ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-30000365 DATE: 20221121

BETWEEN:

HIS MAJESTY THE KING

– and –

DAMIAN CAMPBELL Applicant

Counsel: Timothy Edwards, for the Crown Jassi Vamadevan, for the Accused

HEARD: October 31, 2022

Allen J.

REASONS FOR DECISION

(Ruling on an Application under sections 8, 9 and 24(2) of the Charter of Rights and Freedoms)

BRIEF FACTUAL OVERVIEW

[1] Toronto Police Service responded to a radio call on July 26, 2019 regarding sounds of gunshots reported in Scarborough. When the police arrived on the scene, they met Steven Tennant who told them two males had approached him, one carrying a firearm, which was discharged toward him. A struggle followed and Mr. Tennant sustained a gunshot wound to the back of his neck.

[2] After reviewing evidence and CCTV surveillance the police concluded the shooter was a male named Ryan McQuinn. The police were unsuccessful in their attempts to find Mr. McQuinn. They obtained a warrant for the arrest of Mr. McQuinn for attempted murder and discharge of a firearm related offences.

[3] The police received a tip from a confidential informant that assisted with locating Mr. McQuinn. The police had information that Mr. McQuinn resided at 2405-5025 Four Springs Ave., Mississauga (“the residence”). The police arrested Mr. McQuinn and the Applicant on August 21, 2019 outside 5025 Four Springs Ave.

[4] On the same day after the arrest the police entered the residence based on what they believed was an exigent circumstance. They remained in the residence. In the early morning of August 22nd, the police applied for and were granted a search warrant to search the residence and a 2017 white Dodge Charger. In the residence the police located two firearms and a quantity of a substance believed to be cocaine.

[5] Among other items the police listed on the Information to Obtain (“the ITO”) to be seized from the residence most important were the firearm used in the offence and the clothing Mr. McQuinn was wearing at the time of the incident.

THE APPLICATION

[6] The Applicant asks the court to exclude all evidence seized from the residence. He takes the position that the police failed to make full, frank and fair disclosure in the ITO prepared in support of the search warrant which the Applicant contends renders the search warrant invalid.

[7] The Applicant further submits that the ITO fails to establish the necessary reasonable and probable grounds to believe the evidence sought will be located at the residence, the implication being that the search violated the Applicant’s rights under s. 8 of the Charter of Rights to be secure from unreasonable search and seizure. It is the Applicant’s burden on a balance of probabilities to prove the police lacked reasonable and probable grounds.

[8] The Applicant takes the position, and the Respondent agrees, that the determination on the validity of the search of the residence will be dispositive of the lawfulness of the initial warrantless entry into the residence and the validity of the searches of the vehicle and the Applicant’s person. The warrantless entry is the Respondent’s burden to prove: [R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 30, (S.C.C.)]

ORIGINAL ISSUES BEFORE THE COURT

[9] The following are the original issues before the court which I set out in the chronological order in which they arise in the evidence:

a) Did the police unlawfully arrest and detain the Applicant in violation of his rights under s. 9 of the Charter?

b) Was the initial warrantless entry into the residence, purportedly based on an exigent circumstance, unlawful and in violation of the Applicant’s rights under s. 8 of the Charter?

c) Did the ITO for the search of the residence contain sufficient reasonable and probable grounds upon which the issuing justice could have granted the search warrant?

d) Was the search of the vehicle, being conducted pursuant to the search warrant, a violation of the Applicant’s rights under s. 8 of the Charter?

[10] Projecting ahead, I find the warrant to search the residence invalid as the police lacked the reasonable and probable grounds to conduct the search. With that determination the other issues fall to the domino effect.

[11] Before the warrant was issued, on the same grounds the police used to justify the warrant, they arrested the Applicant outside the residence for possession of a firearm. The Respondent conceded the arrest was a violation of the Applicant’s s. 9 Charter rights.

[12] Regarding the initial entry, s. 487.11 of the Criminal Code addresses exigent entry into premises. This section provides that a police officer is authorized to enter a premises if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. The conditions for a warrant were not met and the Respondent also conceded the initial entry was unlawful.

[13] The search of the vehicle was also unlawful as also being conducted on same grounds the police advanced to support the search of the residence. The Respondent also conceded the search of the vehicle was unlawful.

[14] I will now move on to provide my reasons for finding the search warrant invalid.

THE LAW

The Statutory Pre-Conditions

[15] Section 487(1) of the Criminal Code provides the statutory pre-conditions for obtaining a search warrant. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing court there are reasonable and probable grounds to believe an offence has been committed or will be committed at the property.

[16] The Supreme Court of Canada further defined the requirements of the statutory pre-conditions for obtaining a warrant. The issuing court must consider whether the police demonstrated reasonable and probable grounds to believe: (a) that an offence was being committed, had been committed or would be committed, and (b) that evidence of the offence would be found at the specified time and place: [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 42, (S.C.C.)].

[17] A voir dire is held to determine the admissibility of the evidence. The judge on the voir dire conducts a review of the warrant to determine whether the evidence proposed by the Crown for admission satisfies the pre-conditions set out under s. 487(1).

Requirement to be Full, Frank and Fair

[18] The prior authorization process for a search warrant is an ex parte procedure in which the defence plays no part. There is therefore a strong legal obligation on the party seeking an ex parte authorization to be full, fair and frank in disclosing all material facts. The Supreme Court of Canada in R. v. Araujo provides this caution:

Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts.

All that [the affidavit] must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.

[R. v. Araujo, at paras. 46 and 47]

The Sanctity of Private Dwellings

[19] The residence searched was the home of the Applicant. Courts have long acknowledged the importance of recognizing the precious privacy people expect to enjoy in the security of their homes, a special expectation to be free of unwarranted state incursions into their private spaces. The Supreme Court of Canada has acknowledged this right in the clearest of words:

[20] In R. v. Silveira:

There is no place on earth where persons can have a greater expectation of privacy than within their “dwelling-house”.

