COURT FILE NO.: CR-23-32 DATE: 2024/07/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KEMAR AKEEM SCARLETT

– and –

HALEY MARIE PEYMAN

Applicant/Accused

Counsel: J. Tekenos-Levy, for the Crown S. Agbakwa, for the Applicant/Accused, Mr. Scarlett J. Easton, for the Applicant/Accused, Ms. Peyman

HEARD at Kingston: April 29, 2024

HOLOWKA J.

REASONS FOR DECISION

SectionS 8 and 24(2)

Overview

[1] The applicants, Kemar Akeem Scarlett and Haley Marie Peyman, are charged jointly on a seven-count indictment arising from the search of Ms. Peyman’s residence. The Kingston Police obtained a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), search warrant based on information provided by two confidential informants (“CIs”) set out in the information to obtain (“ITO”).

[2] As a result of the execution of the search warrant, the police seized a 9-millimetre semi-automatic firearm, ammunition, 44.1 grams of cocaine, 10.8 grams of fentanyl, bundled Canadian currency, two digital weight scales, and a notebook alleged to be a debt list. Mr. Scarlett and Ms. Peyman are charged with possession of items obtained from the search under the Criminal Code, R.S.C. 1985, c. C-46, and CDSA. Additionally, Mr. Scarlett is solely charged with possession of the firearm and ammunition while prohibited from doing so.

[3] They have brought an application alleging that the police have violated their rights against unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms. The applicants seek the exclusion of all evidence obtained from the search of the residence pursuant to s. 24(2) of the Charter.

[4] I find that Mr. Scarlett and Ms. Peyman’s s. 8 Charter rights have been breached. Based on the redacted ITO, the warrant could not have been issued. The CI information was of insufficient strength to support the search warrant for the residence. The totality of circumstances could not support the search warrant.

[5] I have concluded that the evidence obtained from the search will not be excluded pursuant to s. 24(2) of the Charter.

Procedural considerations

[6] The applicants initially sought leave to cross-examine the affiant, Detective Constable (“D.C.”) Kyle Brown, but that motion was abandoned. As a result, there is little extrinsic evidence before me.

[7] The Crown did not rely on the “step five” or “step six” procedures as described in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.

[8] The validity of the search warrant was assessed solely based on the information revealed by the redacted ITO as amplified by exhibits 3 and 4 filed by Mr. Scarlett.

The issues

[9] The issues for determination are as follows:

a. Did the redacted ITO contain sufficient grounds to support the search warrant for Ms. Peyman’s home?

b. If there is a breach of the applicants’ s. 8 rights, should the evidence be excluded pursuant to s. 24(2) of the Charter?

c. In the alternative, should I exercise my residual discretion to set aside the warrant despite the presence of a proper evidentiary basis for its issuance because police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, or fraudulent misrepresentation?

Facts relevant to the s. 8 motion

[10] The affiant, D.C. Kyle Brown, has been a member of the Kingston Police Force since 2009 and has been assigned to the Drug Enforcement Unit since 2019. When writing the CDSA warrant in this matter, he was responsible for drafting and executing CDSA and Criminal Code search warrants, handling CIs, conducting surveillance, and preparing documents for court proceedings.

[11] In the search warrant information, sworn July 14, 2021, the affiant stated that police were investigating the sale of fentanyl and cocaine from 212-381 Bagot Street, Kingston, Ontario, by Ms. Peyman and an unknown black male. The affiant stated that he had reasonable grounds to believe that Ms. Peyman and the unknown black male have or will commit the identified offences of possession of fentanyl and cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[12] The grounds in support of the issuance of the CDSA search warrant were from two confidential human sources, surreptitious police surveillance, and searches of databases.

[13] Concerning the information from databases, Ms. Peyman was listed on local, Canada Police Information Centre, and Ministry of Transportation records as residing at 212-381 Bagot Street.

Information from Confidential Human Source #1

[14] The search warrant information was redacted before disclosure to protect the anonymity of the two CIs in accordance with the CI privilege.

