ONTARIO SUPERIOR COURT OF JUSTICE

DATE: 20240816

BETWEEN:

NINO CUNANAN and ALI BAEK – and – HIS MAJESTY THE KING

Counsel: Marco Forte for the Applicant Nino Cunanan Michael Lacy and Marcela Ahumada for the Applicant Ali Baek Kester Yeh and Laura Precup-Pop, for the Crown

HEARD: April 29, 2024 – May 2, 2024

WOODLEY, J.

REASONS FOR DECISION

Ali Baek’s Charter Challenge: Sections 8 and 24(2)

OVERVIEW

[1] There were two Charter applications before me, one brought by each co-accused, Nino Cunanan (“Cunanan”) and Ali Baek (“Baek”), seeking to exclude those substances (cocaine) found by the police as the result of alleged Charter breaches.

[2] Although the facts relating to both applications are similar, Cunanan’s application sought the exclusion of evidence seized as the result of conceded section 8 and section 9 Charter breaches.

[3] As Cunanan’s application was primarily focused on an assessment of s. 24(2) of the Charter it was determined first. For Reasons for Decision released on May 30, 2024, as R. v. Cunanan, 2024 ONSC 3032, Cunanan’s application was granted and the evidence seized from Cunanan’s vehicle, being 15 kilograms of cocaine, was excluded from Cunanan’s trial.

Baek’s ss. 8 and 24(2) Charter Application

[4] Baek’s application does not involve conceded Charter breaches and instead requires a Garofoli review of the various warrants and orders issued relating to Baek to determine whether such warrants and/or orders could issue, whether Baek’s s. 8 Charter rights were breached, and whether any evidence obtained in breach of Baek’s s. 8 Charter rights should be excluded from his trial.

[5] These Reasons for Decision pertain solely to Baek’s ss. 8 and 24(2) Charter Application but necessarily reference Cunanan’s ss. 8, 9, and 24(2) Charter Application which was heard at the same time and on the same evidentiary record.

FACTS

[6] In April of 2021, the Peterborough Police Service commenced a drug trafficking investigation initially based upon information received from a confidential human source that a person named Samantha Moncur, was believed to be transporting drugs for a person named Justin Boyer.

[7] Police conducted surveillance of Moncur and observed her travel to and from the Greater Toronto Area (“GTA”) to a residence in Peterborough located on George Street North, that was believed to be a “stash” house for the drug trafficking operation.

[8] In August of 2021, the Peterborough Police Service joined forces with the Durham Regional Police Service. The investigation was named “Project Lancia”. Through various investigative techniques including surveillance, wiretapping, production orders, and tracking warrants, the joint task force identified numerous individuals involved in what appeared to be a drug trafficking network.

[9] Over the course of the investigation the police obtained approximately 60 judicial authorizations for tracking warrants, production orders, and general warrants. On January 10, 2022, Justice Leibovich issued an authorization to intercept private communications and make observations for seven (7) principle known persons and twelve (12) other known persons, at various residences, inside various vehicles, and on various devices or telecommunication services.

[10] Baek and his co-accused Cunanan were not targeted in the wire-tap authorization on January 10, 2022, and neither were a “person of interest” in the investigation at that time.

[11] Cunanan first became a “person of interest” in the investigation on January 27, 2022, when he was suspected of providing a “re-supply of controlled substances” to Moncur. Following January 27, 2022, Cunanan was surveilled, and several production orders and a tracking warrant were obtained related to Cunanan. However, despite the issuance of a tracking warrant for Cunanan’s vehicle, the warrant was never effectively instituted, and Cunanan’s location was never obtained through the warrant.

Surveillance of Baek on April 5, 2022

[12] Police first identified Baek as a “person of interest” in the investigation on April 5, 2022, while surveilling Cunanan. On this date, Cunanan was being observed at his home located at 81 Navy Wharf Court, Toronto.

[13] At 10:13 am police observed Cunanan drive his vehicle into the underground parking lot of 352 Front Street West, Toronto. The police observed Cunanan exit his vehicle with a “weighted dark bag” and access a stairwell toward the storage locker room. Less than two (2) minutes later Cunanan reappeared and returned to his vehicle without the weighted bag.

[14] At 6:00 pm Cunanan was observed entering the rear passenger seat of his Toyota RAV4 (CRZL 690). Four (4) minutes later he exited his vehicle holding an empty reusable bag that had a checkered black/white pattern on its sides and orange end panels. Cunanan was then observed placing the bag behind the seat of his Toyota 4Runner (CRZL 712) before entering the 4Runner and travelling to North York.

[15] At 6:59 pm Cunanan was observed stopped along the north side of Elkhorn Drive, in front of Elkhorn Public School, with the rear passenger door open. Investigators observed Cunanan walk in the direction of a white Volkswagen Jetta (CTSH 771) holding the same reusable bag he had been observed with earlier. Cunanan was then observed walking away from the white Volkswagen Jetta “carrying a large, swollen, weighted, reusable bag that had a checkered black/white pattern on its sides with orange end panels”. Cunanan placed the bag in the rear seat of the 4Runner and left the area. None of the surveillance officers witnessed any exchange between Baek and Cunanan on April 5, 2022.

[16] Although Baek was identified as the driver of the white Volkswagen Jetta, no officer observed Baek speak to, or interact with, Cunanan. No officer observed Baek provide Cunanan with anything. No officer observed Baek place anything inside the reusable bag. Further, despite being equipped with camera and video recording equipment, no officer took any photographs or videos of their observations that day.

[17] As noted by Baek, on April 5, 2022, the most that can be said about the observations of the officers is that they observed Cunanan walk away from the area of the white Volkswagen Jetta with a reusable bag that appeared to be weighted.

[18] Following the observation of Cunanan walking away from the area of the white Volkswagen Jetta, the surveillance officers determined that they would discontinue surveillance of Cunanan and switch to Baek. Accordingly, officers followed Baek’s vehicle to a fast-food location in North York and then at 7:19 pm followed Baek to his residence at 18 William Carson Crescent, North York where Baek’s vehicle was located unoccupied parked in the underground parking lot. Surveillance on April 5, 2022, was discontinued at 7:34 pm.

Production Order for 18 William Carson Crescent and Tracking Warrant for Baek’s Vehicle Based on Observations Made April 5, 2022

[19] On April 7, 2022, the police sought authorization to obtain a production order relating to 18 William Carson Crescent, North York, and a tracking warrant for Baek’s 2016 Volkswagen Jetta.

[20] The Information to Obtain (ITO#1) filed in support of the production order for 18 William Carson Crescent and the tracking warrant for Baek’s vehicle was sworn by DC Payne on April 6, 2022.