[R. v Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, (S.C.C.)].

[21] And in R. v. Genest:

The same point was made by La Forest J. (dissenting) in the later case of R. v Landry, 1986 48 (SCC), [1986] 1 SCR 145, at p. 167:

The sanctity of the home is deeply rooted in our traditions. It serves to protect the security of the person and individual privacy. The same thought was expressed as early as 1604 in the language of the day in the first proposition of the celebrated Semayne's Case (1604), 5 Co. Rep. 91a, at p. 91b, 77 E.R. 194 at p. 195 as follows:

1. That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.

[R. v Genest, 1989 109 (SCC), [1989] 1 SCR 59 (Ont. S.C.J.)].

Confidential Informants

[22] The police in this case acted on information provided by a confidential informant.

[23] Strict rules govern police use of information provided by informants to support an application for a search warrant. Special privilege protects a confidential informant. Informants are often critical to police investigations as they put themselves in possible jeopardy if information is disclosed that could identify them. The police and the Crown have a positive obligation to secure the identity of a confidential informant as does the court: [R. v. Leipert, 1997 367, [1997] 1 S.C.R. 281 (S.C.C.)].

[24] Information in an information to obtain that could potentially identify the informant is redacted to protect the privilege. A question arises as to how the defence can resist a warrant when, information that might be material to the challenge, could be concealed beneath the redactions making it inaccessible to the defence for full answer and defence. This means that some of the precise and detailed information that could identify the informant is unavailable to the defence to challenge the warrant.

[25] Informer privilege is paramount but sufficient information must be accessible in the information to obtain upon which the issuing court can assess the credibility and reliability of the informant and the information provided: [R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 215-216, (S.C.C.)]. From the viewpoint of the defence, its ability to test the reliability and credibility of the informant and their information and to test whether the information is compelling and corroborated can be impacted by protecting the informant.

Redaction of the Information to Obtain

[26] Redaction or editing of information is a means by which the identity of the informant can be protected during the review proceedings.

[27] The ITO before this court contains redactions of some details of the investigation and of the informant and their activities, information that forms the basis of the application for a warrant. The Respondent prepared a Crown Summary of some of the information underlying some redactions, information the Respondent believes will jeopardize the informant’s identity if disclosed. To this point in the proceeding the Applicant has not challenged the ITO as redacted by the Respondent. It is the redacted ITO that is the basis of the parties’ submissions and the court’s review of the warrant for the house.

[28] The Respondent submits that if the court finds, based on the ITO as redacted with Crown summaries, that the police lacked reasonable and probable grounds to believe the firearm and clothes would be located in the residence, the Respondent will request that the court review the unredacted ITO and determine whether reasonable and probable grounds exist after reviewing the additional unredacted information.

Challenge to a Warrant

[29] Over the years courts have established ground rules to govern the review process. The validity of an information to obtain can be challenged both facially and sub-facially.

[30] A facial challenge requires the reviewing judge to examine the information to obtain and determine whether, on the face of the information disclosed, whether the justice could have issued the warrant: [R. v. Araujo, [2000] 2 S.C.C. 992, at para. 91, (S.C.C.)].

[31] A sub-facial challenge looks behind the warrant to challenge the credibility and reliability of its contents. A tool available to the defence to attack the warrant sub-facially is by cross-examining the affiant officer. Leave from the court is required for cross-examination. The Applicant in this case did not seek leave of the court to cross-examine the affiant officer.

The Debot Inquiries

[32] R. v. Debot sets down three factors designed to determine whether the reasonable grounds to believe standard is satisfied, whether the information in the information to obtain is sufficiently reliable to support a reasonable belief. Reliability goes to the accuracy and the trustworthiness of the informant and their information to be assessed in the totality of the circumstance. The three inquiries are:

a) Was the source credible?

b) Was the information predicting the commission of the offence compelling?

c) Did the police do an investigation to corroborate the information before conducting the search?

[R. v. Debot, pp. 215 - 216]

[33] In weighing the three factors, they are not to be treated as separate. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two: [R. v. Debot, at p. 215]. A balance must be struck between the interest in Leipert to protect against disclosure of the informant identifying information and the competing interest in Debot to ensure there is sufficient information to satisfy the credibility, compelling and corroboration factors.

Framework of the Admissibility Voir Dire

[34] An inquiry is held to consider evidence the Crown seeks to adduce of things found and seized during the search of a person, place or thing. Items found and seized during a search which are relevant and material are prima facie admissible. This remains true whether police conduct during the search that yielded the evidence was lawful or unlawful: R. v. Sadikov[, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2032609795&originationContext=document&transitionType=DocumentItem&ppcid=f7386ff8a2314e11ad899f4fff36d76f&contextData=(sc.History*oc.Search))[2014 ONCA 72](https://www.canlii.org/en/on/onca/doc/2014/2014onca72/2014onca72.html)[, at para. ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2032609795&originationContext=document&transitionType=DocumentItem&ppcid=f7386ff8a2314e11ad899f4fff36d76f&contextData=(sc.History*oc.Search))[34](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2032609795&originationContext=document&transitionType=DocumentItem&ppcid=f7386ff8a2314e11ad899f4fff36d76f&contextData=(sc.History*oc.Search))[, (Ont. C.A.)](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2032609795&originationContext=document&transitionType=DocumentItem&ppcid=f7386ff8a2314e11ad899f4fff36d76f&contextData=(sc.History*oc.Search))[].

[35] Constitutional considerations are naturally engaged when state agents conduct searches and seize items from a private area like a home. A two-step admissibility inquiry is conducted by which at each step the party claiming a violation and seeking exclusion of the evidence has the burden of proof on a balance of probabilities. The first step is an inquiry into whether constitutional rights were violated by the state conduct. If a violation is found, a second-step inquiry into the admissibility of the evidence acquired by the breach is conducted pursuant to s. 24(2) of the Charter: R. v. Sadikov, at para. [35].

