTV footage at 155 Legion Road North and observed Mr. Downes inside the building “after JANISSE left with the black duffle bag”. D.C. Wilson received this information from D.C. De Sousa on June 27. D.C. Wilson again averred that in his experience, traffickers use bags to move drugs and money and the movement and delivery of bags was a common theme in this investigation. Further, the meetings and short visits were consistent with illicit behaviour such as drug trafficking.

2. The ITO for 1207-10 Park Lawn Road and the Mustang (Mr. Medeiros)

a. The June 21 Interaction

[22] The ITO states that on June 21, the police observed Mr. Janisse leaving home in his Mazda and driving to the Queensway stash house. He entered the building carrying a full brown knapsack. A short time later, Mr. Janisse exited and drove to 88 Park Lawn Road. The Mazda stopped in front of a nail salon and an unknown male, later identified as Mr. Medeiros, got into the front passenger seat carrying a “weighted” backpack. The Mazda drove into the underground garage. About four minutes later, the Mazda exited the underground parking garage. Mr. Medeiros was no longer in the Mazda.

[23] D.C. Wilson averred that based on the location of the pick-up and drop-off, the weighted bag, and the short duration of the meeting, he believed that Mr. Medeiros and Mr. Janisse “met for an illicit purpose and engaged in a drug related transaction”.

[24] The ITO goes on to state that Mr. Janisse then drove to a Tim Hortons. An individual named Steven Whalen entered the front passenger seat. Mr. Janisse then drove to an area of Sheppard Avenue East where Mr. Whalen exited with a “weighted” red gift bag. The Mazda left. D.C. Wilson believed Mr. Janisse gave Mr. Whalen one kilogram of cocaine from the safe at the stash house, given that the covert entry conducted that day revealed there was one kilogram of cocaine missing from the safe.

b. The June 24 Investigation into CCTV Video

[25] The ITO states that on June 24, D.C. De Sousa attended at 88 Park Lawn Road and reviewed CCTV security video for June 21. On the video, he saw Mr. Medeiros arrive at about 9:31 a.m. at 88-90 Park Lawn Road in a white Mustang prior to his meeting with Mr. Janisse. Mr. Medeiros parked in the parking garage. He then walked away from his car carrying a “weighted” black backpack and went to the retail lobby of the P1 level, approximately 30 minutes prior to Mr. Janisse’s arrival. The next time Mr. Medeiros was seen on the CCTV video was in the front seat of the Mazda, which arrived in the underground garage and parked next to Mr. Medeiros’ Mustang. Mr. Medeiros immediately left the garage in the Mustang.

[26] D.C. De Sousa next attended a condo building where the Mustang had received several parking tickets and found that Mr. Medeiros had previously lived there until April of 2018 with his girlfriend at the time, Aricia Makoumba Mulumba. A Ministry of Transportation check located a Makoumba Mulumba residing at 10 Park Lawn Road, unit 1207. D.C. De Sousa attended 10 Park Lawn Road and located the Mustang in the underground parking garage. He spoke to building security and found out that Ms. Mulumba was the current tenant of unit 1207. Border checks revealed that Mr. Medeiros and Ms. Mulumba had travelled abroad together in December 2017 and July 2018.

c. Other Police Investigation into Mr. Medeiros

[27] The ITO states that on June 25, D.C. De Sousa went to 10 Park Lawn Road to follow up on Mr. Medeiros. He saw the Mustang in the parking garage, this time in a spot assigned to unit 1207. He reviewed CCTV footage from June 21 and saw Mr. Medeiros getting on the elevator on the 12th floor carrying a black backpack. The CCTV video showed him leaving 10 Park Lawn Road in his Mustang, about 35 minutes prior to meeting Mr. Janisse at 88 Park Lawn Road.

[28] On June 25, D.C. De Sousa observed Mr. Medeiros driving from 10 Park Lawn Road in his Mustang to a Fit4Less gym. CCTV video showed Mr. Medeiros entering the elevator on the 12th floor carrying a bag and making his way to the garage.

d. Mr. Medeiros’ Record

[29] The ITO states that Mr. Medeiros has a criminal record, but the convictions were not drug related. Five convictions were for gun related offences. D.C. Wilson avers that in his experience as a drug investigator, it is not uncommon for drug dealers to carry firearms.

C. THE ISSUES

[30] The following issues are raised on this application:

(a) Did the police’s failure to preserve and disclose CCTV security videos from the condominiums violate s. 7 of the Charter?

Both Mr. Downes and Mr. Medeiros allege that D.C. De Sousa’s failure to seize relevant video amounted to “lost evidence” and prejudiced their ability to make full answer and defence.

(b) Should the search warrants be set aside under s. 8 of the Charter?

The main challenge by Mr. Downes is sub-facial. He submits that the sub-affiant D.C. De Sousa deliberately misled the affiant and the issuing justice about the CCTV videos and his observations.

The main challenge by Mr. Medeiros is facial. He submits that the search warrants could not have issued given the lack of reasonable and probable grounds that evidence of drug trafficking would be found in the residence, associated storage locker, and vehicle.

(c) If there is a Charter violation, should the evidence seized by the police be excluded under s. 24(2) of the Charter?

D. THE GENERAL LEGAL PRINCIPLES

1. Section 7: “Lost Evidence”

[31] The failure of the police to adequately investigate a case does not give rise to an independent Charter violation: R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at paras. 29-39; R. v. Barnes, 2009 ONCA 432, at para. 1.

[32] “Lost evidence” is different. In R. v. Janeiro, 2022 ONCA 118, at paras. 107-111, the Court of Appeal summarized the relevant legal principles regarding “lost evidence”. Where the applicant shows that disclosable evidence has been lost or destroyed, a breach of s. 7 will be found unless the Crown provides a satisfactory explanation for that loss. The Crown may do so by establishing that the evidence was not destroyed or lost by unacceptable negligence, or that reasonable steps were taken to preserve the evidence, bearing in mind the perceived relevance of the evidence at the time it was lost or destroyed. As the relevance of the evidence increases, the degree of care required in preserving the evidence increases. Conversely, as relevance decreases, the required degree of care is reduced.

[33] In addition, failure to preserve and disclose evidence may also be an abuse of process, for instance, if the evidence was destroyed deliberately or was the result of gross negligence: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (C.A.) at paras. 38-39.

[34] Even if the Crown has shown no unacceptable negligence resulting in the loss of evidence, in an extraordinary case, s. 7 may still be violated if the loss is so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial: Janeiro, at para. 109.

[35] An accused bringing a Garofoli application has the right to make full answer and defence, although the right must be assessed in context and the analysis is different from the trial stage: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 52-60.

[36] Whether a remedy should be granted and if so what that remedy should be, turns on the prejudice to full answer and defence caused by the breach. It does not suffice to establish simply that the missing evidence might help the defence. In determining the degree of prejudice caused by the lost evidence, all other evidence available to the defence to fill the gap should be considered: R. v. Atwima, 2022 ONCA 268, at paras. 101-103.

2. Section 8: The Garofoli Application

[37] Search warrants are presumed valid. The onus is on the challenging party to show they are invalid. The question when reviewing a warrant is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have done so: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. The test is, on the totality of the circumstances, “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: Araujo, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. I must consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: Morelli, at para. 40.

[38] A challenge to a search warrant can be facial or sub-facial: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 120; R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para. 26.

[39] On a facial challenge, the test is whether on the face of the information disclosed to the issuing justice, they could have issued the warrant. Reasonable grounds are constituted by credibly based probability, a standard that exceeds suspicion but is less than a balance of probabilities. Reasonable inferences can be drawn by the issuing justice from the information set out in the ITO. Finally, the fact that a search warrant is an investigative tool must be kept in mind in assessing the sufficiency of reasonable and probable grounds: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S. C.A.) at p. 549; Crevier, at para. 73.

[40] On a sub-facial challenge, the applicant attempts to prove, by placing material before the reviewing justice, that the record before the issuing justice did not accurately reflect what the affiant knew or ought to have known, and that if it had the search warrant could not have issued: Araujo, at paras. 50-54; World Bank Group, at para. 120. Sub-facial attacks do not expand the scope of the review: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38.

[41] In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 57-59, Paciocco J.A. summarized the procedure involved in a sub-facial challenge:

1. Erroneous information in an ITO that should not have been included will be excised.

2. Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by “amplification” so that it can be considered during the sufficiency review.

3. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it.

4. Amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is a minor, technical error and made in “good faith”. Characterization of the error as minor and technical turns on its nature and not the importance of the topic the error relates to: R. v. Duncan, 2021 ONCA 673, at para. 15; R. v. Feizi, 2022 ONCA 517, at para. 9.

[42] When excision and amplification is complete, the reviewing court determines whether based on the corrected ITO, there remains a reasonable basis upon which the authorizing justice, acting judicially, could find reasonable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 53. The affidavit is tested on what the affiant knew or ought to have known at the time it was sworn, not the ultimate truth of the assertion in it. In that manner, the judicial review focuses on the affiant’s reasonable belief: World Bank Group, at paras. 121-123; Phan, at para. 51; R. v. Pires and Lising, 2005 SCC 66, [2006] 3 S.C.R. 343, at para. 41.

[43] Watt J.A. held in R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 62, 69, that even after excision and amplification, courts have the discretion to set aside a warrant on the grounds of subversion despite the existence of reasonable and probable grounds for its issuance. The following principles are considered:

1. The police misconduct must be egregious enough to subvert the judicial authorization process through deliberate nondisclosure, bad faith, deception, fraudulent misrepresentation or similar conduct.

2. The threshold for setting aside the warrant in these circumstances is high.

3. The conduct necessary to engage this discretion has been described as being so subversive of the search warrant process as to in effect amount to an abuse of process, requiring that the warrant be quashed.

4. “Subversion” connotes undermining, corrupting, weakening, destroying or disrupting a system or process.

5. The residual discretion to set aside a warrant on this basis is exercised having regard to the totality of the circumstances.

