ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Sam Weinstock, for the Crown
- and -
KEVIN NYADU
Heather Spence, for the Defence
HEARD: January 16, 17, 18, 19, 2024
REDACTED CHARTER MOTION RULING
MIRZA J.
INTRODUCTION
1When the police apply for a judicial authorization to search based on a sworn affidavit, their honesty, accuracy, and fairness are essential to the integrity of the ex parte process. Affiant police officers have a legal obligation to provide full and frank disclosure of material facts. This has been well settled law for over thirty years. R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.
2When an affiant deliberately misleads the issuing Judge and their misconduct subverts the integrity of the pre-authorization process, the warrant may be set aside. R. v. Colbourne (2001), 2001 ONCA 4711, 157 C.C.C. (3d) 273 (C.A.), at para. 40; R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321. The courts have a duty to protect the integrity of the warrant process by disassociating themselves from state misconduct that constitutes an abuse of process. R. v. Brunelle, 2024 SCC 3.
3The Applicant, Mr. Nyadu, is charged with drug and firearm related offences based on tracking and search warrants. The warrant applications included information obtained from a confidential informant (CI). At the Charter application hearing, the Crown relied on Step 6 of Garofoli.
4Mr. Nyadu submits that his section 7 and 8 Charter rights were violated based on invalid warrant authorizations that are the result of deliberate deception by the police. He also submits that he was subject to an unlawful arrest and an unreasonable search incident to arrest.1 The Applicant submits that the case should not proceed or alternatively, the evidence from the invalid warrants should not be admissible, and the evidence connected to the warrants and breaches should be excluded.
5The Respondent Federal Crown submits that the Charter application should be dismissed. They submit that the police did not deliberately mislead the issuing judges. Also, the Applicant has not demonstrated that the warrants could not have issued.
6For the reasons that follow, I find that the police deliberately misled the issuing Judges. The totality of their deceit and misconduct subverted the prior authorization process.
7The deliberate deceit by the police violates section 7 of the Charter and amounts to an abuse of process. As a result, the charges are stayed.
8Alternatively, the subversion of the pre-authorization warrant process by the police requires that the warrants be quashed based on the court’s common law residual discretion. R v. Vivar, 2009 ONCA 433, at para. 2. A section 8 breach is established and the admission of the evidence in the proceedings would bring the administration of justice into disrepute. The evidence must be excluded pursuant to section 24(2).
9Further, I find that the Applicant’s arrest was unlawful, contrary to section 8. Therefore, the search incident to arrest was not authorized. The grounds for the accused’s arrest are connected to the results from the improperly obtained tracking warrant. Even if the arrest was lawful, the search of the Applicant’s vehicle incident to arrest violated section 8 of the Charter and admission of the evidence in the proceedings would bring the administration of justice into disrepute. The evidence obtained as a result of all of the Charter breaches is therefore excluded, pursuant to s.24(2).
10These reasons are redacted. Certain facts and analysis cannot be disclosed publicly for reasons of CI privilege. To uphold transparency and to adhere to the fundamental principle that what can be reported to the public should be, I have included as much information as possible in the redacted version. Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21.
OVERVIEW
11On the Indictment, the Applicant is charged with Possession of a Restricted Weapon (s. 91(3)), Possession of a Restricted Weapon without a License (s. 92(3)), Careless Storage of a Firearm (s. 86(3)), and Possession of a Weapon Dangerous to the Public (s. 88(2)) contrary to the Criminal Code. The Applicant is also charged with two counts of Possessing for the Purposes of Trafficking a Substance (s. 5(2)) under the Controlled Drugs and Substances Act (CDSA). The substances are cocaine and fentanyl.
12In 2021, York Regional Police (YRP) investigated the Applicant for drug trafficking.
13On October 6, 2021, officers arrested the Applicant after allegedly observing a drug trafficking transaction on September 17, 2021. Police alleged that on September 17, 2021, they followed the accused with the aid of data from a GPS tracking device authorized by the tracking warrant. They alleged that they observed Mr. Amponsah engaging in suspected drug trafficking with the Applicant and another individual, Mr. Ameyaw, outside 34 Bottomwood Street, Brampton. Police arrested Mr. Ameyaw that day and seized 13.5 grams of fentanyl. They arrested the Applicant in his vehicle about three weeks later for this incident after continuing surveillance did not result in further charges for trafficking.
14The Crown’s materials indicate that while searching incident to arrest the officers seized a scale and approximately 30 grams of cocaine, and 4.5 grams of fentanyl, from a concealed compartment in the front dash of the Applicant’s vehicle.
15The police also seized a key that looked like it would fit a padlock similar to the lock observed at a storage facility identified through the GPS tracking analysis. (See CDSA search warrants at para. 50.) The additional key opened a storage locker.
16The police also seized a key from the accused’s key chain that opened a lock box. In that safe, officers found two semi-automatic Glock handguns and three extended-capacity magazines, two of which contained ammunition.
17YRP also charged several other individuals connected to the investigation. Tyasia Love, the Applicant’s girlfriend, was charged in connection with the firearms located in the storage locker. Emmanuel Amponsah and Albert Effah were both charged with offences arising from a search warrant executed at 34 Bottomwood Street, on October 6, 2021.
BACKGROUND
18In the first half of 2021, YRP received information from a CI that they viewed as proven, regarding a drug trafficker. The date this information was received is not specified in the authorization application.
19The CI described the target as a short fit Black male in his 20s who was dealing drugs from a black BMW vehicle.
Tracking Warrant
20On September 10th, 2021, police sought and obtained judicial authorization to install a GPS tracking device on the Applicant’s vehicle pursuant to section 492.1(1) of the Criminal Code for the offence of possession of a controlled substance contrary to section 5(2) of the CDSA (Warrant #1). They also obtained a sealing order. The GPS tracking device was installed on the Applicant’s vehicle on September 16, 2021.
21This tracking warrant was used to locate the accused for surveillance until the date of his arrest on October 6, 2021. In addition, the tracking warrant data was used to identify addresses that his vehicle visited, even when not being surveilled. This included the residence at 56 Amethyst Circle, Brampton, 34 Bottomwood Street, Brampton, and the storage unit at 40 Metropolitan Road, Toronto.
22That cumulative tracking information was used to establish the basis for the arrest on September 17, 2021 and the reasonable grounds to believe threshold for the subsequent search warrants of October 6, 2021. See ITOs for the residential and storage unit search warrants at paras. 25 to 34, 40, 42, 45.
23In his affidavit for the tracking warrant application, Detective Constable (DC) Partridge stated that he has been with the YRP since 2009. He stated that he has been involved in numerous investigations where offences have been committed under the Criminal Code, Controlled Drugs and Substances Act, and Provincial Offences Act. He stated that he has been the officer in charge in various investigations, written production orders and judicial authorizations. He said that he understood the obligation to provide full, frank, and fair disclosure of the information available to him.
24He worked with DC Salvatore, the CI handler, in preparing the warrant tracking warrant application. DC Salvatore would go on to prepare the search warrants and production order applications. DC Salvatore testified that he has been a YRP police officer since 2010. He has been with four district criminal investigation bureau since 2018. He too stated that he understood the ex parte nature of the application and the obligation to provide full, frank, and fair disclosure.
25At no point did either officer state or indicate in the warrant applications that they withheld material information out of concern for the CI’s safety. The Court would later receive this submission from the Crown, which I will address at a later point.
Residential and Storage Unit Search Warrants
26The warrants to search the Applicant’s residence and storage unit were granted on October 6, 2021. The police obtained a warrant to search the residence at 56 Amethyst Circle, Brampton (Warrant #2).
27They obtained another warrant to search a storage locker C0112 located at Metropolitan Rd., Toronto (Warrant #3).
28A production order related to the storage locker that had been searched was granted on December 1, 2021 (Warrant #4).
29Confidential appendices to these warrants contained information from a CI that formed part of the basis for the issuance of the warrants.
30In the two search warrant applications, DC Salvatore summarized how the police surveillance team relied on the tracking warrant information to locate the accused. He also wrote about how important data from the tracking device contributed to the accused’s arrest on October 6, 2021, and supported the opinion that the Applicant engaged in activity consistent with drug dealing leading up to that day.
31On December 1, 2021, DC Salvatore applied for and obtained a production order warrant for Access Storage to identify the owner and usage of locker C0112 at 40 Metropolitan Drive, Toronto. Items sought included contracts with renter, payment, contact information, video, access information, and anything associated with renter or persons with access (Warrant #4).
32For the authorizations prepared by DC Salvatore, the format was the same: Appendix C was his affidavit and Appendix D was the confidential CI information.
33At the Charter hearing, the Crown relied on confidential Appendix D to demonstrate that there were sufficient grounds that the warrants could be issued. The court reviewed the confidential appendix in camera and ex parte. The court later provided defence counsel with a judicial summary.
Surveillance
34Police surveillance was conducted on different dates spread out between August to October 6, 2021.
35To provide context, I will summarize the nature of the surveillance during this time period as referenced in the warrant applications. My subsequent analysis will include the testimonial evidence of the officers.
36In the ITOs, the police state that on August 4th, 2021, the accused was observed leaving his residence at 56 Amethyst Circle, Brampton, with his girlfriend Tyasia Love. They travelled in her silver Mercedes vehicle to Pillsworth Drive in Bolton. There they met up with an unknown male in a Enersys Work Van on the side of the road in an industrial area. The accused was given a white package the size of shipping envelope, which the police believed contained something the size of a grapefruit. The accused and his girlfriend then travelled back to his residence and sat in their vehicle. The accused was seen going into his BMW and residence empty handed. After, he was seen shaking out a paper bag into the garbage.
37On August 5, 2021, the accused was seen leaving 56 Amethyst Circle and driving in his BMW to Goreridge Crescent. There he met an unknown white male who walked to the accused’s driver’s side window. They were involved in a short conversation, then the unknown male walked away, and the accused left the area. The police believed that this was a drug transaction. In his affidavits, DC Salvatore stated that he believed that because it was the first thing the accused did after he left his residence, this supported the inference that he had drugs in his home.
38On August 6, 2021, the police observed the accused’s residence. A white BMW SUV pulled up to the residence at 56 Amethyst. The accused walked to this SUV with his hand in his right pocket and opened the passenger side door and leaned in. The accused then closed the door and returned to his home without his hand in his pocket. DC Salvatore stated in his affidavits that, based on his experience, he believed that this was a drug transaction which supported the conclusion that the accused possessed drugs in his home. (In his testimony at the Charter motion, DC Bosomworth did not mention these observations as grounds for the arrest that he participated in on September 17.)