Some Principles Governing the Review Process

[36] Below, I summarize some of the guiding principles developed by the courts:

• The warrant is presumed valid and it falls to the defence to prove invalidity on a balance of probabilities: [R. v. Wilson, (2011), 2011 BCCA 252, at para. 63, (B.C.C.A.)]:

• The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewing judge to substitute their view for that of the issuing court: [R. v. Garofoli, at p. 1452];

• The role of the review is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could — not would — have issued. There has to be some evidence that might reasonably be believed on the basis of which the warrant could have issued: [R. v. Morelli, at para. 40; R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, [1990] 2. S.C.R. 1421, at p. 1452, (S.C.C.)];

• The reliability of the information must be adjudged at the time of the application for a warrant. It cannot be considered ex post facto from the results of the search: [R. v. Garofoli and R. v. Araujo, at paras. 54 - 56].

• Warrant review requires a contextual analysis. Reference to all the information contained within the four corners of the information in the ITO provides a fair and reasonable context. The review must involve a scrutiny of the whole of the document and not a limited focus on an isolated passage or paragraph: [R. v. Garofoli, at p. 1452];

• An authorization may be set aside on the grounds of fraud, material non-disclosure, misleading disclosure or the discovery of new evidence that shows that the actual facts are different from those upon which the authorization was granted: [R. v. Garofoli, at p. 1399].

• Non-disclosure arising from an improper motive or intention to mislead the issuing justice may, standing alone, invalidate the warrant despite the existence of requisite grounds to issue the warrant: [R. v Colbourne, 2001 4711 (ON CA), [2001] OJ No 3620, at para. 40, (Ont. C.A.); R. v Kesselring 2000 2457 (ON CA), [2000] OJ No. 1436 (Ont. C.A.)].

• The review is not an exercise in examining the conduct of police with a fine toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial: [R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787, at para. 57, (Ont. C.A.)].

• Facts that would be known to anyone familiar with the suspect and would not in any way substantiate the allegation that the suspect was involved in the crime do not address the reliability of the confidential source: [R. v. Zammit, 1993 3424 (ON CA), 1993 CarswellOnt 93, at para. 26, (Ont. C.A.)]; and

• Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: [R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673, at para. 20,(Ont. C.A.).

The Garofoli Step 6 Procedure

[37] R. v. Garofoli provides a six-step process for considering the validity of a wiretap. R. v. Rocha held that the six-step procedure can be adapted to assessing the validity of a search warrant: [R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (Ont. C.A.)]. At Step 6, the review court assesses the sufficiency of the information to obtain as redacted determining whether summaries of the individual redacted areas will allow the defence a sufficiently full and fair challenge to the warrant. At Step 6, the Crown first prepares a Crown Summary of some of the redacted areas which it advances as sufficient to allow the defence a fair challenge to the warrant.

[38] Unusual in the case before this court is that the redacted ITO containing the Crown summaries was relied upon by the parties as an initial stage to challenge to the warrant. It was decided that a Step 6 hearing would not be embarked upon unless the court finds the ITO, as redacted with the Crown summaries, is insufficient to establish reasonable and probable grounds. Since I found the warrant invalid as it stood a Step 6 review was conducted.

[39] More common in my experience is that the Step 6 review would involve the Crown stating at the outset whether they believe the warrant could be supported by the redacted information to obtain. The Crown generally takes the position that the warrant could be supported by the redacted information to obtain. If the defence challenges the information to obtain as redacted by the Crown as insufficient to challenge the warrant, the Crown will prepare a Crown Summary of the redacted areas it believes can be summarized without jeopardizing informant privilege.

[40] Usually conducted outside the courtroom, the court can choose to conduct a review of the redacted information to obtain, containing the Crown summaries, together with the fully unredacted information to obtain. The court can accept the Crown Summary as sufficient or raise inquiries and recommend amendments or additions to the information. This can involve removing redactions or expanding on the information in the Crown Summary. If found appropriate the review court will draft a Judicial Summary it believes will enlarge on the information available to the defence without compromising informant confidentiality.

[41] The review court must be mindful of the precariousness involved in deciding what to disclose taking care not to reveal information that could identify the informant or narrow the pool of whom the informant might be. As the Ontario Court of Appeal cautions: “Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer”: [R. v. Omar,[2007] CarswellOnt 218, at p. 255, (Ont. C.A.)].

[42] It is the function of Step 6 to offer a compromise between having all redactions remain intact, which in many cases would prevent a fair challenge to the warrant, and removing all redactions, which would jeopardize informant confidentiality.

The Step 6 Determination in the Case before this Court

[43] I conducted a Step 6 review and indicated that I understood why certain areas of the ITO were redacted. I found the information in those areas contain the type of detail that if disclosed could potentially identify the informant or narrow who they are. I could see no way to safely disclose more information or expand on the Respondent’s summaries without jeopardizing privilege and for that reason I did not prepare a Judicial Summary. As explained earlier, the sufficiency of the redacted ITO containing the Respondent’s summaries and the adequacy of the police investigation to satisfy the pre-conditions are at issue in determining the validity of the warrant.

THE EVIDENCE

The Police Investigation

[44] On August 20, 2019, the police began surveillance in relation to the investigation of the Applicant and Mr. McQuinn as follows:

• from 5:52 p.m. to 11:00 p.m. the police conducted surveillance at 314-131 Minerva Ave. in Toronto, Mr. McQuinn’s residence, where they did not locate either the Applicant or Mr. McQuinn. The Applicant points out that this information was not included by the affiant in the ITO.