[44] Before applying these principles, credibility findings regarding the two witnesses on the application, D.C. Wilson and D.C. De Sousa, must be made. In general, I find D.C. Wilson to be credible. His credibility was not seriously challenged. In contrast, the credibility of D.C. De Sousa was vigorously attacked. Thus, my reasons center on D.C. De Sousa’s credibility.

E. ANALYSIS OF D.C. DE SOUSA’S EVIDENCE

[45] In this case, the resolution of the legal issues depends on my fact finding regarding D.C. De Sousa’s conduct and testimony. D.C. De Sousa was the critical sub-affiant when it came to the issuance of the search warrants for the material locations and vehicles.

[46] D.C. De Sousa is an experienced member of the drug squad. He was a surveillance officer and collected CCTV security video from the condominiums where the alleged drug transactions took place. D.C. De Sousa is also knowledgeable about the duties of an affiant who swears an ITO. He knew that D.C. Wilson would rely on the information he provided during Project Oz.

[47] For the following reasons, I do not accept significant portions of his testimony.

1. The Collection of Relevant CCTV Video for June 12

[48] D.C. De Sousa testified that on June 12, he attended 70-90 Queen’s Wharf Road and, seeking to review CCTV security footage, spoke with the property manager and a security guard named Renat Maljeev. With the help of security, D.C. De Sousa reviewed the security videos showing the Mazda and the Terrain entering the garage. On a different camera, he saw the vehicles go through the underground. The security guard told him the vehicles were travelling to a parking area. D.C. De Sousa testified that because he could not determine from the video where the vehicles went, he went to the underground garage and identified parking spots C98 and C99 as the spots the vehicles went into.

[49] D.C. De Sousa asked the security guard to download the footage onto a USB key. He took the USB back to the police station where he uploaded the footage into a folder dedicated to Project Oz on a shared drive that other officers could access. He wrote an Information Report about what he did and what the CCTV footage showed for use by the Project investigators and D.C. Wilson.

[50] D.C. De Sousa testified that he was unaware that the USB did not contain the video footage of the vehicles travelling through the interior of the garage and only contained two videos of the garage’s entrance/exit. He relied on the security guard to properly download the files he requested. The guard did not do so. As a result, this video footage of the vehicles inside the garage was never downloaded into the Project folder.

[51] D.C. De Sousa’s testimony that he was unaware that the video of the underground parking garage was missing is not credible. Given that he uploaded the videos to the shared drive and embedded screenshots of the videos into the Information Report, it would have been obvious to him that the video of the interior was missing. Screen capture evidence presented to me during D.C. De Sousa’s cross-examination revealing what was on his computer screen when he manipulated these video files for his Information Report, shows only two video files, not three. The fact that one video was missing from the USB thus could not have slipped his attention.

[52] Moreover, given that he embedded screenshots of the vehicles entering and exiting the garage into his Information Report, D.C. De Sousa’s omission of more probative screenshots of the vehicles travelling through the garage is glaring. Saying that he did not use that video because it was of lower quality than the others was in my view a clumsy attempt to explain away its omission. His downplaying of the evidentiary value of the video of the interior of the garage was evasive. Even if of poor quality, a clip of the two cars together in the same parking area of the garage would have been direct evidence that Mr. Janisse and Mr. Medeiros parked their cars together and met in the garage, as opposed to simply travelling through the garage without stopping.

[53] Cross-examination on this point undermined D.C. De Sousa’s credibility. Demeanour is not the most reliable measure of credibility, but I took note of his nervousness and argumentative responses. When his veracity was directly challenged, D.C. De Sousa, unusually for an officer of his experience, argued for his own credibility. Doing so had the reverse effect.

[54] Further, D.C. De Sousa oddly did not make a note of his trip to the underground parking garage to locate the parking spots. Nor is it mentioned in the Information Report or in a will-say statement he prepared subsequent to a March 2022 meeting with Crown counsel where, after Mr. Downes filed his factum on this application, he was asked about this missing video. D.C. De Sousa mentioned his trip to the garage for the first time at a May 2022 meeting with Crown counsel.

[55] Overall, I reject the testimony that D.C. De Sousa went to the underground garage — a trip that seems to have been created only under the pressure of pending litigation. I find this to be an ex post facto attempt to explain how he could have determined which spots the cars parked in.

[56] The security guard, Renat Maljeev, did not testify on this application. Given that it falls to the Crown to explain the missing CCTV video under the s. 7 analysis, he would have been an obvious witness to call, even if just to say he had no recollection one way or another. No adverse inference is drawn from the Crown’s failure to call this witness, but without his evidence, D.C. De Sousa’s evidence remains uncorroborated.

[57] The Crown submits that D.C. De Sousa has no motive to be anything but truthful about this matter. I am not persuaded by this submission. I recognize that the absence of the video was not used to falsely attribute greater inculpatory actions on the part of Mr. Janisse and Mr. Downes. The officer does write in the Information Report that “[n]othing was seen at those parking spots”. However, what he said he saw on the CCTV video was not benign: two cars mysteriously meeting for a short time in an underground garage. This meeting was highlighted by D.C. Wilson as being drug related. Moreover, even on his own testimony, D.C. De Sousa’s statement in the Information Report that the CCTV video showed “[b]oth vehicles were followed in the underground to spots C99-C98” was misleading. The video showed no such thing.

2. Observations of Mr. Downes and the Collection of Relevant CCTV Security Video for June 27

a. Overview of D.C. De Sousa’s Testimony

[58] On June 27, D.C. De Sousa was the central notetaker for the surveillance team investigating Mr. Janisse. At about 3:40 p.m. Mr. Janisse got into his Mazda and was followed by police. D.C. De Sousa was a few seconds behind Mr. Janisse when he turned into the parking garage of 155-165 Legion Road North, a condominium complex, using the visitors’ entrance. D.C. De Sousa testified he was not directly behind the Mazda, but a few cars behind and either “piggy backed” on another car who was also entering by that route or was buzzed in by security. He saw Mr. Janisse turn at the end of the laneway to go up to Level 2 (“L2”). D.C. De Sousa hung back a couple of seconds before he followed the Mazda up the ramp. There was also a ground level visitor parking area but as D.C. De Sousa headed up the ramp, he did not see the Mazda parked there.

[59] D.C. De Sousa testified that as he came up to the top of the ramp onto L2, he saw the Mazda parked, in reverse, to his right in a parking aisle about two or three parking spots from the top of the ramp. D.C. De Sousa testified that he briefly saw Mr. Janisse at the rear of his Mazda walking back to his car carrying a black duffle bag. He was in the space between the two aisles of parking. As D.C. De Sousa drove past, about three or four parking spots beyond the Mazda, there were two SUVs parked in the parking aisle on the other side of the Mazda. D.C. De Sousa saw the two SUVs’ trunks, which were open, and two unidentified males at the rear of the vehicles near the trunks. As D.C. De Sousa continued driving to the end of the laneway, the Mazda pulled out of the parking spot and exited down the ramp. The officer did a three-point turn, paused for a bit, and then exited following the Mazda. The silver Nissan Murano followed him out. The Terrain remained.

[60] D.C. De Sousa testified that he made his way back to 105 The Queensway, where the search warrant was executed on unit 601. Mr. Janisse was inside the bedroom beside an empty black duffle bag with three kilos of cocaine on the bed, and ran to the balcony when the police entered. D.C. De Sousa participated in the arrest and detention of Mr. Janisse. A few minutes later, Detective Awad detailed D.C. De Sousa to return to Legion Road North, review CCTV video of the interaction the officer had witnessed, and follow up on the two SUVs.

[61] With the assistance of a security guard, D.C. De Sousa reviewed relevant CCTV videos to “put the pieces of the puzzle” together. The videos showed the Terrain and the Nissan entering the parking garage one after another, going up to L2, reversing in, and parking next to each other. The video from a camera facing the ramp to L2 (“Ch 14”) showed the two SUVs arriving and parking as well as other unrelated cars coming up the ramp. It also showed the arrival of D.C. De Sousa’s vehicle. However, it did not show Mr. Janisse’s Mazda coming up to L2.

[62] The video did show that after D.C. De Sousa travelled down the lane, off in the distance behind his vehicle, a dark vehicle exited the parking aisle and travelled down the ramp. D.C. De Sousa testified that this was Mr. Janisse’s Mazda. He could not explain why the CCTV video did not capture the Mazda coming up to the L2 parking. But he testified that in his experience sometimes CCTV security video does not capture motion like that of a pedestrian. He indicated in his notes and the central police notes that the Mazda was not observed “due to motion”. He recalled the security guard possibly having told him this.

[63] There was other video footage seized from another camera on L2. While it showed the parked SUVs and D.C. De Sousa’s car, it was not angled to show vehicles coming up the ramp.

[64] D.C. De Sousa testified that he downloaded the videos onto a USB. As D.C. De Sousa was conducting his investigations at the security desk, he spoke by phone with D.C. Wilson about what he observed on the CCTV security videos so D.C. Wilson could prepare an ITO to obtain search warrants relevant to Mr. Downes for 155 Legion Road North and the Terrain. D.C. De Sousa did not have the opportunity to prepare a written Information Report before the warrants were issued.

b. The CCTV Videos

[65] D.C. De Sousa was cross-examined extensively on the CCTV videos. The following is my analysis of their impact on his credibility.

[66] The security cameras operate on some form of sensor system which leads to gaps in the video when the cameras are not activated and recording. Although I appreciate that no witness from the condominium, security company, or with expertise has been called, this can be logically deduced from the videos.

[67] That acknowledged, after careful review of the video from Ch 14, I see no reason why the Mazda would not be observed by the camera and recorded “due to motion” as D.C. De Sousa attested to. On D.C. De Sousa’s account, the Mazda was parked some distance from the camera and may have made limited motion that was insufficient to set off the camera sensor. However, as evidenced by the CCTV footage, Ch 14 did start recording at the moment other vehicles started to come up the ramp to L2. Additionally, limited movements of the SUVs and other vehicles parking is detected and recorded. As a matter of logic and common sense, it is implausible that the camera failed to pick up only the Mazda’s motions but recorded all of those other vehicles making similar motions. Even if the Mazda parked at a distance from the camera, it should have triggered the detection system on arrival. Ch 14 also properly recorded the sequence of other cars that arrived after the SUVs entered the garage and came up to L2.