39As explained above, the tracking warrant was obtained September 10 and the GPS device installed on September 16, 2021. The tracking device was used to locate the accused thereafter. The police stated that they did not observe anyone else use his vehicle. The data indicated that the accused vehicle stopped at various locations, a majority of the times for under fifteen minutes. The police believed that the stops were consistent with the drug dealing activity.
40On September 17, 2021, based on the tracking device, the accused was located at 34 Bottomwood Street in Brampton. The police followed the accused to a residential street, Racoon Street in Brampton. The police observed the accused meet with two males in a Honda Civic. The police state the driver of the Civic had a brief exchange with the accused through the driver’s side windows and appeared to receive something. Within 2 minutes, the accused entered his car and drove away while being followed by the Civic. The vehicles drove to 34 Bottomwood Street and both vehicles parked on the street. The passenger of the Civic exited and entered the passenger side of the accused’s BMW. This unknown person then walked up to 34 Bottomwood and entered the residence. A few minutes later he exited the home and re-entered the accused’s BMW. The accused and Civic drove away. The Civic was being driven by the person the police believe engaged in a hand to hand with the accused. The Civic was followed to a Walmart on Mayfield Road and the police arrested the driver. 13 grams of suspected fentanyl were located in the center console of the Civic. Richard Ameyaw was charged.
41According to Detective Bosomworth, the tracking data indicated that Mr. Nyadu attended the area of the Storage facility at 40 Metropolitan Road on September 18 and 20. The unit was rented by the accused’s girlfriend, Ms. Love.
42On September 28, 2021, the police used the tracking device to continue surveillance on the accused. He drove to a parking lot in Hamilton and then back to the Toronto area. Later he was observed at 34 Bottomwood Street, Brampton; entering and then leaving about six minutes later. Later still, he went to a restaurant with his girlfriend and returned home.
43On October 5, 2021, the police located the accused’s vehicle, which he was driving with Ms. Love. They drove to Vaughan and then he went to Brampton. He met with an unknown male in his vehicle for 1.5 hours and then went home.
44On October 6, 2021, the accused was located at a gas station in Vaughan. He was alone and met with an unknown male. They drove in tandem to another gas station in Vaughan, had a brief conversation and then left.
45The accused then met with an unknown female in a residential area where they sat in his car for 28 minutes and then she left. The accused then went to a barber shop, and then to the Bramalea City Centre, shopping mall.
46The accused then went to a car wash. Around 16:20 p.m. the accused was arrested for trafficking a controlled substance in relation to the incident on September 17, 2021, with Mr. Ameyaw.
47During a search of the accused’s vehicle, the police located a quantity of drugs in a concealed compartment behind the front dash. They also located keys that they took and tested to open the storage unit and a lockbox.
ISSUES
a) Whether Leave to Cross-Examine the Affiants Should Be Granted.
b) Whether, after excision of erroneous, misleading, and unconstitutionally obtained information, what remained could support the issuance of the warrants.
c) Whether the police misled the issuing Justices, and if so whether the conduct amounts to a section 7 Charter violation and warrants a stay of the charges under section 24(1); or alternatively whether the warrant should be set aside based on residual discretion of the court to protect against subversion.
d) Whether the arrest was lawful; and
e) If the arrest was lawful, whether the search incident to arrest exceeded its permissible limits.
THE LAW
Abuse of Process, Sections 7 and 24(1) of the Charter
48In Brunelle, the Supreme Court recently stated that the courts have a duty to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process. This type of abusive conduct may take all sorts of forms.
49When abuse of process is found and a Charter guarantee has been infringed, s. 24(1) of the Charter gives a court of competent jurisdiction the power to grant “such remedy as [it] considers appropriate and just in the circumstances”.
50A stay of proceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases”. R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at paras. 68-69.
51A finding of a clearest of cases requires three conditions to be met:
There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
There must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);
(3) Where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32).
Brunelle, at para. 113.
52Abuse of process in the residual category engages the principles of fundamental justice in section 7 of the Charter, which protects accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system. R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at para. 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 SCC 322, [1997] 3 S.C.R. 391, at para. 89. See also: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 50; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 41; and R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.
53This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses “the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” O’Connor, at para. 73.
Deliberate Misleading
54Deliberate non-disclosure of material information by the police in a warrant application intended to mislead the issuing justice may, standing alone, invalidate the warrant despite the existence of requisite grounds to issue the warrant. In Paryniuk, Watt J.A. held at para. 69:
What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non- disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesselring (2000), 2000 ONCA 2457, 145 C.C.C. (3d) 119 (Ont. C.A.), at para. 31; Lahaie, at para. 40; Vivar, at para. 2. Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122 (Sask. A.), leave to appeal refused, [2009] S.C.C.A. No. 281 (S.C.C.), at para. 30; Morris, at paras. 90. [Emphasis added].
55Similarly, in R. v. Kesselring (2000), 2000 ONCA 2457, 145 C.C.C. (3d) 119 (Ont. C.A.), the Court of Appeal stated that a search warrant must be quashed if it is shown that the police in applying for the warrant engaged in a deliberate deception, citing, R. v. Donaldson (1990), 1990 BCCA 630, 58 C.C.C. (3d) 294 (B.C.C.A.).
56In Kesserling, at para. 32, the Court of Appeal held that “there may be cases where a lack of care will be sufficiently serious that an otherwise valid warrant should be set aside. Police officers should attempt to be scrupulously accurate in preparing and swearing information used to obtain warrants.” However, not all errors in an information in support of an application for a search warrant will render the warrant invalid on review. See for example R. v. Plant, 1993 SCC 70, [1993] 3 S.C.R. 281, at p. 216. In R. v. Phan, 2020 ONCA 298, the Court of Appeal held that the standard to invoke the discretion is high:
56The standard to invoke that discretion is high. In Paryniuk, at para. 74, this court clarified that “[s]ubversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process.” In some cases, it has been described as conduct that amounts to an abuse of process: R. v. Vivar, 2009 ONCA 433, at para. 2; Paryniuk, at para. 62.
The Integrity of the Prior Judicial Authorization Process
57The affiant’s legal obligation when seeking an ex parte authorization is full and frank disclosure of material facts so that the authorizing judge can make a reasoned assessment that the legal threshold is met. “It should never attempt to trick its readers […] Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.” Araujo, at para. 47.
58In R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, the Court of Appeal at paragraphs 67-68, summarized that an affiant who relies on information from a confidential source must include details about their reliability.
68An ITO affiant must, therefore, include details about the confidential informer’s reliability and what makes the tip compelling to satisfy the Debot factors. The ITO affiant must also include details unfavourable to the informer, as part of the affiant’s duty to make full and frank disclosure: see R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 253, at para. 58; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. Yet, the above details will often risk identifying the informer and will thus be redacted on warrant review, even though they are potentially the most persuasive portions of the ITO.
59The obligation of candour is not a mere formality. The affiant must present the facts accurately and fairly. This is because an ex parte warrant application is not adversarial. R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 54. Even with a cautious recipient Justice, the lack of balance in the process inherently requires that the police act with integrity and candour. Reasons for issuance or granting the authorization are rarely given.
60The obligations of honesty and diligence are important but not unduly onerous. The officer(s) providing the information to the Justice must simply ask him or herself the following questions: "Have I got this right? Have I correctly set out what I've done, what I've seen, what I've been told, in a manner that does not give a false impression?": see R. v. Dellapenna (1995), 1995 BCCA 428, 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37, cited in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, at paras. 32-35, aff’d in Araujo.
Section 8 of the Charter
61Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. Its principal object is the protection of privacy, or the individual’s “right to be left alone.” R. v. Edwards, 1996 SCC 255, [1996] 1 S.C.R. 128, at para. 67. Personal privacy is vital to individual dignity, autonomy, and personal growth. R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 38. Its protection is fundamental to a strong and free democracy.
62To establish a breach of section 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable.
63A search occurs where the state intrudes on a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated but often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable. R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18, citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.
64In this case, the Crown accepts that the accused had an expectation of privacy of varying degrees over his locations, information, and private places searched.
Standard of Review
65A search warrant is presumptively valid: see R. v. Pires; R. v. Lising, 2005 SCC 66, 201 C.C.C. (3d) 449, at para. 30; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32.
66The party challenging the validity of a warrant has the onus of demonstrating it was not validly issued.
67The issue on a Garofoli hearing is whether the minimum standard required for authorizing a search and seizure was established in the ITO. The Garofoli procedure allows the accused to challenge whether the affiant has made full, frank disclosure.
68In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court summarized the review process at paragraphs 40-42.
40In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
41The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the Justice. Rather, “the reviewing court must exclude erroneous information” included in the original ITO. Araujo, at para. 58. Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing Justice.
42It is important to reiterate the limited scope of amplification evidence. Amplification evidence is not a means for the police to adduce additional information to retroactively authorize a search that was not initially supported by reasonable and probable grounds. It cannot be used as “a means of circumventing a prior authorization requirement.” Araujo, at para. 59.
69The reviewing Judge at a Charter motion considers the ITO as a whole. They do not substitute their own views as to whether they would have issued the warrant. Rather they must determine, based on the record that was before the issuing Justice as amplified or edited on review, whether there was sufficient reliable information that could have permitted the issuance of the warrant.
70The 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 Justice: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, 2010 SCC 34797; and Morelli, at para. 40.
71Turning to the grounds required for the authorizations in this case, the requisite standard for issuance of a vehicle tracking warrant under s.
492.1(1) of the Criminal Code is that the police have “reasonable grounds to suspect that an offence has been or will be committed […] and that tracking the location or movement of a vehicle will assist in the investigation of the offence.”
72For the CDSA search warrants, the legal standard is reasonable and probable grounds to believe that an offence has been committed, and that there is evidence to be found at the place of the search: see Hunter v. Southam Inc., 1984 SCC 33, [1984] 2 S.C.R. 145, at p. 168; CDSA section 11.
73In my role as reviewing Judge, the standard is whether there is sufficient credible and reliable evidence to permit the issuing 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 the search: Morelli, at para. 40.
Confidential Informant Information
74The test for sufficiency of an ITO that is based on a CI’s tip is dependent upon whether the tip is compelling, whether the informer is credible and whether the tip has been confirmed or corroborated by independent information or police investigation. Weaknesses in one area may be compensated by strengths in the other two areas. R. v. Debot, 1989 SCC 13, [1989] 2 S.C.R. 1140, at p. 1168.