[21] The content of ITO#1 filed in support of the said order and warrant was quite lengthy and consisted of approximately 110 paragraphs supplemented by photographs, footnotes, and including notes and comments made by the affiant. Throughout ITO#1, the affiant provided a detailed and meticulous history of the joint police investigation known as Project Lancia commencing in April of 2021 that included names, dates, and observations up to and including April 5, 2022. However, while ITO#1 provided a plethora of information relating to the Project Lancia investigation, it provided an absolute paucity of information relating to Baek and/or his connection to any of the persons involved in the investigation. The actual specific information provided to the issuing justice in support of the order and warrant was sparse and limited to the vague observations made on April 5, 2022, that placed Baek’s and Cunanan’s vehicles within a shared vicinity. There were no observations of any meetings, discussions, or exchanges between Baek and Cunanan, nor was there any suggestion of any observation of any contact between Baek and Cunanan on April 5, 2022. Further, even though no observations were made that Baek and Cunanan “met”, “spoke”, or “exchanged” anything, the affiant’s notes and comments suggest that Baek was observed “meeting” with Cunanan on April 5, 2022, that Baek “provided” the contents of a “bag” to Cunanan, and that the contents of the “bag” were “related to drug trafficking”. There were absolutely no observations made by any officer on April 5, 2022, that could support the affiant’s accompanying notes and comments with the result that the notes and comments constituted erroneous information and speculative inferences that were provided to the issuing justice.

[22] On April 7, 2022, based on the information provided by ITO#1, Justice of the Peace MacDonald issued a production order for 18 William Carson Crescent and a tracking warrant for Baek’s vehicle.

Surveillance of Baek on April 6, 2022

[23] On April 6, 2022, PC Detlor conducted additional surveillance of Baek commencing at 7:50 am in the area of his MTO address 209 – 18 William Carson Crescent, North York. The relevant portions of the surveillance and investigative reports are as follows:

a. At 2:45 pm Baek arrived at the Bayview Village Mall located at 2901 Bayview Avenue, Toronto, where he parked his vehicle and entered the Mall. Baek later exited the mall with a cart which contained alcohol which he loaded into a reusable Metro bag and placed in the passenger seat of the car. Baek then retrieved a white pillowcase from the trunk of his vehicle which contained cylindrical items that were also place onto the passenger seat of the car.

b. At 2:58 pm Baek travelled to the area of 16/18 Harrison Garden Blvd.

c. At 3:06 pm Baek travelled into the underground parking garage of 16/18 Harrison Garden Way out of sight.

d. At 3:07 pm Baek entered the tenant parking area of the underground parking garage. This area requires a key fob for entry.

e. At 3:11 pm Baek entered elevator 3 for 16 Harrison Garden Blvd. Baek was observed carrying the white pillowcase containing cylindrical items and the weighted reusable Metro shopping bag. Baek exited on the 11th floor.

f. At 3:24 pm Baek returned to the elevator with the (empty) reusable Metro shopping bag and travelled down to the underground parking garage.

g. At 3:39 pm Baek exited the residential parking garage and travelled back to 18 William Carson Crescent.

h. At 3:44 pm DC Bint returned to 16/18 Harrison Garden Blvd and spoke with the property manager and security. From viewing the video DC Bint learned that Baek’s vehicle parked in spot 135 on level P3 at 16 Harrison Garden Blvd and that Baek travelled to floor 11 at 16 Harrison Garden Blvd carrying the Metro reusable bag and the white pillowcase. Baek later returned to the elevators with the (now empty) Metro reusable bag and no white pillowcase.

Production Order for 18 Harrison Blvd Based on Observations Made April 6, 2022

[24] On April 7, 2022, the police sought a further production order for a second property associated with Baek located at 18 Harrison Blvd, North York. In support of this order DC Payne swore a further ITO (ITO#2) also dated April 6, 2022. The information provided by ITO#2 included all the information contained in ITO#1, together with additional information relating to observations of Baek made on April 6, 2022. ITO#2 also included a reiteration of the prior erroneous and speculative notes and comments, together with further speculative comments that appear intended to bridge evidentiary gaps.

[25] On April 7, 2022, Justice of the Peace Allison issued the production order for 18 Harrison Garden Blvd based on the information provided by ITO#2.

Surveillance of Baek on April 8 and 9, 2022

[26] Upon issuance of the tracking warrant, the police began utilizing the warrant to track the movements of Baek’s vehicle.

[27] On April 8, 2022, surveillance was conducted from the residential underground parking lots of both 18 William Carson Crescent and 18 Harrison Gardens Blvd. On this date Baek was observed making a brief stop at 18 Harrison Blvd and returned to his vehicle carrying a white plastic bag under his left arm close to his chest. Baek left the parking lot and was misplaced for a short period. When contact resumed Baek was observed with an unknown male sitting in the front passenger seat of his vehicle. Baek entered Bayview Village Shopping Centre, parked and the unknown male exited the vehicle with a black satchel over his right shoulder and entered the mall and contact was lost in the underground parking garage. Baek remained in his car and exited the mall after the unknown male exited and returned to 18 William Carson Court. Baek later went to another shopping mall and nothing of evidentiary value was observed further that day.

[28] On April 9, 2022, surveillance of Baek continued relying on the tracking warrant and data. Baek was observed driving into the parking garage of 16 Harrison Gardens Blvd exiting his vehicle and returning 25 minutes later with a reusable shopping bag. Baek travelled to the Leslie Street TTC station and waited curbside where an unknown person eventually entered the passenger side of his vehicle. Baek appears to have been misplaced for a short time and when next observed he was solo in his vehicle. At 11:13 Baek returned to 18 William Carson Crescent. At 11:56 Baek and an unknown female believed to be his significant other drove to the Yorkdale Mall arriving at 12:04. Baek returned to his vehicle to smoke and then re-entered the Mall and entered a restaurant with the female. At 16:09 Baek and the female returned to the car and Baek drove to 18 William Carson Crescent.

Surveillance of Baek and Cunanan on April 11, 2022

[29] As noted, due to various issues, the tracking warrant associated with Cunanan’s vehicle(s) did not result in any information being obtained. However, the tracking warrant associated with Baek’s vehicle was utilized.

[30] On April 11, 2022, at 9:14 am Baek’s vehicle was observed arriving at McDonalds and Baek was confirmed to be the sole occupant. Baek travelled to Loblaws and then returned to his residence at 18 William Carson Crescent, North York.

[31] At 10:34 am Baek travelled to Victoria Square Blvd, Markham and parked. A black Audi parked beside Baek, and the drivers were observed speaking to one another. The driver of the Audi was identified as Tin Man Ha of Ottawa, who was a person who was unknown to the police. Baek and Tin Man Ha left in tandem together. They were briefly misplaced and then located in the rear laneway where Baek was “observed with his hands inside the black Audi” which statement has been conceded as being erroneous. The vehicles left in tandem and separated shortly thereafter.