[68] Overall, I reject the explanation proffered that the camera sensor was at fault for the absence of the recording of the Mazda’s arrival and parking on L2. The possibility that the sensor malfunctioned on Ch 14 only when the Mazda came up to L2 is so remote and coincidental that I find it to be implausible.

[69] The Ch 14 video leads me to seriously question whether D.C. De Sousa saw what he claimed to have seen. The Ch 14 camera should have captured the Mazda arriving and parking on L2 if that is indeed what happened.

[70] Furthermore, given his purported awareness of the problem that the Ch 14 video did not record the arrival of the Mazda, D.C. De Sousa’s failure to seize clearly relevant footage is perplexing.

[71] The car he claims to be the Mazda is so far in the distance on Ch 14 it cannot be identified visually as the target vehicle. It could have been just another dark-coloured car leaving at the time. D.C. De Sousa could well have anticipated the defence disputing this car was the Mazda. Indeed, on this Garofoli application, Mr. Downes did exactly that arguing the profile of the car was different from the Mazda. It is beyond belief that D.C. De Sousa would not have seized footage showing the target Mazda entering the garage or going up the ramp ahead of the officer’s vehicle, nor footage showing it going back down the ramp or exiting the garage. He did seize such footage for the SUVs and other unrelated vehicles going up the ramp. Yet D.C. De Sousa admitted that he did not even ask the security guard to show those portions of the videos of the Mazda to him.

[72] None of this makes sense to me. It would have taken little time or effort for D.C. De Sousa to have reviewed and asked for longer or additional portions of CCTV video to be downloaded onto his USB. In one instance in respect of other footage, he did that very thing: he requested and downloaded a longer portion of footage taken on L2.

[73] Even in normal circumstances, the footage of the Mazda from other cameras would be plainly significant. It would not only help confirm the officer’s observations but would also be independent and reliable evidence. In circumstances where the seized Ch 14 footage did not show the Mazda arriving and parking, any other CCTV footage of the Mazda’s arrival at the garage and its travels within it would clearly be even more critical. This whole area of cross-examination seriously diminished D.C. De Sousa’s credibility. I reject the explanations he offered that, due to exigency and the fluidity of the investigation, he simply forgot to seize the missing CCTV footage. I can only conclude that D.C. De Sousa deliberately did not seize it.

[74] Mr. Downes made an additional submission in relation to the videos and the officer’s credibility based on complicated set of time calculations. Mr. Downes argued that these calculations proved the dark vehicle seen exiting L2 could not be the Mazda. I am not persuaded by that argument, since there is no evidence that the various times on the cameras are accurate. That said, the times shown on Ch 14 do raise additional serious questions about whether the dark vehicle is the Mazda due to conflicts between these times and D.C. De Sousa’s testimony.

[75] According to D.C. De Sousa, he was seconds behind the Mazda when it entered the garage. Once inside, he gave Mr. Janisse a few seconds so the officer would not be directly behind. Regardless of the exact timing, unquestionably D.C. De Sousa followed the Mazda up to L2 quickly, likely only several seconds behind — certainly not minutes, given the reasonable fear that the officer might lose him or miss observing important events on L2.

[76] However, the sequence of events D.C. De Sousa testified to is contradicted by the times in the Ch 14 video. The video shows D.C. De Sousa appearing on the L2 ramp at 15:37:22. (Although I have no evidence that this specific time is accurate, what is important is the fact that the seconds do pass by accurately on the footage.) As the officer drives down the lane, the dark car alleged to be the Mazda pulls out behind him at 15:37:30, eight seconds later, and heads down the ramp. This very short time interval poses two concerns about D.C. De Sousa’s account. First, eight seconds is not a lot of time for Mr. Janisse, who was according to D.C. De Sousa, still walking at the rear of his car at the time, to get into his car and leave. Second, considering how quickly D.C. De Sousa testified he followed the Mazda up to L2 and how quickly the dark car departed, this would give Mr. Janisse little time to do all that the Crown alleges he did: reverse his vehicle into the parking spot, exit the car, walk to the SUVs, retrieve the black duffle bag, return to the car, and depart. These improbabilities suggest that this dark car is not the Mazda.

[77] Moreover, this timing is inconsistent with the GPS tracking data[^2] showing the Mazda to be immobile and parked for 4.5 minutes in the vicinity of the condominium complex. Even giving some latitude to the potential inaccuracy of D.C. De Sousa’s testimony about the speed with which he got to L2, on no reasonable version of events would it have taken him 4.5 minutes to get into the garage and up to L2. Indeed, his testimony is very much to the contrary.

[78] Finally, the last vehicle shown moving on the Ch 14 video before D.C. De Sousa’s vehicle appears on the ramp, a pick-up truck, departs from L2 at 15:35:17. The recording next skips forward in time to 15:37:22, when D.C. De Sousa’s vehicle appears on the ramp. If the dark vehicle were the Mazda, the two-minute period from 15:35:17 to 15:37:22 is the maximum amount of time during which it could have come up the ramp and been parked. The actual length of time spent parked would undoubtedly need to be less than two minutes. Yet the GPS data indicates the Mazda was in fact parked for 4.5 minutes, more than double this amount of time.

[79] This time analysis is not definitive proof that the dark vehicle was not the Mazda. But it does provide another reason to doubt D.C. De Sousa’s testimony.

[80] Summarizing my findings on this point, D.C. De Sousa’s failure to seize the videos that show the Mazda at various points in the garage, on the most charitable view, was gross negligence. But I would go further than that. I find that D.C. De Sousa did not see what he claims to have seen on L2 at all. D.C. De Sousa described himself as the “puzzle solver” when it came to reviewing and seizing CCTV surveillance video. That is why he believes he is often resorted to for this police detail. He is not new to this. In light of that, it makes more sense to me that D.C. De Sousa would deliberately not seize other videos that could have shown the Mazda going up to L2, because they would not have supported what he said he saw. In my view assessing the whole of the evidence, the explanation for this is that D.C. De Sousa did not actually see Mr. Downes carrying the black duffle bag to his car and did not even see the Mazda on L2.

c. Inconsistencies With the ITO

[81] Also detrimental to D.C. De Sousa’s credibility were the following inconsistencies between his testimony and the ITO:

• The ITO states that D.C. De Sousa followed Mr. Janisse into the garage on June 27 at 3:55 p.m. D.C. De Sousa testified he actually entered the garage at 3:46 p.m., which is consistent with the GPS tracking data. He admitted in cross-examination that he may have told D.C. Wilson an incorrect time. This inconsistency on its own is not very significant, although where D.C. De Sousa got the 3:55 p.m. time from is unexplained.
• The ITO states that D.C. De Sousa saw Mr. Janisse attend L2 and park his Mazda. D.C. De Sousa testified that he did not see that. In cross-examination, he admitted he may have given D.C. Wilson erroneous information.
• The ITO states the SUVs were parked behind Mr. Janisse. They were in fact parked on an adjacent parking aisle, three or four spots away.
• The ITO states that D.C. De Sousa saw Mr. Janisse “walking away from the trunk area of both SUVs carrying a big, black duffle bag, and [walking] back to his Mazda”. D.C. De Sousa did not see this. He admitted he only saw Mr. Janisse at the rear quarter panel of the Mazda.
• The ITO does not mention that D.C. De Sousa saw two unknown males at the back of the SUVs. D.C. De Sousa admitted he may not have told this to D.C. Wilson.
• The ITO states that D.C. De Sousa saw the SUVs with their trunks open. D.C. De Sousa testified he did see this. The CCTV video does show that the Nissan’s trunk was open at one point (the Terrain’s rear is blocked from view). However, by the time D.C. De Sousa’s vehicle arrived on L2, the rear hatch of the Nissan was closed.

[82] There are also concerns with respect to what D.C. De Sousa told D.C. Wilson about what the CCTV security video showed:

• The ITO states that the video shows Mr. Janisse actually arriving on L2 and parking trunk to trunk to the two SUVs. In court, D.C. De Sousa agreed that the video in fact shows neither of these things and he was unable to explain why the ITO said it did.
• The ITO states that the video shows two individuals at the rear of the SUVs. The video in fact shows only one person at that location.

[83] This brings me to the question of how D.C. De Sousa could come up with the details of this encounter on L2 if he did not personally witness it. I will first say that I gain little comfort from these observations being found in his handwritten notes and the typed central notes he made. I cannot conclude exactly when these notes were made. The notebook notes are incredibly neat to be made contemporaneously at the time he was conducting surveillance.

[84] Second, by the time he made those notes or conveyed his observations to D.C. Wilson, D.C. De Sousa would have known of certain important details from other sources. For example, based on a radio broadcast by D.C. Chant at 3:59 p.m., D.C. De Sousa became aware that Mr. Janisse had been seen carrying a black duffle bag. Further, I find that despite his denials, D.C. De Sousa saw the black duffle bag on the bed when the search warrant was executed. The bag and its significance would have been obvious to D.C. De Sousa who spent some time in the bedroom. Lastly, he had the information gained from the CCTV videos he viewed at the security desk. Thus, there was ample opportunity for D.C. De Sousa to add false details to what he claimed he saw.

[85] Finally, while D.C. De Sousa testified that he called out the details of his observations of Mr. Janisse on L2 over the police radio, no other officer on his team has testified to confirm this.

d. Conclusion on Credibility

[86] The cumulative effect of all the evidence I have heard leads me to the conclusion that D.C. De Sousa is not credible about what he did and observed on June 12 and June 27. Regarding June 12, D.C. De Sousa deliberately did not download the missing video of the garage interior to avoid any difficulties of having in police possession a video that might not support what he claimed he saw on it. Regarding June 27, I find that D.C. De Sousa did not see the interaction between the SUVs and Mr. Janisse. I do not accept that he saw Mr. Janisse carrying a black duffle bag. I do not believe that he even saw the Mazda on L2. His wilful and deliberate failure to obtain clearly relevant video footage leads me to find that those videos, if obtained and presented before this court, would not have supported what he claims he saw. I find that he engaged in deceptive conduct targeted at securing the search warrants and thereby intentionally misled both the affiant and the issuing justice.