75These factors do not each form a separate test; rather, the reliability of the CI’s information is assessed by looking at the totality of the circumstances. R. v. Green, 2015 ONCA 579, at para. 15.
Reasonable Suspicion
76Reasonable suspicion is the legal standard for a tracking warrant. As stated by Karakatsanis J. in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, reasonable suspicion must be grounded in “objectively discernible facts, which can then be subjected to independent judicial scrutiny.”
77Reasonable grounds to believe is a higher standard than reasonable suspicion, as reasonable suspicion engages with the reasonable possibility, rather than probability of crime: Chehil, at paras. 27-33. Reasonable suspicion is, in turn, a higher standard than mere suspicion: Chehil, at para. 26.
78While both reasonable suspicion and reasonable grounds to believe must be grounded in objective facts, the reviewing Justice must be cautious not to conflate reasonable suspicion with a more demanding standard.
79Reasonable suspicion must be assessed against the totality of circumstances. The inquiry into whether a particular constellation of facts give rise to a reasonable suspicion is fact-based, flexible, and grounded in common-sense practical, everyday experience: Chehil, at para. 29.
80The assessment is applied through the eyes of a reasonable person that possesses the knowledge, training, and experience of the investigating officer.
81The objective component of the test will be met where the facts are objectively indicative of the possibility of criminal behaviour considering the totality of circumstances: Chehil, at para. 35.
82Suspicion need not be the only inference that can be drawn from a particular constellation of factors. A reasonable suspicion may also support completely innocent explanations.
83Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 ONCA 6316, 34 O.R. (3d) 743 (C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.”
84The obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, Binnie J. held that it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.
Reasonable and Probable Grounds
85Before a search warrant can be granted, the issuing Justice must be satisfied that at a minimum, there are reasonable and probable grounds, established on oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.
86Reasonable grounds must be based on objective criterion that passes the standard of reasonable or credibly based probability: Hunter, at pp. 167-168.
Leave to Cross-Examine
87As stated in Garofoli, leave to cross-examine must be obtained to cross-examine at the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. The accused must show that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted.
88In Pires; Lising, Charron J., speaking for the Court, stated that the threshold for leave to cross-examine is grounded on relevance and a demonstration of a reasonable likelihood that it will assist the court to determine a material issue.
40 As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous — it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.
89In determining whether leave to cross-examine should be granted, it is important to consider the legal obligation of an affiant to fully disclose all material facts. In Morelli, at para. 58, Fish J. emphasized that a police officer must be particularly careful not to “pick and choose” among the relevant facts to obtain the authorization. The informant’s obligation is to present all material facts, favorable or not. An attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
90The proposed cross-examination may be directed at the credibility or reliability of the affiant. Cross-examination is useful when it can raise an inference that the affiant knew or ought to have known that the information or lack thereof, was false or misleading: Pires; Lising, at paras. 41-43.
91In Pires; Lising, at para. 44, the Supreme Court held that the insufficiency of the affidavit, on its face, may suffice to show a basis for cross-examination. Conclusory statements that arguably over-state the progress of the investigation depending on the applicable legal threshold that must be met, may mislead. For example, depending on the nature of the warrant sought, a police officer exaggerating the content of surveillance to suggest there is a reasonable suspicion of drug trafficking to obtain a tracking warrant, or reasonable grounds of drug trafficking to get a residential search warrant may be misleading the issuing judge that the legal requirement is met.
92The accurate state of the investigation and where the police conduct contributing to the problem is situated such as whether it is deliberate, negligent, or inadvertent only becomes apparent on cross-examination where the reviewing judge is in a better position to address these issues. The issue of whether amplification is appropriate can also be determined. Morelli, at para. 60.
Excision and Amplification
93First, on a Garafoli review, all erroneous material must be excised from an affidavit for a warrant application.
94Deliberately misleading information cannot be repaired by amplification. Amplification evidence corrects good faith errors of the police in preparing the ITO. Morelli, at para. 41.
95The reviewing court must exclude erroneous information included in the original ITO, but may also consider, additional evidence adduced on the voir dire to correct minor or technical errors in the drafting of ITO so as not to put form over substance.
96Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. Morelli, at para. 42; Araujo, at para. 59.
97Amplification does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58.
98Second, information obtained by unconstitutional means must be excised from the ITO on Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Araujo, at para. 52. See also: R. v. Wiley, 1993 SCC 69, [1993] 3 S.C.R. 263, at pp. 273-274; R. v. Grant, 1993 SCC 68, [1993] 3 S.C.R. 223, at p. 251; and Plant.
99The Supreme Court has determined that peace officers cannot benefit from their own illegal acts by including in ITOs sworn to obtain warrants facts which were retrieved through searches without lawful authority.
100The doctrine requires a Court reviewing the validity of a warrant to remove from consideration any evidence obtained in violation of the Charter. In R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at paras. 30-43, the majority held that automatic excision of evidence obtained in violation of the Charter is required and rooted in important policy.
43Canadians have a legitimate expectation that the police will know and comply with the law, especially the Charter (Tim, at para. 30; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 6; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67). This applies no less in dynamic situations. As this Court highlighted in Storrey, “[i]n the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest” (p. 249 (emphasis added); see also S. Coughlan and G. Luther, Detention and Arrest (2nd ed. 2017), at p. 91). This rule is also consistent with the principles that apply in the search warrant and search incident to arrest contexts.
Search Incident to Arrest
101The Supreme Court has repeatedly affirmed that, in general, when there is a lawful arrest, the common law power to search incident to arrest permits reasonable searches within the meaning of s. 8 of the Charter. See, for example: Cloutier v. Langlois, 1990 SCC 122, [1990] 1 S.C.R. 158, at p. 182; R. v. Stillman, 1997 SCC 384, [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, 1998 SCC 838, [1998] 1 S.C.R. 51, at paras. 12, 14; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 44, 49, 75, 104; and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 49 and 52.
102The right to search arises from a lawful arrest. This right is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in Stillman, at para. 27, “[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful.”
103This common law power is extraordinary because it requires neither a warrant nor reasonable and probable grounds. That the exercise of this extraordinary power has been considered in general to be constitutional reflects the law enforcement objectives which are served by searches of people who have been lawfully arrested. As recognized in Caslake, in the context of arrest, the need for police “to gain control of things or information […] outweighs the individual’s interest in privacy”: Caslake, at para. 17. See also: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 45.
104In Caslake, the Supreme Court clarified the principles governing the common law power of search incident to arrest. The scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.
105Relevant factors are the expectation of privacy, degree of intrusiveness, good faith, reasonableness of the search conducted.
106In Cloutier, L’Heureux-Dubé J. held that the court must balance the state’s interests in law enforcement and the protection of the police against the arrested person’s interest in privacy in order to determine whether a search was a reasonable and justifiable use of the police power. There are three important limits on the power to search incident to arrest (Cloutier, at p. 186):
This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
107The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be reasonable. There must be a reasonable prospect of securing evidence for which the accused is being arrested. Caslake at paras. 19-23.
108In Caslake, the Court discussed the temporal limits on search incident to arrest and held that it is a case specific analysis, there is no firm deadline, but as a general rule they will happen within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay and can be defeated by a reasonable explanation for the delay. Caslake at para. 24.
109In summary, the most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched and where. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference in the absence of a proper explanation.
110The search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.
111There is a lesser expectation of privacy in a car than there is in one’s home or office, or with respect to their physical person. Caslake, at para. 34.
112If a search is reasonable, thorough and completed with no evidence of any damage or harm done to the vehicle, then the search is likely not especially obtrusive. Caslake at para. 34.
ANALYSIS
Leave to Cross-Examine the Affiants
113After the conclusion of the step 6 hearing, defence counsel was provided with an updated judicial summary of the redacted confidential Appendices to the ITOs.
114During the Garafoli hearing, at the step 6 in camera and ex parte process, it was not disputed by the Crown that the confidential Appendix prepared by DC Partridge contained material omissions, misleading and inaccurate information, and irrelevant prejudicial information. These same problems were duplicated by DC Salvatore, with some distinctions.
115The totality of problematic circumstances that I will explain in greater depth below informed my decision to grant leave to cross-examine the affiants. I was satisfied that it was reasonably likely that cross-examination would assist the court to determine a material issue of the justification for omissions and whether the officers’ inclusion of misleading information was deliberate. Simply put, the accused demonstrated that the cross-examination was reasonably likely to be useful on the application.
116The Applicant established that the cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, including deliberate deception by the affiants and the absence of reasonable suspicion or reasonable and probable grounds, subject to the applicable warrant in issue.
117For this motion, I must decide whether the inclusion of misleading, inaccurate, imprecise statements in the sworn information justifies setting aside an otherwise validly issued search warrant.
Deliberate Misleading
118Starting with an overview, I am satisfied that based on the totality of evidence, the affiants engaged in a deliberate effort to deceive in the warrant applications to subvert the process. The Confidential Appendices the officers submitted to the issuing Justices are the same for all of the authorization applications, with the exception of one paragraph in the search warrants.
119The Confidential Appendices contain false or misleading statements and material omissions. They also exhibit a failure to be candid and fair. Further, in the main body of the ITO there are misleading statements in the affiant’s opinion about surveillance.
120The officers’ explanation for the material omissions and misleading information was not credible. I found their explanations for the misleading to be dishonest. I will explain my reasons for this finding further below.
121Overall, there are false, misleading, erroneous statements and omissions that violate “[t]he legal obligation on anyone seeking an ex parte authorization [to make] full and frank disclosure of material facts.” Araujo, at para. 46; Morelli at para. 44.
122This misconduct was committed by two experienced police officers. Officer Partridge the affiant for the tracking warrant, has been an officer since 2009. He stated that he had experience in drug cases. He also had warrant preparation experience, had taken training, and drafted four to five warrants by August 2021. In his sworn statement for the ITO, he claimed to be experienced in judicial authorizations. However, he tried to downplay his experience during his testimony.
123Officer Salvatore, the affiant for the other and subsequent warrants has been an officer since 2010. He also identified himself as experienced in drug cases and authorizations. He has experience and training in the preparation of drafting warrants. He said as of 2021 that he had a reasonable amount of experience drafting warrants for Criminal Code and drug related offences. He said that he has taken additional search warrant courses, but could not recall if this was before or after the date of this offence.