[32] At approximately 12:02 pm, an officer observed Baek briefly stopping at a Canadian Tire gas bar located at 1125 Sheppard Avenue East, Toronto, in his Volkswagen Jetta, observing that “it appeared” that Cunanan’s Toyota 4Runner was “travelling in tandem” with Baek.

[33] At 12:07 pm, an officer observed Baek’s vehicle and Cunanan’s vehicle parked near St. Gabriel’s Parish on Elkhorn Drive, Toronto. Baek’s vehicle (Volkswagen Jetta) was observed to be parked curbside in front of Cunanan’s vehicle (Toyota 4Runner).

[34] Shortly thereafter an officer alleged that he observed Cunanan exit his vehicle and “briefly speaks to” Baek at the driver’s side of Baek’s vehicle before “retrieving a large duffel bag blue/green in colour with black handles from the trunk” of Baek’s vehicle. As per Exhibit 5, it has since been conceded that there were no observations of Baek speaking to Cunanan or retrieving anything from Baek’s trunk. The officer alleged that he observed Cunanan place the large duffel back in the rear drivers’ seat of his (Cunanan’s) vehicle.

[35] Based on the above noted “observations” of a “meet” and an “exchange” Cunanan was arrested at gun point and his vehicle was searched incident to arrest. During the search of Cunanan’s vehicle, the police located 15 kilograms of cocaine hidden inside a built-in cabinet housed in the body of the vehicle.

Search Warrants for Baek’s Properties and Vehicle

[36] On April 11, 2022, following Cunanan’s arrest, Baek was arrested, and search warrants were issued by Justice of the Peace Hewitt authorizing the search of 16 Harrison Garden Blvd, 18 William Carson Crescent, and Baek’s Volkswagen Jetta. During the search of 16 Harrison Garden Blvd, police located and seized 10 kilograms of cocaine hidden inside a furniture compartment.

[37] The ITO relied upon in support of the April 11, 2022 search warrants was sworn by DC Payne on April 11, 2022, (ITO#3) and contained all information provided by ITO#1 and ITO#2 together with additional information relating to observations of Baek made on April 8, 9, and 11, 2022, the arrest of Cunanan, the search of Cunanan’s vehicle incident to arrest, and details of the seizure of 15 kilograms of cocaine from Cunanan’s vehicle. ITO#3 also included a reiteration of the prior erroneous notes and speculative comments and included additional erroneous observations referencing a “meeting” and an observed “exchange” between Cunanan and Baek on April 11, 2022, together with further speculative comments that appear intended to bridge evidentiary gaps.

[38] The details relating to the conceded erroneous observations made of Cunanan and Baek on April 11, 2022, are thoroughly reviewed in the Reasons for Decision relating to Cunanan’s Charter application found at R. v. Cunanan, 2024 ONSC 3032, as are the concessions made in writing by the Crown at the hearing of the within application, which are summarized below at paragraph 47.

[39] As detailed in the Reasons for Decision relating to Cunanan’s Charter application, the events of April 11, 2022, that lead to Cunanan and Baek’s arrest and the search of Cunanan’s vehicle and Baek’s properties was marked by improper police conduct consisting of untruthful, careless, reckless, and/or negligent reporting of observations made on April 11, 2022, all of which were conceded by the Crown to be false.

Production Order for 16 & 18 Harrison Garden Boulevard.

[40] On April 13, 2022, following Cunanan and Baek’s arrest, police obtained a production order seeking all surveillance and key fob records in relation to Baek’s movements at 16 & 18 Harrison Garden Blvd on April 8, 2022 (11 am to 12 pm), April 9, 2022 (10 am to 11am), and April 11, 2022 (1:15 and 1:45 pm) which recordings were used to corroborate suspected drug trafficking on the above noted dates when surveillance occurred.

[41] The ITO relied upon in support of the April 13, 2022, production order(s) was sworn by DC Payne on April 12, 2022, (ITO#4) and contained all information provided by ITO#1, ITO#2, and ITO#3 together with additional information relating to Baek’s arrest on April 11, 2022, the execution of the search warrant for Baek’s property at 11-7-16 Harrison Garden Blvd, and the seizure of 10 kilograms of cocaine from Baek’s residence. ITO#4 also included a reiteration of the prior erroneous notes and speculative comments.

ISSUES

[42] Baek seeks exclusion of all evidence seized on April 11, 2022, pursuant to s. 24(2) of the Charter on the basis that it was obtained in violation of his s. 8 right to be free from unreasonable search and seizure.

[43] More particularly, Baek’s submits as follows:

(i) When considering the offences listed on the face of the tracking warrant and production orders issued on April 7, 2022, these authorizations are facially invalid in two respects. First, as it relates to the tracking warrant, the ITO does not disclose reasonable and probable grounds to suspect that Baek had committed any of the offences, as the affiant asserted. Second, even if there was a suspicion, the ITO failed to disclose any basis upon which a justice could reasonably conclude that tracking Baek’s vehicle would assist in the investigation of the listed offences. Third, as it relates to the Production Order, the ITO did not disclose reasonable and probable grounds to believe that Baek had committed any offence or that the information being sought would afford evidence respecting the commission of any of the listed offences.

(ii) If the April 7, 2022, orders should not have issued, Baek seeks automatic excision of the evidence derived from the authorizations in respect of the arrest of Baek and Cunanan and the subsequent authorizations.

(iii) The warrant to search 1107-16 Harrison Garden Blvd, should not have issued. Once the above noted excisions are done, the ITO is facially invalid. In the alternative, the ITO is facially invalid in that it does not disclose any credibly based probability that there would be any evidence located in the unit.

(iv) The production order for 16 Harrison Garden Blvd should not have issued. The evidence found in the residence pursuant to the search warrant of 1107-16 Harrison Garden Blvd should be automatically excised. Once all the excisions are done the ITO is facially invalid.

[44] Apart from automatic excision, Baek seeks the exclusion of the evidence obtained from the tracking warrant, production orders, and search warrant pursuant to s. 24(2) of the Charter.

[45] The Crown submits that when viewing the evidence in its totality, the pre-conditions for issuing the tracking warrant and the production orders were met and that these judicial authorizations could have been issued. Therefore, the Crown submits that nothing should be excised.

