Court File and Parties

Court File No.: CR-24-20000322-0000

Date: September 16, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Dajae Montaque

Counsel:

D. MacAdam, for the Crown

R. Gadhia, for the Applicant

Heard: July 21-24, 2025

Ruling on Section 8 Charter Application (Garofoli Application)

R. Maxwell J.

I. Overview

[1] The Applicant Mr. Montaque stands charged with numerous firearm offences, possession of Schedule 1 controlled substances for the purpose of trafficking, and possession of proceeds of crime arising out of his arrest and the execution of a search warrant at 3-42 Pendeen Avenue (the "target address") in the City of Toronto on March 27, 2023.

[2] On March 26, 2023, the police attempted to obtain a search warrant for the target address. DC Ellis (the affiant) swore an affidavit in support of an application for a search warrant under the CDSA to search the target address. Appendix A set out the items to be searched for including schedule 1 substances, packing material for storing and distributing controlled substances, scales, currency related to the sale and distribution of controlled substances, debt lists, cutting agents, and electronic devices used in relation to the sale and distribution of controlled substances. Appendix B set out the offences as possession of a schedule 1 substances for the purpose of trafficking and possession of proceeds of crime.

[3] On March 26, 2023, DC Ellis submitted the search warrant application. Justice of the Peace Domm reviewed the application and denied the application. In an email to DC Ellis, Justice of the Peace Domm stated, "You have not sufficiently established why you believe anything will be found at the address sought for warrant. Simply summarizing that a dealer must store his product somewhere is insufficient. What observations if any have you made that leads you to believe this?"

[4] On March 27, 2023, DC Ellis re-submitted the search warrant application. He alerted the reviewing justice to the fact that the application had been rejected the previous day by Justice of the Peace Domm, and the reason it was rejected. Justice of the Peace Amenta reviewed the application. In an email exchange with DC Ellis, Justice of the Peace Amenta noted two errors in the ITO which required correction. He noted that, in one paragraph, the ITO referred erroneously to "reasonable grounds to suspect" rather than "reasonable and probable grounds to believe" and indicated it was not clear from the ITO which standard the affiant applied. He also pointed out that in the same paragraph, the ITO referred to "anticipated offences" rather than "an offence". He requested that these points be corrected/clarified. The affiant corrected the errors and resubmitted the application on March 27, 2023 and Justice of the Peace Amenta issued the warrant to search the target address.

[5] On March 27, 2023, the Applicant was arrested when he was stopped in a taxi. Incident to his arrest, police located a quantity of cocaine, cash, and a scale on his person.

[6] Following his arrest, police attended the target address and executed the search warrant.

[7] The police searched a bedroom and located the Applicant's passport on a night table, a photo health card and a photo driver's licence, as well as other paperwork in the Applicant's name. The police also located ammunition within a shoe box under the bed in the bedroom and a prohibited firearm with the serial number removed on top of a laundry hamper inside a black Nike satchel. Police also located a shoe box under the bed containing $4000 in Canadian currency and $5 in US currency.

[8] The Applicant seeks to have the evidence obtained as a result of the execution of the search warrant at the target address excluded from his trial on the basis that the search warrant was obtained and executed by the police in violation of his right to be secure of unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms (the "Charter").

[9] For reasons set out in my written ruling, I have concluded that the Information to Obtain ("ITO"), after excision, does not establish reasonable grounds to believe that evidence of the offences set out in Appendix B of the affidavit would be located at the target address. I find therefore that the Applicant's Charter rights under s. 8 were breached.

[10] Applying the balancing exercise set out in R. v. Grant, 2009 SCC 32, I find that while the police did not act in bad faith, there was an unacceptable degree of carelessness and inattention to the Applicant's Charter-protected privacy rights in preparing the ITO. Overall, the first factor favours exclusion of the evidence. On the second factor, I find the Applicant had a high privacy interest in the target address as a residential address and this factor strongly favours exclusion. On the third factor, society's interest in adjudication of the matter on its merits, I conclude that while the evidence is reliable and formulates the entirety of the Crown's case as it relates to the firearm and ammunition, the public has a high interest in protecting their privacy, particularly in their homes. Taking the Grant factors together, with the first two factors favouring exclusion, I find that the evidence seized from the target address should be excluded.

II. Position of the Parties

[11] The main issue on the application is whether the affidavit of DC Ellis sworn March 27, 2023, established reasonable grounds to believe that evidence of drug trafficking would be located at the target address.