[15] The information from Confidential Human Source #1 (“CHS #1”) can be summarized as follows. In 2021, CHS #1 provided the following information to the police:

a. A female named Haley Peyman sold fentanyl and cocaine from her apartment at 212-381 Bagot Street.

b. CHS #1 had purchased drugs from Ms. Peyman over the past number of months. (The number of months has been redacted.)

c. Ms. Peyman was described as 5 feet, 1 inch tall and 100 lbs.

d. Ms. Peyman and the unknown black male were usually in the apartment.

e. Ms. Peyman had recently driven her Volkswagen car after loading up her drug supply.

f. Ms. Peyman and the unknown black male kept the drugs in the kitchen near the fridge.

g. Ms. Peyman and the unknown black male sold fentanyl for a specified price. (The price was redacted from the disclosed ITO.)

Information from Confidential Human Source #2

[16] The information from Confidential Human Source #2 (“CHS #2”) can be summarized as follows:

a. On July 8, 2021, CHS #2 provided the following information to an undisclosed police handler, who in turn provided it to the affiant on an unspecified date in July 2021:

i. Ms. Peyman lived at 212-381 Bagot Street. She sold fentanyl and cocaine. She is 5 feet, 2 inches tall and weighs 110 lbs.

ii. CHS #2 had purchased drugs from Ms. Peyman in the past. (The number of times and date of the purchase(s) were redacted from the disclosed ITO.)

iii. A black male stayed at Ms. Peyman’s apartment and sold fentanyl and cocaine from there. He was described as five feet, ten inches tall and had dreadlocks. He used the name L.P. and did not usually leave the apartment.

iv. Ms. Peyman and the black male kept the drugs by the fridge in the kitchen.

v. CHS #2 provided the price of the fentanyl. (The price of the fentanyl was redacted.)

b. On an undisclosed date in 2021, the affiant received the following information from a police handler that they had, in turn, received from CHS #2 during an undisclosed date in 2021:

i. There was a black male in Ms. Peyman’s apartment who was five feet, eight inches tall and had two-inch twisted hair locks.

ii. CHS #2 purchased an undisclosed amount of fentanyl for an undisclosed price within an undisclosed number of hours from the black male. Ms. Peyman was not believed to be at home at the time.

Police Surveillance

[17] The search warrant informant detailed two days of surveillance by Kingston Police Drug Enforcement around 381 Bagot Street:

a. On June 30, 2021, Ms. Peyman was observed parking a grey 2006 Volkswagen car in the lot associated with 381 Bagot Street. An unknown white male accompanied her. She and the male were observed walking in the direction of 381 Bagot Street.

b. On July 13, 2021, Ms. Peyman was observed exiting a blue Mustang parked in the lot associated with 381 Bagot Street. After she exited, the car was observed leaving the lot.

Did the redacted ITO contain sufficient grounds to support the search warrant for Ms. Peyman’s home?

The Standard of Review

[18] Sopinka J., in Garofoli, at p. 1452, set out the standard that the trial judge should apply in reviewing the issuing judge’s discretion in granting the warrant:

While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:

If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

Assessing the CI Information

[19] The main criteria for evaluating whether information from a CI, when determining whether a police officer’s grounds to search, rises to the constitutional and statutory level of “reasonable and probable grounds” were described by Martin J.A. in R. v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219:

Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief.

[20] The Supreme Court of Canada has repeatedly followed this approach to this issue. This approach was enhanced in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168. In assessing the “totality of the circumstances” standard of reasonableness, three factors must be considered:

a. First, was the information regarding the commission of a criminal offence compelling?

b. Second, was the source of the tip credible?

c. Third, was the information corroborated by independent police investigation?

[21] Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[22] The term “compelling” refers to considerations relating to the reliability of the informer’s tip, such as the degree of detail provided, the informer’s means of knowledge, and whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip.

[23] The term “credibility” captures considerations such as the informer’s motivation, criminal antecedents, and any history of providing reliable information to the police.

[24] Finally, the term “corroboration” refers to any supporting information uncovered by the police investigation.

Assessing the CI Information: Compelling

[25] Ms. Peyman acknowledges that the tip from CHS #1 was largely compelling. Counsel for Ms. Peyman submits that a weakness regarding the “compelling” criterion is derived from the redactions that obscure the recency of CHS #1’s information beyond that it was provided in 2021. (Mr. Scarlett adopted the submissions on behalf of Ms. Peyman during oral argument.)