[46] The Crown concedes (for the purposes of Baek’s application) that two (2) pieces of erroneous information from April 11, 2022, search warrant should be excised. The first piece is paragraph 62(5) where it states, “During their meet, Baek was observed reaching into Ha’s Audi convertible”. The second piece is paragraph 62(8) where it states, “During their meeting, Cunanan obtained a weighted blue/black duffle bag from the trunk of Baek’s car and then placed it in the driver sider rear passenger seating area of his Toyota 4Runner” which the Crown submits should be replaced with “Shortly after, Cunanan returning to Toyota 4Runner with duffle bag”. The Crown also concedes those facts agreed and filed as Exhibit 5, the relevant facts being as follows:

(1) There was no exchange observed between Baek and Cunanan on April 11, 2022. (2) The trunk of the vehicle operated by Baek was not observed to be open on April 11, 2022. (3) There were no reasonable or probable grounds to effect the arrest of Cunanan. (4) The search of Cunanan’s vehicle was incident to an unlawful arrest. (5) The arrest of Baek relied upon the arrest of Cunanan and the search of his vehicle.

[47] The Crown submits that the evidence should not be excluded as indicated by Baek as exclusion would bring the administration of justice into disrepute.

THE LAW AND ANALYSIS

Standard of Review and Onus for Challenge

[48] The onus is upon the applicant to demonstrate that the warrants (which are presumptively valid court orders) should not have been issued. The applicant may do this by challenging the warrants’ facial or sub-facial validity.

Facial and Sub-facial Challenges

[49] A facial challenge asks whether the contents of the affidavit could support an authorization. A sub-facial challenge attacks the underlying reliability of the contents of the affidavit.

[50] After excising false, misleading, or erroneous information and amplifying the record with any material omissions, the reviewing justice should review the ITO in its entirety to determine whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54.

[51] The question according to the Supreme Court of Canada as noted in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, is 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.

[52] In conducting the within application, it must be remembered that the hearing is not a trial. It is an application in relation to the admissibility of evidence. As a result, it is not intended to test the merits of any of the allegations in respect of the offences. The truth of the allegations is to be tested at the trial proper: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. This is an important distinction.

Tracking Warrants: “Reasonable Grounds to Suspect” Standard

[53] Section 492.1 of the Criminal Code permits a judicial officer to grant an authorization for the monitoring of a tracking device.

[54] There are two statutory requirements that inform whether a tracking warrant can issue: (i) there are reasonable grounds to suspect that an offence has been or will be committed; and (ii) tracking the location of the thing sought to be tracked “will assist in the investigation of the offence”.

[55] Affidavits filed in support of tracking warrants are required to provide reasonable grounds to suspect that the searches as authorized by the warrant may assist the investigation into the offences specified; this is a lower standard than reasonable grounds to believe: see R. v. Sadikov, 2014 ONCA 72, 300 C.R.R. (2d) 308, at para. 81.

[56] The term reasonable suspicion has been interpreted by the Supreme Court in R. v. Chehil, 2013 SCC 49, as follows:

• The reasonable suspicion standard is a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny (para. 3);

• The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behavior (para. 6);

• “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds (para. 26 citing R. v. Kang-Brown, 2008 SCC 18);

• The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in a crime…factors that give rise to reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so (paras. 28 and 32).

• Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect than an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation (para. 29); and

• A police officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, hunches or intuition grounded in an officer’s experience will not suffice. Specific evidence of the investigating officer’s experience and training may be required to support any probative link between the constellation of factors relied on by the police and criminality (para. 47).

[57] In addition to the requirement that there need be reasonable grounds to suspect that an offence has been committed, the justice must also be satisfied that the tracking of the thing will assist the investigation of the offence that is reasonably suspect to have been committed. There must be evidence upon which an issuing justice acting reasonably could be satisfied that tracking of the thing will assist the investigation of the offence that is reasonably suspected to have been committed. This is a more demanding threshold than whether tracking “may assist” the investigation of the suspected offence. ( See R. v. Braich, 2021 BCSC 132 at para. 43).

Production Orders: “Reasonable Grounds to Believe” Standard

[58] Section 487.014(1) of the Criminal Code permits a judicial officer to grant an authorization for the issuance of a production order requiring a person to produce a document that is in their possession or control when they receive the order or to prepare and produce a documenting containing data in their possession or control at that time.

[59] A production order can only issue whether there are “reasonable grounds to believe” that an offence has been or will be committed and that the information being sought “will afford” evidence of the offence. ( See R. v. Mawick, 2021 ONCA 177 at para. 37).

[60] While reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they must both be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, it is important to note the distinction between reasonable suspicion standard and reasonable grounds standard which is a more demanding standard required to obtain a production order and a search warrant. ( See R. v. Wong, 2017 BCSC 91 at para. 27).

[61] The affidavit in support of the order must disclose more than mere suspicion, conjecture, hypothesis, or “fishing expeditions” which all fall short of the minimally acceptable standard for issuing a valid authorization. There must be more than a hope that the searches might disclose some possible future offence: see R. v. Lee, 2001 BCSC 1649, at para. 74.

[62] As stated in R. v. Grant (1998), 131 Man. R. (2d) 36 (Man. C.A.), at paras. 26 – 27, authorizations cannot be used to uncover evidence of unknown crimes or to prevent criminal activity in the future.

[63] The police cannot use authorizations to engage in a fishing expedition in relation to hypothetical or imaginative offences. However, when police are applying for an authorization, they are still in the investigatory stage. It is therefore unrealistic to expect great particularity: see R. v. Della Penna, 2012 BCCA 3, 251 C.R.R. (2d) 183, at para. 25.

[64] Authorizations may only be set aside if the reviewing judge concludes that there was no basis for the issuing justice to authorize a warrant.

[65] The requirement for prior judicial authorization is a bedrock principle of the criminal justice system. It flows from the constitutional protection against unreasonable search and seizure and is designed to ensure effective limits on the powers of police to invade the privacy of citizens. ( See Hunter v. Southam Inc., [1984] 2 S.C.R. 145).

Requirement for Full and Frank Disclosure

[66] Because the prior judicial authorization process is conducted ex parte there is a heavy onus on the affiant to ensure that the issuing justice is not misled through the inclusion of erroneous, incomplete or misleading information. A search warrant affiant bears the burden of presenting the facts accurately and fairly. ( See R. v. Booth, 2019 ONCA 970 at para. 54).

[67] The standard of full and frank disclosure requires the affiant to disclose “all material information that (a) could undercut the probability that the alleged offence had been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information that the affiant officer relies upon to establish the grounds for the warrant. ( See Booth, supra, at par. 56; R. v. Phan, 2020 ONCA 298 at para. 50).

[68] Full and frank disclosure also requires the affiant draft the ITO in a clear and concise manner, avoiding any attempt to trick or mislead the issuing justice. Courts have cautioned that the use of boilerplate language and unsupported assertions pose a particular risk in this regard as use of these techniques may improperly bridge an evidentiary gap. ( See R. v. Araujo, 2000 SCC 65 at para. 27).

[69] A facial challenge asks whether the contents of the affidavit could support an authorization, whereas a sub-facial challenge attacks the underlying reliability of the contents of the affidavit. After existing false, misleading, or erroneous information and amplifying the record with any material omissions, the reviewing justice should review the ITO to determine whether, in its entirety, the affidavit discloses reliable evidence that “might reasonably be believed on the basis of which the authorization could have issued”. ( See Araujo, supra, at para. 54).