False Information in the Confidential Appendices
124Paragraph 5c of the Confidential Appendices for both the tracking warrant, sworn by DC Partridge September 8 and issued September 10, 2021, and the production order authorization sworn by DC Salvatore, sworn November 29 and issued December 1, 2021, states the following false information (as per the redacted version):
5c) During surveillance on a previous occasion the handler observed purchase drugs from [name redacted] and CHS1 was able to confirm that on that day [he/she] had bought Oxy’s.
125At the Charter hearing, the Crown advised that this paragraph is in relation to a different drug trafficking case and different CI.
126The paragraph’s language gives the impression that the handler saw a transaction involving the accused and that the CI’s information that the accused engaged in drug trafficking was compelling, credible, and corroborated by the police.
127This false statement is clearly intended to convince the issuing Justice that there is direct evidence that the CI is reliable and that the accused is engaged in drug dealing.
128It is clear that this statement, submitted by two officers in two different authorization applications, misleads the issuing Judges to find that the handler saw the CI buy drugs from the accused. Alternatively, this paragraph could be interpreted to mean that the handler saw the accused buy drugs from a person and the CI confirmed they bought drugs from the accused. Both scenarios are false and leave a misleading impression to the issuing Judge.
129I find that this falsehood was knowingly included by officers Partridge and Salvatore. It is not the type of error that is consistent with simple error, inadvertence, or oversight. I am satisfied that this false and misleading information was included deliberately by both experienced officers in the tracking warrant.
130DC Salvatore as handler testified that he helped DC Partridge with the tracking warrant application and reviewed the materials for accuracy before it was submitted to the issuing Judge.
131He said that he reviewed DC Partridge’s draft of the Confidential Appendix for accuracy. DC Salvatore explained that even their desks were in close physical proximity as they worked together. DC Partridge said that he also worked closely together again with DC Salvatore on the same team after DC Partridge returned from a course.
132I find that this same statement was also deliberately taken out by DC Salvatore for the residential and storage unit warrants because he knew it was false. However, DC Salvatore included this false statement again in the production order authorization, despite knowing it was false.
133DC Salvatore failed to provide a reasonable explanation for this inconsistent conduct and inclusion of this false information.
134Even though DC Salvatore did not include the false paragraph in the search warrant applications, those applications relied considerably on the information derived from the tracking warrants.
135Both officers chose not to correct the falsehood over an extended period. Instead, DC Salvatore included this false information again in the production order warrant, months later.
136I do not accept the officers’ claims that it was a mistake and that they did not know that they filed false information with the court. The officers’ respective positions that they did not notice the false information until recently was not believable. The circumstances indicate otherwise.
137The confidential Appendices for all of the authorization applications were only a few pages. This false statement clearly and glaringly stands out because of its importance. It represents the only direct observation of a transaction by the handler. It would have been obvious and clear to both officers that this false statement in paragraph 5 was included. Moreover, DC Partridge conceded in cross-examination that it’s a glaring falsehood.
138Similarly, I do not accept that it could be repeatedly overlooked by the affiant or handler/affiant, and not discussed between them, when they drafted, typed, reviewed, and swore to truth of the Appendix before submission.
139Their willingness to testify years later that they made a mistake or were negligent but did not act intentionally without any reasonable explanation of how the mistake could have occurred, struck me as an intentional effort to diminish the misconduct to avoid a finding of bad faith.
140Contradicting this claim is that in cross-examination, they acknowledged that they would have reviewed carefully the applications, including the Confidential Appendices and in particular this paragraph before they swore to its truth. This was part of their ethical and legal duty. They did not claim that there was any deviation by them from fulfilling those obligations in this case.
141With respect to the tracking warrant, DC Partridge agreed that he would have re-read the materials before swearing to their accuracy and truth prior to submission.
142He also admitted that the tracking warrant was available to the team to review after it was issued, as they required it to take next steps in their investigation and to bolster the basis for the search warrant applications. It was an important part of building the case against the accused. Based on their combined evidence, the officers worked closely together as part of the team on the tracking warrant.
143The false paragraph was inconsistently included amongst the four warrants applications in a manner that indicated that DC Salvatore saw the error by at least October 6 and chose not to include it for the residential and storage unit warrant Confidential Appendices of October 6, 2021. Yet, he intentionally included it again in the Confidential Appendix for the production order warrant sworn November 29 and issued December 1, 2021. Based on this sequence, and that the officers worked closely together, it is apparent that they chose not to come clean about the false paragraph until proximate to this Garafoli hearing.
144Despite deliberately excluding this misleading paragraph 5c in the residential and locker unit warrants that he submitted October 6, while duplicating the rest of the information from the September 10 tracking warrant application, DC Salvatore repeatedly maintained that he did not see it. This was not believable and contrary to common sense.
145When cross-examined about the importance of accuracy and candour, DC Salvatore said he should have, or ought to have seen the error, but maintained that he did not know why he ultimately agreed to the inclusion of this false paragraph in both the tracking and then again in the production order applications, separated by three months.
146This falsehood in the tracking warrant ITO went uncorrected for an extended duration.
147Notably, the officers and Crown submitted that the falsehood was clear because the target name (a first name) is different than the accused and the name of person who trafficked is not mentioned, and therefore this supported mere inadvertence or negligence only. I do not agree.
148DC Salvatore would have reviewed the tracking warrant application again when preparing the search warrants the next month. As a result, on multiple occasions he reviewed the materials each time before they were submitted. This gave him numerous opportunities to see the error and correct it. If it was an obvious but inadvertent error, as the Crown argues, it should have been identified and promptly corrected.
149Further, the language in the false paragraph, when read in the context of the entire application, suggests that its contents pertain to the accused. The use of different first name does not detract that it comes across as a direct observation of the accused trafficking drugs. Aliases are common in the drug trade. The reality is that it left the issuing Justices with the impression that it pertained to the accused and CI in this case. In addition, although not determinative, none of the issuing Justices raised it as a clear error as per their duty, indicating it was far from clear to them that it was unrelated to this case. The more likely interpretation, is that it suggests to the reader that it is related to this case.
150Indicative of a continuing lack of candour and subversion, neither officer sought to correct the falsehood over an extended period of time. Neither officer sought to file an amendment with the Court or notify the Crown earlier that it was improperly included in the tracking warrant and production order applications. In my view, this failure is because they both knew that it was false and deliberately included it in the tracking ITO. The issuance of that warrant was integral to obtaining the subsequent ones.
151I do not accept DC Salvatore’s evidence that, for the applications he authored (the two CDSA search warrants, and production order), he wrote his own Confidential Appendices entirely independently of the one used for the tracking warrant application. Contrary to his evidence, I find that DC Salvatore duplicated the other parts of the Appendix as drafted by DC Partridge. Again, DC Salvatore approved inclusion of that language in the tracking warrant and in the warrants he drafted, the other parts are clearly similar.
152In cross-examination, DC Salvatore agreed that the language used in all of the Appendices are very similar— largely word for word— in content and form. Still, he maintained that he did not copy from the one submitted by Officer Partridge for the tracking warrant. At the same time, he stated that he did not know why they largely mirrored each other.
153When pressed in cross-examination, he suggested that it is possible that DC Partridge copied from him. However, it was pointed out to him that this made no sense since he authored the affidavits from October onwards. Officer Partridge’s affidavit is sworn earlier, dated September 10, 2021.
154Second, both officers Partridge and Salvatore failed to provide any reasonable explanation for the inclusion of the false information or for the inconsistent use. The officers did not explain where this false content originated from. If it was included by mistake, a reasonable explanation was required as to why this false information was inadvertently included, its plausible origin, and why it was not identified during the review process by them before each affidavit is sworn.
155Also, Officer Salvatore was unable to provide a reasonable explanation as to why he later included this false and misleading paragraph in his production order materials. I do not accept the Crown submission that in relation to the production order, DC Salvatore may have simply printed off the wrong Appendix. That was not DC Salvatore’s evidence, and he did not reasonably explain how it happened.
156It is speculation that it was erroneously cut and pasted from another application or investigation. If it were taken from another unrelated application or investigation in error, the officers could have provided that explanation, but they did not. Diligently searching for the source of the error and being transparent about its origin, or at least efforts to find the source of the so-called error was a reasonable step that was not done. They are experienced officers. They did not provide any explanation that it would be difficult to search for.
157The false statement was discovered when defence counsel pushed for the disclosure of the handler notes. Around September 28, 2023, the Crown responded to the defence disclosure request and notified defence counsel that it would disclose DC Salvatore’s handler notes, redacted.
158DC Partridge testified that he saw the falsehood last Thursday when reviewing documents for court and discussed it with DC Salvatore. He said DC Salvatore told him he did not see the false paragraph earlier.
159The Crown submitted that had the officers intended to deceive, they would have done a better job of doing so. This type of argument is not uncommon in criminal cases, especially jury trials. It is not persuasive on this record.
160The Crown also argued the officers would have known that this falsehood would eventually come to light during the disclosure process to challenge the warrants and disclosure. Thus, they were not intending to deceive.
161I do not accept this submission that they knew the falsehood would be discovered. It was not revealed for years. It came to light because defence counsel was diligent with pursuing disclosure as the case proceeded from the Ontario Court of Justice to the Superior Court.
162Another problem is that Officer Partridge did not take notes that dealt with the drafting and submitting of the ITO. He had an entry starting August 12, 2021, but no further notes about discussions with the handler after that date, despite not submitting the ITO until September 10, 2021. Since he had no notes, he could not explain when he received this information from the handler and what was discussed. He did not know when that information made its way into his typed Confidential Appendix.
163I do not accept the Crown’s submission that the notes are not necessarily required because the Confidential Appendix, on its own, is typically an accurate reflection of the discussions between affiant and handler. This case demonstrates otherwise. DC Partridge had no notes and therefore no record of where the false information came from or why he included this misleading information. In cross-examination he agreed that he knows he typed in the false information and swore to its truth. Yet DC Partridge claims he has no idea how it got into the ITO. He accepted that it was his decision when to submit the application. He agreed that DC Salvatore assisted him. He agreed that he might seek guidance from the Officer in Charge (OIC), Detective Bosomworth, before he submitted it to a judge, but he has no notes to this effect. He assumed he went to DC Salvatore and told him it was accurate.
164The failure of the affiant to take notes impedes subsequent review and accountability given the errors or deliberate falsehoods that could be identified earlier by the Crown. The record-keeping requirement of the police is important to the effectiveness of after-the-fact judicial review. Fearon, at paras. 4 and 82.