[45] On August 21, 2019, the police conducted surveillance at 5025 Four Springs Ave., in Mississauga as follows:

• At 5:43 p.m., the police observed Mr. McQuinn walking a brown dog around the building located at 5025 Four Springs Ave.
• At 6:18 p.m., the police reviewed surveillance video of the building and noted the following:

➢ At 5:30 p.m., the Applicant exited the elevator at level P1 wearing a red shirt, black pants, black hat, red shoes and a gold chain.

➢ At 5:36 p.m., the Applicant re-entered the elevator carrying a Goodlife bag and got off at the 24th floor and headed towards unit 2405.

➢ At 5:45 p.m., Mr. McQuinn was observed with a dog entering the elevator wearing slippers, shorts and a t-shirt. Mr. McQuinn exited on the 24th floor and headed towards unit 2405.

➢ At 5:57 p.m., both the Applicant and Mr. McQuinn are observed entering the elevator from the 24th floor. Mr. McQuinn is observed wearing black shorts, a black top, sandals and a satchel.

➢ At 5:58 p.m., both males exit on level P1 and enter a 4-door white Charger with Ontario marker # CJFY 433 (parked in spot 33).

➢ At 6:22 p.m., the vehicle is observed returning, operated by an unknown white female. The female is observed entering the elevator and exiting the elevator at the 24th floor.

➢ At 7:04 p.m., the same female is observed entering the elevator and returning to the vehicle.

• At 7:05 p.m., the vehicle is observed by police exiting the underground parking lot, operated by the unknown female. The vehicle is followed to 5030 Four Springs Ave. The female enters a building at 5030 Four Springs.
• At 7:39 p.m., the same unknown female exits the building and enters an Uber.
• At 7:58 p.m., both the Applicant and Mr. McQuinn are observed exiting the lobby of 5030 Four Springs Ave. The Applicant enters the white Charger and Mr. McQuinn proceeds to walk east in the parking lot. A take down is called at this time.
• Mr. McQuinn is arrested with the satchel. A key to the residence was found on him. No evidence is found in the satchel. The Applicant points out that the evidence about the satchel was not included in the ITO.
• The police state that as the Applicant is taken down and being pulled out of the vehicle, the Applicant leans towards the passenger side of the vehicle, resisting arrest. DC Furanna strikes the Applicant in the head with his fist to gain compliance.
• The Applicant is wearing wet swimming shorts and advises he was just swimming. The Applicant was read rights to counsel.
• The police enter to secure the unit based on an exigent circumstance. A large dog is found inside the unit. No other occupants were located.

• The police remained in the unit. The Applicant points out that while the ITO states that the unit was frozen it does not make it clear that officers remained in the unit.

The Redacted Information to Obtain Containing Crown Summaries

[46] The Respondent submits that the following evidence from the ITO is sufficient to establish reasonable and probable grounds to search the residence. The Applicant submits the information is insufficient to support the warrant.

a) The source knows the target to be Ryan McQuinn.

b) The source said that they know the target was involved in a shooting in Toronto recently.

c) The source knows where the target is staying. [That is a summary replacing two redacted bullet points].

d) The source said the target is staying with a male that they only know as “D”.

e) [entire point redacted]

f) The source said that the target is most likely still in possession of a firearm.

g) The source said that the target is dealing drugs they believe to be cocaine and crack cocaine.

h) The source said that the target does not use drugs other than smoking marijuana.

i) [The next five points are redacted and replaced with the following summaries: “the source knows the location that the target frequents; the source knows the target’s phone number and knows the target uses apps to communicate with people”].

j) The source said that the target always has a black satchel and they believe that the target keeps his gun and drugs in it.

k) The source said that the target never leaves his satchel unattended.

l) The source saw the target with this satchel [next portion redacted and replaced with the wording, “in the last few months”].

m) [The next three points are redacted and replaced with the following summary: “the source has first-hand knowledge that the target has a handgun; the source said that D is a pimp and drug dealer”].

n) The source said that the Instagram account for “D” is ‘dee666”.

o) The source described “D” as a male black, taller than 6’4” with a very heavy build and tattoos on his arms.

p) The source said the “D” is currently pimping 2 girls and that he pays for their condos, however, the source does not indicate where the condos are.

q) The source said that “D” is most likely in possession of a firearm.

r) [The next two points are redacted and replaced with the following summary: “the source knows “Ds” phone number as 416 917 3705”.

s) The source said that the Instagram account for the target is “Toronto_g_squad”

t) The source said that the target uses Snapchat to sell his drugs and that he is always extremely cautious about who he sells to and that he won’t deal with people he doesn’t know”.

u) The source said that target rarely comes back to Toronto. [The next point is redacted].

v) The source was shown a booking photo of both Ryan McQuinn and the Applicant and he confirmed both photos to be the subjects of his information.

[47] Following the arrest, before the search of the residence, the Applicant was booked at the police station and taken to the hospital. He was cleared medically and taken back to the police station. The police applied for a warrant to search the residence and the white Charger.

Execution of the Search Warrant

[48] On August 22, 2019, at 12:45 a.m., DC Shufman, the affiant on the search warrant application, prepared the application pursuant to s. 487(1) of the Criminal Code for both the residence located at 2405-5025 Four Springs and any associated storage lockers and for the white Charger. The search warrant was authorized and signed at 2:20 a.m. The police executed the search warrant at the residence.

[49] The police located in a bedroom closet of the residence a brown bag containing a firearm and 9 mm ammunition. Also, in a grey case within a black nylon bag in the residence the police located two bags containing a white substance and a digital scale. As well in the black nylon bag was a pair of jeans where a firearm with a wooden handle was located.

ANALYSIS APPLYING THE DEBOT FACTORS

General

[50] A central tenet of the Debot analysis is the requirement to take into consideration the whole of the circumstances in the information before the court to arrive at a determination of whether there are sufficient reasonable grounds to conduct a search. As observed by the Supreme Court of Canada:

It is the totality of the circumstances known to the officer – those which undermine the belief as well as those which support it – which must be assessed to determine if the requirement of reasonable and probable grounds has been met.