3. The Collection of June 21 CCTV Videos

[87] On June 21, D.C. De Sousa was the central notetaker and did not make direct observations of Mr. Janisse and Mr. Medeiros. On June 24, he was instructed to collect CCTV video of the June 21 meeting of Mr. Janisse and Mr. Medeiros from security at 88-90 Park Lawn Road. D.C. De Sousa reviewed and seized several videos, the most material of which shows the Mazda entering the garage and parking beside the Mustang. However, neither parked vehicles can be seen given the position of the camera. Moments after parking, the Mustang’s taillights come on, it backs up and leaves, followed immediately by the Mazda.

[88] It turns out other cameras on that parking level would have better captured what took place between the parked Mustang and the Mazda. D.C. De Sousa testified that the security guard did not show him videos from these cameras. He described himself as being “at the mercy” of the security guards regarding what camera viewpoints were shown to him and said that had he been shown videos from the other cameras, he would have seized them.

[89] In this respect, I accept D.C. De Sousa’s testimony. Given that he had already seized a video showing Mr. Janisse and Mr. Medeiros meeting together in the parking (unlike in the case of the alleged June 12 meeting between Mr. Downes and Mr. Janisse), there would be no reason for D.C. De Sousa not to have seized additional video footage from other cameras showing the two vehicles together. D.C. De Sousa had no motive to conceal or refrain from seizing such videos.

[90] Even accepting his testimony, however, his failure to uncover and seize the additional footage is problematic. D.C. De Sousa’s attitude of being “at the mercy” of the security guard is not a delegation of his investigative responsibility, but an abdication of it. He had been to 88 Park Lawn Road in an investigative capacity on about ten prior occasions. He was familiar with the layout of the garage and the CCTV system and had seized security video before from that address. He ought to have known that other cameras could have better shown the spots the vehicles were parked in. A reasonably prudent officer would not have taken a security guard’s word for it but would have personally reviewed the CCTV system to ensure all relevant footage was provided or attended the garage to identify the relevant cameras. D.C. De Sousa also testified that in his experience the knowledge and competence of security guards varies, which means he should have been aware of the need to take greater care.

[91] Finally, D.C. De Sousa made incomplete notes of what he did, did not obtain the name of the security guard who assisted him, and did not even ask about the retention period for the video footage. All of this laid the foundation for an incomplete investigation into the CCTV videos that day.

F. THE VIOLATION OF MR. DOWNES’ CHARTER RIGHTS

[92] I will first address the s. 7 lost evidence argument, then excision and amplification with respect to the Garofoli challenge, and lastly, the issue of subversion.

1. Section 7: “Lost Evidence”

[93] The Crown submits that no s. 7 duty to preserve or disclose the CCTV evidence arises since the police never possessed the CCTV videos of June 12 or June 27 and therefore could not disclose them. I disagree.

[94] I accept the proposition that if CCTV video is in the hands of third parties and not in the physical possession or control of the police, it may not be subject to the duty to preserve and disclose evidence: R. v. Brounsuzian, 2019 ONSC 4481, at para. 46; R. v. Blackman, 2022 ONSC 2515, at para. 29. R. v. Osman, 2020 ONSC 1830, at para. 19. The duty to preserve and disclose necessarily implies that the state has something to preserve and disclose, otherwise there is nothing for the s. 7 obligation to attach to. Moreover, requiring the police to seize surveillance videos that the defence feels they should have looked into shifts too far into mandating specific methods of police investigation, something that is not constitutionally required.

[95] Nonetheless, in some circumstances, a s. 7 violation resulting from “lost evidence” may occur despite the police not actually seizing or possessing the evidence. In Osman, at para. 22, Code J. found a violation of s. 7 where police failed to obtain certain surveillance footage at a nightclub; though never physically in the possession of the police, the police had seen it and requested a copy but failed to pick up the copy before it was overwritten. Code J. found the footage to be in the effective or constructive possession of the police. In R. v. Murray #6, 2020 ONSC 1495, at paras. 77-79, 119-123, Molloy J. found a violation of s. 7 where the police failed to copy and disclose relevant CCTV footage, regardless of the fact that the police only downloaded selected portions of the footage and did not seize or have possession of all of it.[^3] In R. v. Heddle, [2008] O.J. No. 2021 (S.C.), at para. 17, Harvison Young J. (as she then was) found a s. 7 violation where the police inadvertently failed to seize relevant restaurant surveillance video of an assault that they had viewed. See also: R. v. Nkemka, [2013] O.J. No. 3318 (S.C.), at paras. 46-47; R. v. Kish, 2011 ONSC 1243, at paras. 20-24; R. v. Dupuis, [2014] O.J. No. 1823 (S.C.), at paras. 8-10, 16-21; R. v. Chan, 2020 BCSC 189, at paras. 46-53.

[96] In my opinion, whether the s. 7 “lost evidence” analysis applies is a fact-driven exercise. The normative question to be answered is whether the circumstances are such that the duty to preserve and disclose evidence should be placed upon the state. Most cases will be simple: for example, when evidence is seized by the police but is later lost or destroyed. Others, on the margins, will be more difficult. Inflexible tests such as actual physical possession should be avoided. Otherwise, the police will be incentivized to refrain from seizing relevant evidence or to inappropriately release evidence to avoid disclosure obligations.

[97] Moreover, it makes little practical difference if the loss or destruction of evidence occurs soon after its discovery and before it comes into the possession of police, as opposed to at a later point. The effect on the accused’s right to full answer and defence is the same. Using the facts of Bero as an illustration, it would have made very little difference to Doherty J.A.’s analysis exactly when the vehicle at the accident was released by the police to the auto wreckers for destruction, be it months later, as it was, or immediately from the scene.

[98] After reviewing the authorities and drawing out general principles from them, I find some factors to consider in resolving this threshold question include:

1. The subjective intentions of the police at the time they came upon the evidence;

2. The objective assessment of whether the police should have maintained physical possession or control of the evidence based on the facts known to them at the time, including the relevance of the evidence;

3. The degree of control the police had over the evidence and their ability to maintain its integrity;

4. The length of time the evidence was in their physical possession or control; and

5. Whether the police failed to seize the evidence for any improper purpose.

[99] Regarding June 12, even on D.C. De Sousa’s version of events (which I do not accept), he reviewed and intended to seize the CCTV video of the interior of the parking garage. I have found that he deliberately chose not to seize the footage for improper motives. Its relevance was obvious. There is no question he was able to instruct the security guard to download it for him. In these circumstances, the s. 7 right to preserve and disclose is engaged.

[100] I come to the same conclusion about the June 27 videos. In respect of those videos, D.C. De Sousa never intended to seize those portions of the videos that are missing. He reviewed the videos, selected only certain portions, and deliberately excluded other footage from the same videos he seized. The missing portions would have shown his car and the circumstances regarding the black Mazda that could have either supported or contradicted his purported observations. Again, they were clearly relevant and the security guard would have included any additional footage if requested. As was the case in Murray #6, where police only downloaded and seized certain portions of surveillance video and not others, D.C. De Sousa’s actions amounted to a failure to preserve evidence.

[101] On both occasions, I find that more than unacceptable negligence has been proven. There was an abuse of process. D.C. De Sousa, in bad faith, deliberately did not ask the security guards to download the June 12 video and portions of the June 27 videos. As these videos no longer exist, in deliberately failing to request them, he contributed to their destruction. Such conduct offends the community’s sense of fair play and decency and condoning it would undermine the integrity of the judicial system.

[102] With respect to remedy, regarding the June 27 videos, I find that Mr. Downes’ ability to make full answer and defence on the Garofoli application has been prejudiced. Given that the Ch 14 CCTV video did not show the black Mazda arriving on L2 of the parking garage and only allegedly leaving, any CCTV video footage of that car arriving at the entrance, making its way up the L2 ramp, and exiting the garage was extremely material and important. If that footage did not show the black Mazda arriving ahead of D.C. De Sousa or making its way up the L2 ramp in the fashion he testified to, any possible reliance on the motion-sensor theory he advanced would have been extinguished. I appreciate that even without the videos, the defence has been successful in its cross-examination of D.C. De Sousa, but armed with them, that task would have been much easier. Without them, the defence lacked significant weaponry needed to challenge a pivotal witness.

[103] Equally, the missing June 12 video has prejudiced the defence. The defence was unable to use the video to directly challenge D.C. De Sousa’s account of the meeting of the two vehicles in the underground parking.

[104] Both sets of missing videos are highly relevant for the Garofoli application and whether there were reasonable and probable grounds for the warrants to issue. In my view, the appropriate remedy in this instance is the deletion of the material information in paras. 35, 39(c), 57(i), 60(b), 81 and 82 of the ITO. Deletion of the offending paragraphs in an ITO was the remedy for lost evidence in R. v. St. Clair, 2020 ONSC 2251, at para. 41 and R. v. Pham, 2021 ONCJ 285, at para. 197. It is the appropriate remedy here as well.

[105] Further explanation is necessary about the deletion of D.C. De Sousa’s observations in the parking garage on June 27. It does not suffice to only delete para. 60(b) regarding what the CCTV video showed. As indicated above, while the defence had other methods to challenge D.C. De Sousa’s credibility, if missing portions of the videos that plainly contradicted his testimony existed, it is reasonable to conclude that the Crown would not have taken the approach they did on this Garofoli application. To address that prejudice and to account for the abuse of process that occurred, paras. 57(i), 81, and 82 should be excised as well.