[26] I conclude that CHS #1’s tip was compelling as I find the following:

a. The information CHS #1 provided was first-hand information. CHS #1 had told their handler that they had purchased fentanyl from Ms. Peyman.

b. The information was recent. While CHS #1 provided the information in 2021 (the exact date is redacted), the purchase of fentanyl occurred in the past months. (The number of months was redacted.) The present tense of the tip wording leads me to conclude that the sale of drugs was ongoing.

c. The tip was very detailed, considering CHS #1 provided the following information:

i. Ms. Peyman’s name.

ii. The exact address.

iii. A physical description of both Ms. Peyman and the unknown black male.

iv. That both Ms. Peyman and the unknown black male are involved in the sale and storage of drugs.

v. A specific location where the drugs were stored at the named address.

vi. CHS #1 has purchased fentanyl from Ms. Peyman.

vii. The particular type and price of the drugs. (The price is redacted.)

viii. The specific make of Ms. Peyman’s car (Volkswagen).

[27] The tip from CHS #2 was similarly compelling:

a. The information CHS #2 provided was first-hand information. CHS #2 stated that they purchased fentanyl from Ms. Peyman.

b. The information was very recent. CHS #2 purchased drugs within a number of hours of the information being provided to the handler. (The specific number of hours was redacted.) The warrant was executed on July 14, 2021. The wording of the information provided by CHS #2 in the present tense leads me to conclude that the sale of drugs was current and ongoing.

c. The tip was very detailed, including the following information:

i. Ms. Peyman’s name.

ii. The precise address of Ms. Peyman’s residence where fentanyl and cocaine are sold.

iii. CHS #2 had purchased drugs from Ms. Peyman and the unknown black male.

iv. The physical description of Ms. Peyman and the unknown black male.

v. The unknown black male goes by “L.P.” and never leaves the apartment.

vi. Specific prices for the sale of fentanyl. (The exact price is redacted.)

vii. The specific location of the drug storage (near the fridge in the kitchen).

[28] I find that the tips were compelling because the information did not take the form of bald conclusory statements, mere rumour, or gossip. The tips were detailed, specific, and recent.

[29] This case is similar to R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A), at para. 9, where the court found the informer’s tip to be compelling on the following facts:

In our case, the informant provided considerable detail about the appellant and the nature of the marijuana growing operation that he said was taking place in the appellant’s house. The information included the names of the occupants of the house, a physical description of the appellant, a description of the house, its approximate location, the appellant’s occupation and detailed information regarding the hydroponic marijuana growing operation, which was consistent with the informant having been in the house and having observed the operation.

[30] I am therefore satisfied that there was a strong basis upon which the justice of the peace could find that the informers’ tips in this case were compelling.

Assessing the CI Information: Credibility

[31] The search warrant information disclosed the following information regarding the credibility of CHS #1:

a. CHS #1 has proven reliable in the past.

b. CHS #1 has provided information over an undisclosed number of years.

c. CHS #1’s criminal record, if any, was provided to the issuing justice of the peace as an appendix but was not included with the disclosed redacted search warrant information. The disclosed information revealed that CHS #1 may or may not have a criminal record. Still, if they possessed a criminal record, they have never been convicted of obstructing police or perjury.

d. CHS #1 understood that they would not receive consideration for information found to be false.

e. The information CHS #1 provided in the past has led to the arrest of wanted people.

[32] Counsel for Ms. Peyman argued that any positive conclusion regarding the credibility criterion is hampered by a lack of information regarding whether CHS #1 was involved in the drug subculture and details regarding the nature of the arrest aided by CHS #1’s information and whether it was for CDSA or Criminal Code offences. Additionally, counsel pointed out that there was no information on whether CHS #1 has ever provided information that was later determined to be false, inaccurate, or had not led to a seizure.

[33] The affiant’s assertion that CHS #1 has proven reliable provided some evidence regarding their credibility, but it was mainly conclusory and did not advance my analysis. It did not permit me to determine why the confidential human source was credible or how they had been proven reliable.

[34] CHS #1’s credibility was enhanced as the information they provided led to the arrest of wanted people. While not as strong as an assertion that the information provided led to the conviction of individuals for Criminal Code or CDSA offences, it nevertheless demonstrated that the information provided by CHS #1 had led to the arrest of more than one person sought by the police. I did not find that whether the arrest was concerning CDSA or Criminal Code offences was significant. What was essential was that the information was accurate.

[35] The fact that CHS #1 has provided information over an undisclosed number of years only modestly advanced my inquiry because it did not reveal the duration or frequency of the activity over those years.

[36] It was a positive credibility feature that CHS #1 had never been convicted of obstructing police or perjury. That said, this feature was significantly weakened because the disclosed search warrant information did not reveal whether or not the informer had a criminal record beyond those two offences.