[Chartier v. Quebec (Attorney General) (1979), 1979 17 (SCC), 48 CCC (2d) 34 (S.C.C.)]

[51] As noted earlier, the three Debot factors are not to be treated as separate tests. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two.

The Credibility and Reliability of the Informant

[52] The Debot factor that best favours the Respondent’s position is the credibility and reliability of the informant and the information they provided in this investigation.

The credibility of the informant:

a) The informant is known to the police.

b) The informant has been involved in a criminal lifestyle and has information otherwise unavailable to law enforcement.

c) The informant has given an accurate description of the Applicant and the premises.

d) The informant knows the Applicant and has knowledge of his personality, lifestyle and activities.

e) The informant’s information has been corroborated through police surveillance and database checks.

f) The informant acknowledges they will face criminal charges for making false reports to the police regarding information on past, present and future investigations.

g) The informant has no criminal convictions and therefore no record for crimes of dishonesty.

[53] Reliability of the informant:

a) The informant is a registered source with the Toronto Police Service who has provided information to the police on an ongoing basis.

b) On several occasions, the information led to the arrests of people and the seizure of drugs and firearms and the arrests of human traffickers.

c) The informant has a track record for providing reliable information. The informant has provided information in the past in 2017 and 2018 that led to arrests in matters involving drugs and firearms and led to a search warrant that resulted in further contraband being seized.

[54] The motivation of the informant:

a) The informant is providing information in exchange for monetary consideration.

b) The informant was advised there would be no monetary benefit should the information turn out to be false or misleading.

[55] There is no question, based on the information about the informant and his background, that he appears to be a credible informant who, based on his qualifications as a registered informant with a productive track record, is capable of providing credible and reliable information. But, of course, the credibility and reliability of the informant is only as beneficial as the compelling nature of the information he provides and its capacity to be subsequently corroborated.

Was the Informant’s Information Compelling in Nature?

[56] The Respondent takes the position that the informant has provided compelling information that has assisted the investigation and supported the application for the search warrant. The Respondent finds support in the fact that the informant has provided recent, first-hand information, has made personal observations of the firearm and Mr. McQuinn in possession of the firearm, is aware Mr. McQuinn was involved in a recent firearm shooting in the Toronto area and is aware of how Mr. McQuinn stores his drugs and gun.

[57] Adding to the compelling nature of the informant’s information, the Respondent also points to the informant’s information that demonstrate that he is very familiar with the Applicant, knows details of his criminal activity and hangouts, provided a detailed physical description and his address, phone number, social media use and information.

[58] I find much of the latter evidence to be biographical in nature and would be known to anyone familiar with the Applicant and would not appreciably contribute to confirming that the Applicant was involved in the alleged crime or meaningfully address the reliability of the informant: R. v. Zammit, at para. [26].

[59] There is contextual information that I find is also important to consider.

[60] The source provided the information to the source handler on August 15, 2019, seven days before the search of the residence. As the Respondent points out, the ITO indicates the informant had recent knowledge of the information he provided and made recent first-hand observations of the Applicant, of Mr. McQuinn and of the firearm in Mr. McQuinn’s possession as well as observations of the Applicant’s residence.

[61] However, there is no information that could reasonably ensure that the firearm would be located in the residence when the police entered on August 22nd, a week after the informant provided the information. Further, the clothes the police were seeking to recover were those worn by the Applicant almost a month before the search during the shooting incident. The likelihood that the clothes would be with the Mr. McQuinn at the Applicant’s residence during the search would, I think, be rather unlikely.

[62] The informant was not sufficiently definite in his view that the Applicant would be in possession of the firearm. The informant’s information was that Mr. McQuinn would, “most likely still be in possession of the firearm”. This does not give confidence there is reasonable and probable grounds to believe that the firearm would be located in the residence when the police entered seven days after the informant spoke to the police.

[63] The informant states that Mr. McQuinn, “always has the black satchel in his possession and believe[s] that the target keeps his gun and drugs in it; he “never leaves the black satchel unattended”; and that he “believes he always has the black satchel with him”. [my emphases]. There is also a temporal issue around the black satchel. The informant’s information is that he saw Mr. McQuinn with the satchel, “in the last few months”, which words summarize a redacted area.

[64] The information about Mr. McQuinn’s satchel was not borne out by the search of the residence. In fact, Mr. McQuinn was arrested before the residence was searched under the warrant, with a satchel; but it did not contain a firearm or drugs. Were the firearm found in the satchel, as the Applicant suggested, this might have provided a compelling element to the informant’s information about the firearm.

[65] Of some concern is that this information was not included in the ITO. The information about the satchel and firearm contains a level of detail purporting to connect Mr. McQuinn to the firearm and the residence. This is something the informant seems to have emphasized in his information to the police.

[66] I find the fact that the police failed to confirm that information during their investigation was well worth disclosing to the issuing justice in the ITO. That information is important to providing context to the investigation and the results of the search. Because of the prominence of the information about Mr. McQuinn carrying a firearm in a satchel, it is hard to imagine this was an inadvertent non-disclosure.

[67] Looking at the totality of the circumstances, I do not find the informant’s information to be compelling such that it contributed in a meaningful way to a reasonable belief that the firearm and clothing would be located in the residence.

Was the Informant’s Information Corroborated?

[68] The informant indicates that he knew where Mr. McQuinn was staying, that he was staying at the Applicant’s residence. However, he provides no information to support that view.

[69] The police database checks disclose that Mr. McQuinn’s residence is 314-131 Minerva Ave. in Toronto. The police conducted surveillance at that residence for five hours the day before the surveillance of the Applicant’s residence. The police did not observe Mr. McQuinn or the Applicant in the vicinity of Mr. McQuinn’s residence. They did not include the surveillance of Mr. McQuinn’s residence in the ITO.