[12] On behalf of the Applicant, Ms. Gadhia argues that the affidavit does not disclose reasonable grounds to believe evidence of the offences would be found at the target address. She submits that the information in DC Ellis' affidavit, and as amplified in his evidence during cross-examination, rises no higher than an assumption or suspicion that the Applicant lived at the target address, or that he used the target address to keep or store any of the items set out in Appendix A to the affidavit. She submits that there is a lack of credible evidence disclosed in the ITO that the person observed at the target address on two dates of surveillance was the Applicant. She further submits that there is no nexus between the target address and the alleged criminal activities.

[13] Ms. Gadhia also challenges the issuance of the warrant on the basis that the affiant failed to provide full, fair and frank disclosure to the issuing justice on a number of points. I will address each of these points in my analysis.

[14] On behalf of the Crown, Mr. MacAdam submits that the affidavit of DC Ellis established grounds to believe that evidence of drug trafficking would be located at the target address. The information from the confidential sources establishes a credible basis to believe the Applicant was involved in drug trafficking. There is a reasonable inference available that the Applicant lived at the target address. Finally, there was a reasonable inference available to the issuing justice that those involved in drug trafficking may keep controlled substances and other tools of the trade at their home address.

[15] Mr. MacAdam concedes that one paragraph in the affidavit must be excised because it is inaccurate, but argues that the affiant did mislead the issuing justice. After excision, the affiant supports reasonable and probable grounds to search the target address. The issuing justice was aware of the reasons why the application was denied by the first Justice of the Peace and was not misled.

III. The Hearing of the Application

a. The "Step 6" Procedure

[16] The ITO in this case contains information provided by confidential sources. Portions of the confidential source information have been redacted to protect the identities of the sources.

[17] In this case, the Crown conceded that the redacted ITO could not support the issuance of the search warrant. As a result, the Crown sought to rely on "Step 6" of the Garofoli procedure to consider the unredacted ITO. Where, as in this case, the editing process renders the search warrant unsupportable, the Crown may apply to have the reviewing judge consider the unredacted ITO, provided the reviewing judge is satisfied that the accused can be made sufficiently aware, through a judicial summary, of the nature of the redacted information, so as to be able to challenge the warrant through argument or evidence. This procedure is referred to as "Step 6" of Garofoli.

[18] What is required by Garofoli is that the accused be provided with enough information so as to be "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence". It is therefore a description of the nature of the excised material which must be included in the judicial summary, not the specific details. The accused is not entitled to detailed information from the redacted portions of the ITO that may compromise the confidentiality of the informant: R. v. Boussoulas, 2014 ONSC 5542, at para. 67.

[19] The framework in Garofoli and the use of a judicial summary as a tool to provide adequate information to allow the accused to challenge the information underlying the ITO reflects a necessary compromise to protect confidential sources. This is why defence counsel must advance their challenges on the basis of hypothetical factual scenarios which might undermine the validity of the warrant, so the trier, armed with the unredacted version of the ITO, may consider, in evaluating the Debot factors of credibility, corroboration, and compelling nature of the confidential informant information, whether those hypothetical scenarios are applicable: Garofoli; Crevier; R. v. Ali, 2014 ONSC 1615, at paras. 19-24, 43-47.

[20] I recognize that the Step 6 procedure and the use of a judicial summary can never be a full substitute for submissions by counsel who is fully aware of all of the relevant information. However, as was recognized in Crevier, the fact that counsel's ability to challenge the ITO is compromised will be taken into account when assessing the ITO. The Court stated, at para. 88:

Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant's issuance. The judge will consider the extent to which the accused inability to directly challenge the redacted portions should affect the weight to be given to those portions.

…in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross examination or otherwise.

b. Cross-Examination of the Affiant

[21] Ms. Gadhia sought and was granted permission to cross-examine the affiant in relation to certain specific issues.

c. The Judicial Summary

[22] Mr. MacAdam prepared a draft judicial summary of the undisclosed content of the ITO, which was provided to the Defence. He provided me with a copy of the unredacted ITO together with a document explaining the reasons for the redactions. Both the unredacted ITO and the Crown's explanatory summary were marked as sealed exhibits on the hearing.

[23] I reviewed the proposed judicial summary and made numerous comments on it. The judicial summary was revised to incorporate all but two of my suggested revisions to provide Defence with additional disclosure. The Crown provided an explanatory note for why he was unable to provide further disclosure on two points, which I accepted as a reasonable justification for withholding further disclosure. My comments on the summary as well as the Crown's response to my comments were marked as sealed exhibits on the hearing.

[24] I concluded that the revised version of the judicial summary provided the necessary information upon which the defence could participate meaningfully in an evaluation of whether the preconditions for issuing the warrant were met. Specifically, I concluded that the revised judicial summary provided a meaningful basis upon which to challenge whether the information provided by the confidential sources was credible, compelling, and corroborated.