[37] Counsel for Mr. Scarlett strongly criticized the police’s failure to disclose the informers’ criminal records. This was not, however, a case where the criminal record was not disclosed in full to the justice of the peace who issued the search warrant. There is a categorical difference between the issuing justice of the peace not being provided with this information and the reviewing court not having access to this information due to redactions intended to respect the confidential informer privilege.

[38] There was a lack of explicit information regarding CHS #1’s motivation in providing information to the police. I infer that their motivation was, at least in part, their desire for financial consideration or some other benefit. This inference flowed from the assertion in the search warrant information that CHS #1 understood that they would not receive consideration for information that was found to be false.

[39] CHS #1’s credibility in the present case was weakened by their self-interested motivation (i.e., for consideration) and by their involvement in a criminal lifestyle (i.e., purchasing fentanyl). Further information regarding both would have been important in assessing the credibility of the confidential informers in this case. That said, both are not uncommon attributes of confidential informers. This provision of information for consideration or by someone living a criminal or drug-focused lifestyle is not fatal, standing alone. While the confidential informer may have had a financial motivation to assist the police, I note that, while this is a factor to consider, monetary compensation is quite often provided to informants and should not, in and of itself, render a source uncredible: R. v. Kebede, 2018 ONSC 6304, at para. 36.

[40] The information related to CHS #2’s credibility was primarily contained in paragraph 11(e) of the search warrant information.

[41] The search warrant information disclosed the following information regarding the credibility of CHS #2:

a. CHS #2 has proven reliable in the past.

b. CHS #2 has provided information for an undisclosed number of years.

c. CHS #2’s criminal record, if any, was provided to the issuing justice of the peace as an appendix but was not included with the disclosed redacted search warrant information. The disclosed information revealed that CHS #2 may or may not have a criminal record. Still, if they possessed a criminal record, they have never been convicted of obstructing police or perjury.

d. CHS #2 understood that they would not receive consideration for information found to be false.

e. CHS #2 has previously provided information that has led to CDSA search warrants and drug seizures. The disclosed search warrant information redacted the description of the seized drugs.

[42] The search warrant information established that CHS #2 had a track record with the police, such that information previously provided had led to CDSA search warrants and the seizure of drugs. The number of times CHS #2 had provided information was not provided.

[43] Like CHS #1, CHS #2 understood that they would not receive any consideration for information found to be false.

[44] The information about the credibility of CHS #2 provided a weak basis for a positive credibility finding. They had been a confidential informer for years. They had provided information that led to more than one CDSA search warrant and the seizure of drugs. The confidential informer appeared to be doing this for some form of consideration and understood that failure to provide true information would result in no consideration being provided. Regarding prior criminality concerning dishonesty, there were no convictions for perjury or obstructing police.

[45] Despite these positive elements, the credibility shortcomings identified about CHS #1 were again observed with CHS #2.

[46] Other significant missing information would have advanced the analysis of the credibility of CHS #1 and CHS #2. The missing information included the following:

a. The exact length of the relationship between the confidential informer and the handler/the police.

b. Whether any information previously provided to the police was subsequently shown to be false or inaccurate.

c. The full extent of the criminal record, especially for crimes of dishonesty, if it exists, beyond perjury or obstructing police.

d. The existence of outstanding charges.

e. Reasons the informant may be looking to curry favour with the police.

f. Drug or alcohol addictions.

g. Mental health problems.

h. The volume of tips.

i. The general nature of compensation or consideration provided to the confidential informer.

j. Personal reasons to dislike the target of the tip.

[47] The missing or redacted information did not permit a meaningfully complete analysis of the credibility of the two CIs.

[48] Given the limited information before the court regarding the credibility of CHS #1 and CHS #2, I conclude that credibility is the weakest of the Debot factors in this case. Even so, there was at least some information upon which to assess the CIs’s trustworthiness.

Assessing the CI Information: Corroboration

[49] Turning to the final criterion, namely, investigative corroboration, Ms. Peyman argued as follows:

[P]olice investigations corroborate that the Applicant resides at 381 Bagot Street but never establish any grounds for believing that she is selling fentanyl or cocaine. Police investigations fail to record any persons known within the drug subculture entering her premises, nor do they observe the Applicant engaging in any hand-to-hand transaction. The investigations also fail to identify the black male that both sources cited. The totality of these circumstances does not meet the standard of reasonableness because of the weakness in the credibility of the sources and the important missing details in police investigations. It is important to note that the results of the search cannot, ex post facto, provide evidence of the reliability of the information.