[70] I also find this to be concerning because the matter of Mr. McQuinn’s residence, where he lived or where he was staying at the time of the search, is at issue in this case. The fact that the police had an interest in and did watch Mr. McQuinn’s home before the search is information that provides important context to an issue under consideration – where Mr. McQuinn resided at the relevant time.

[71] The police watched the residence for five hours and did not see Mr. McQuinn. Depending on one’s perspective on that information, that area of the investigation might even be seen as providing some support for the Respondent’s position that Mr. McQuinn resided at the Applicant’s residence at the relevant time. Others might say five hours is not long enough to make that point. In any case, information both favourable and unfavourable to the warrant application is required to be disclosed. The informant’s obligation is to present all material facts, favourable or not: R. v. Morelli, at para. [58]. This information ought to have been disclosed to the issuing justice.

[72] The target address is 2405-5025 Four Springs Ave. in Mississauga. The added issue in this case is that the main items being sought, being the firearm and the clothes, are connected to Mr. McQuinn not the Applicant. But there was an expectation by the police that they would find those items in the Applicant’s residence based on the informant’s information and the surveillance in the area of the residence.

[73] The Respondent submits that the ITO with Crown summaries and the police investigation provide sufficient corroborating information that connects Mr. McQuinn to the residence and provides a basis to establish that the warrant could have issued. The Respondent relies on the following information gathered by the police:

• On August 21st, the police reviewed surveillance footage from the shooting on July 26th which depicts the shooter and his clothing.
• On August 22nd, the day that the ITO was prepared, the police observed the Applicant and Mr. McQuinn together in and around 5025 Four Springs Ave. and, in particular, on the 24th floor where the Applicant resides.
• Video footage from July 26th shows Mr. McQuinn changed clothes while on the 24th floor of 5025 Four Springs Ave.
• Mr. McQuinn was in possession of the keys to the residence when he was arrested outside the building.

[74] That combined information by the informant and the police surveillance, the Respondent asserts, provide reasonable and probable grounds to believe that a firearm would be located at the Applicant’s residence and based on the information, that the search warrant could issue.

[75] In the Respondent’s view there was reason for the police to believe Mr. McQuinn’s clothing could be located in the residence. This, in the Respondent’s submission, is because hours before the search warrant was authorized, Mr. McQuinn is observed with the Applicant in and around the building where the Applicant resides. The police noticed that Mr. McQuinn changed his clothes in a short period of time while on the 24th floor of the residence. The Respondent also points to the recovery by the police of a key to the residence in Mr. McQuinn’s possession during the search of his person which the police used to enter the residence.

[76] The initial entry into the residence was effected without a search warrant. The police remained in the unit or “froze” the unit based on what they describe as an exigent circumstance. However, the police did not make it clear in the ITO whether they remained in the unit to secure it before the warrant was granted.

[77] I find that troubling. That failure to disclose is more prone to be regarded as a deliberate omission than an inadvertent one. This is because the police are keenly aware that the exceptional decision to enter a private dwelling without a warrant and remain there for some time could be fraught with Charter violations issues. This is information the issuing justice was also entitled to have in considering the warrant application.

[78] The Applicant cites the fact that the informant is silent on why or how long Mr. McQuinn was residing at the Applicant’s residence. There is no information from the informant as to why any of the evidence sought would be located or stored at the Applicant’s residence. The Applicant asserts that the police lacked sufficient case specific facts that would allow the police to lawfully enter the residence. I agree.

[79] It is not obvious how the police’s observation of Mr. McQuinn changing his clothes signals that the clothing he wore a month earlier during the shooting would be in the Applicant’s residence. It is also difficult to see how the change of clothes and the police spotting him at the residence reasonably connect Mr. McQuinn to the residence, that he would be expected to store his firearm there. I do not think those beliefs can withstand the scrutiny of logic and reason. This is the stuff of suspicion and speculation.

[80] A key to the residence was located on Mr. McQuinn when he was searched before the search warrant was executed. While this could be compelling and corroborative information in another circumstance, it is not sufficient alone in the context of this case given the shortcomings in the information otherwise. Having a key to the residence by itself does not reasonably establish Mr. McQuinn lived there or that he would store his firearm and clothes at the Applicant’s home.

[81] The Applicant cites a number of cases that consider, in various contexts, the level of case specific information required to establish reasonable and probable grounds. Each of the cases is decided on its own particular facts but are instructive in considering the circumstances in the case before me.

[82] In R. v. Herta, [2018] O.J. No. 6429 2018 ONCA 927 (Ont. C.A.), the court considered a situation where the informant told the police he saw the accused carrying a gun, that the accused had the gun for protection because he was in a dispute, and that the accused would not be anywhere without the gun. There was nothing in the redacted ITO that explained the nature of the dispute or why the informant believed the accused would not be without the gun.

[83] The search warrant was granted without any knowledge of who owned the house, who lived there, or whether the accused had any association with that location. The only basis for the extensive search of the entire house, where the gun was not ultimately found, was the informant linking the accused to a gun and the accused’s arrival at the residence.

[84] The court found there was insufficient corroborative evidence to warrant the belief that the accused was in possession of a firearm at the residence. The court held that the only information that could support reasonable grounds to believe that the accused took a rifle into the residence rested on the informant's statement that the accused was in a dispute and would go nowhere without the gun. The court saw this information as somewhat conclusory and not compelling.

[85] In the Ontario Superior Court case, R. v. Coluccio, [2019] O.J. No. 4044 (Ont. S.C.J.), the court considered the reasonableness of the affiant officer’s belief that a person who carries a gun would transfer the gun from his vehicle to his residence for protection and that ammunition and paraphernalia and documents connected to the firearm would be located at his residence.