[25] After reviewing the revised judicial summary, Ms. Gadhia requested additional disclosure on three discrete points, all of which were provided by the Crown.

[26] Mr. Gadhia took the position, after the revisions to the summary, that the revised judicial summary did not add anything of substance to the original summary circulated and was insufficient to allow the Applicant to challenge the confidential source information.

[27] I do not accept this position. The revisions to the ITO added important information going to the Debot factors, including:

• Information about the currency of the information provided by each of the confidential sources;
• Information as to whether the information provided by the confidential sources was first-hand information;
• Information as to whether, if a confidential source had a criminal record, whether the convictions included convictions for crimes of dishonesty; and
• Clarifying the confidential sources' degree of certainty on certain information.

[28] For all of these reasons, I considered the full unredacted ITO.

IV. Analysis

a. The Applicable Legal Principles

[29] Section 487(1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.

[30] A search warrant is presumed to be valid and the onus is on the applicant to show that there was not sufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, at para. 30; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 45.

[31] The court reviewing a search warrant ITO does not stand in the place of the justice who issued the warrant, nor is it an opportunity for the reviewing court to substitute their view for that of the issuing justice: Sadikov, at paras. 84-87. Rather, as Watt J.A. summarized in R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99:

[T]he reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[32] The question is not whether the judge reviewing the authorization would have issued the warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were "reasonable grounds" justifying the issuance of the warrant.

[33] The standard of persuasion for the issuance of the warrant, reasonable and probable grounds, is a credibly-based probability. It requires more than an experience-based hunch or "reasonable suspicion": Sadikov, at para. 81. It does not however mean "proof beyond a reasonable doubt" or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-128; Debot, at p. 1166. The standard is that the affiant subjectively believes that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: See also R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 45-55.

[34] In reviewing the ITO for sufficiency, I must take a "common-sense and holistic approach": Herta, at para. 21. If I conclude that the issuing justice could have issued the warrant, then I am not to interfere, even if I would have come to a different decision from the authorizing justice: Garofoli, at p. 1452; R. v. Araujo, at para. 51.

[35] When the Applicant attacks the validity of the warrant on a facial basis, contending that the substantive content of the ITO, on its face, demonstrates that the warrant could not have been issued, the reviewing judge must examine the entire ITO and determine whether, on the face of the information disclosed, the justice could have issued the warrant. The record under examination is the ITO and only the ITO: R. v. Araujo, at paras. 19, 36, 40; Sadikov, at para. 37.

[36] When the Applicant attacks the sub facial validity of the warrant, the reviewing judge undertakes a more contextual analysis to consider, on the basis of the record before the justice, as amplified on review, whether there is sufficient reliable information that might reasonably be believed upon which the authorizing justice could have issued the warrant: R. v. Araujo, at para. 50-54; Garofoli, at p. 1452; Sadikov, at paras. 38, 87.

[37] The Applicant challenges both the facial and sub-facial validity of the warrant in this case. As such, I must consider whether, on the basis of the record before the issuing justice, as amplified on review, but without reference to any excised information, there remains a sufficient basis upon which the issuing justice could have issued the warrant. The focus of the inquiry is whether the record contains reliable evidence that might reasonably be believed and on the basis of which the warrant could have issued: R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont. C.A.), at paras. 23-25; Sadikov, at paras. 69, 85-86.

[38] If it appears that some of the information provided in the ITO was erroneous, the erroneous information must be excised and excluded from consideration on review. On the other hand, the reviewing court may properly consider additional evidence that may correct such errors in the ITO. Amplification evidence can be used to correct "good faith errors" by the affiant in preparing the ITO, but amplification evidence cannot cure "deliberate attempts to mislead" the authorizing justice: R. v. Araujo, at paras. 57-58; R. v. Morelli, at paras. 41-43; Sadikov, at paras. 85-86.

[39] Further, the court reviewing the ITO must consider information which was not disclosed to the issuing justice, having regard for the obligation on the police seeking a search warrant through an ex parte proceeding, to be full, fair and frank in their disclosure of the material facts. Where relevant information has inadvertently not been properly disclosed, the reviewing court must consider whether the issuing justice, had they been in receipt of the missing disclosure, could still have issued the warrant: R. v. Araujo, at paras. 46-47; R. v. Morelli, at paras. 44, 55, 58-60; R. v. Nguyen, at paras. 48-51.