Could the Warrants and Orders Relating to Baek have Issued?

[70] Police obtained a tracking warrant for Baek’s vehicle and two production orders respecting the condominium units Baek was believed to have been associated, all issued on April 7, 2022. Baek submits that ITO#1 and ITO#2 filed in support of the warrant and orders fail to disclose evidence that meets the respective standards required for issuance, following excision of all erroneous information, and considering the offences listed and the time in which they were alleged to have been committed.

[71] With respect to the first statutory requirement, Baek submits that ITO#1 fails to establish reasonable grounds to suspect that Baek was involved in any of the offences listed. No observations were made that could support an objective reasonable suspicion Baek was involved in drug trafficking despite the affiant’s assertion of that belief.

[72] Baek does not contest that the police had grounds to suspect others had committed offences at the date of the tracking warrant application. However, to track Baek’s vehicle it was necessary to establish under oath that tracking Baek’s vehicle would assist the investigation of those completed offences because the face of the tracking warrant clearly indicates that the warrant was granted in respect of offences already suspected of having been committed.

[73] The Crown by their argument details objective facts relating to other persons of interest’s movements, actions, and words, particularly Moncur’s interactions with numerous individuals who appear to be involved in drug trafficking. I agree with Baek that there were ample grounds to suspect others had committed offences at the date ITO#1 was sworn. However, there was a complete absence of grounds to suspect that Baek had committed offences on the date ITO#1 was sworn (April 6, 2022) and/or on the date the warrant was issued (April 7, 2022).

[74] When ITO#1 is examined in entirety and the information is cross-referenced to the surveillance and investigative reports, what stands out is the absolute absence of information and/or grounds relating Baek to the alleged offences. Further, although evidence must be viewed and considered in its entirety – this does not mean that a review of the specific information relating to the specific individual under review is not required.

[75] It is my view that the “historical” summary detailing the Project Lancia investigation from April of 2021 to the alleged “meet” and “exchange” (neither of which were observed) on April 5, 2022, that appears in all ITOs, provided the issuing justices with a false sense of connection between Baek and the completed offences. As at the date of ITO#1 and ITO#2, there was absolutely no evidence linking Baek to any of the completed offences. There are simply no grounds to suspect that Baek was involved in any of the offences he allegedly was suspected of having been committed.

[76] As noted by Baek, on April 6, 2022, when ITO#1 and ITO#2 were drafted, police knew virtually nothing about Baek. The observations by police on April 5, 2022, consisted of:

• identifying him as the driver of a Volkswagen Jetta parked in the area where Cunanan was observed walking away from with a “weighted” bag; and

• observing Baek attend 18 Harrison Garden Blvd after leaving a shopping mall, with a shopping bag and a pillowcase both transported in the front passenger seat, that appeared to be filled with items, who then returned from the unit to his vehicle with the shopping bag emptied and without the pillowcase.

[77] ITO#1 sworn for the tracking warrant and production order for 18 William Carson Crescent relied only on the first noted observation involving Cunanan.

[78] ITO#2 sworn for the production order for 18 Harrison Garden Blvd relied on both observations.

[79] The sole basis for suspicion that tracking Baek’s vehicle would afford evidence of an offence was the claim that based on what the police observed there was a basis to conclude that Baek was directly involved in drug trafficking.

[80] While police officers are entitled to rely upon their experience and training, such experience and training must be coupled with objective evidence. It is my view that the use of boilerplate language and the unsupported assertions contained in ITO#1 sworn April 6, 2022, was intended to improperly bridge an evidentiary gap. On April 6, 2020, there was absolutely no objective or reasonable evidence linking Baek to any of the offences that had been committed that could lead an objective observer to suspect that Baek was involved in drug trafficking. There were absolutely no observations that Baek provided a bag to Cunanan nor was there even a suggestion that there was an exchange between Cunanan and Baek on April 5, 2022. The purported grounds are not grounds at all and could not reasonably support the conclusion that there was a “reasonable” suspicion that Baek was involved in drug trafficking. The accompanying comments and notes made by the affiant that Baek and Cunanan had a “meet” and/or that he believes that Baek “provided Cunanan with a weighted bag” are inaccurate, misleading and amount to pure speculation not grounded by any observation of any officer and are subject to excision.

[81] Additionally, there were no grounds articulated for the affiant’s stated belief that the “contents of said bag … are related to drug trafficking”. There were no observations made regarding the contents of the bag, what was inside the bag, or why it was suspicious apart from being “weighted”, which term has no precise meaning.

[82] In the absence of previous observations of Baek suggesting a pattern of behavior consistent with drug trafficking or direct connections with any of the targets of the investigation, there is nothing suspicious about the presence of a “weighted” bag in the vicinity of Baek’s vehicle. This is especially true where (in this case) there were no observations of any “meet”, “exchange”, or “conversation” between Baek and Cunanan on April 5, 2022.

[83] Baek had no criminal record, which fact was known to the police. He had no convictions for drug possession or drug trafficking. Further, at the date ITO#1 was sworn (April 6, 2022), there had been no observations of Baek interacting with any person connected to the investigation including Cunanan.

[84] There simply were no grounds to rise to the level of “reasonable suspicion” and no evidence as to how tracking Baek’s vehicle would afford evidence of offences that had already been committed.

[85] The affiant by ITO#1, grounded the request for the tracking warrant on the basis that it would assist in gathering “further evidence with respect to the listed offences” without explaining how future tracking would afford evidence of past offences.

[86] The affiant also suggested that the warrant would “assist investigators in identifying pertinent places to this ongoing Part VI drug investigation”. However, there was absolutely no objective, reasonable evidence that could lead an objective observer to conclude that Baek was involved in the drug industry or drug trafficking on April 6, 2022.

[87] ITO#2 which was filed in support of the production order for 18 Harrison Garden Blvd is equally deficient. This is primarily because at the date ITO#2 was sworn (April 6, 2022) the police had made no observations of any meet, exchange, conversation, or contact between Baek and Cunanan or any other target of the ongoing drug investigation. Further, Baek was observed completing mundane tasks such as shopping, attending fast food locations, and errands. He was not observed speaking to, meeting, or exchanging any item with any person connected to the investigation. Further, Baek had no criminal antecedents that would support any inference that he was connected to the drug industry or drug trafficking.

[88] With respect to Baek’s connection to 18 Harrison Garden Blvd at the date ITO#2 was sworn (April 6, 2022) he had been observed attending the location on one occasion. DC Payne’s speculation that because Baek had access to more than one residential building this is consistent with drug trafficking is not objectively reasonable. It is pure speculation rooted in boilerplate generalized language intended to bridge evidentiary gaps.