[86] The court, citing R. v. Herta, held that when that portion of the ITO is placed in its proper context, there was little to no case specific support for the affiant’s assertion that people who possess firearms may take them from their car into their home in order to have the weapon available in case of an attack. The officer’s assertion was characterized as an unsubstantiated assertion about how some people behave.

[87] In R. v. Farah, [2020] O.J. No. 5082 (Ont. S.C.J.), the affiant on an ITO swore that he had reasonable grounds to believe the accused committed the offence of unauthorized possession of a firearm and that an SUV and two residential dwellings would contain evidence with respect to the offence. The evidence relied on by the police was that the accused expressed interest in selling a gun, that he sent a photo of the firearm by Snapchat and that he was in Ottawa. A handgun was located on the mantle in the living room of the residence along with cocaine and other drug paraphernalia.

[88] The court in R. v. Farah cites R. v. Herta and R. v. Coluccio. The court held that apart from the fact that the accused was driving the SUV, there was no other evidence connecting the SUV to the firearm. And there was no case specific information linking the two residences to the firearm.

[89] I agree with the Applicant that the case before this court also lacks sufficient case specific information on which to establish reasonable and probable grounds that the firearm and clothes would be located in the Applicant’s residence at the time of the search.

[90] Another factor to consider is the use “boiler-plate language” in place of case specific facts. The ITO falls to this tendency in several areas. The problem with this type of language is that it could create the impression there is more substance to the information than really exists: "At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not": [R. v. Araujo, at paras. 6 and 47]. While an information to obtain is not required to meet the standard of perfection, the information must be useful, not confounding to the issuing court: R. v. Nguyen, at para. [57].

[91] There is an absence of compelling evidence, a lack of information that logically connects Mr. McQuinn to the residence such that it would be reasonable to expect the firearm and clothing would be located there. The fact that two firearms were ultimately located is of no moment in the Debot analysis. The Supreme Court of Canada has made it clear that the reliability of the information cannot be considered ex post facto, that is to say, after the results of the search are known: [R. v. Garofoli and R. v. Araujo, at paras. 54 – 56].

[92] The informant’s information that Mr. McQuinn resided at the Applicant’s residence, stored his firearm and drugs there, always carried the firearm in a black satchel, never parted with his firearm, amount only to bald, conclusory, unsupported information, marked by the informant’s uncertainty, and thus, insufficient to establish reasonable and probable grounds.

[93] There was corroboration of some of the information less critical than that which would be required to establish reasonable and probable grounds. Information about the Applicant’s criminal lifestyle and activities, his involvement with drugs, firearms and human trafficking, that information was corroborated by the database checks.

[94] Other information such as the physical descriptions of Mr. McQuinn and the Applicant, the Applicant’s contact information and other biographical information was also corroborated. However, that information would be known to anyone familiar with the Applicant and would not serve to confirm criminality, the reliability of the informant or serve another useful purpose in establishing reasonable grounds to conduct the search.

[95] On the whole of the circumstances I do not find the information provided by the informant was sufficiently corroborated such that it assisted in establishing the requisite reasonable and probable grounds to support the search.

Weighing the Debot Factors

[96] The factor that operates strongly in the Respondent’s favour is the credibility and reliability of the informant and their information. This factor however has limited meaning in circumstances where the information provided by an experienced informant in a particular case is not compelling or corroborated by the police investigation.

[97] I have taken into account the guidance offered by other courts that the strength of one factor can compensate weaknesses in the other factors and that it is the totality of all the circumstances that must be considered in arriving at a determination. In weighing the three factors, I do not find the significant weaknesses in the other two factors are compensated by the strength of the credibility/reliability factors.

The Obligation to be Full, Frank and Fair

[98] There are areas of non-disclosure in the warrant that raise the question of whether the police fully, fairly and frankly put information before the issuing justice: the police freezing and remaining in the residence after initial entry, the information about the surveillance of Mr. McQuinn’s residence and the information that the firearm was not found in the satchel. For reasons outlined earlier, it is difficult to imagine that the failure to disclose that information was inadvertent.

[99] The information about the firearm and satchel and the initial entry, I find, are more serious non-disclosures. However, I find those omissions, while not irrelevant, are not material to deciding reasonable and probable grounds. The fact the firearm was not found in the satchel does not mean it was not inside the residence. The fact the police did not indicate whether they remained in the unit on the initial entry, while also not irrelevant, does not in a meaningful way impact the reasonable probability that a search with a warrant would locate a firearm.

[100] Those omissions are not material non-disclosures and as such would not be sufficient, separately or together, to vitiate the warrant: [R. v. Araujo, at para. 57].

[101] In any case, the crux of my determination on the whole of the circumstances is based on the absence of sufficient compelling and corroborated information to justify the issuance of the warrant.

CONCLUSION

[102] I find the Applicant has succeeded in satisfying its burden to prove on a balance of probabilities that the search warrant could not have issued. I find the warrant to be invalid. The Applicant’s residence was entered and searched and items seized unlawfully in violation of his rights under s. 8 of the Charter of Rights to be secure from unreasonable search and seizure. This determination is all the more meaningful in view of the fact that a person’s private abode was breached in the early hours of the morning based on insufficient grounds that criminality would be found.

[103] As set out earlier, for reason that the search warrant is invalid, I also find the search of the Applicant’s person, the warrantless entry of the residence and the search of the vehicle unlawful, all of which is conceded by the Respondent.

DISPOSITION

[104] I exclude the evidence seized from Damian Campbell’s residence at 2405-5025 Four Springs Ave., Mississauga, Ontario.

WHETHER TO ADMIT EVIDENCE UNDER SECTION 24(2) OF THE CHARTER

[105] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.

[106] The balancing exercise involves considering three inquiries set out in R. v. Grant: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.