[106] This remedy is consistent with Doherty J.A.’s reasoning in R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 50-51 although the excision was done in the context of a Garofoli application in that case. In upholding the trial judge’s decision to excise all the information provided by a police agent, Doherty J.A. held that, given that the new information provided on cross-examination effectively destroyed the credibility and reliability of the agent’s information, the trial judge had properly assessed the continued viability of the authorizations by disregarding that information entirely. In this case, the prejudice comes not just from what the CCTV video could have shown, but the fact that it was impossible for the defence to use those videos to impeach D.C. De Sousa’s testimony. Moreover, his purported observations from the garage are not true and cannot be relied on. In these circumstances, the appropriate remedy is to excise his observations from the ITO as well.

2. Excision Under Garofoli

[107] Under the Garofoli analysis, as under the s. 7 analysis, paras. 35 and 39(c) of the ITO about what the CCTV videos of June 12 showed, should be excised, but for different reasons. Under the Garofoli analysis, D.C. Wilson ought to have known there may have been issues with respect to the CCTV videos. The Information Report contained screenshots from the footage showing the entry and exit of the vehicles, but no screenshots of the vehicles within the underground parking, which arguably would have been most probative. D.C. Wilson admitted that he occasionally checks the source videos when he prepares ITOs but did not do so this time. He instead relied only on what D.C. De Sousa wrote in the Information Report, assuming the videos showed nothing important. As the video was supposed to be on the shared drive, D.C. Wilson could easily have verified this information on his computer.

[108] That said, I note that excising this information is of little assistance in terms of whether there were reasonable grounds for the search warrants. The main ground comes from the alleged observations made by D.C. De Sousa on June 27, on which D.C. Wilson was not cross-examined. The information was being relayed verbally to him by D.C. De Sousa. D.C Wilson could not check the videos and there was no reason for him to suspect that the information was unreliable or untrue. Although affiants cannot ignore signs that other officers are misleading them or omitting material information, they need not conduct their own investigation if there is no indication anything is amiss: World Bank, at para. 123. There were no signs to alert D.C. Wilson about the misinformation being conveyed to him and there is no suggestion he was wilfully blind: Phan, at para. 72. Therefore, paras. 57(i), 60(b), 81 and 82 of the ITO cannot be excised under the Garofoli analysis.

3. Conclusion on the Effect of the s. 7 Remedy and Garofoli Excisions on the ITO

[109] After the excisions, essentially what remains in the ITO is that on June 12, Mr. Downes’ vehicle was seen driving along with Mr. Janisse’s vehicle into an underground parking lot of a condominium, and both vehicles were seen exiting shortly afterwards. On June 27, the Mazda is simply seen entering the garage. These grounds could not have possibly sufficed for the search warrants to issue.

[110] Though this is enough to establish the s. 8 violation, I will nonetheless deal with the subversion arguments.

4. Subversion

[111] I find that Mr. Downes has proven based on the totality of the circumstances that the police subverted the search warrant process.

a. The Role of a Sub-Affiant Should be Considered

[112] This case is exceptional in that it was the conduct of the “sub-affiant”, not the affiant, that allegedly subverted the process.[^4] D.C. Wilson’s ITO was not above reproach, but it was really D.C. De Sousa who threatened the integrity of the search warrant process.

[113] The parties have not presented any on-point authority on the issue of subversion by a sub-affiant. In my view, while the focus of a subversion challenge generally is on the affiant, a sub-affiant’s misconduct can play a decisive role in subversion. I conclude it is open for a reviewing judge to consider a sub-affiant’s role for these reasons.

[114] First, the leading cases that explain the residual discretion to set aside a search warrant based on subversion do not confine the inquiry only to the affiant’s conduct, but rather use the broader term “the conduct of the police”. In Araujo, at para. 54, LeBel J. cited with approval the following passage on this point, written by Cromwell J.A. (as he then was) in Morris, at p. 553, which referred to the police generally:

While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves. [Emphasis added.]

[115] Equally, in Paryniuk, at para. 69, Watt J.A. referred to the police generally in recognizing the residual discretion on the basis of subversion, and throughout the decision repeatedly referenced the “police” rather than the “affiant” specifically.

[116] It could be argued that despite Watt J.A.’s references to the conduct of the police in general, he nonetheless limited consideration of police conduct to only that of the affiant. The trial judge in Paryniuk had found that a sub-affiant, who had been cross-examined along with the affiant, had misstated her observations that no furniture could be seen inside an alleged marijuana grow-op — an observation that the affiant uncritically accepted in the ITO — despite the fact that the sub-affiant could only see two feet into the house. In upholding the trial judge’s finding that there was no subversion, at para. 77, Watt J.A. described this deficiency as “debatable” and, citing World Bank Group, emphasized that a sub-facial challenge should turn on what an affiant reasonably believed or ought to have known when the ITO was sworn, not the ultimate truth of what was asserted.

[117] I have given serious thought to whether this passage forecloses consideration of a sub-affiant’s role on subversion. However, based on the decision as a whole, Watt J.A.’s broader references to the police’s conduct overall, and the sound principled reasons to consider a sub-affiant’s role, this is not the interpretation it should be given. Although I also appreciate that taking a sub-affiant’s role into account sits uneasily with the general principle stated in World Bank Group with respect to sub-facial challenges, importantly, the issue of the residual discretion was not before the Supreme Court of Canada in that case. Neither Paryniuk nor World Bank Group preclude a finding that the sub-affiant’s conduct can be considered.

[118] Second, the applicant’s position, albeit indirectly, is supported by other jurisprudence. The applicant relies heavily on the analysis of Moldaver J. (sitting as a trial judge) in R. v. Adair, [1994] O.J. No. 3265 (Gen. Div.).[^5] In that case, the affiant relied on information provided by a jailhouse informant who in the affidavit was portrayed as a reformed man based on police background checks. The reality was very different: documents presented to Moldaver J., some of which were in the possession of prison authorities and a different municipal police force, revealed the informant to be a thoroughly untrustworthy and disreputable source. At paras. 102-103, Moldaver J. found that the officers who had conducted the background checks were “shockingly delinquent” and willfully blind to the extent of “deliberate fraud upon the court”. Importantly, Moldaver J. found that the affiant himself, who had relied on the information provided to him by his fellow officers, had “no reason to suspect” that the other officers had acted in this way. Although these comments were in the context of s. 24(2) of the Charter, they also informed Moldaver J.’s finding on the underlying s. 8 violation, where he concluded that had the authorizing justice known the true situation, they would not have granted the authorization: at para. 97.

[119] Moldaver J. did not consider the issue of subversion in Adair. But that is probably because the doctrine was not yet settled law in our province. Applying the analysis that now exists to the facts of Adair, I agree with the applicant that effectively the judicial authorization could have been quashed based on subversion by the officers who provided the information about the informant’s background. Because the affiant had no reason to question the sub-affiants’ information, Moldaver J. would have had little room to excise or amplify the authorization on that basis. He could only have reached the conclusion that the search warrant should be set aside based on the egregious conduct of the sub-affiants. Thus, this case lends some support to the argument that the conduct of sub-affiants may be relevant on a subversion challenge.

[120] More recently, in R. v. Strauss, 2017 ONCA 628, 353 C.C.C. (3d) 304, at para. 28, the Court of Appeal citing Paryniuk criticized a trial judge for failing to consider police preauthorization misconduct in assessing the validity of a search warrant. The police had deliberately conducted a warrantless search of a barn and found a large cache of firearms; they later returned with a search warrant to seize further firearms behind a false wall in the barn. This misconduct however did not taint the affiant who swore the ITO because he revealed the previous warrantless search. The Court did not ultimately deal with quashing the warrant on the basis of subversion, but rather excluded the evidence under s. 24(2). That said, as I read this case, it would have been open for the court to consider the prior misconduct by the sub-affiants in the context of subversion.

[121] Including the conduct of sub-affiants in the subversion analysis is also consistent with the jurisprudence on police misconduct and abuse of process, which overlaps considerably with the subversion doctrine. Both subversion and abuse of process are concerned with the integrity and repute of the administration of justice. When police conduct is challenged during the search warrant process for abuse of process, all relevant police conduct, including but not limited to that of the affiant, may be scrutinized: R. v. Carambetsos, [2004] O.J. No. 1142 (S.C.), at para. 107; R. v. Spagnoli, 2011 ONSC 4843, at paras. 39-41; R. v. Somerville, 2017 ONSC 3311, at paras. 145-147.

[122] Third, considering the conduct of sub-affiants in the subversion analysis is sound in principle. The power to set aside a search warrant for subversion is a “residual discretion”: by definition, the reviewing justice has significant flexibility and latitude in their exercise of that discretion, provided it is done judicially. The discretion is exercised only after the process of excision and amplification, which is focused on the affiant, is completed and the judge has already determined whether the warrant could have issued. At that point, the reviewing judge should be entitled to undertake a broader and more multi-faceted inquiry. Given that the rationale for this discretion is to safeguard the integrity of the judicial process, and given the contextual analysis urged in Araujo, limiting the scope of the inquiry to only the conduct of the affiant unnecessarily places constraining blinders on the reviewing justice.

[123] Practically speaking, the corruption of the search warrant process can be just as severe and harmful when a sub-affiant deliberately misleads the issuing justice. For example, if police officers conspire in providing false information to an unknowing affiant who has no reason to suspect anything in order to obtain a search warrant, surely a reviewing justice must have some authority to quash that search warrant. In my view, the residual discretion exists precisely to address such a scenario.

[124] I am also not persuaded that including the conduct of sub-affiants in the analysis will expand the scope of review of search warrants in general. The grounds for review remain focused on the nature of the proceedings, which is the admissibility of evidence, not a general inquiry into police malfeasance. Not every sub-affiant whose conduct is impugned will be relevant to a subversion challenge. Not all fraudulent or deliberate falsehoods by sub-affiants will have the effect of corrupting the process, for instance, if the false information is only tenuously connected to the grounds for the warrant or if the sub-affiant is unaware their information is being used to obtain a warrant. On the other hand, sub-affiants who intentionally mislead with the intention of obtaining a warrant on that basis become principals in the subversion of the process. All of this is to say the contextual analysis places the sub-affiant’s misdeeds in their proper place when it comes to exercising the residual discretion.

b. The High Threshold Has Been Met

[125] I will now apply these principles to the facts of this case. The threshold for a finding of subversion is very high and has only been met in a handful of cases.[^6] That said, in these exceptional circumstances, Mr. Downes has proven that the search warrants cannot stand on the grounds of subversion for the following reasons.