165The failure of DC Partridge to take notes shows an absence of transparency and is indicative of a failure to respect this ex parte process that relies on candour and honesty.
166Although the Applicant abandoned the lost evidence motion mindful of the high test to be met for seeking a stay on this ground, even the Crown acknowledged in oral submissions that there was a section 7 “technical” breach by the officer’s failure to make notes and preserve evidence of the steps taken in relation to the search warrant process.
167I also do not accept DC Partridge’s explanation that he did not take notes for the warrant preparation and discussions with the handler about the contents of the ITO because he did not want to put “sensitive” information about the CI in his notes as he did not think they were secure. This explanation is not reasonable and is contradicted by other evidence. In cross-examination, he acknowledged that his notes can be redacted for disclosure and that he does not share his notes outside of the process. Also, his concerns about sensitive information possibly being “out there” does not reconcile with the reality that warrant applications that contain the same confidential information are sealed by order at the request of the same officer. Also, the handler, DC Salvatore, took notes of his privileged and sensitive work with the CI and secured them. These officers worked closely together. The inconsistent approach does not support DC Partridge’s position.
168Further, there is no evidence that the officers’ notes are not capable of being secured by the police. Given the regularity that CI information is part of drug investigations, I am confident that this is necessarily and consistently done by the YRP to protect the privilege, a paramount principle of criminal law.
169I found DC Partridge to be evasive when asked about his note-taking duties in relation to discussions with the handler DC Salvatore. He was non-responsive to the questions asked about his note taking duty duties and ability to secure them. Instead of answering the questions, he repeated that he did not take notes, or did not recall his training, or did not know what his other team members did.
170Eventually, when pressed in cross-examination, he agreed that he should have taken notes and “should have done more.” He ultimately accepted that he did not meet his training when he did not make notes about meetings with the CI handler and did not review the sworn Confidential Appendix before providing it to the court.
171This failure to satisfy note taking duties was problematic and part of a pattern of the police officers’ failure to respect their core duties. It demonstrates an intentional effort to hide the truth.
172Officer Partridge also did not take notes of his police database checks investigating the accused. For the Charter motion hearing, he reproduced the checks they would have done at the time. He said now because of “other court cases” and subsequent training, he takes notes of the check results and saves them digitally.
173This case involves an experienced group of officers that worked as a team. The affiants are part of a team in this case with an OIC, Officer Bosomworth, who testified that he has 18 years of experience. Officers Salvatore and Bosomworth conducted surveillance together. The police officers claimed to have experience working with CIs.
174Experienced officers, all with over ten years of experience, working as part of a team, are required to know how to secure sensitive notes or material relevant to CIs. If they are not sure, they are required to ask their superiors. DC Partridge agreed he could have asked or indicated to the OIC that he did not know what to do but did not ask. This conduct violates their core duties and knowledge that sensitive information is routinely sealed, including at their request in their own warrant applications.
175There are also public policy reasons to be concerned about the negative impact of the police not acknowledging that they included misleading information, until late in the criminal proceedings. The warrant is sealed by order and then over time disclosed heavily redacted, inherent in this process. Due to the necessary consultation and constraints, the disclosure process is relatively slower. If and when a redacted copy, followed by a Crown summary will be disclosed, and then a judicial summary, will depend on a number of factors. Charter motions are heard closer to trial, often years after the accused is charged with indictable offences. In this case, the motion was to be heard over two years after the laying of the charge. Misleading information used to obtain warrants, that are not uncovered in a timely manner with the aid of diligent notetaking and disclosure, risk individuals pleading guilty at an earlier stage without ever knowing this misconduct has transpired.
176Not everyone can afford Charter litigation. The extent of disclosure was contested in this case, a feature not uncommon in this context. Individuals that do not obtain bail, may seek to resolve at an earlier stage, potentially without full disclosure. DC Salvatore explained that despite his considerable experience this was the first time one of his warrants had been subject to a Garafoli motion.
177Police notes provide a basis for counsel to independently examine the viable defences and the basis of the claims made in the ITO. They inform whether an accused will seek leave to cross-examine for full answer and defence. The integrity of fair process requires that an accused person facing serious charges should receive police notes pertaining to the preparation of the warrant application to assist with determining if there is false or incorrect information in the ITO. This disclosure, redacted as necessary with the Crown’s office, can permit an accused to make informed decisions whether to go to trial or resolve. It is also relevant to whether leave to cross-examine will be granted.
178Overall, the police conduct, viewed in totality, is not consistent with honest mistakes or sloppiness or negligence. I am satisfied that it is deliberate deception. In summary, the officers deliberately put false information in the tracking warrant Confidential Appendix. Once the tracking warrant issued, they collected information pursuant to that authorization to build the reasonable grounds necessary to obtain the subsequent search warrants. Second, Officer Salvatore decided not to mention the falsehood in the next two applications, but at the same time chose not to take any steps to correct the falsehood that helped the police get the tracking warrant to build their case. Third, Officer Salvatore reverted to the original deception by including the falsehood in the production order authorization application. Then the officers concealed this falsehood for years until the closer to this hearing when it was clear their conduct would be an issue.
Material Omissions in the Confidential Appendix
179In addition to the false statement in paragraph 5c, the Confidential Appendix deliberately gave an incomplete and misleading account of the facts, in contravention of the informant’s duty to make full and frank disclosure.
180Police officers should attempt to be scrupulously accurate in preparing applications used to obtain warrants. Kesserling, at para. 32. They have a professional and legal duty to do so as they are sworn ex parte applications.
181The in camera and ex parte component of the voir dire revealed that important information relevant to the CI’s credibility and reliability was intentionally not disclosed by the affiants to the issuing Justice.
CI’s Background (Paragraphs 2 and 3)2
182The CI’s background was not fairly disclosed to the issuing Justices.3 The affiants did not describe or summarize, with sufficient particulars or summary, the CI’s background in the Confidential Appendices. [Redacted]
183The affiants included irrelevant and prejudicial information about the accused’s dismissed and withdrawn charges for the offences of attempted murder and drug trafficking in the main body of the ITOs under the heading “Background of Kevin Nyadu.”
184In cross-examination, officer Salvatore acknowledged that this information about the accused was not relevant and prejudicial by casting him in a negative light. Officer Partridge did not dispute this information was not relevant and prejudicial.
185Officer Salvatore claimed he included information about the accused’s background, even when it resulted in a withdrawal or dismissal of unrelated charges, to comply with full, frank, and fair disclosure requirements. He said that he wanted to show what he had reviewed.
186[Redacted]
187Both officers agreed that this information about the accused did not advance the grounds for the issuance of the warrant. For example, it did not advance associating the accused with a vehicle or current address or other relevant topic. The MTO check already provides the address. Officer Partridge said it did not assist with identification but provided some corroboration of a past Kitchener address, while conceding that too was not relevant in this case.
188In my view, the officers’ conduct was inconsistent, imbalanced, and indicative of an intention to mislead. [Redacted]
189[Redacted]
190[Redacted]
191[Redacted]
192[Redacted]
193[Redacted]
194The police decision to include the accused’s withdrawn or dismissed charges when it is not relevant is also unacceptable because it unnecessarily risks contributing to racial bias. The accused is a young Black male. Photos of him are in the warrant application. Black people are over-represented in the criminal justice system and are subject to disproportionate police contact. R. v Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89 to 94.
195In an ex parte process, the police should be careful not to include irrelevant and prejudicial police contacts, charges, or occurrences with racialized people that do not advance the issuance of the warrant because this can insinuate criminality and contribute to direct or unconscious bias. The inclusion of irrelevant information that contributes to racial bias can undermine the impartiality and integrity of the ex parte process. R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136 at paras. 50-58. R. v. Musara, 2022 ONSC 3190 at para. 354.
196The police officers did not provide an acceptable explanation for these failures to include full, frank, and accurate information about the CIs background at any stage of the hearing.
197In the closed hearing, the Crown conceded that the material omissions were due to an unreasonable concern by the police. The police claimed that it was due to concern for the CI’s security [redacted]. There was no reasonable basis for this perception. The Crown chose not to call evidence on this point from the officers. The Crown ultimately agreed that the officers’ decision was unreasonable given they know that the warrant and the confidential appendices are sealed and contains other sensitive information. This is done to ensure the requisite security and to permit the police to include all of the material information.
198I cannot accept the Crown submission that the police officers engaged in this behaviour as part of a series of negligent but not deliberate decisions to mislead. To the contrary, this conduct demonstrates the deceptive mindset of the police.
Other Relevant Information Not Disclosed (Paragraphs 1 and 6-7)4
199The police officers also failed in their obligation to be full, frank and fair with respect to other information relevant to the CI.
200[Redacted]
201Paragraph 6 indicates that DC Salvatore conducted queries and information provided by the CI was fact checked, leading to the identification of the accused.
202Paragraph 7 states that DC Salvatore has advised that the accused is the target drug dealer based on the physical description and vehicle description provided by the CI among other personal information.
203This is not the full or frank disclosure about police knowledge of the CI’s background [Redacted].
204The full background relevant to the CI [Redacted] that DC Salvatore was aware of was not properly and fairly disclosed.
205[Redacted]
206[Redacted]
207[Redacted]
208[Redacted]
209[Redacted]
210[Redacted]
211[Redacted]
212[Redacted]
213[Redacted]
214Officer Salvatore was not credible and contradicted himself when he testified that [Redacted].
215[Redacted], Officer Salvatore did not recall cautioning the CI as handler about not providing false or misleading information. [Redacted] DC Partridge said that he did not ask DC Salvatore [Redacted]. He said he assumed it was done.
Proven CI (Paragraph 1 a).
216Another problem is that the affiants provided no particulars in the confidential version in support of their conclusion that the CI is accurate and reliable in the past. The affiants claimed at paragraph 1a) that the CI was proven on two prior occasions for providing accurate and reliable information not in relation to this case. There is no information to substantiate this claim. This is a conclusory statement. In other cases this may simply amount to deficiency in drafting that undermines the grounds. However, in this case, it is part of a pattern of by the officers to engage in deliberate short-cuts that demonstrate a failure to be transparent.
Over-statements of Observations in the ITO (See Tracking Warrant at paragraph
217The ITOs includes the affiant’s description of surveillance.
218Through cross-examination it became clearer that some of the descriptions in warrants #2, 3 and 4 include over-statements of the police observations.