[107] The seriousness of the breach falls along a spectrum where at on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: [R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 at paras. 72 and 74, (S.C.C.)].

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

R. v. Grant, at para.[75]

The First Inquiry

[108] I do not regard the police action in this case to be on the most extreme end of the seriousness scale. There was a multiplicity of interconnected violations so neither can the police conduct be seen as inconsequential.

[109] The police committed a breach on their initial entry, a first intrusion into the home without a warrant on the evening of August 21st to freeze the unit. A warrantless entry for good reason is an exceptional state power because it is fraught with the potential of serious Charter violations. This is not and should not be a routine police practice. The Respondent concedes violation of the Applicant's s. 8 rights on the warrantless entry.

[110] The further breach of course was the execution of the warrant early the next morning without sufficient grounds to believe a firearm offence was in play at the time of the entry.

[111] Also problematic in the police conduct is their failure to provide important information in the warrant application. For reasons I provided earlier, the police ought to have informed the justice that the firearm was not located in the satchel Mr. McQuinn was carrying when he was arrested. This is not irrelevant information.

[112] As well, the police included bald and conclusory information from the informant and boiler-plate language in the place of the case specific information required to support a reasonable prospect that a criminal offence was in play before entry into the residence.

[113] The Applicant’s arrest, the warrantless entry into the residence and the search of the vehicle violated his sections 8 and 9 rights to be secure from unreasonable searches and arbitrary detention. The Respondent conceded the unlawfulness of those police actions.

[114] All told, I conclude that the multiplicity of Charter violations is not insignificant. They tend toward the more serious end of the spectrum while not being the most serious. The court should not condone this conduct. The court must dissociate from it.

The Second Inquiry

[115] The second inquiry considers the impact of breaches on the Charter-protected interests of the accused. The Applicant's s. 8 and s. 9 rights were significantly violated by the police action.

[116] The Applicant was taken from his car, arrested for possession of a firearm, handcuffed and taken to the ground in public. He was transported to the police station, booked and held for a show cause hearing. All of this occurred before the firearms were found, when reasonable and probable grounds for his arrest and detention did not exist. This was a palpable assault on the Applicant's liberty rights,

[117] The police's unjustified entry into the Applicant's private domain strikes at the heart of a paramount concern behind s. 8 protection. A violation of the right to be secure from unreasonable and unjustified searches of one's home by state agents is most frequently far along the spectrum of seriousness. As the court in R. v. Silveira, cited above, observed: "There is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'".

[118] The police unlawfully entered the Applicant's home on two occasions when he was not in the home because he was being unlawfully detained. It is a rather unnerving scenario to imagine strangers, more so state agents, walking through and perusing your most private and personal space without legitimate cause outside of your presence and control.

[119] The s. 8 and s. 9 breaches are on the serious end of the spectrum and beyond what the court should tolerate. This conduct cannot be condoned.

The Third Inquiry

[120] The third inquiry requires the court to consider the seriousness of the offence. The Supreme Court of Canada in R. v. Harrison asks the application court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.

[121] The firearms were recovered as a result of an unjustified search of the Applicant’s residence. That points toward exclusion. On the other hand, admitting the firearms cannot be regarded as operating unfairly in the court’s search for the truth at trial: [R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82, S.C.C.)]. The firearms are without question central to the Respondent's ability to prosecute this case. Their exclusion will effectively abate the Crown’s capacity to adjudicate a most serious crime, the possession of two loaded firearms with available ammunition inside a home.

[122] One of the bases the Respondent advances to admit the firearm is the seriousness of gun crime in the Toronto area. The reality that firearms are a plague on many families and communities cannot be ignored. There are all too common reports of homicides and threats to the lives of people in urban centres like Toronto in homes, schools, malls, parks on the streets, almost anywhere. This is truly frightening. The safety and vitality of already marginalized and socially fragile communities are particularly at risk. It is haunting to imagine why the Applicant had two illegal firearms with available ammunition in his home. The reason surely cannot be a good one.

The Balancing

[123] I am required to balance public concern over the type of crime against the serious infringements of the Applicant’s rights. I am required to balance the seriousness of the crime against the implications to the administration of justice if a serious crime is not addressed because evidence that could provide conclusive proof is not admitted.

[124] It is a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative evaluation of whether the majority of the factors favours exclusion. There is no special calculus or formula. The question to be considered is what effect on the long-term repute of the administration of justice would result from admitting the evidence: R. v. Harrison, at para. [36].

[125] The police were seeking to locate a firearm connected to a murder attempt suspected to have been committed by Mr. McQuinn where the Applicant was present. So, there was a firearm at large. There is no question about the seriousness of the crime the police were investigating.

[126] But when I weigh the seriousness of the crime against the strength of my findings on the other two inquiries, I conclude on all the evidence that the long-term interest of the administration of justice would not be served by admitting the evidence in this case. The violations were multiple, interconnected and not inconsequential to the Applicant’s rights.

[127] However, I cannot conclude without saying that my decision to exclude the firearms should not be taken as offering a free hand for those whose lifestyles applaud proudly sporting and flagrantly using illegal firearms. Quite the opposite. Firearm violence must always be condemned.

[128] It offers me no comfort to make a decision that will inevitably impede the prosecution of such a serious offence. But it gives me less comfort to imagine leaving multiple acts of unjustified use of state power unquestioned. The law requires this scrutiny. And here I also remind myself that the Charter of Rights in the opening words of its rights provisions extends protections to the rights of “Everyone”. Which means even to the least favoured among us.

DISPOSITION

[129] The application to exclude evidence is granted.

Allen J.

Released: November 21, 2022

COURT FILE NO.: CR-20-30000365 DATE: 20221121

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DAMIAN CAMPBELL Applicant

Ruling on an Application under sections 8, 9 and 24(2) of the Charter of Rights and Freedoms

Allen J.

Released: November 21, 2022