[126] First, D.C. De Sousa’s intentional misleading of the issuing justice was egregious. He knew D.C. Wilson would use the information he provided to obtain the search warrants. Furthermore, D.C. De Sousa engaged in multiple acts of subversion: (1) misleading the affiant and the justice about his surveillance observations and the contents of the CCTV video, and (2) failing to seize relevant portions of the CCTV video on both dates. I have found this conduct to be an abuse of process.

[127] Second, D.C. De Sousa was aware of the duty on the affiant to make full, fair, and frank disclosure. His conduct was mitigated neither by inexperience nor by exigency. He has been an affiant before, and while there may have been pressure on June 27 to obtain the search warrants, it was not so significant as to lessen the gravity of his misconduct.

[128] Third, objectively the conduct was subversive of the search warrant process. D.C. De Sousa’s actions and the information he provided are directly and strongly connected to the obtaining of the search warrants. He was not a peripheral officer in an unrelated police investigation that the affiant relied on in drafting the ITO.

[129] Fourth, the totality of the circumstances requires me to consider the affiant’s role. As indicated, D.C. Wilson personally did nothing to subvert the search warrant process. At the same time, D.C. Wilson’s ITO had its deficiencies. He should have known about the missing video on June 12. Further, I find he overstated the significance of the June 12 meeting in his ITO and left a misleading impression with the issuing justice: despite what it says in the ITO, in cross-examination, he admitted that the meeting did little to advance his grounds.

[130] Much was made of D.C. Wilson’s statements in the ITO that, in his experience, drug traffickers commonly use underground parking garages to conduct illicit transactions as they provide more privacy and typically have to be accessed by a fob. The reality was that on June 12, the door to the garage was open. On June 27, the garage could be accessed without a fob as it contained parking for retail store customers. It is true that the absence of a reference in an ITO to something not seen, heard, or done will normally just lead to the inference that it was not seen, heard, or done: R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 50. However, here, D.C. Wilson ought to have known that the garages could be accessed by members of the public, and his opinion may have misled the issuing justice about the nature of these meetings: Morelli, at paras. 56-58; R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, at paras. 22-23.

[131] In conclusion, the high threshold has been met and I would exercise my residual discretion to set aside the warrants for subversion. In the totality of the circumstances, the police conduct had the effect of undermining, corrupting, destroying, weakening, and disrupting the search warrant process.

[132] To be clear, my finding of subversion is limited to the search warrants challenged by Mr. Downes. Central to my decision is the fact that the subversive activity of the sub-affiant affected the fundamental grounds for the issuance of the search warrants for 112-155 Legion Road North and the Terrain. As my reasons go on to show, this finding of subversion does not apply to Mr. Medeiros’ challenge even though the same information from D.C. De Sousa is included in that ITO.

G. THE VIOLATION OF MR. MEDEIROS’ CHARTER RIGHTS

1. Section 7: “Lost Evidence”

[133] In the circumstances of Mr. Medeiros’ s. 7 application, I find that the police’s duty to preserve and disclose is not triggered. D.C. De Sousa did not know that the other cameras existed. While D.C. De Sousa ought to have known about them, the fact remains that he did not and thus was never able to determine their relevance. I agree with the Crown that the “missing” videos would not have shown much given the position of the cameras. Part of their view would have been blocked by pillars and at best, they would have only shown the cars from the rear. These CCTV videos were never in the physical possession and control of the police. Finally, D.C. De Sousa’s lack of diligence in having the security guard show him all the possible cameras was not due to any improper motive.

[134] At its core, Mr. Medeiros’ complaint is based on a failure of the police to conduct a proper investigation rather than the loss or destruction of evidence: Barnes, at para. 1. Thus, no s. 7 violation has been proven.

2. The Facial Challenge

[135] I find that on a facial assessment, the search warrants for 1207-10 Park Lawn Road, the storage locker, and Mr. Medeiros’ Mustang could not have issued.

[136] In addition to the general principles stated earlier in my decision, the following more specific principles must be borne in mind:

1. Statements in an ITO are accepted as reliable and accurate: Crevier, at para. 73.

2. The assessment of reasonable grounds “does not depend on mathematical notions of probability”. Instead the reviewing justice must consider whether “the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched”: R. v. Cusick, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 89; R. v. Kaup, 2022 ONCA 383, at para. 6.

3. A reviewing court’s analysis of the evidence should be contextual as opposed to piecemeal: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 68.

4. Officer training and experience may be relevant in determining whether the requisite legal standard for a search has been met: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 62; Cusick, at paras. 91, 99. However, courts are not required to uncritically accept or defer to a police officer’s conclusion just because it is grounded in their experience and training: MacKenzie, at para. 64.

5. Reasonable grounds must be assessed based on the totality of the circumstances, including the nature of the police investigation: R. v. Bashir, 2021 ONCA 200, 155 O.R. (3d) 1, at para. 7.

[137] Turning to the analysis, a significant piece of context for the ITO is the ample grounds to believe that Mr. Janisse was a high level drug trafficker. Further, Mr. Janisse’s modus operandi appears to be brief vehicle meetings with others where exchanges of bags or boxes take place. But the credible and probable fact that Mr. Janisse conducted drug exchanges does not necessarily mean that the interaction between Mr. Janisse and Mr. Medeiros was one such drug transaction. The specifics of that interaction must be considered.

[138] Of course, it does not matter that the grounds in the ITO do not establish that Mr. Medeiros committed the offences referred to. What matters is that the ITO provides reasonable grounds to believe that evidence relating to the offences would be found in the searches: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 111.

[139] That recognized, the core frailty of the ITO in relation to the places D.C. Wilson sought to search is that, on an objective assessment of the totality of the circumstances, it cannot be inferred that the meeting on June 21 between Mr. Medeiros and Mr. Janisse was a drug transaction. This is just speculation, and it is unsupported by other information in the ITO, which as a whole does not provide grounds to believe that drug related evidence could be found in the residence, locker, or car.

[140] The meeting between Mr. Janisse and Mr. Medeiros did share some suspicious similarities to meetings Mr. Janisse had with others whose premises and vehicles were also subjected to searches such as their brevity. However, there are also significant differences. Whereas four of the meetings were held outside, only the June 12meeting between Mr. Janisse and Mr. Downes and this meeting were held inside. Importantly, there is no evidence to support an inference that there was an exchange of something between Mr. Janisse and Mr. Medeiros. Mr. Medeiros was seen being picked up by Mr. Janisse and carrying a “weighted” backpack. There is nothing unusual about the “weighted” nature of the bag. It is obviously common for people to carry backpacks that contain something in them. I also reject the Crown submission that it was unusual for Mr. Medeiros to carry his backpack to his meeting with Mr. Janisse. Given that Mr. Medeiros was driving a convertible with the top down, the fact he took it with him was prudent, not suspicious. Unlike in Phan, at paras. 74-75, and unlike other instances in the ITO, there is no evidence that Mr. Medeiros left carrying a new or different bag after meeting with Mr. Janisse.

[141] Then there is the evidence that before the meeting, Mr. Janisse stopped at the stash house and left with a brown knapsack. A covert entry later established that one kilogram of cocaine was missing from the stash house after that visit. It is a reasonable inference that Mr. Janisse took the cocaine with him. Ordinarily, this could have contributed to a further inference that the meeting between Mr. Medeiros and Mr. Janisse was a drug transaction. However, after his meeting with Mr. Medeiros, on the same day, Mr. Janisse also met with Mr. Whalen, who entered the Mazda empty-handed and left shortly afterwards with a red gift bag. Mr. Whalen had several past convictions related to drug trafficking. Significantly, D.C. Wilson swore that it was his belief that Mr. Whalen had received the one kilogram of cocaine from Mr. Janisse. As a result, the missing cocaine implicated Mr. Whalen, not Mr. Medeiros.

[142] Innumerable possible explanations can be posited about why Mr. Medeiros met with Mr. Janisse on June 21. The crucial point is that little evidence supports it was for a drug deal. Stripped to its essence, the evidence is that Mr. Medeiros, carrying his backpack, met with Mr. Janisse, who gave him a lift to his Mustang in the underground garage of a neighboring condominium where it had been parked about 30 minutes earlier. They did not stay together in that underground for any length of time. Even when considered in the context of all the other transactions Mr. Janisse was involved in, this cannot lead to a reasonable inference that a drug deal took place.

[143] Carrying the analysis forward, such a meeting therefore cannot support a credibly based probability that evidence of the listed offences could be found in the places linked to Mr. Medeiros. To conclude otherwise would rely at least in part on stereotypical thinking about the behaviour of drug traffickers, who they associate with, and how: James, at paras. 21-25. Like everyone else, drug dealers can have innocent interactions with others. It would be a stretch, to say the least, to assume that everyone a drug dealer interacts with is necessarily buying or selling drugs. All the grounds put forth culminate in suspicion and conjecture but cannot reach the threshold of reasonable and probable grounds: Morelli, at para. 63.

[144] Stereotypical thinking also seems to have infected D.C. Wilson’s assessment of Mr. Medeiros’ dated 2011 convictions for firearm offences. He averred that in his experience it is not uncommon for drug dealers to carry or possess weapons for protection. While such an association does regularly exist, the missing link is any evidence that Mr. Medeiros was or is a drug dealer.

[145] The generalization about drug offences taking place in underground garages is also devoid of any meaningful support apart from D.C. Wilson’s bald assertion and opinion: Morelli, at paras. 73, 79. On the case-specific facts in the ITO, Mr. Janisse conducted his alleged drug trafficking meetings more often in above-ground public streets and parking lots rather than underground garages.

