COURT FILE NO.: CR-21-5047 DELIVERED ORALLY AND MADE AN EXHIBIT DATE: 20230523 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DANIELLE DEANNE HESS and SEBASTIANO VINCE PROFETTO

Counsel: Richard L. Pollock, for the Crown Julie Santarossa, for the accused Danielle Deanne Hess Frank Miller, for the accused Sebastiano Vince Profetto

Heard: September 7, 8, 10, 2021; January 12, February 14, 15, 16, July 13, 14, August 2, 3, 4, 5, November 14, 15, and December 12 and 19, 2022

REASONS FOR JUDGMENT Howard J.

Overview

[1] On a thirty-count indictment dated December 22, 2020, the accused, Ms. Danielle Deanne Hess and Mr. Sebastiano Vince Profetto, were charged with a variety of drugs and weapons offences.

[2] In closing argument, the Crown requested that the following counts be withdrawn or dismissed by the court:

a. As against both accused, Count 7 (methylphenidate), b. As against both accused, Count 8 (codeine), c. As against Ms. Hess, Count 9 (cocaine), d. As against Ms. Hess, all weapons-related counts, being Counts 10-19, e. As against Mr. Profetto, the weapons-related Counts 22-27, and f. As against Ms. Hess, Count 30 (possession of proceeds of crime).

[3] Accordingly, the remaining live counts against Ms. Hess and Mr. Profetto are:

a. Count 1: possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act [1], b. Count 2: possession of crystal methamphetamine for the purpose of trafficking, contrary to s. 5(2) [2], c. Count 3: possession of hydromorphone for the purpose of trafficking, contrary to s. 5(2) [3], d. Count 4: possession of crack cocaine, contrary to s. 4(1) of the CDSA [4], e. Count 5: possession of oxycodone tablets for the purpose of trafficking, contrary to s. 5(2) [5], and f. Count 6: possession of morphine for the purpose of trafficking, contrary to s. 5(2) [6].

[4] The weapons-related counts that remain against Mr. Profetto are:

a. Count 10: possession of an unlicensed 40 calibre Glock handgun, contrary to s. 92(1) of the Criminal Code [7], b. Count 11: possession of an unlicensed 9mm Glock handgun, contrary to s. 92(1), c. Counts 20 and 21: possession of the said handguns while being subject to s. 109 weapons prohibition orders, contrary to s. 117.01(1) of the Code, and d. Counts 28 and 29: possession of ammunition for the said handguns while being subject to s. 109 prohibition orders, contrary to s. 117.01(1).

[5] The accused brought a number of applications. In particular, they challenge the search warrant that led to the charges. They apply for an order finding that their rights guaranteed under s. 8 of the Canadian Charter of Rights and Freedoms [8] to be free from unreasonable search and seizure have been violated and for an order pursuant to s. 24(2) of the Charter excluding from admission into evidence at trial all evidence that was obtained by the police as a result of the alleged breach of their Charter rights.

[6] The hearing was conducted by way of blended voir dire and trial. The court heard evidence from numerous police witnesses, from both the Windsor Police Service and the Toronto Police Service. The accused called no evidence.

Factual Background

[7] As Mr. Pollock for the Crown observed, counsel for the accused and counsel for the Crown more or less agree on the factual narrative and relevant chronology for present purposes.

[8] That said, I think it important to highlight some background context.

[9] The critical events in question date back to June 2019. [9]

[10] The charges before the court initially arose out of a broader investigation of drug trafficking in the Greater Toronto Area (GTA) conducted by the Toronto Police Service (TPS), which was named “Project Oz.”

[11] The main target of Project Oz was one Mr. Christopher Janisse, who resided in the City of Toronto and was believed to be a high-level drug trafficker.

[12] The charges in Windsor arose after certain surveillance activity was conducted by TPS officers on June 4, 2019. On that day, TPS officers observed Mr. Janisse exit the underground parking garage associated with his residence in Toronto, driving his black Mazda motor vehicle. TPS officers followed Mr. Janisse’s vehicle as he travelled from Toronto to the Town of Tilbury, a community in the Municipality of Chatham-Kent, about 50 km. east of Windsor.