[89] Having thoroughly reviewed the ITO and the documents prepared in support thereof, and after excising all erroneous information, I conclude that there was insufficient evidence to suspect that Baek was or had been involved in drug trafficking on April 7, 2022, when the authorizations were issued. I accept Baek’s submission that either the issuing justice was mislead by the affiant’s baseless hypotheses or was lulled into a sense of false security that evidence connecting Baek to the investigation existed due to the absolute volume of investigative information provided that precedes the introduction of Baek on April 5, 2022.

[90] In any event, whatever the reason, I conclude that there were no reasonable grounds to suspect that an offence had been committed by Baek and there were no reasonable grounds to suspect that the authorizations related to Baek would afford evidence that an offence had been committed by Baek or any other person.

Should Information Be Automatically Excised from Subsequent ITOs?

[91] Where reasonable grounds relied upon to obtain judicial authorizations are tainted by information secured by unlawful actions of the police, it must be excised from the ITO. This includes information obtained in a manner contrary to the Charter. The purpose of automatic excisions is to uphold the public’s interest in ensuring that unlawful police conduct is not rewarded. (See R. v. Hamid, Leyva and Andrews, 2019 ONSC 5622, at paras. 26 – 28).

[92] The rule of automatic excision does not include a balancing analysis as required from exclusion under s. 24(2). ( See Araujo, supra, at paras. 57 – 58; and R. v. Lam, 2015 ONSC 2131 at paras. 56 – 58).

[93] In the present case Baek relies on automatic excision in three respects.

(1) The information derived from the April 7, 2022, orders and warrant should be automatically excised from the subsequent authorizations. This includes information regarding Baek’s affiliation to 16 Harrison Garden Blvd which was obtained from the results of the production order authorized by Justice of the Peace Allison. This also includes information about surveillance of Baek on April 8, 9, and 11, 2022 which relied on the tracking data obtained from the results of the tracking warrant. This information is reproduced in both the ITO for the search warrant of 1107-16 Harrison Gardens Blvd on April 11, 2022, and in the production order for records for 16 Harrison Gardens Blvd on April 13, 2022.

(2) The information should be excised from the grounds relied on to arrest Baek. Police relied upon Cunanan’s arrest and the fruits of the search incident to Cunanan’s arrest to arrest Baek. As this arrest has been found to be unlawful (R. v. Cunanan, 2024 ONSC 3032), the fruits of that unlawful arrest and search incident to arrest should be excised from the grounds to arrest Baek. If this information is excised, police would not have sufficient grounds to arrest Baek based on the police’ innocuous observations of Baek in the days leading up to April11, 2022. 1

(3) As Cunanan’s arrest is unlawful, the evidence seized from the Toyota 4Runner on April 11, 2024, as well as mention of Cunanan’s arrest, should be excised from the ITO in the subsequent authorizations. 2

1 Note: Determination of this issue is currently before the Court of Appeal on reserve. Given my other findings with respect to excision, I find it unnecessary to wade into the dispute. 2 See Note 1 above.

Could the Subsequent Search Warrants and Production Orders have Issued?

[94] On April 11, 2022, following Cunanan’s arrest, two search warrant were issued by Justice of the Peace Hewitt to search Baek’s residences at 1107-16 Harrison Garden Blvd and 209 – 18 William Carson Crescent. The warrants provided authorization to enter and to search for and seize controlled substances. The warrants were issued at 11:30 pm and allowed for the search of the premises between April 11, 2022, at 11:30 pm to April 12, 2022, at 12 pm.

[95] The issued search warrant relating to 16 Harrison Garden Blvd states on its face that there are reasonable grounds to believe that there is a controlled substance or precursor, a thing in which such a controlled substance or precursor is contained or concealed, offence related property, or a thing that will afford evidence in respect of an indictable offence under the Controlled Drugs and Substances Act, to wit: cocaine; weigh scales; drug packaging; safes and/or lock boxes and their contents; currency; cellular phone(s); identification and personal documentation related to occupancy/ownership; drug debt lists and banking records in respect of which one or more indictable offences have been committed on April 11, 2022, Ali Baek, did commit the offence of trafficking a Schedule 1 controlled substance, to wit “cocaine” contrary to section 5(1) of the Controlled Drugs and Substances Act is or are to be found in the following place or premises named the condominium unit located at 1107-16 Harrison Garden Blvd, North York, Ontario.

[96] The ITO submitted in support of the above noted search warrants (ITO#5) was sworn by DC Payne and contains the same information as was relied upon in support of the previous tracking warrant and production orders, which I have found could not have issued. Further information was included relating to surveillance of Baek on April 8, 2022, which does not appear to rely upon the previous warrant or tracking order. The information detailed relating to Baek for April 8, 2022, and April 9, 2022, is innocuous and provides no reasonable or probable grounds upon which the search warrants could have issued. The affiant’s note connected to these dates is based on pure speculation and reliant upon boilerplate language intended to bridge evidentiary gaps. The note does not provide any reasonable or probable grounds upon which the search warrants could have issued.

[97] The information relating to the surveillance of Baek, and the arrest of Cunanan (specifically paragraph 62) contains erroneous information that needs to be excised. There was no observation of a “brief meeting” between Baek and Cunanan on April 11, 2022 (see Cunanan’s Reasons for Decision at R. v. Cunanan, 2024 ONSC 3032, for a full discussion of the errors contained in the ITO relating to April 11, 2022). All information relating to Baek as contained in the introductory paragraph to para 62 is subject to excise as being erroneous. Paragraphs 62 (2) to 62 (8) is subject to automatic excise as the tracking warrant that located Baek could not issue and therefore the information was obtained in breach of Baek’s s. 8 Charter rights and is subject to automatic excision. Paragraph 62(5) contains erroneous information that Baek reached into Tin Man Ha’s Audi, which would also be subject to excision aside from the breach. Paragraph 62(8) contains erroneous information that Baek and Cunanan had a “meeting”, and that Cunanan obtained a weighted blue/black duffle bag from Baek’s car, which would be subject to excision aside from the above noted breach. The label to the photograph which appears below paragraph 62(8) also contains erroneous information that is required to be excised as follows, “obtained from Baek”.

[98] The affiant’s note which directly follows paragraph 62 is subject to excision due to references relating to Baek “meeting” with Cunanan, Baek “obtained a weighted bag from Baek on this same street during a brief meet on April 5, 2022” which are subject to excision for error. All erroneous observations would otherwise be subject to automatic excision due to the breach of Baek’s s. 8 Charter rights. The affiant’s note, considered in context with all erroneous or automatically excluded information is pure speculation and does not support the issuance of the warrants.