219For example, in the ITOs for Warrants #2 #3 and #4, Officer Salvatore at paragraph 38 refers to the September 17 meeting where the accused met with Mr. Ameyaw in a Walmart parking lot in Brampton. In the affiant’s notes he states that what he saw was the same as the 2 other suspected deals observed earlier.
This hand to hand transaction was the same as the other 2 suspected drug deals that had been observed earlier in this investigation. It was a short meeting that looked like a handshake between Kevin Nyadu and another individual who parked in a car in a residential neighbourhood. Not only does this substantiate my belief that all of these meetings are in fact drug deals, but it corporates the information provided by the CHSI. [emphasis added].
220However, the other and earlier encounters of suspected drug dealing referred to as the “same” in this paragraph, are not described as observed hand-to-hand transactions.
221On August 4, 5, and 6, 2021, the police believed the encounters were drug transactions, but no hand to hand of drugs for money was observed. On August 4, the accused received an envelope from the person associated with the Enersys Van. The accused was not observed providing anything. On August 5, 2021, Officer Salvatore says he saw the accused in his car, leave his home and stop on a crescent where he had a short conversation with an unknown white man at the driver side window. He agreed that no hand-to-hand transaction was actually observed. On August 6, the accused met with the driver of a white BMW, but again no hand-to-hand transaction was actually observed.
222I recognize it is the officer’s subjective belief that these were hand to hand transactions based on their experience. However, I find that this conclusory language is part of the totality of the affiants’ misleading approach and is a relevant factor which contributes to a limited extent to the finding that the affiants’ deliberately misled. I have concerns about accepting the way that the officers characterize observations and the opinions that they express about the accused’s activity given the problems identified that show they slanted the information provided to the issuing Justice. Their willingness to depict circumstances unfairly cannot be ignored. For the reasons identified above, there are good reasons to be cautious about the affiants purported subjective perceptions.
223As noted in Morelli, when an officer seeks an ex parte authorization such as a search warrant, they must be particularly careful not to “pick and choose” among the relevant facts to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
Excision
224I find that this is a clear case of deliberate deception where the integrity of the warrant process has been subverted. Before, I will discuss the remedies of a stay and alternatively invalidation of the warrants in the next section, I will address excision.
225In my view, to protect the integrity of an established ex parte process, the court does not permit excision and amplification when there is a finding of clear deliberate deception that goes to the core of the warrant process.
226However, I will address whether the ITO, excised of its erroneous and tendentious assertions, and permissibly amplified, could in theory provide sufficient credible and reliable evidence that the warrant could have been issued.
227The paragraphs of the Confidential Appendices directly impacted by false, misleading, or incomplete information are 1, 1a, 2, 5b (except for first sentence), 5c. Paragraphs 6 (first part) and 7 should be excised for being incomplete.
228To be clear, 6 a, b, c, in this exercise, would remain or not excised.
229The reasonable grounds to suspect threshold is met that an offence has been or will be committed and that tracking the location or movement of a thing and/or vehicle will assist the investigation of the offence of drug trafficking.
230In my view, had I not found deliberate deception that violates the integrity of the process, the tracking authorization subject to proper excision and amplification could have issued.
Warrants Set Aside
231Overall, there are two distinct and related recognized legal paths for the warrants to be set aside due to the subversion that strikes at the heart of the integrity of the warrant process.
232First, this clear case of deliberate deception is an abuse of process that violates section 7 of the Charter and justifies the remedy of a stay. Brunelle, at para. 1. Alternatively, the remedy is that the warrants must be set aside.
233Second, the police subversion of the warrant process justifies the court’s application of residual common law discretion to invalidate the warrants, notwithstanding the existence of requisite grounds for the warrant to issue. Paryniuk, at para. 69. Once the warrants are set aside, the Applicant’s section 8 rights are breached, and the evidence must be excluded pursuant to section 24(2).
i) Abuse of Process
234Based on the totality of circumstances, I am satisfied that the police clearly knew that they were adding false information, leaving out critical information and distorting to mislead.
235The Supreme Court has specifically recognized that there may be cases in which “the nature and number of incidents, though individually unworthy of a stay, will require one when considered together.” Brunelle, at para. 69-75, citing R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 73.
236The multiple and serious deliberate deceptions in this case distinguishes the facts from cases relied on by the Crown. I have considered that there are other reviewing courts that have found there were errors or serious deficiencies but held they were insufficient to find deliberate deception to justify setting the warrants aside. See R. v. Velauther, 2024 ONSC 1273, at paras. 19-24, 30-33; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 27; Paryniuk, at para. 78; and R. v. Brown, 2021 ONCA 119, at paras. 44-51.
237However, in this case, the cumulative deception is egregious. There are section 7 and 8 Charter breaches. This total misconduct amounts to a clearest of cases of abuse of the warrant process justifying a stay of the charges pursuant to section 24(1). Alternatively, the total misconduct justifies setting the warrants aside. In the further alternative, the evidence must be excluded pursuant to section 24(2).
238By the time the police submitted the October 6 search warrant applications, the police had collected weeks of tracking data, tracking aided surveillance, and used that information to aid in the arrest the accused resulting in drugs seized. All of which were then used to obtain the search warrants. As a result, they used the tracking warrant obtained based on a subversion of the warrant process to establish reasonable grounds for the search warrants.
239Even if the false paragraph was not in warrants #2 and #3, that information had been intentionally used to mislead the issuing Justice to obtain the tracking warrant, a crucial building block in the investigation that in turn helped to establish reasonable grounds for the search warrants. The storage unit location was identified based on the tracking data. The police used the data to form the belief that the accused drove around selling drugs. See CDSA Residential and Storage Unit search warrant ITOs of October 6, 2021, and their reliance on the tracking warrant data at paras. 25 to 34, 40, 42, 45.
240In making this finding of abuse of the warrant process, I have considered that the threshold for setting aside a search warrant is high. Araujo at para. 54. I acknowledge that a stay of proceedings is the most drastic remedy a criminal court can order and is available only in the clearest of cases. Regan, at para. 53.
241I recognize that inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review. Fraud by the police does not lead to automatic invalidation: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20; and R. v. Sadikov, 2014 ONCA 72, at para. 87.
242The importance of the court to dissociate itself from state misconduct that is an abuse of the judicial process was recently affirmed by the Supreme Court in Brunelle.
243In the ex parte prior authorization process context, vital to the administration of justice, the analysis is focused on protecting the fairness and integrity of this process that relies on the police to not deliberately mislead.
- Prejudice to the right to a fair trial and integrity of the justice system
244I find that the repeated intentional misleading and deception is a section 7 breach because it undermines the integrity and fairness of the warrant process, a fundamental pillar of the criminal justice system. The severe misconduct in this case is contrary to fundamental principles of justice that have been established over decades in relation to the ex parte prior authorization process.
245The proceedings against an accused are tainted where the abusive conduct occurred in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence to prove that the accused was guilty of the charges laid against them. Brunelle, at para. 56.
246The police misled the issuing Justice to obtain the tracking warrant. They then relied on a tracking information that was obtained with the aid of false and misleading information to target the accused. They took no steps to correct the misleading statements for a prolonged period and permitted the deception to continue while the case moved through the court, until it became apparent that there would be disclosure of handler notes.
247They also were not truthful in their testimony about the authorization preparation. This important part of the criminal proceedings against the accused are corrupted by the cumulative abusive conduct. Brunelle at para. 55-56, citing R. v. Conway, 1989 SCC 66, [1989] 1 S.C.R. 1659, at p. 1667.
248A stay is warranted because in these total circumstances, the harm to the integrity of the justice system “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.” Regan, at para. 54; Babos, at para. 32.
249Intentional misleading by the police seriously damages the integrity of the ex parte prior authorization process and the administration of justice.
250The police officers did not act with diligence and integrity, failing to discharge the special duties of candour and full disclosure that are required in ex parte proceedings to obtain authorizations that intrude on people’s privacy.
251In discharging those critical duties responsibly, the police must be careful about making statements that are likely to mislead the issuing Justice. They must not intentionally conceal or omit relevant facts or include prejudicial irrelevant information. They have a duty to not exaggerate the information upon which they rely to establish the requisite grounds for issuance of a search warrant.
252In my view, the integrity of the prior authorization process is significantly undermined by the police officers deliberately engaging in conduct for the purpose of persuading the issuing Justice to think that the basis for the application was more compelling.
253A criminal trial should not be permitted to proceed on the strength of evidence obtained from deliberate misleading by the police to authorize the search of the accused’s daily location, home, and private storage. The police conduct seriously violates the fundamental necessity that invasions of privacy are justified, in advance, by full, fair, and frank disclosure by the police to a justice in an ex parte proceeding.
254Aggravating the abuse of the process in this case is that the deception occurred over several months. The first and last warrants were obtained between September 10, to December 1, 2021.
255This was followed by an extended period of further deliberate silence where the police failed to take any steps to correct their misleading as the case progressed through court until late 2023. This constitutes a pro-longed period of deception. It demonstrates a total disregard for the integrity of the prior authorization process and judicial review process where parts of the criminal proceedings against the accused are tainted by the abusive conduct. Brunelle at para. 55-56, citing Conway, at p. 1667.
256Although not necessary to my finding of an abuse of process, I also find the intentional deception continued into the step 6 and Garafoli hearing. For example, I find the police were dishonest in their testimony about the reason the false paragraph 5(c) was included in the ITO. They both said it was a mistake but provided no information about the source of this paragraph. The Crown invited the Court to find it was merely a mistake with no evidence in support of this claim. The explanation for the picking and choosing approach to what other information was included and not, was also not truthful.
257The context of the privacy intrusions was high overall, engaging the accused’s location, home, storage, and records. I recognize that the different warrants dealt with varying degrees of privacy, but the cumulative effect of all the searches was to intrude significantly on the accused’s privacy in various ways, over several months.
- No alternative remedy capable of redressing the prejudice.
258Second, I am persuaded that there is no alternative remedy capable of addressing this egregious misconduct that does serious damage to the integrity of the warrant process. The principled foundations of the prior authorization process have been corrupted by the police misconduct.
259Permitting the warrants to stand on the basis of excision and admit the evidence from those searches, would permit the case to proceed in the face of unacceptable deliberate deception by the police. At trial, the police and Crown would be allowed to rely on evidence to seek to convict the accused that is derived by intentional deceit by the police.