[13] On that same June 4th day, while in Tilbury, TPS officers observed Mr. Janisse having some apparent interactions with a female driver of a red-coloured, Ford pickup truck. TPS officers then followed the red Ford pickup as it travelled to Windsor and ultimately parked at the residential premises municipally known as 372 Crawford Avenue in Windsor.

[14] Police subsequently formed the belief that the female driver observed driving the red Ford pickup and attending the 372 Crawford Avenue residence was Ms. Hess.

[15] Some time later, members of the Windsor Police Service (WPS) became involved, including members of the Drugs, Intelligence, Guns and Surveillance (DIGS) Unit of the WPS and also its Emergency Services Unit (ESU).

[16] On the morning of Thursday, June 27, 2019, various WPS officers were briefed by Sgt. Gannon of the DIGS Unit.

[17] The officers were advised that TPS authorities had obtained a search warrant issued on June 27, 2019, pursuant to s. 11 of the CDSA, which had been obtained on the basis of an information to obtain (ITO) sworn June 26, 2019, for the search of the residential premises at 372 Crawford Avenue and the red Ford pickup associated with Ms. Hess, who was identified as a target. The officers were also advised that Ms. Hess was associated with a Mr. Sebastiano Profetto. It was believed that ESU should be involved because of previous dealings of the WPS with Mr. Profetto.

[18] The assembled officers were advised by Sgt. Gannon, by way of the TPS officers, that they had grounds to arrest for conspiracy to commit indictable offence, possession of proceeds obtained by crime, and possession of a controlled substance for the purpose of trafficking. However, on the evidence of P.C. Pope, it was made clear to the officers that, at that point, they had no grounds to arrest Mr. Profetto.

[19] At approximately 5:07 p.m. on the evening of June 27, 2019, Ms. Hess was observed leaving the 372 Crawford Avenue residence in the red Ford pickup. It ultimately came to rest at a convenience store located at the northwest corner of Crawford and University Avenues. At that point, WPS police officers in ESU vehicles moved in and “blocked in” the Ford pickup driven by Ms. Hess. Ms. Hess was arrested on scene at the convenience store at 5:18 p.m.

[20] At approximately 5:40 p.m. on June 27, 2019, WPS officers entered the residence at 372 Crawford Avenue to conduct the search authorized by the s. 11 CDSA search warrant issued on the basis of the ITO sworn June 26, 2019.

[21] As a result of the execution of the CDSA search warrant at the 372 Crawford residence, WPS officers discovered and seized a number of items that form the subject-matter of the charges before the court.

[22] Pursuant to a residential lease agreement dated March 25, 2018, the residential premises at 372 Crawford Avenue were leased to Mr. Profetto and one Amanda Lee Martin. Ms. Hess is not named in the lease. Ms. Martin took no part in the instant proceeding.

[23] An arrest warrant was subsequently executed on Mr. Profetto.

Issues

[24] The following issues arise on this proceeding:

a. Were the accused denied their rights to be free from unreasonable search and seizure under s. 8 of the Charter? b. If there was a violation of the rights guaranteed the accused under s. 8 of the Charter, should the evidence obtained as a result be excluded from admission at trial pursuant to s. 24(2) of the Charter? c. If the evidence is admitted at trial, has the Crown proven the charges against the accused beyond a reasonable doubt?

Analysis

Were the accused denied their rights to be free from unreasonable search and seizure under s. 8 of the Charter?

[25] In their notice of application dated August 19, 2021, the accused challenge the search warrant issued June 27, 2019, that purported to authorize the search of the 372 Crawford residence. They argue that the warrant was overbroad and therefore facially invalid and, further, that it was issued on the basis of an ITO that was facially and sub-facially insufficient to justify the issuance of the search warrant. The accused seek to quash the warrant and obtain a declaration that these warrantless searches and seizures constituted violations of their rights under s. 8 of the Charter.

[26] Section 8 of the Charter provides that:

Everyone has the right to be secure against unreasonable search or seizure.