[99] Having reviewed the entirety of ITO#5 relied upon to support the issuance of the search warrants to search Baek’s property, without the benefit of the excised information, I find that the search warrants could not have issued.

[100] Having thoroughly reviewed ITO#5 and the documents prepared in support thereof I conclude that following excision, there was insufficient evidence to suspect that Baek was or had been involved in drug trafficking on April 11, 2022, when the authorizations were issued. I accept Baek’s submission that either the issuing justice was mislead by the affiant’s baseless hypotheses or was lulled into a sense of false security that evidence connecting Baek to the investigation existed due to the absolute volume of investigative information provided that precedes the introduction of Baek on April 5, 2022.

[101] In any event, whatever the reason, I conclude that there were no reasonable grounds to believe that an offence had been or will be committed by Baek and there were no reasonable grounds to believe that the authorizations would afford evidence that an offence had been committed by Baek.

[102] In the context of this case where Baek had no previous affiliations or pattern of behavior consistent with drug trafficking, being observed with a weighted grocery bag, especially on occasion after attending a shopping mall, and being in possession of a pillowcase containing a cylindrical object, that was being transported in the open on his front passenger seat, is insufficient to link a residence with a crime. Further there is no evidence adduced that Baek had criminal antecedents or a criminal record or kept illicit substances, packaging, currency, or cell phones at the locations to be searched.

[103] Following excision, ITO#5 provides bare assertions that do not justify the significant intrusion of privacy that necessarily accompany the search of a person’s residence. ( See R. v. Rocha, 2012 ONCA 707 at para. 26).

[104] In the present case there is virtually no evidence connecting Baek or Baek’s residence to any illegal activity, apart from the fact that Baek was seen attending there. There was no evidence that Baek was trafficking drugs from the residential unit or that there would be proceeds of crime present at the location. The information does not satisfy the test. ITO#5, following excision, did not provide sufficient grounds such that the search warrant that authorized the search of 16 Harrison Gardens Blvd, North York could have issued.

[105] Lastly, the production order relating to 18 Harrison Garden Blvd, North York, issued on April 13, 2022, which sought production of all surveillance recordings and key fob records in relation to the movement of Ali Baek at 16 & 18 Harrison Garden Blvd, North York, for the period April 8, 2022, to April 11, 2022, suffers the same fate as the search warrant to search the property. The ITO, once properly reviewed and excised, (both for erroneous information and for Charter infringing information) did not provide sufficient grounds such that the order could have issued.

Section 24(2) of the Charter: Should the Evidence be Excluded?

[106] Section 24(2) of the Charter directs the Court to exclude evidence obtained in a manner that infringed an applicant’s Charter rights if its admission would bring the administration of justice into disrepute. In determining whether to exclude the evidence, the Court must balance the effect of its admission on public confidence in the justice system, having regard to the three factors set out in R. v. Grant, 2009 SCC 32: (1) the seriousness of the Charter-infringing conduct; (2) its impact on the Charter-protected interests of the accused; and (3) society’s interest in adjudicating the case on its merits.

[107] The onus to establish whether it is appropriate to exclude evidence obtained in breach of an applicant’s Charter rights, lies with the applicant, on the balance of probabilities.

[108] In applying the Grant factors there is no requirement that all three factors or the majority be satisfied. Rather, it is a balancing exercise where the key question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would do harm to the long-term repute of the administration of justice.

[109] Having said this, I note Justice Doherty’s comments in R v. McGuffie, 2016 ONCA 365, that it will be a rare instance where consideration of the third branch of the Grant analysis will result in admission of the evidence where the first two branches are tipped towards exclusion. See also R. v. Lafrance, 2022 SCC 32, at para. 90.

[110] Further and importantly, the Supreme Court has determined that the objective of the balancing exercise under s. 24(2) is not to rectify police misconduct, but rather, to preserve public confidence in the law. See R. v. Beaver, 2022 SCC 54, at paras. 116-117.

[111] Finally, I note that evidence relating to the breach need not be a “shock” to the community, nor the “clearest of case”: R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, to favour exclusion.

The Seriousness of the Charter Infringing State Conduct

[112] This first line of inquiry engages the court in a consideration of the need to distance itself from the Charter-infringing conduct of the police. The court must situate the offending conduct of the police on a scale of seriousness. At the lower end are the less serious cases involving inadvertent, technical, or minor breaches, or those that reflect an understandable mistake. At the higher end are instances of police misconduct that constitute wilful or reckless disregard for Charter rights, a systemic pattern of infringing conduct, or a major departure from Charter standards. See Beaver, para. 120. Obviously, the more serious the breach, the more compelling the need of the court to distance itself from it.

[113] The seriousness of the Charter-infringing conduct is fact-specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of evidence may have little adverse effect on the repute of the court process.

[114] Several factors have been recognized by the case law as being relevant to consideration of the seriousness of the Charter breaches including:

(a) Whether there was a motivation of urgency or to prevent the destruction of evidence;

(b) The existence of good or bad faith on the part of the state, understanding that deliberately disregarding Charter rights is bad faith; and

(c) The impact of dishonest testimony. The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine these goals than misleading testimony in court from persons in authority. See R. v. Harrison, 2009 SCC 34, at para 26.

The Impact of the Breach on the Charter-protected Interest of the Accused

[115] The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused’s protected interests. Again, the court is called upon to situate the impact on a spectrum ranging from “fleeting and technical” to “profoundly intrusive”. The greater the impact on an accused person’s protected interests, the greater the risk that admitting the evidence will signal to the public that Charter rights are of little actual value, thus breeding cynicism. See Beaver, at para. 123.

[116] The court is called upon to consider the interests engaged by the rights infringed by the conduct of the police. The question is how seriously the Charter breach impacted these interests. The greater the intrusion on those interests, the more important it is that a court exclude the evidence to substantiate the Charter rights of the accused.

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

[117] The third line of inquiry focuses on whether, from society’s point of view, the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. The court is directed to look at factors such as the reliability of the evidence, its importance to the prosecution’s case, and the seriousness of the offence at issue. See Beaver, at para. 129.

The Balancing Exercise Under s. 24(2)

[118] The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to the judge’s decision. Generally, however, it can be ventured that where reliable evidence is discovered as the result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2).

[119] On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.

ANALYSIS AND APPLICATION TO THE PRESENT FACTS

[120] The issue is whether the 10 kilograms of cocaine found in Baek’s residence at 18 Harrison Garden Blvd, North York in breach of Baek’s section 8 Charter rights should be excluded from the evidence at Baek’s trial.

[121] The question is whether the admission of the evidence would bring the administration of justice into disrepute.

[122] To answer this question, it is necessary to consider the concerns that underlie the s. 24(2) analysis, as discussed above, in “all the circumstances” of the case, including the arbitrary detention and the breach of the reasonableness of the search.