260For example, at trial the Crown would be permitted to adduce evidence before the jury (or judge) derived from a search incident to arrest on October 6 that is tied to grounds for an arrest on September 17, which is the result of GPS data that is the product of dishonesty. The prosecution would also be able to adduce evidence that is derived from subsequent warrants that were authorized and stand on the shoulders of the improperly obtained tracking and unlawful arrest. This would serve to compound the prejudice and be a mockery to the principles of a properly grounded investigation and arrest.
261In addition, refusing a stay will aggravate prejudice to the integrity of a fundamental tenets of the criminal justice system such as doctrines of fairness in the ex parte process, and the community’s expectation as a whole that the police operate lawfully. O’Connor, at para. 75; Tobiass, at para. 91; Regan, at para. 54; Nixon, at para. 42; Babos, at para. 35.
262The court must still consider whether proceeding would lend judicial condonation to the impugned conduct. To this end, I find that carrying on with a trial occasions further harm to the justice system. Indeed “proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” Babos, at para. 38.
263I have considered whether a potential remedy of excluding the evidence derived from the warrants as an alternative remedy is capable of redressing the prejudice instead of a stay. In this case, as I review further below, exclusion of the evidence is justified given the severity of the misconduct and exclusion would have the same practical impact of ending the prosecution.
264However, based on the totality of the evidence, this is clearly an abuse of the ex parte warrant process due to the cumulative deceptive conduct and its detrimental impact on the integrity of the justice system. The remedy of a stay exists for the court for the specific purpose to protect the integrity of the justice system by dissociating itself from state conduct that constitutes an abuse of the judicial process. No other remedy than a stay can rectify the problem of a clear case of egregious misconduct where the mere fact of going forward in the light of it will be offensive to society’s sense of justice. Tobiass, at para. 91.
265I pause here to acknowledge that the stay is warranted in the context of this case. There may be a different case where the investigation unfolds in a way that other offences are discovered that are not tied to the corruption of the warrant process and in that situation, exclusion of the evidence tied to the warrants may be appropriate rather than a stay that ends the entirety of the prosecution. An example may be where a drug investigation tied to an invalid search warrant results in the unexpected discovery of an unrelated homicide. Depending on the facts, exclusion of the warrant derived evidence may be capable of redressing the wrong while permitting a trial on the merits for other offences discovered.
266Finally, I find that a reduction in sentence if the accused was found guilty is not sufficient in this case. As noted above, the misconduct corrupts the process leading to a conviction.
- Where there is uncertainty whether to stay, a balancing of interests.
267Third, there is no uncertainty over whether the charges should be stayed.
268Even if there is arguably uncertainty about the prejudice continuing, after balancing societal interest in a trial and final decision on the merits, I find that the affront to fairness and integrity necessary for the warrant process is disproportionate to the societal interest in the effective prosecution of this particular case.
269The necessity to denounce the misconduct and preserve the integrity of the justice system clearly exceeds the interest that society has in having a final decision on the merits. As a result, the administration of justice is best served by staying the proceedings. R. v. Conway, 1989 SCC 66, [1989] 1 S.C.R. 1659, at p. 1667; Tobiass, at para. 92.
ii) Common Law Discretion and Subversion
270I would also set the warrants aside on the basis of the common law residual discretion of a reviewing judge to set aside warrants that are the result of subversion. This related authority has been repeatedly recognized. See the Supreme Court in Araujo at para. 54 citing R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 553.
271This authority was subsequently affirmed in numerous Court of Appeal rulings: R. v. Kesselring, 2000 ONCA 2457, [2000] O.J. No. 1436, 145 C.C.C. (3d) 119 (C.A.), at para. 31; R. v. Colbourne, 2001 ONCA 4711, 157 C.C.C. (3d) 273 (Ont. C.A.) at para. 40; and Paryniuk, at para. 69.
272Courts of appeal in other provinces have reached the same conclusion: R. v. Bacon, 2010 BCCA 135, at para. 27; R. v. Evans (E.D.), 2014 MBCA 44, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122, at para. 30, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 281.
273Based on this common law authority, the residual discretion is not contingent on the finding of a Charter breach but rather a finding that the conduct of the police is so subversive of the prior authorization process that the resulting warrant must be set aside to protect the court’s process and the preventive function it serves. Araujo, at para. 54. This analysis is correlated to the abuse of process analysis while firmly grounded in common law principles applicable to protecting the integrity of this crucial ex parte process that is essential to the effective administration of justice.
274For all of the reasons already identified above, the findings of subversion in this case means that the authorizations and warrants must be set aside.
CHARTER BREACHES WARRANT EXCLUSION
SECTION 24(2)
275Section 24(2) of the Charter states:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the admission of justice into disrepute.
276To determine whether the evidence obtained as a result of the illegal search should be excluded under s. 24(2), I turn to the test set out in Grant, at para. 71:
[A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter‑protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
277The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Grant, at para. 71.
278I find that the evidence that is derived from the warrants is not admissible.
279The warrants are invalid, the searches are warrantless, and there are section 8 breaches related to the searches of private places. Given my findings about subversion, it is obvious that the evidence would not be admitted under 24(2) as the misconduct is egregious, the impact on the accused’s Charter rights and privacy rights is significant, and the administration of justice would be brought into disrepute by permitting the police to obtain evidence from undermining the warrant process.
280“The phrase “bring the administration into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system.” The term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. The facts of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from the proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Grant, at paras. 68-69.
281The charges are serious, and the evidence is reliable, but admission of evidence obtained by deliberate deceit would exact too heavy a toll on the administration of justice.
282Finally, although I have found the affiants engaged in clear deliberate deception and this is determinative of the motion, in my view an affiant’s serious and repeated failure to adhere to the integrity requirements of full, frank, fair disclosure in a manner that is wilfully blind could justify setting the warrant(s) aside. The fundamental requirements of candour and honesty and the prohibition against deliberate dishonesty are so well established as paramount to the warrant process that it could be unjust to permit the police to choose not to make inquiries when they know there is a reason to do so to ensure accuracy. R. v. Sansregret, 1985 SCC 79, [1985] 1 S.C.R. 570, at para. 22.
Arrest
283As an alternative, I would find the arrest was not lawful, contrary to section 8, and exclude the evidence pursuant to section 24(2).
284Since the warrants are invalid, the tracking is warrantless and there is a section 8 breach. Given my findings on the abuse, it is obvious that the evidence would not be admitted under 24(2) as the misconduct is egregious, the impact on the accused’s Charter rights is significant, and the administration of justice would be brought into disrepute by permitting the police to rely on evidence from undermining the warrant process. The charges are serious, and the evidence is reliable, but admission of evidence obtained by deliberate deceit would exact too heavy a toll on the administration of justice: Grant.
285In general, for an arrest to have been lawful, the police officers must have subjectively believed that there were reasonable and probable grounds on which to arrest the appellant. As well, those grounds must have been objectively reasonable and probable. The standard is not so high as to require the police to establish a prima facie case for a conviction before making the arrest: see R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241.
286There is a related requirement that the police do not rely on unlawfully obtained evidence, as they did here, to get the grounds for the arrest and charges. The rationale that animates this rule in the search warrant context is as follows: in excluding justification for state conduct that is itself unconstitutional, “the state is prevented from benefiting from the illegal acts of police officers” (Grant, at p. 251). See also: Zacharias, at paras. 30-31.
287After obtaining the tracking authorization on September 10, 2021, the police installed the device on September 16 and used the GPS information to locate the accused to conduct surveillance on him on September 17, 2021. The ITOs for warrants #2, 3 and 4 speak to the data from the tracking device being relied on to locate and monitor the accused during surveillance. At paragraph 34, of each ITO, Officer Salvatore states that on September 17, 2021, “I was part of a surveillance team conducting surveillance on Kevin Nyadu. With the assistance of the GPS tracking device his vehicle was first located at 34 Bottomwood Streets in the City of Brampton.” On the basis of this tracking, the police surveilled and followed the accused to the meeting with Mr. Ameyaw.
288But for the GPS tracking data, it is not established that the police would have his location leading to the arrest. The police located the accused on September 17, 2021, and then followed him to obtain the grounds for the arrest. In my view, this arrest is the result of an unlawful authorization obtained because of an abuse of the warrant process contrary to the administration of justice. The arrest and drugs seized, then contributes to the police obtaining the residential and storage unit warrants. Reasonable grounds cannot be supplied by actions that involved violations of the Charter. I would add to that they cannot be based on actions that involve an abuse of the warrant process.
289Where grounds for arrest are based on evidence that was unlawfully obtained, the court must excise this evidence from the factual matrix and determine whether the police had reasonable and probable grounds for arrest having regard to the totality of the circumstances known to the officer based on the remaining evidence. Zacharias, at para. 41.
290I recognize that after locating the accused with the GPS tracking on September 17, 2021, the interaction between the accused and the other individuals with the subsequent arrest of Ameyaw while in the possession of drugs, reasonably grounded the belief of the accused’s involvement in a drug transaction.
291However, the accused’s location identification and subsequent surveillance leading to the observations that ground the arrest was the product of the tracking authorization that is not valid for the reasons above.
Search Incident to Arrest
292The search was contingent on an arrest that was based on tracking the accused pursuant to an unlawful tracking warrant. This is another factor that points to finding the unlawful arrest being necessarily tied to an abuse of the warrant process. This means the search was not authorized by law.
293Even if the arrest was lawful, the search incident to the arrest was unreasonable and the evidence should be excluded. The main problem is that the police failed to explain why, how, and where they searched, three weeks after the basis for the arrest.
294When the Crown is relying on the common law doctrine of search incident to arrest, in this warrantless context the police must be able to explain, within the purposes of protecting the police, protecting the evidence, discovering evidence, or by reference to some other valid purpose, why they searched. Caslake, at para. 25.
295The police do not need reasonable and probable grounds to justify the search. However, they must have a reasonable basis related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. There must be a reasonable prospect of securing evidence of the crime that the individual has been arrested. Caslake at paras. 19-23. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
296The owner, having past and current use and control over the vehicle at the time of the arrest, has an expectation of privacy in their vehicle. R. v. Belnavis, 1997 SCC 320, [1997] 3 S.C.R. 341, at para. 22. In Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 17, the Supreme Court described the expectation of privacy in a vehicle as reduced or lower relative to residences. See also, R. v. Wise, 1992 SCC 125, [1992] 1 S.C.R. 527, at p. 534. The Crown and Defence submitted that on these facts, the Applicant’s expectation of privacy in the concealed part of the vehicle was medium, not high or low.