[27] The minimum s. 8 standard for the issuance of a search warrant was articulated in the Supreme Court of Canada’s seminal case of Hunter v. Southam Inc.: the issuance of a search warrant requires “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.” [10]

[28] The requirement that an issuing justice have reasonable grounds to believe that any drug or evidence of an offence under the CDSA is in a place to be searched is a statutory requirement for the issuance of a search warrant that is reflected in s. 11(1) of the CDSA, which provides:

A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

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

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

(c) offence-related property, or

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

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

[29] The principles governing warrant review were articulated by Watt J.A. in R. v. Sadikov [11] and summarized by Pardu J.A. in R. v. James, in the following terms:

1. Warrant review begins from a premise of presumed validity. The onus of establishing invalidity falls on the person who asserts it.

2. The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge.

3. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued?

4. An appellate court owes deference to the findings of the reviewing judge in his or her assessment of the record. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge’s decision. [12]

[30] The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [13]

[31] Or, as stated most recently by our Court of Appeal in R. v. Jones:

To issue a warrant under s. 11(1) of the CDSA, the ITO’s contents must satisfy the authorizing justice that there are reasonable grounds to believe an offence has been committed and that evidence of that offence will be found at the place to be searched. The ITO need not conclusively establish the commission of an offence nor the existence of relevant evidence. “Reasonable grounds” is a standard of credibly-based probability [citation omitted.] The authorizing justice is permitted to draw inferences, so long as the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO [citation omitted]. [14]

[32] In reviewing an ITO, the following principles must also be borne in mind:

a. The ITO must be read as a whole. [15]

b. A reviewing court’s analysis of the evidence should be contextual as opposed to piecemeal. [16]

c. The ITO must be read in a common-sense manner, having regard for its author. Police officers are not legal draftspersons and should not be held to that standard. [17]

d. The issuing justice is entitled to rely on affiant opinions. [18]

e. Officer training and experience may be relevant in determining whether the requisite legal standard for a search has been met. [19] 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. [20]

f. “That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent, is of no moment.” [21]

g. Reasonable grounds must be assessed based on the totality of the circumstances, including the nature of the police investigation. [22]

[33] The ITO here was sworn on June 26, 2019, by Detective Constable Chris Wilson, a member of the TPS since December 2008, who was then assigned to the Toronto Drug Squad – Major Projects Section as an investigator.

[34] For present purposes, the relevant provisions of the ITO include the following:

a. In para. 3 of the ITO, D.C. Wilson identifies six persons, including Mr. Janisse and Ms. Hess, who, he says in para. 5, “have all been seen meeting with JANISSE and engaging in behaviour that is consistent with drug trafficking.”

b. Paragraph 3 of the ITO does not list Mr. Profetto.

c. In para. 3(a) of the ITO, D.C. Wilson indicates that the residential address of Ms. Hess is 636 Hildegarde Street, Windsor, Ontario.

d. In para. 11 of the ITO, D.C. Wilson states that:

Based on the CHS [Confidential Human Source] information, police background checks, surveillance, physical observations made, CCTV video footage, vehicle tracker information, and covert entries made into 105 The Queensway, I believe that the persons listed in paragraph three (3) are trafficking controlled substances throughout the Greater Toronto Area.

e. In para. 42 of the ITO, D.C. Wilson sets out the observations made on June 4, 2019, when Mr. Janisse travelled to Tilbury and encountered a female person believed to be Ms. Hess, as I have referenced above.

f. In particular, in para. 42(b), D.C. Wilson states that:

Upon arrival in Tilbury, JANISSE drove the surrounding streets in circles for approximately ½ hour. During this time, he also parked his vehicle and walked around the block before returning to his vehicle.

g. In paras. 42(c) and (d), D.C. Wilson states that:

At approximately, 2:00pm, JANISSE met with an unknown female, later identified as Danielle HESS born December 8, 1969, who was driving a Ford truck bearing Ontario license plate AZ98201. JANISSE and HESS travelled in their respective vehicles in tandem around several side streets and dead-end streets before stopping on Young Street.