The Seriousness of the Improper Police Conduct

[123] I consider first the seriousness of the improper police conduct that led to the discovery of the evidence.

[124] The Charter infringing conduct is serious. The police failed in their obligations to conduct a thorough investigation and thereafter failed to provide full, frank, and fair disclosure to the issuing justice.

[125] While the police appeared to have ample grounds to believe the other targes of the Project Lancia investigation were involved in drug trafficking, they failed to sufficiently investigate Baek, and relied upon short-cuts, situational bias, and careless, reckless, and/or negligent reporting of observations made on April 11, 2022, later conceded to be false.

[126] In addition to the use of boilerplate language and overemphasizing innocuous behaviour there were instances where the affiant incorrectly summarized the evidence of the surveillance officers, including stated observations of:

(1) Baek having his hands inside Tin Man Ha’s black Audi; (2) Baek observed “meeting” with Cunanan – which was incorrectly summarized on two occasions on April 5, 2022, and on April 11, 2022; (3) Baek observed with his “trunk open”; and (4) Baek observed delivering a “weighted bag” to Cunanan – which observation was incorrectly summarized on two occasions on April 5, 2022, and on April 11, 2022.

[127] These are not innocuous observations; these alleged and erroneous observations provide damning evidence against Baek and grounded the basis for the warrants and orders that issued.

[128] The fact is that no officer observed Baek “meet” with Cunanan or “speak” to Cunanan or provide anything to Cunanan cannot be overstated. The fact that the information provided to the issuing justices erroneously records that Baek was observed completing these actions constitutes a serious breach by the police of their duty to provide full, fair, frank, and honest information.

[129] As noted by the Supreme Court, the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine these goals more than false or misleading testimony in court from persons in authority. See R. v. Harrison, 2009 SCC 34, at para 26.

[130] The improper police conduct, as it relates to Baek in my view was egregious and severe. It was not only Cunanan that was affected by the misleading information provided to the Court. Baek was equally affected. False and misleading evidence was repeated throughout each, and every ITO relied upon to obtain the warrants and production orders used to build the case against Baek.

[131] It my view, the errors go beyond carelessness, and the conduct is at the far end of the “seriousness of the breach” spectrum. I am of the view that the effect of admitting the evidence in the circumstances of this case would greatly undermine public confidence in the rule of law. This first branch of the Grant inquiry therefore strongly points towards the exclusion of the evidence.

Impact Upon Charter Rights & Society’s Interest in the Protection of Charter Rights

[132] The second inquiry focuses on the impact of the breach on the accused’s protected interests. Because the rights infringed protect different interests, it is necessary to consider them separately at this stage.

[133] The Charter violation was the unlawful tracking of Baek’s vehicle, the unlawful gathering of information related to Baek’s residence and movements, and the unlawful search of Baek’s residence.

[134] Baek was associated with the vehicle, was the sole driver and occupant of the vehicle and had a subjective and objective privacy interest in the vehicle. Although a person’s privacy interests in a vehicle is lesser than a residence, the Supreme Court has held that such a privacy interest does exist: See R. v. Belnavis, [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405 at paras. 39-40.

[135] As for Baek’s residence, it is undisputed that a person has a high expectation of privacy as it relates to their residence, which is a person’s haven and a place of safe refuge.

[136] Discoverability remains a factor in assessing the impact of a breach on Charter rights. In the present case, the seized evidence sought to be excluded was found after a search of Baek’s residence, hidden within furniture. The evidence would not have been discovered but for the breach of Baek’s Charter rights.

[137] Considering all these matters, I conclude that the impact of the infringement of Baek’s rights under s. 8 was serious, prolonged, significant, and occurred with reckless disregard for Baek’s Charter rights. It is my view that consideration of this second factor also favours exclusion.

The Public Interest in Having the Case Adjudicated on Its Merits

[138] The third and final concern is the public interest in having the case adjudicated on its merits.

[139] The evidence sought to be admitted is 10 kilograms of cocaine. This evidence is real and substantial. The existence of the evidence is absolute proof that this illicit substance (cocaine) in this quantity (10 kilograms) was found in a hidden compartment in Baek’s furniture at his home.

[140] Ten kilograms is a great deal of cocaine. It tends to demonstrate that Baek was engaged in the trafficking of cocaine at a very high level and for commercial purposes. One would have to be entrenched in serious criminality to be able to obtain and move that much cocaine. Cocaine is, of course, a very destructive drug. Society has a very strong interest in seeing those who traffic in large quantities of it detected and prosecuted.

[141] The evidence here is real. Without it, the Crown’s case will fall apart.

[142] In my view, the third line of inquiry strongly favours admission of the impugned evidence.

Balancing the Three Lines of Inquiry

[143] The final step in the s. 24(2) analysis involves a balancing of the results of the three lines of inquiry. The goal is not to punish the police for wrongdoing, but rather “to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system.” See Beaver, at para. 133.

[144] The Crown argues that the seriousness of the alleged offence and the seriousness of the substance (both the type and the quantity) weighs in favour of admitting the evidence so the matter may be determined on the merits.

[145] Counsel for Baek argues that the public interest in a trial on its merits must be balanced against the public’s interest in having the constitutional rights of the public protected.

[146] For my part, I am guided by the principle that the integrity of the judicial system and the truth-seeking function of the courts lies at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions directly undermine these goals more than false or misleading testimony whether contained in an ITO to an issuing justice or provided by testimony in court from persons in authority. See R. v. Harrison, 2009 SCC 34, at para 26.

[147] In the present case, the improper police conduct escalated in seriousness through repetition and resulted in the reckless, and flagrant disregard of Baek’s Charter rights. The impact of the Charter breaches on Baek’s protected interests was significant.

[148] The Supreme Court instructed in Beaver, at para. 134, that it is the cumulative weight of the first two lines of inquiry that must be balanced against the third line of inquiry. Where those first two inquiries point strongly towards exclusion, the third inquiry will seldom tip the scale towards admissibility.

[149] I have determined that the extreme seriousness of the breaches and the substantial impact on Baek’s Charter-protected interests both point strongly towards exclusion of the evidence. Though there is obviously a strong public interest in prosecuting cocaine traffickers, this is not one of those rare cases where that public interest is capable of tipping the scale towards admissibility.

[150] In my view, this is not a close case. Given the fact that false and misleading observations were made and then repeated in each ITO under consideration to the issuing justices, and repeated on two further occasions under oath, the Court must distance itself from the impugned conduct.

[151] The balance mandated by s. 24(2) is qualitative in nature and having weighed all these concerns I find that the admission of the evidence in this case would bring the administration of justice into disrepute.

[152] For the reasons set out herein, the evidence, being the 10 kilograms of cocaine seized from Baek’s residence shall be excluded from Baek’s trial.

Justice S. J. Woodley

Released: August 16th, 2024