[50] I agree with Ms. Peyman’s submission that the search results cannot, ex post facto, provide support or justification for issuing a search warrant.

[51] The information from CHS #1 and CHS #2 was corroborated in the following ways:

a. Ms. Peyman’s identity was confirmed through physical police surveillance.

b. Ms. Peyman’s current address was confirmed by using multiple electronic databases, including the Police Automatic Registration Information System, local records, and Ontario Ministry of Transportation records.

c. The current residence at 381 Bagot Street (but not the exact unit) was also confirmed through physical police surveillance.

d. Ms. Peyman’s physical appearance was confirmed.

e. Police surveillance and electronic database verifications confirmed that Ms. Peyman drives a Volkswagen car.

[52] Significantly, the information from both CHS #1 and CHS #2, who both state that they purchased drugs from Ms. Peyman, were largely consistent with one another concerning the following:

a. Ms. Peyman’s identity.

b. Ms. Peyman’s residence.

c. The existence and participation of the unknown black male.

d. The sale of fentanyl and cocaine from the Bagot Street residence.

e. The specific location where the drugs were stored.

[53] In R. v. Floyd, 2012 ONCJ 417, at paras. 38, 76-77, Paciocco J. observed that the law, in appropriate cases, allows for mutual corroboration between different sources of evidence, including between CIs. He cautioned, however, that while mutual corroboration between CIs is entirely appropriate, in each case he cited as examples of mutual corroboration by CIs, the informants were persons of demonstrated reliability.

[54] The two CIs in this case were not of “demonstrated reliability”. I conclude that the two confidential human sources cannot appropriately provide mutual corroboration because of their weak credibility based on the redacted and limited information before me.

[55] I note that there is no information before me whether the two confidential human sources know each other.

[56] The corroboration from police surveillance and other steps to verify the information provided by the two CIs was not strong. It should be observed that the police will rarely be able to confirm the tip to the extent of having observed the commission of the offence, and that level of confirmation is not required. In a concise judgment in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, at para. 2, the Supreme Court of Canada said the following:

The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.

[57] In the Alberta Court of Appeal, the majority described the independent confirmation as follows: “[T]he police independently confirmed a number of details, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle”: R. v. Caissey, 2007 ABCA 380, 422 A.R. 208, at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant’s apartment. Thus, the details confirmed by the police tended to show that the informer had been in the apartment even though they did not, on their own, show that the appellant was in possession of drugs.

[58] In this case, the police confirmed Ms. Peyman’s identity, appearance, address, and vehicle. However, this was less compelling than the independent confirmation in Caissey.

[59] In R. v. Dunkley, 2017 ONCA 600, 385 C.R.R. (2d) 183, at paras. 15-16, the court noted the following:

Contrary to the appellant’s submission, the police are not required to corroborate the very criminality of the information given by the informant through their independent investigation, and it is not necessary to confirm each detail in a tip: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 (Ont. C.A.), at para. 22. The police must only be satisfied that the possibility of innocent coincidence is removed based on the conformity of the events actually observed to the pattern anticipated by the tip: Debot, at p. 1172.

[60] The corroboration provided in the redacted material before me was weak because the independent investigation did not confirm anything beyond the identity of Ms. Peyman, the location of her residence, and the car she was driving. While not required to corroborate the very criminality of the information given by the informant, here, the police investigations to corroborate the tips were minimal. The police did not record any persons known within the drug subculture entering Ms. Peyman’s premises or the building where she resided, nor did they observe Ms. Peyman engaged in any conduct remotely connected to trafficking in controlled substances. The independent investigations failed to identify the black male cited by both confidential human sources.

Conclusion Regarding the Sufficiency of the ITO

[61] I have considered the content of the redacted ITO as a whole.

[62] The redacted CI information was of insufficient strength to support the search warrant for Ms. Peyman’s residence. The credibility of the two confidential human sources was weak. Although some information was corroborated, it was very generic; it did not compensate for the void left by the credibility assessment. The tips from the CIs were compelling about the trafficking of fentanyl and cocaine, but the totality of circumstances could not support the search warrant. I conclude that the applicants’ s. 8 rights were breached.

Should the evidence be excluded pursuant to s. 24(2) of the Charter?