At that time, JANISSE retrieved a weighted black duffle bag from the passenger side of his Mazda and placed it in the rear passenger seat of HESS’ truck. At the same time, HESS retrieved a brown cardboard box approximately 2’x2’x2’ in size from the rear driver’s side area of her truck and handed it to JANISSE. JANISSE took the cardboard box and attempted to put it into the trunk of his Mazda but the box would not fit so JANISSE placed the box in the rear passenger area of his Mazda. JANISSE and HESS then parted ways.

h. D.C. Wilson added, intra alia, the following commentary after para. 42(d):

[In my experience as a drug investigator, mid-to-high level drug traffickers need and rely on bags to move/traffic their illicit substances. Bags can conceal and transport large amounts of drugs and/or money without attracting attention. Furthermore, the meetings and visits which have been short in duration are consistent with illicit behaviour (such as drug trafficking).]

i. In paras. 42 (e) and (f), D.C. Wilson recounted how the surveillance followed Ms. Hess to Windsor, as follows:

Surveillance was continued on HESS in the Ford truck who attended the Windsor area. HESS was misplaced for a short period of time, and once relocated, was followed to a house located [at] 372 Crawford Avenue, Windsor.

HESS met with an unknown male later identified as Sebastiano PROFETTO born November 10, 1988, and the two attended the rear area of the residence.

j. In paras. 42(g) to (l) of the ITO, D.C. Wilson reviewed certain observations, which he then summarized in para. 90 of the ITO as follows:

Surveillance was continued on HESS and she was later observed meeting with an unknown male which was consistent with a street level drug transaction – based on her driving behaviour (circling the neighbourhood), waiting for 15 minutes for an unknown male that got into her passenger seat, drove that unknown male two blocks away and then let him out of her vehicle.

k. In para. 92 and again in para. 163, D.C. Wilson noted that Ms. Hess has two drug-related convictions, which date back to March 2012.

l. In para. 164, D.C. Wilson noted the Mr. Profetto has seven drug-related convictions.

m. In para. 169, D.C. Wilson concludes that, “[b]ased on the information contained above, I believe that I will locate the items set out in Appendix “A” [i.e., controlled drugs, trafficking materials, proceeds of drug trafficking, records, and electronic devices] inside the above address and vehicle”, i.e., the 372 Crawford residence and the red Ford truck.

[35] As an aside, I note what D.C. Wilson did not say in the ITO. In particular:

a. Nowhere in the ITO did the officer assert that Ms. Hess resides at the 372 Crawford residence. Again, the information listed for Ms. Hess, which was obtained from Ministry of Transportation records, was that her address was 636 Hildegarde Street – not 372 Crawford Avenue.

b. After the observations of June 4, 2019, there is no reference to any later activities of Ms. Hess and Mr. Profetto in the balance of the 103-page ITO. As appears from the ITO, after June 4, 2019, neither Ms. Hess nor Mr. Profetto figure in the investigation.

c. Nowhere in the ITO is there any recorded observation that either Ms. Hess – or Mr. Profetto for that matter – ever entered the 372 Crawford residence. The observation recorded in para. 42(f) of the ITO states only that Ms. Hess and Mr. Profetto “attended the rear area of the residence.”

d. Nowhere in the ITO is there any recorded observation that the “weighted black duffle bag” that Mr. Janisse was seen placing in the rear passenger seat of Ms. Hess’s truck in Tilbury was ever seen being carried into the 372 Crawford residence. Indeed, after the observation in Tilbury, there is no further recorded observation of the weighted black duffle bag in the ITO at all.

e. Nowhere in the ITO is there any recorded observation that officers observed what may be described as a hand-to-hand exchange.

[36] I have a number of concerns regarding the ITO in the instant case.

[37] First, D.C. Wilson asserted, in para. 169, that based on the information set out in the ITO, he believes that he will locate items such as controlled drugs, trafficking materials, proceeds of drug trafficking, records, and electronic devices, at the 372 Crawford residence. That belief was based, in large part, on his assertion, set out in para. 11 of the ITO, that based on all the sources of information collected in the course of the Project Oz investigation, Ms. Hess, and Mr. Janisse and the others named in para. 3, “are trafficking controlled substances throughout the Greater Toronto Area.”

[38] However, insofar as Ms. Hess is concerned, there is nothing set out in the ITO (or otherwise) that supports that assertion. There is nothing that places Ms. Hess in the GTA. The evidence concerning Ms. Hess in the ITO places her in Tilbury and Windsor only. Being completely unsupported by any facts set out in the ITO (or otherwise), the affiant’s assertion that Ms. Hess was currently trafficking in the GTA is simply false or, at the very least, misleading.