[146] The second frailty is the connection drawn in the ITO between Mr. Medeiros and 1207-10 Park Lawn Road. Clearly, there are grounds to believe that Mr. Medeiros’ girlfriend lived there and that Mr. Medeiros visited or even stayed there. However, buried in Appendix E, the ITO also states that on June 24, D.C. Wilson learned from MTO records that Mr. Medeiros’ address was 4680 Colombo Crescent in Mississauga. Although this provided reason to believe that Mr. Medeiros did not live at 10 Park Lawn Road, no further investigation was done on his address.

[147] Given the lack of evidence connecting Mr. Medeiros to drug trafficking or to his girlfriend’s residence, no search warrant could have issued for that unit. In the similar case of R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 4-5, 9, 26, in a drug investigation, an ITO based on confidential source information was sufficient to issue a search warrant for a restaurant, but insufficient for a search of the house of the restaurant owners. Detailed evidence that the accused and his brother were involved in multiple drug transactions at the restaurant was facially insufficient to infer that evidence would be found at their home. The police surveillance — which saw the brother leave the restaurant, go to the house, leave with an unknown male, return to the restaurant, and then briefly leave to retrieve something from a vehicle — could not have supported the issuance of the warrant as the inference to drug trafficking was speculative.

[148] In James, at paras. 21-25, the fact that the appellant had sold drugs to someone in his vehicle 23 days prior to the execution of a search warrant could not have established reasonable and probable grounds to believe that drugs or drug paraphernalia would be found in the vehicle.

[149] Finally, in R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at paras. 49-50, 54, a search warrant issued strictly on the basis that a Mr. Callahan, who was wanted for robbery, was seen arriving at the appellant's residence. A confidential informant had told the police that he saw Mr. Callahan carrying a gun and that he went nowhere without it. The search warrant was granted despite nothing in the ITO explaining the basis of the informant’s belief, and without knowing who owned or lived in the house for which it was issued or whether Mr. Callahan was otherwise associated with it. A major concern of the Court was that if the conclusory statement that Mr. Callahan always took his gun with him was sufficient to ground a credibly based probability that the gun would be found at the appellant’s home, the statement would suffice to obtain a search warrant for virtually any location Mr. Callahan attended. This would have “turned Callahan into walking, ready-made grounds for belief”: at para. 51. The underlying concern in the case at bar is analogous: anyone meeting briefly with Mr. Janisse in their vehicle would provide ready-made grounds for a search of their vehicle or home.

[150] On the other hand, the case at bar can be distinguished from Kaup, at paras. 19-20, relied on by the Crown. In Kaup, like with Mr. Janisse, there was substantial evidence that the main target was involved in high level drug trafficking. However, there was other probative evidence supporting the grounds for the search warrant for Mr. Kaup’s home. The main target had driven a long distance to very briefly meet Mr. Kaup in his home on two occasions and was seen concealing or clutching something to his side when he entered and left Mr. Kaup’s residence. On one occasion, immediately after leaving, the target drove in a manner indicative of countersurveillance. Finally, unlike Mr. Medeiros, Mr. Kaup had previously served a significant sentence for cocaine-related convictions.

[151] In conclusion, the issuing justice could not have properly granted these search warrants given the lack of reasonable and probable grounds that drugs and other associated evidence could be found in the residence, locker, or car. Therefore, I find a violation of s. 8.

3. The Sub-Facial Challenge

[152] Although it is not necessary to deal with the sub-facial challenge, I will say this about Mr. Medeiros’ submissions regarding subversion. The negligent failure to obtain other camera views of the underground parking does not approach the high threshold required for subversion. Moreover, while Mr. Medeiros attempts to hitch his wagon to the findings I made about D.C. De Sousa when I dealt with Mr. Downes’s application, those findings do not touch the grounds used in support of the search warrants attacked by Mr. Medeiros. In Mr. Medeiros’ case, I would not have exercised my discretion to set aside these search warrants based on subversion.

H. SECTION 24(2) AND EXCLUSION OF THE EVIDENCE

[153] Section 24(2) requires that evidence obtained in breach of the Charter be excluded if its admission would, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long term impact of the admission of the evidence on the repute of the justice system in a comprehensive sense. The onus is on the accused to demonstrate the evidence should be excluded: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-70.

[154] The test for whether the admission of evidence would bring the administration of justice into disrepute is as follows:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.

1. As Applied to Mr. Downes

a. The Seriousness of the Charter-Infringing State Conduct

[155] The seriousness of state misconduct resulting in the Charter breach will fall along a continuum of blameworthiness ranging from a deliberate breach through various levels of negligence to a breach committed in good faith and reasonably. Neither negligence nor wilful blindness by the police can properly be characterized as good faith. Even a significant departure from the standard of conduct expected of police officers will favour exclusion: Grant, at paras. 72-75; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 39.

[156] My task is to situate the police’s conduct on the scale of culpability. The more blameworthy the conduct, the stronger the argument for excluding the evidence: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Grant, at paras. 72-75. The more severe or deliberate the misconduct, the greater the need for courts to disassociate themselves from it by excluding the evidence.

[157] In this case, the Charter-infringing conduct of the police was at the extreme end of blameworthiness.

[158] First, both Mr. Downes’ ss. 7 and 8 rights were violated.

[159] Second, the breaches were deliberate and egregious. Regarding the s. 8 violation, it is appropriate to consider the role of the sub-affiant under this line of inquiry: Rocha, at paras. 33-35. D.C. De Sousa deliberately misled the justice with respect to crucial information and thereby subverted the process. With respect to the s. 7 violation, his failure to secure, preserve, and disclose the CCTV videos was equally a wilful disregard of a Charter right.

[160] Third, bad faith and an abuse of process are the hallmarks of the breaches. Any pressure the police faced to obtain the search warrants against Mr. Downes out of fear that he may be alerted to the investigation does not mitigate the seriousness of the breach. In my view, it may well have been this pressure that influenced D.C. De Sousa to claim he saw more than he did. In addition, it cannot be reasonably argued that the breach was in good faith because D.C. Wilson was not aware of D.C. De Sousa’s misdeeds, as this would promote non-disclosure and reward concealment: R. v. Schertzer, [2007] O.J. No. 4996 (S.C.), at para. 26.

[161] D.C. De Sousa eventually taking responsibility for his failure to seize the CCTV videos does not mitigate the seriousness of his conduct. Relying on after-the-fact acknowledgements of wrongdoing to mitigate breaches would make Charter protections meaningless: Strauss, at para. 50; R. v Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at para. 64.

[162] Fourth, the gravity of the Charter violations is compounded by the dishonest testimony on this application: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 102.

[163] The rationale for the exclusion of evidence under s. 24(2) is not to punish the police but rather to preserve public confidence in the rule of law and its processes. Bearing that in mind, the first line of inquiry leads me to conclude that the public confidence in the rule of law would be imperiled if this evidence was admitted.

b. The Impact of the Breach on the Charter-Protected Interests of the Accused

[164] In this case, the Charter-protected interests impacted by the breach are Mr. Downes’ privacy and his right to make full answer and defence. The second inquiry requires an assessment of the extent to which those interests were compromised by the improper searches and the failure to preserve evidence. The more negative the impact, the stronger the case for exclusion: Grant, at paras. 76-78.

[165] Regarding the privacy interests, the law has long recognized that a search of a residence involves a serious invasion of privacy interests: see Grant, at para. 113; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 148. Privacy interests in vehicles are lower by comparison: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at paras. 38-39; R. v. Steele, 2015 ONCA 169, at para. 18. The serious impact of a residential search does not overwhelm the overall impact of searches at other locations such as the vehicle, but it is a part of the constellation of relevant factors used in the evaluation of the overall impact of the Charter-infringing conduct of the police: R. v. Just, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para. 54.

[166] With these principles in mind, the residential search seriously impacted Mr. Downes’ privacy interests. The search of the Mustang was also intrusive, albeit less so: the evidence seized from the vehicle was not in plain sight and the rear hatch where the evidence was located could not be accessed without the specialized assistance of the auto squad. The police’s unreasonable searches overall had a significant impact on Mr. Downes’ Charter-protected privacy interests.

[167] Regarding his interest in making full answer and defence, as I determined above, the s. 7 violation caused him significant prejudice.

[168] In sum, the second line of inquiry also strongly supports exclusion.

c. Society’s Interest in the Adjudication of the Case on its Merits

[169] Finally, the court must determine whether the truth-seeking function of the trial is better served by admission or exclusion. The third inquiry is concerned with the integrity of the trial process, which suffers if reliable, cogent evidence is excluded. Conversely, the routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the trial process: Grant, at paras. 79-81.

[170] In this case, what was seized is reliable and cogent evidence of very serious offences. Exclusion of the evidence will gut the Crown’s case. The third line of inquiry strongly favours admission.

d. The Final Balancing

[171] The Grant analysis requires a careful balancing of the three factors discussed above. The balancing exercise is qualitative and not capable of mathematical precision: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36.

[172] In this case, the first two lines of inquiry strongly favour exclusion. There are multiple serious Charter violations striking at the heart of cherished constitutional and societal values. While society also has a strong interest in serious drug and gun offences being tried on their merits, the Supreme Court of Canada has cautioned against allowing the third branch of the Grant test to overwhelm all other considerations: Paterson, at para. 56. If the first and second inquiries strongly favour exclusion, the third inquiry will seldom, if ever, tip the balance the other way: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63; R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; Morelli, at paras. 98-112; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 142. This principle applies even in cases where the offences are serious and the search has uncovered reliable evidence: R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 95.

[173] It has also been recognized that a sufficiently serious Charter violation on its own can lead to the exclusion of the evidence, regardless of the outcome of the other two lines of inquiry: Le, at para. 141. I am of the view that this is such a case.

[174] I have little reservation in holding that the admission of the evidence against Mr. Downes would bring the administration of justice into disrepute. This is a rare and exceptional case where subversion of the search warrant process has been proven. Significant reliable evidence was deliberately not seized. The Charter violations are most serious. The second line of inquiry also supports exclusion. In these circumstances, the final balancing overwhelmingly demands exclusion.

2. As Applied to Mr. Medeiros

a. The Seriousness of the Charter-Infringing State Conduct

[175] The s. 8 violation Mr. Medeiros experienced was serious as well. To begin, the lack of reasonable and probable grounds for the search warrants must be properly situated on the continuum of police blameworthiness.