297The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances. Caslake, at para. 23.
298In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search. Caslake, at para. 18, citing Doherty J.A. with approval In R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136.
299Having considered the applicable principles, I find that the police failed to provide an explanation. This was a warrantless search where the Crown did not adduce evidence to explain why the police searched the vehicle on October 6, where they searched specifically before getting to the hidden compartment in the dash, the extent of the search and how they got there. By the time of the arrest on October 6, it had been three weeks since September 17 and the police did not observe any further drug activity warranting charges. Officer Bosomworth said that he could not say one way or the other if the police surveillance observations of the accused’s movements after September 17 were drug activity. The accused was not accused of drug trafficking after September 17.
300A reasonable explanation by the police of the search is a minimum but necessary legal requirement to ensure that the broad police power of search incident to arrest is in compliance with the Charter interests at stake. Caslake, at para. 25.5
301At the motion, the police did not demonstrate that on October 6 there was a reasonable prospect that evidence of the offence believed to have been committed weeks earlier on September 17 would be found despite continuing surveillance. They did not state the search of this part of the vehicle was for the prompt and effective discovery and preservation of evidence relevant to the basis for the arrest. Stillman, at para. 35-36.
302I recognize that there is evidence that the accused used the vehicle during the alleged drug transaction of September 17 that grounds the arrest. Further, that the police suspect that the accused may have been involved in drug transactions while using his vehicle between August 4 to 6. That said, Officer Bosomworth said that the basis for the arrest was the police surveillance on September 17, with the arrest of the Mr. Ameyaw. Officer Bosomworth’s evidence about the subsequent surveillance between September 17 to October 6, did not support grounds to believe that the accused was continuing to use the vehicle for drug trafficking.
303On September 17, 2021, Officer Bosomworth was part of the surveillance team and stated that the police saw the vehicles of the accused and Mr. Ameyaw were door to door. In examination in-chief he said the police saw both driver’s hands outside of the vehicle. In cross-examination he said that did not see physical contact. The police observed the passenger in the Civic, Mr. Ameyaw, go into the BMW of the accused. He said that about five minutes passed and then they parted ways. Officer Perreault prepared a surveillance report and believed that there was a possible hand to hand transaction.
304Officer Bosomworth also explained the grounds for the arrest, factored an August 5 surveillance report of DC Salvatore, that describes the police observe at 10 p.m. on a residential street, a brief discussion of about 20 seconds between the accused while in his BMW vehicle with a white bald male, who walked up to driver side vehicle of the accused’s vehicle. Then the accused’s then left the area. Based on their experience, the police believed that this was a drug transaction. It was entered into the surveillance report as a short conversation. He described it in his notes as an “exchange”, which he clarified in his testimony meant was an interaction not an observation of a hand to hand.
305Officer Bosomworth did not rely on observations of the accused on August 3 and 4, 2021. The officer discussed the meeting between the accused with a person in an Enersys vehicle on August 4. The accused was with his girlfriend.
306Office Bosomworth also stated that the surveillance continued on October 5 and 6, 2021. On October 5, the police stated in the surveillance report that the objective for the day was to surveil, locate, observe the accused, and if they see a drug transaction, arrest him. They did not observe anything illegal.
307On October 6, the objective was the same. But the plan was that he will be arrested regardless of what was seen, in order to finish this investigation as it needed to come to an end. No additional drug transaction was observed.
308Based on the totality of evidence, I find that the police did not explain a reasonable prospect that the search of the accused’s vehicle on October 6 would locate drugs. This is mandatory requirement for a warrantless search.
309In the weeks that followed between September 17 and October 6, the accused was monitored by the police and their surveillance did not confirm or strengthen their grounds for the arrest. In other words, the police did not have grounds to believe that the accused was using his vehicle to store or traffic drugs after September 17.
310Without an explanation about the search was not demonstrated to be for a valid purpose of preserving evidence from a drug transaction observed on September 17, 2021, or thereafter.
311The police did not articulate a basis to believe that the accused was using a concealed compartment thereby justifying the search to this extent. Even with a lesser expectation of privacy in a vehicle, the absence of an explanation means that the police did not establish the basis for the search.
312The police did not say that there were officer safety concerns. They did not say that this is a case where the search was of under the seats, and proceeded logically to the console, glove, or trunk. R. v. Shankar, 2007 ONCA 280.
313Accordingly, I find there was a section 8 breach.
24(2)
(1) Seriousness of the Charter‑infringing state conduct.
314In this part, I consider whether the nature of the Charter-infringing state conduct leading to the discovery of the evidence involved conduct which the court ought to disassociate itself from. Where the departure from Charter standards is wilful or reckless, or where the authorities can be said to have known or ought to have known, their conduct was not Charter-compliant, and the courts ought to be concerned with associating themselves with the state’s conduct. Harrison, at para. 22
315The search of a concealed area behind the dash of the vehicle after weeks passed from the observations that grounded the arrest, and without a reasonable explanation to believe drugs were stored or sold from the vehicle proximate to the time of the arrest was a wilful disregard of the Charter.
316I am satisfied that the police knew that a search of this nature on October 6 was unreasonable, after watching the accused in the vehicle in the days and weeks leading up to the arrest. Officer Bosomworth’s testimony that the police were unable to say from their observations that the accused was involved in any further offences, detracts from a reasonable basis for searching into the dash of the vehicle on that day for drugs.
317The failure to explain the nature of the search is not a reasonable omission. This is another example of the police officers in this case not meeting fundamental obligations to explain their investigation fully and fairly. It is part of a pattern of concerning behaviour. Officer Bosomworth is the officer in charge and is expected to fulfill this duty.
318On balance, the nature of the police conduct would tend to bring the administration of justice into disrepute. Admission would send the message the justice system condones unjustified searches of areas of vehicles that are not visible, weeks later, without a reasonable basis or explanation.
319This was a serious Charter violation involving an unjustified overreach of police powers of search incident to arrest.
(2) Impact of the breach on the Charter‑protected interests of the accused.
320To determine the seriousness of an infringement, the courts are to look to the interest(s) engaged by the infringed right and examine the extent to which the violation impacted those interests. The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute. R. v. Beaver, 2022 SCC 54, at para. 123; see also Grant, at paras. 76-77; Le, at para. 151; R. v. Tim, 2022 SCC 12at para. 90; and R. v. Lafrance, 2022 SCC 32, at para. 96.
321Based on this record, the impact of the breach on the accused’s privacy rights is moderately serious. It was more than fleeting, technical or transient, but not egregious or profoundly intrusive. Being subjected to a search of one’s vehicle by the police without sufficient basis or explanation impacts on the individual’s rightful expectation of privacy in a way that is more than trivial.
322Although there is a reduced expectation of privacy of a vehicle relative to a home or computer, this search still intruded on a private space that the accused spent a significant part of his daily life, alone and with others. A vehicle is not a Charter-free zone, but rather a place in which individuals have a reasonable but “reduced” expectation of privacy. R. v. Belnavis, 1997 SCC 320, [1997] 3 S.C.R. 341, at para. 38. See also: R. v. Wise, 1992 SCC 125, [1992] 1 S.C.R. 527, at p. 534.
323This search extended to a concealed compartment behind the front dash. It is reasonable to infer that the search was relatively more intrusive than a thorough search of the visible and accessible parts of a vehicle such as under the seats, console, or glove compartment. Due to the failure of the police to explain the nature of the search fairly, I am unable to determine fully the degree of the intrusiveness of the search of the accused’s vehicle on this record. However, the failure to explain coupled with the natural inference that the search was more intrusive than typical weighs in favour of exclusion. That said, I acknowledge there was no evidence the vehicle was dismantled or damaged and that can weigh against exclusion. Overall, on balance, this factor favours exclusion.
(3) Society’s interest in the adjudication of the case on its merits.
324The final line of inquiry relevant to the section 24(2) analysis focuses on the truth-seeking function of a criminal trial and, in particular, the question of whether or not the vindication of a specific Charter violation will exact too great a toll on the reputation of the administration of justice. Society has an interest in a full and fair trial based on reliable evidence.
325In my view, the offences charged are serious and the evidence is reliable. These factors favour inclusion.
326That said, while the offences are serious and the evidence reliable, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the powers used of search incident to arrest are extraordinary and the penal stakes for the accused are high. See also: Harrison, at para. 34.
327Balancing these factors, and after considering all of the evidence, in my view the accused has demonstrated on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. The first and second lines of inquiry present a strong case for exclusion of the evidence. While society’s interest favours admission of the evidence, overall, the public confidence in the administration of justice would be eroded over the long term if the police were permitted to use the search incident to arrest power in these circumstances. I would exclude the evidence of the drugs seized from vehicle pursuant to the arrest.
CONCLUSION
328The charges are stayed for an abuse of process. Alternatively, the warrants are set aside based on the court’s discretion to protect the integrity of the warrant process from subversion. In the further alternative, due to Charter breaches, the evidence from the authorizations and searches is excluded.
Mirza J.
Released: August 8, 2024
Footnotes
- The Applicant’s notice of application framed the Charter motion as a section 8 and 24(2) application. As the proceedings progressed, and additional disclosure was provided by the Crown during the step 6 process, the Applicant sought findings that the charges be stayed as an abuse of process, or the warrants should be set aside based on the court’s residual discretion for subversion. Since the Garafoli process involves continuing incremental disclosure, the Crown did not object to the Applicant also seeking a finding of subversion or a finding of an abuse of process. I agree that in this context, where essential parts of the hearing are conducted ex parte, and disclosure is continuing, flexibility is required to permit Defence counsel to respond to the issues that emerge.
- In this section there are redactions as indicated, and during the redaction process with the Crown, some words were removed or replaced so that the ruling can be understood. The changes do not alter the substance of the protected ruling.
- In order to protect CI privilege the judicial summary of the Appendices did not specify if the CI had involvement in the criminal justice system or whether they had a criminal record or outstanding charges. It was also not specified in the judicial summary what the additional information was that was relevant to the CIs credibility and reliability that was not disclosed to the issuing Justices. Nothing in these reasons should be taken as providing any information about the CI.
- In this section there are redactions as indicated, and during the vetting process with the Crown, some words were removed or replaced. The changes do not alter the substance of the protected ruling.
- During submissions, the Crown said that the Defence did not raise this issue in their notice of application. With respect, the Defence factum, authorities and my review of the issues with counsel confirmed that there was notice before and during the hearing.