[39] I agree with Mr. Miller’s submission that this “falsehood was critical evidence in the ITO in the issuing of the search warrant because it forged a link between the one isolated transaction on June 4[th] and the presence of controlled substances and the other things in the search warrant in the [372 Crawford] residence for which the warrant was issued.”

[40] In my view, it is clear that the assertion in para. 11 of the ITO as it applies to Ms. Hess must be excised.

[41] Having determined that para. 11 as it applies to Ms. Hess must be excised, the question then becomes whether the residue is such that the issuing justice could reasonably have issued the warrant based on the remaining evidence.

[42] That takes me to my second concern, being the inference that D.C. Wilson made based on the police observations of the single encounter between Mr. Janisse and Ms. Hess in Tilbury on June 4th. Observing Mr. Janisse place the “weighted black duffle bag” in the back of Ms. Hess’s truck and him receiving the 2’x2’x2’ brown cardboard box from Ms. Hess, D.C. Wilson advanced the belief that Mr. Janisse and Ms. Hess “engaged in a drug transaction” in Tilbury on June 4, 2019.

[43] In the circumstances, I find the analysis of Nakatsuru J. in R. v. Downes [23] to be instructive. That case also involved a challenge to a search warrant and ITO that had been issued in the course of the same Project Oz investigation in Toronto, and the ITO in question in Downes was also sworn by the very same D.C. Wilson who swore the impugned ITO in the instant case – although I hasten to add that the ITO in question in the Downes case was not the same ITO that is in issue before me.

[44] However, it certainly appears that there are similarities between the two ITO’s sworn by D.C. Wilson in the two cases. As Nakatsuru J. said in Downes, which applies equally to the impugned ITO in the instant case, “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.” [24] But the credible and probable fact that Mr. Janisse conducted drug exchanges does not necessarily mean that the interaction between Mr. Janisse and Ms. Hess on June 4th in Tilbury was one such drug transaction. The specifics of that interaction must be considered.

[45] In Downes, Nakatsuru J. was confronted with an ITO in which D.C. Wilson averred that Mr. Janisse engaged in a drug-related transaction with one Mr. Medeiros, based on the following:

The ITO states that on June 21 [2019], 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.

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.” [25]

[46] In my view, there are obvious similarities between the exchange with Mr. Janisse and Mr. Medeiros and the “weighted backpack” described in the ITO in the Downes case and the alleged exchange with Mr. Janisse and Ms. Hess and the “weighted black duffle bag” described in para. 42(d) of the ITO in the instant case.

[47] As such, in my view, the following commentary of Nakatsuru J. in the Downes case applies with equal force to the circumstances before me here. In Downes, Nakatsuru J. recognized that what matters is whether “the ITO provides reasonable grounds to believe that the evidence relating to the offences would be found in the searches,” [26] and he then went on to say:

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.

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. … 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. …

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.

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.

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. [27]

[48] In my view, the analysis of Nakatsuru J. in Downes – even though dealing with a different ITO – applies equally to the circumstances of the instant case. The same commentary about the “weighted” backpack in Downes applies with equal force to the “weighted black duffle bag” in our case. The meeting between Mr. Janisse and Ms. Hess in Tilbury did share some suspicious similarities to meetings that Mr. Janisse had with others, but innumerable possible explanations can be posited about why Mr. Janisse met with Ms. Hess in Tilbury on June 4, 2019. Such a meeting therefore cannot support a credibly based probability that evidence of the offences in question could be found in the places linked to Ms. Hess and, in particular, the 372 Crawford residence.

[49] At the end of the day, the assertion of D.C. Wilson as to the observed singular interaction between Mr. Janisse with Ms. Hess in Tilbury on June 4, 2019, 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 372 Crawford residence.

[50] Thirdly, the connection of all of these events to the 372 Crawford residence is somewhat tenuous at best. Obviously, on the basis of the information that was set out in the ITO, D.C. Wilson drew an inference that, while in Tilbury, Ms. Hess was provided with a “weighted black duffle bag” that contained illicit drugs or other substances. And, he averred, Ms. Hess then travelled to the driveway of the 372 Crawford residence, where she met Mr. Profetto. Subsequently, both were seen to leave the area of the home and met with third persons. However, neither Ms. Hess nor Mr. Profetto were ever seen to enter the 372 Crawford residence. And more to the point, the “weighted black duffle bag,” which figured so prominently in the drug-related inferences that D.C. Wilson drew, was never seen entering the 372 Crawford residence. Indeed, after its very brief sighting in Tilbury on June 4th, the “weighted black duffle bag” was never seen again insofar as the ITO is concerned. In terms of the evidence set out in the ITO, there is really no connection between the “weighted black duffle bag” and the 372 Crawford residence at all. On the basis of the information set out in the ITO, we have no idea whatsoever as to the location that the “weighted black duffle bag” ultimately came to rest. And yet, D.C. Wilson averred in the ITO that he believed that the drug-related substances and items referenced in his ITO would be found at the 372 Crawford residence.