[176] The Crown submits that the seriousness of the Charter-infringing state conduct is mitigated by the fact that the police acted in good faith by seeking a search warrant: Morelli, at para. 99; Rocha, at para. 28. In response to this submission I would rely on the comments of Doherty J.A. in Bashir, at para. 92:

The Crown submission is a fair one, but it goes only so far in assessing the blameworthiness of the state conduct. Even when the police follow the proper procedures and seek a judicial authorization, serious inadequacies in the material placed before the issuing judge can justify a finding the police acted negligently or unreasonably, thereby exacerbating the blameworthiness of the state conduct leading to the Charter breach[.]

[177] The standard of review to be applied by the reviewing justice on a Garofoli application sets a relatively low bar. This ITO could not even clear that low bar, as it was seriously deficient in setting out the grounds required to justify its issuance. The search warrants were by way of a violation of well-established rules regarding the sufficiency of the grounds required: James, at paras. 39, 41.

[178] In Morelli, at paras. 100-103, although the affiant himself did not intend to mislead, the lack of reasonable and probable grounds and the lack of diligence on the part of the affiant made the Charter-infringing conduct serious. Likewise, here the ITO lacked the proper grounds and precipitous searches resulted. The deficiencies were fundamental, as grounds to satisfy an issuing justice that evidence of a listed offence could be found at 1207-10 Park Lawn Road, the storage locker, or the vehicle did not exist: Strauss, at para. 49. On the case-specific facts of this ITO, D.C. Wilson did not act in “good faith”, as the term is used under s. 24(2), since the deficiencies in the ITO were tantamount to negligent and unreasonable conduct: Paterson, at para. 44.

[179] I recognize that in Rocha, in assessing the first line of inquiry, Rosenberg J.A. stated that where the ITO that formed the basis for the issuance of the warrant is found to be insufficient, the proper approach to determine the seriousness of the Charter breach is to first consider whether the ITO was misleading. If so, the seriousness will depend on whether the use of false or misleading information was intentional or inadvertent: see also R. v. Szilagyi, at para. 54.

[180] Although not expressly articulated in the decision, it remains relevant that in Rocha and a case referred to in that decision, R. v. Blake, 2010 ONCA 1, the ITOs did not meet constitutional standards because information from confidential sources was redacted and not relied upon by the Crown. The repute of the administration of justice had to consider the effect of excluding evidence where the unredacted ITO could have been in perfect compliance with the statutory pre-conditions. Thus, greater emphasis was given to the examination for misleading disclosure in the ITOs in assessing the seriousness of the Charter breach.

[181] In contrast, where the ITO is plainly deficient on its face without being concerned with redactions,[^7] gauging the blameworthiness of the state conduct need not always involve hunting for failures of the duty to be full, fair, and frank. From a certain viewpoint, the negative effect on the administration of justice in admitting the evidence is greater since the lack of reasonable and probable grounds was missed by both the issuing justice and the affiant.

[182] Regardless of the direct applicability of those authorities, there was also some misleading disclosure by D.C. Wilson. While the sub-facial challenge did not succeed, it is still appropriate to look at any misleading of the issuing justice by the affiant. As discussed above, the one misleading averment is D.C. Wilson’s view that underground parking lots are utilized to conduct illicit transactions as they often provide more privacy. In Bashir, at para. 89, Doherty J.A. held, “The potential to mislead by careless drafting, or ambiguous silences, is very real.” The absence of any information indicating that the parking garage was open to at least some members of the public could have led the justice to view the meeting as more suspicious than it was.

[183] Focusing solely on the facial invalidity of the ITO and D.C. Wilson’s conduct, I would place the Charter-infringing conduct on the serious end of the spectrum.

[184] Then there is D.C. De Sousa’s overall conduct in relation to the Charter violations. D.C. De Sousa’s misconduct did not subvert the search warrants in respect of Mr. Medeiros specifically, but it would be wrong to be entirely indifferent to his conduct. His negligence in not finding footage from cameras with a better line of sight to the parked vehicles, while not a s. 7 violation, is relevant, as is his fundamentally flawed testimony heard on this application. D.C. De Sousa’s conduct in relation to the violation of Mr. Downes’ rights should also be considered given the contextual nexus between the material search warrants with respect to both accused. The s. 24(2) analysis may also include consideration of Charter violations against others: Strauss, at para. 52. When the whole picture of D.C. De Sousa’s conduct is assessed, it can fairly be described as conduct approaching a pattern of abuse: Grant, at para. 75.

[185] Overall, I find the police conduct falls at the serious end of the spectrum, favouring exclusion.

b. The Impact of the Breach on the Charter-Protected Interests of the Accused

[186] A residence, storage locker, and vehicle were searched. The impact of the breach on the Charter-protected interests of Mr. Medeiros can be approached similarly as in Mr. Downes’ case. Mr. Medeiros’ privacy interest in his residence is strong. Given that the storage locker is only accessible to the resident and lockers often contain items in which there is a significant expectation of privacy, the impact flowing from the Charter breach on the accused’s privacy interest is also strong in that respect. For the Mustang, it is less so.

[187] In Herta, the Charter-protected interest was at the apex of seriousness. The appellant’s home held a strong expectation of privacy. The fact that the appellant invited Mr. Callahan to his home did not mitigate this; he merely allowed someone into his home and that person acted like a “beacon” for the police. Secondly, the search was described in Herta as invasive and intrusive. I note that evidence of drugs was excluded in Herta even though consideration of the first prong of the test was held to fall in the middle of the spectrum.

[188] Here, Mr. Medeiros had an equally strong privacy interest in unit 1207-10 Parklawn Road. And Mr. Medeiros did not invite Mr. Janisse into his home — he just met with him in a neighbouring condominium on one occasion. I do not know how intrusive the search of the residence was based on the evidence led, but I can infer that the search was not superficial. Thus, the impact on Mr. Medeiros’ privacy interests in his home is at the most serious end of the spectrum and favours exclusion.

[189] Assessing the overall impact of all the search warrants, this line of inquiry favours exclusion as well. That said, I recognize that given the attenuated impact on the privacy interest in the car, the pull for exclusion is less strong.

c. Society’s Interest in the Adjudication of the Case on its Merits

[190] As in Mr. Downes’ case, consideration of this factor strongly favours inclusion. The evidence is reliable and essential to the prosecution’s case.

d. The Final Balancing

[191] This is a harder call than in Mr. Downes’ case. I have considered whether it would be appropriate to treat the search of the residence and the associated storage locker differently from the search of the car. However, in the final balancing, I am of the view that it is right to treat the search warrants in the same fashion. The difference in the impact on the privacy interests of the accused between the residence and the car should not make a significant difference in the ultimate outcome.

[192] Of the three lines of inquiry, the first strongly supports exclusion. The second line of inquiry also supports exclusion, though to a lesser degree. The third line of inquiry strongly supports admission. After careful reflection, the qualitative balancing leads me to exclude the evidence.

[193] To be frank, excluding probative evidence like handguns and hard drugs is not an easy thing to do. Mr. Medeiros — and Mr. Downes, for that matter — are charged with serious offences that have wreaked havoc in our communities and threaten our collective sense of safety and well-being. Guns and illegal drugs deserve condemnation. At stake is the cratering of a prosecution where a handgun and a significant amount of fentanyl were found.

[194] However, s. 24(2) requires judges to take a step back and adopt a broader perspective: R. v. Tim, 2022 SCC 12 at para. 98. I cannot lose sight of the fact that fundamentally the Charter is about the protection of our constitutional freedoms and liberties. To safeguard the rights and freedoms that we all enjoy for the long term, difficult decisions must be made at times. I harken to the following passages from Fish J.’s decision in Morelli, at paras. 110-111:

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

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

[195] The evidence obtained from the searches is excluded.

Justice S. Nakatsuru

Released: July 27, 2022

COURT FILE NOS.: CR-21-90000172

CR-21-90000174

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAIDYN DOWNES and BRIAN MEDEIROS

Applicants

REASONS FOR JUDGMENT

NAKATSURU J.

Released: July 27, 2022

[^1]: All date references will be for the year 2019, unless specified otherwise.

[^2]: A tracking device on the Mazda was installed by the police pursuant to a tracking warrant.

[^3]: Complications arose in Murray #6 because in an unrelated homicide investigation, the police had seized the entire hard drive from the apartment; however, the hard drive became corrupted and the relevant video was not retrievable. Despite this and the fact that a mirror image of the hard drive was later discovered, Molloy J. found a s. 7 violation earlier in time, when all relevant video was still available and the police could have seized it as planned by way of a search warrant, but did not execute the warrant in a timely fashion.

[^4]: When I refer to a “sub-affiant”, I mean a police sub-affiant and do not intend to include anyone else who provides information to the affiant of an ITO (such as a confidential source).

[^5]: Adair is sometimes cited in a different context, for the principle that the police in pursuing ex parte applications should be reasonably diligent and thorough in their investigations. Adair was also recently cited with approval by Doherty J.A. in Hall, at para. 50, in his analysis of the nature of the cross-examination of an affiant.

[^6]: For example, in R. v. Maton, 2005 BCSC 330, at paras. 50-51, Romilly J. quashed a warrant on the basis of subversion where a confidential source had advised the affiant that the entire basement of a home contained marijuana, but the affiant had strategically omitted the fact that the home actually had no basement from the ITO. In R. v. Gardner, 2015 BCSC 801, at paras. 34-42, 81, McEwan J. also found subversion where the affiant provided seriously misleading information. In R. v. Laughlin, 2021 ONCJ 666, at paras. 35-37, Konyer J. expressed concern that substantial portions of the ITO linking the accused to the allegations were false or misleading and held that the defence’s arguments on subversion had merit, although he ultimately decided the case on another basis.

[^7]: I am mindful that the confidential source information in D.C. Wilson’s ITO is redacted. However, this related only to Mr. Janisse. There is no suggestion the confidential source said anything relevant to Mr. Medeiros.