The Seriousness of the Charter-Infringing Conduct

[63] The first prong of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 74, requires consideration of the seriousness of the Charter-infringing conduct.

[64] There was nothing in this case that suggested intentional police misconduct.

[65] The ITO overstated the strength of the static police surveillance regarding Ms. Peyman entering her unit. The police surveillance to corroborate the tips from the CIs was limited. It confirmed little of substance regarding the tips. To this extent, the application for the search warrant may have been premature – additional independent investigation might have been carried out. In the alternative, the Crown may have simply miscalculated the strength of the redacted ITO.

[66] The police applied for and received a warrant to search the residence of Ms. Peyman, from which they believed fentanyl and cocaine were being trafficked. Falling short of reasonable grounds does not, in and of itself, suggest any intentional police wrongdoing. I do not find any deliberate police wrongdoing in this case.

[67] In this case, the Crown did not rely on step 5 or step 6 of Garofoli to support the ITO. On the other hand, the defence did not challenge the validity of the CI claims, seek access to the identity of those informants, nor challenge the editing done by the Crown to protect the identity of those informants. In the circumstances, I do not find that these positions militate for or against a finding of good or bad faith on the part of the police. See R. v. Shirley, 2024 ONCA 285; R. v. Herta, 2018 ONCA 927, 370 C.C.C. (3d) 542; R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4.

[68] I conclude that the first Grant factor is neutral in the admissibility analysis.

Impact of the Breach on the Charter-Protected Interests of the Accused

[69] The second prong of Grant examines the impact of the breach on the Charter-protected interests of the accused. It can range from “fleeting and technical to profoundly intrusive”: Grant, at para. 76.

[70] I find that this factor favours exclusion. I came to this conclusion because this was a search of Ms. Peyman’s home, a place over which she held a strong expectation of privacy. As observed in Grant, at para. 78, “[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy … is more serious than one that does not.”

[71] The impact on the Charter-protected interests of the accused is on the more serious end of the spectrum.

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

[72] The third prong of Grant considers society’s interest in an adjudication on the merits. The third prong points toward inclusion.

[73] The exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, “thus bringing the administration of justice into disrepute”: Grant, at para. 81. The exclusion of the evidence in this case will undoubtedly end the prosecution and lead to acquittals on serious drug and firearm offences.

[74] The combination of drugs and guns is a deadly mix that threatens public safety.

[75] One of the drugs seized by the police is alleged to be fentanyl. The threat posed by fentanyl is particularly pernicious. It threatens the fabric of our society. There are significant public policy concerns about the threat posed by fentanyl.

The Balancing of the Factors

[76] I conclude that the evidence should not be excluded in this case.

[77] The balancing of the various s. 24(2) factors requires a “qualitative” assessment, one that is ill-suited to “mathematical precision”: Grant, at para. 140. The goal of the exercise is not to punish the police for Charter breaches. Instead, the exercise takes a prospective approach. It aims to guard against any further damage to the repute of the justice system if evidence obtained through a Charter breach is admitted: Grant, at para. 69; R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 98.

[78] As explained in Tim, the balancing is not only prospective but also societal. The goal is to “address systemic concerns by analyzing ‘the broad impact of admission of the evidence on the long-term repute of the justice system’”: at para. 98, citing Grant, at para. 70. The Supreme Court has observed that “[w]hen balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry”: R. v. McColman, 2023 SCC 8, 478 D.L.R. (4th) 577, at para. 74, citing R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90, and R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 134. Where the first and second inquiries “‘make a strong case for exclusion’, the third line of inquiry ‘will seldom tip the scale in favour of admissibility’” but the importance of the third inquiry is amplified when “one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence”: Beaver, at para. 134, citing Lafrance, at para. 90, and R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.

[79] In this case, the first line of inquiry is neutral. The second line of inquiry pulls toward exclusion. The third line of inquiry pulls strongly in favour of admission. In these circumstances, the final balancing supports the admission of the evidence: Tim, at para. 99; McColman, at para. 74.

[80] The evidence includes a semi-automatic handgun and a quantity of fentanyl. There are significant public policy concerns about the threat posed by fentanyl. To exclude the evidence in this case would only punish the police and damage, rather than vindicate, the long-term repute of the administration of justice. That is not the purpose of s. 24(2) of the Charter: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 79.

Should I exercise my residual discretion to set aside the warrant because police conduct has subverted the pre-authorization process?