[51] In my view, those assertions do not meet the test; there is no credibility-based probability that any such believed illicit substances, contained in the “weighted black duffle bag” or otherwise, ever entered the 372 Crawford residence. To think otherwise, based on the evidence set out in the ITO, is to engage in pure speculation. A search warrant could not be issued on such lack of evidence.

[52] My fourth concern relates to the staleness of the information and observations recorded in the ITO. As I have said, the only instance of the alleged involvement of Ms. Hess and Mr. Profetto with the Project Oz investigation took place on June 4, 2019. After June 4th, there is nothing that implicates Ms. Hess, Mr. Profetto, or the 372 Crawford residence.

[53] The ITO was sworn by D.C. Wilson three weeks later, on June 26, 2019. The search warrant, based on the information set out in the ITO, was issued on June 27, 2019 – more than three weeks after the only observed incident involving Ms. Hess, Mr. Profetto, and the 372 Crawford residence.

[54] There was no reference to Ms. Hess, Mr. Profetto, or the 372 Crawford residence after the incident of June 4, 2019. There was no updated surveillance information set out in the ITO as might satisfy the issuing justice that the drug-related activities observed on June 4, 2019, allegedly involving Ms. Hess and Mr. Profetto, were continuing to occur as of June 26 or 27, 2019.

[55] In James, our Court of Appeal held that the fact that the appellant had sold drugs to someone in his vehicle [on December 18, 2015] 23 days prior to the execution of a search warrant on February 26, 2016, did not establish that reasonable and probable grounds to believe that drugs or drug paraphernalia would be found in the vehicle at the time of the search. The court held that:

Information in the ITO establishes that the respondent might have been involved in a drug transaction on December 18, 2015[,] and provides a reasonable basis to believe that he delivered drugs to MD on February 3, 2016. However, I agree with the trial judge that this information is insufficient to allow a justice to find a pattern of drug dealing or to support the conclusion that there was sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that evidence, drugs or paraphernalia would be found in the car at the time of the search on February 26, 2016. [28]

[56] Similarly, I am satisfied that the recorded observations in the ITO as to the alleged events on June 4, 2019, do not provide reasonable and probable grounds to believe that evidence, drugs, or drug paraphernalia would be found in the 372 Crawford residence 23 days later when the search warrant was issued on June 27, 2019.

[57] Finally, I would also add that I am of the view that there is some merit in Mr. Miller’s submissions, made in reply, that, given the falsity of D.C. Wilson’s assertion in para. 11 of the ITO as it pertains to Ms. Hess trafficking in the GTA and given the statement in para. 92 that, Ms. Hess, in short, is a convicted drug dealer, which was then repeated in para. 163, that characterization of Ms. Hess as a convicted drug dealer unfairly overwhelmed the analysis for the issuing justice. As Mr. Miller said:

That is all coloured and informed by the fact that Hess was involved in these things, that: “Look, it’s there because Hess is a drug dealer” is really what it comes down to. It’s there because Hess on June 4th was with Janisse probably doing a drug transaction of some sort. That’s it. But the leap from June 4th to the presence of those things – identified things in 372 Crawford is the real issue. And in my submission, if you look at the evidence you can’t make that leap. It is not a proper inferential leap. It is speculative.

[58] In sum, I conclude that the ITO does not meet the standard of a credibility-based probability. I find that the issuing justice could not have properly granted this search warrant given the lack of reasonable and probable grounds that drugs and other associated evidence could be found at the 372 Crawford residence. As a result, I further find that the subsequent search of the 372 Crawford residence pursuant to the flawed search warrant was unlawful. [29] It was essentially a warrantless search. [30] A warrantless search is prima facie unreasonable, and thus contrary to s. 8 of the Charter. [31] The Crown has not met its onus of demonstrating on a balance of probabilities that the warrantless search was reasonable.

[59] I therefore find a violation of the accused’s rights as guaranteed by s. 8 of the Charter. [32]

If there was a violation of the rights guaranteed the accused under s. 8 of the Charter, should the evidence obtained as a result be excluded from admission at trial pursuant to s. 24(2) of the Charter?

[60] Having found that the s. 8 rights of the accused were breached, I must consider whether the evidence obtained from the search should be excluded from admission at trial pursuant to s. 24(2) of the Charter.

[61] I start the s. 24(2) analysis with asking what the Court of Appeal in its decision in R. v. Keshavarz [33] called “the gateway question on all s. 24(2) applications” – namely, was the evidence “obtained in a manner that infringed or denied any rights or freedoms guaranteed” by the Charter?

[62] In this case, there is a clear causal, temporal, and contextual connection between the evidence and the breach. As I have said, WPS officers entered the 372 Crawford residence on June 27, 2019, to execute the flawed search warrant that had been issued earlier that day. They discovered and seized the evidence in question. The evidence was recovered only through the unlawful search and seizure of the residence. The evidence was obtained in a manner that was a direct result of the breach of the accused Charter rights. The threshold question must be answered in the affirmative.

[63] Turning then to the evaluative component of the s. 24(2) analysis, I must assess whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[64] The Supreme Court of Canada has said that s. 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns. [34]

[65] In its seminal decision in R. v. Grant [35], the Supreme Court explained that the s. 24(2) analysis engages three lines of inquiry: (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. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, the “balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision.” [36]

Seriousness of the Charter-infringing state conduct

[66] As the Supreme Court said in Tim [37], the first line of inquiry under the Grant analysis considers the seriousness of the Charter-infringing state conduct. It asks whether the police engaged in misconduct from which the court should dissociate itself. [38] The concern of this inquiry is “not to punish the police” but rather to “preserve public confidence in the rule of law and its processes.” [39] The court must situate the Charter-infringing conduct on a “spectrum” or a “scale of culpability.” [40] At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern. [41]

[67] In this case, while I would not say that the Charter-infringing conduct of the police was at the extreme end of blameworthiness, it was still very serious.

[68] The instant case is a bit unusual in the sense that it was the Toronto police who prepared the flawed ITO and search warrant, but it was the Windsor police who executed the search warrant. However, given that the purpose of the inquiry is not to punish the police in any event, it does not really matter what particular force was responsible. The concern is whether the police conduct – no matter which force is responsible for it – is such that the court must disassociate itself from it.

[69] The officers here were preparing legal documents in order to obtain judicial authority to enter, search, and seize items from the residential home of a private citizen. In my view, the goal of preserving public confidence in the rule of law and its processes requires that the police take great care in assembling and presenting such requests. Public confidence in the administration of justice expects if not demands that the police “get it right.” This is not a situation where the governing law is in a state of flux. The legal principles governing ITOs and search warrants have been with us for years.

[70] Further, I have found that the assertion in para. 11 of the ITO represents a falsehood. That is not conduct that one can easily overlook. While I do not necessarily think there was a deliberate intention to deceive the court, the misleading impact of the statement remains the same. It may be that the Toronto police officer, engaged in a Toronto investigation, did not turn his mind to the circumstances of the Windsor citizen, but I think public confidence in the administration of justice demands that greater care be taken than was shown here. To my mind, it appears that the conduct in this case reflects a fundamental inattention to constitutional standards. [42] These were serious offences; they demanded serious attention.

[71] Apart from the falsehood in para. 11 of the ITO, I have reviewed above my other concerns with the ITO and search warrant, including my concern for the staleness of the single incident on June 4, 2019, when compared to the issuance of the search warrant on June 27, 2019. I appreciate that drug-trafficking is usually an ongoing or continuing activity; however, one would like to think that the police would develop practices to ensure that when they seek judicial authorization permitting them to enter and search a private residential home, they are presenting current information to the court. When that is not done, as here, the risk is that the court is presented with misleading information.