[81] I would not exercise my residual discretion to set aside the warrant because of alleged police conduct subversive of the process.

[82] Mr. Scarlett alleges that the affiant provided misleading information to the issuing justice of the peace and violated his duty to make full, frank, and fair disclosure. He provides the following examples:

a. First, according to his notes, the affiant received information about drugs being sold from 212-381 Bagot Street from D.C. Petersen at 2 p.m. on July 13, 2021, based on which he decided to draft a CDSA warrant. His notes do not indicate that the information from D.C. Petersen came from a confidential source. D.C. Petersen has no notation of providing that information to D.C. Brown.

b. Second, the affiant provided misleading information to the issuing justice by stating that information already in police possession (by June 30, 2021) corroborated information received two weeks or so later from CHS #1 and CHS #2.

c. Third, the affiant stated that police static surveillance on July 13, 2021 confirmed that Ms. Peyman lived at 212-381 Bagot Street when, in fact, no such observation was made, as Ms. Peyman was not observed entering unit 212.

d. Fourth, the affiant failed to disclose that on July 13, 2021, surveillance officers saw Ms. Peyman in front of 381 Bagot Street with a white male rather than a black male (which detracts from the CI information).

e. Fifth, the affiant misled the justice by stating that two confidential human sources provided information that Ms. Peyman and the unknown black male are currently selling drugs from unit 212-381 Bagot Street.

[83] Mr. Scarlett submits that the court should quash the CDSA search warrant, under its residual discretion to set aside a warrant despite the presence of a proper evidentiary basis 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.

[84] Section 8 of the Charter requires that the prior authorization process prevent unjustified searches before they happen: Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145. Because the prior authorization process is ex parte, the affiant has a legal duty to make full and frank disclosure of all material facts, whether favourable or not, in the search warrant information: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

[85] The affiant’s honest and diligent performance of that obligation is essential for the authorizing justice to be able to determine whether the state’s interest in carrying out the search outweighs the privacy interest of the individual. The law is clear that a search warrant is not automatically invalidated due to deliberate fraud; it will be a question of degree in the particular circumstances as to whether an affiant’s deliberate breach of their ex parte duties rises to the point that it can be said that the prior authorization process has been subverted (i.e., it cannot perform its safeguard purpose of preventing an unjustified search before it occurs).

[86] The standard for setting aside a search warrant is high: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 69-70.

[87] The cited examples of police misconduct do not approach the high standard Paryniuk requires.

[88] The first cited example of fraud is inconsequential. The officer is addressing the motivation to seek a search warrant. Not every step in an investigation must be outlined in the ITO. Araujo directed that affiants prepare ITOs that are full and frank but also clear and concise.

[89] The second cited example is similarly unconvincing. The example’s strength is diminished as Mr. Scarlett does not take into consideration the redacted portions of the ITO, instead choosing to select the most negative interpretation of the text.

[90] The third example does have some merit. The affiant overstates the effect of the police surveillance. Ms. Peyman was never seen entering her unit, but she was generally seen only at 381 Bagot Street. Police record checks reflect that Ms. Peyman resided at unit 212. That said, I do not view this as an intentional effort to mislead the issuing justice of the police but rather a modest example of sloppiness in drafting.

[91] The fourth example is also without significance. I disagree that the officer erred in failing to include this information in the ITO. The observation that Ms. Peyman was seen with a white male instead of a black male is meaningless. It does not detract from the grounds of the ITO.

[92] The final example is also without effect. It is merely the conclusion of the police that is entirely borne out by the compelling nature of the tip. There is nothing objectionable or concerning about this assertion.

[93] It is fair to conclude that the police overstated the observation of the police surveillance regarding Ms. Peyman entering the unit. Still, beyond that, I do not accept that the other examples provided by Mr. Scarlett demonstrate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation, or the like. If I am in error regarding my assessment of these examples, I would not exercise my discretion to quash the warrant because the high standard for doing so has not been met.

Disposition

[94] The redacted ITO does not support the issuance of the search warrant. I find that s. 8 of the Charter has been breached.

[95] The evidence seized during the search warrant execution at 381 Bagot Street is not excluded pursuant to s. 24(2) of the Charter.

[96] There is no basis to exercise my residual discretion to set aside the warrant because of alleged police misconduct.

[97] I want to thank all counsel for the very helpful, effective, and responsible way they conducted this Charter motion.

Mr. Justice Brian Holowka

Released: July 24, 2024