[72] Taken collectively, I do not think that the Charter-offending conduct here can be properly considered to be “inadvertent, technical, or minor, or which reflect an understandable mistake.” [43]

[73] Further, I do not think it can be said that there were extenuating circumstances here. For example, I do not think one can say that the police were “compelled to act quickly in order to prevent the disappearance of evidence.” [44] Again, there was a delay of 23 days from the time the police observed the single incident on June 4th until the search warrant was obtained on June 27th. Moreover, the evidence in the residence would not have been discovered absent the breach caused by the warrantless search.

[74] Bearing in mind the need to preserve the long-term repute of the administration of justice, the Charter-offending conduct in the instant case was quite serious. In my view, this first line of inquiry pulls strongly in favour of exclusion.

Impact of the breach on the Charter-protected interests of the accused

[75] The second inquiry under the Grant analysis requires the court to assess the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. As the Supreme Court said in McColman [45], the second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed.” [46] Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other. [47] The more negative the impact, the stronger the case for exclusion. [48]

[76] In this case, the Charter-protected interest impacted by the breach is Mr. Profetto’s right to privacy.

[77] The law has long recognized that a search of a residential dwelling home involves a serious invasion of privacy interests. [49] “A person can expect that [their] home can and should be a safe castle of privacy.” [50] As the Supreme Court said in Silveira, “[i]t is hard to imagine a more serious infringement of an individual’s right to privacy.” [51]

[78] I conclude that the unlawful search of Mr. Profetto’s residence had a very serious impact on his privacy rights.

[79] The second factor under the Grant analysis very strongly favours exclusion of the evidence.

Society’s interest in the adjudication of the case on its merits

[80] The third branch of the Grant analysis seeks to assess society’s interest in the discovery of the truth and the adjudication of a criminal trial on its merits.

[81] As the Supreme Court said in R. v. Beaver [52], the third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. [53] Relevant factors under this inquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue. [54] The integrity of the trial process suffers if reliable and cogent evidence is excluded. Conversely, the routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the justice system. [55]

[82] The evidence seized from 372 Crawford is real evidence and extremely reliable. It is directly relevant to the court’s determination of whether the alleged criminal offences were committed. It provides very cogent evidence of very serious offences. Exclusion of the evidence would be fatal to the Crown’s case.

[83] The third line of inquiry strongly favours the admission of the evidence.

Balancing the assessments

[84] As the Supreme Court said in Tim [56], the final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision. [57] Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice. [58] The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system.” [59] The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system.” [60]

[85] Appellate jurisprudence makes clear that when undertaking this balancing exercise, it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry. [61] When the two first lines, taken together, make a strong case for exclusion, the third line of inquiry will seldom tip the scale in favour of admissibility. [62] This principle applies even in cases where the offences are serious, including drug offences, and where the search has uncovered real and reliable evidence. [63] The third line of inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. [64]

[86] In the instant case, the first two lines of inquiry push strongly for exclusion, and the third pushes strongly for admission. While there has been some discussion that the results of some recent Supreme Court decisions, in cases like Beaver, McColman, and Tim, would seem to favour inclusion, none of those decisions involved a case where the first two prongs of the Grant analysis pushed strongly in favour of exclusion. [65] Whatever the merits of that discussion, it has no application here, where both the first two lines of inquiry strongly favour exclusion.

[87] In my view, the high privacy interest in a residential dwelling home and the significant impact on that interest that is caused by an improvidently-obtained search warrant and an unlawful, warrantless search cumulatively favour exclusion of the evidence, rather than admission. Our Court of Appeal has held that “the regular admission of evidence obtained from people’s homes, where there is not a proper basis for a search, would bring the administration of justice into disrepute.” [66] I agree with Mr. Miller’s submission that, in the long term, the impact of the routine admission of this type of evidence in the teeth of these type of breaches exacts too heavy a price to the repute of the administration of justice.

[88] In the result, the evidence obtained from the warrantless search of 372 Crawford residence must be excluded.

If the evidence is admitted at trial, has the Crown proven the charges against the accused beyond a reasonable doubt?

[89] Without the impugned evidence, the charges against both accused must be dismissed. It is so ordered.

Original Signed by “Justice J.P.R. Howard”

J. Paul R. Howard Justice

Delivered Orally and Made an Exhibit: May 23, 2023