[40] Inaccuracies, on their own, are not a sufficient basis to ground a finding of bad faith or an intent to mislead: Sadikov, at para. 87. As Watt J.A. (as he then was) noted in Sadikov, at para. 93, the existence of even "material errors or omissions" in the ITO is not dispositive of the review. However, the existence of fraud, non-disclosure and/or misleading evidence in an ITO are all relevant on the review of validity of the warrant.

b. The Debot Factors

[41] The focal point of the Applicant's submissions is on whether the ITO disclosed reasonable grounds to believe that evidence of the offences would be located at the target address and whether the affiant made full, fair, and frank disclosure. Her submissions on these points did not make any reference to the summary of the confidential source information.

[42] With that said, the confidential source information is pertinent to the affiant's stated belief that the Applicant was engaged in drug trafficking, a necessary contextual factor in establishing grounds for the belief that evidence of drug trafficking would be located at the target address, believed by the affiant to be the applicant's home. As such, I will evaluate the confidential source information.

i. Credibility

[43] This first consideration of the credibility of the confidential source information, this assessment relates to the trustworthiness of the source of the information. There is no single determinative factor. An informer's motivation(s), his or her history of providing information to the police, and his or her criminal record are all relevant considerations: R. v. Woo, [2017] O.J. No. 7052, at para. 48; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, at para. 35.

[44] In this case, the motivation of each of the three confidential sources was known to the issuing justice. Similarly, the issuing justice was aware of whether each of the confidential sources had a criminal record and the nature of the record.

[45] The issuing justice also had information about each of the confidential sources' prior history of providing reliable information. In each case, the confidential sources were individuals embedded in the criminal culture with detailed knowledge of the drug culture. All three confidential sources were "proven", in that each had given reliable information. Confidential source #3 is a carded informant. None of the confidential sources were untested. The issuing justice had information as to how many times each informant provided information and was aware of any evidence seized and/or arrests made arising from the information provided by each of the confidential sources in the past.

[46] In my view, each of the three sources was highly credible.

ii. Compelling

[47] This Debot factor relates to the information itself and whether it has the characteristics that lead to a conclusion that the information is reliable. A tip is compelling if it is detailed and based on first-hand observations that are reasonably current: R. v. Greaves-Bissearsingh, at para. 40; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28; R. v. Nguyen, at para. 18.

[48] As set out in the judicial summary, confidential source #1 provided specific information about the Applicant and his activities, including specific and detailed information about the Applicant's criminal activities specific to 121 Humber Boulevard. The issuing justice was aware of what specific criminal activity confidential source #1 observed, and on how many occasions.

[49] Confidential source 2 provided highly compelling information about the Applicant's involvement in drug trafficking, including connecting the drug trafficking to 101 Humber Boulevard, the name of the Applicant's associates, specific information about the nature of the Applicant's involvement in drug trafficking, and information about the packaging, pricing and amounts of controlled substances which the Applicant possessed.

[50] Confidential source 3 also provided compelling information about the Applicant's involvement in drug trafficking.

[51] In each case, the confidential source information was current, within one year of the Applicant's arrest. The confidential sources each provided first-hand information/observations of the Applicant and his involvement in drug trafficking.

[52] The issuing justice was aware of the confidential sources' information about what specific type of controlled substance(s) the Applicant sold and the degree of detail each of the sources provided about the Applicant engaged in drug trafficking.

[53] The intimate details and first-hand information each of the confidential sources provided makes the information highly compelling: R v. Reid, 2017 ONCA 430, at para. 29; R. v. Markiewicz, 2014 ONCA 455, at para. 2; Herta, at para. 42.

iii. Corroborated

[54] Corroboration refers to the existence of confirming or consistent evidence to support the information provided by the confidential source. The police will rarely be able to confirm the tip to the extent of having observed the commission of the offence. That level of confirmation is not required: R. v. Rocha, at para. 22; Herta, at para. 38. However, corroboration requires more than confirmation of neutral or easily discernible facts: Herta, at para. 40.

[55] While there was limited corroboration of the confidential source information from outside sources, there was considerable corroboration between the confidential sources. The issuing justice was aware of the specific point upon which one confidential source corroborated the information of another confidential source.

iv. Conclusions With Respect to the Debot Factors

[56] I have undertaken the analysis and taken into consideration the limited opportunity given to the Defence to challenge the content of an ITO where Step 6 is used. For the reasons set out above, I have concluded that there were reasonable and probable grounds for the affiant's belief that the Applicant was engaged in the offences set out in Appendix B to the affiant.

[57] Having regard to the "three C's", I find that all three confidential sources provided highly compelling and credible information that established grounds to believe that the Applicant was involved in drug trafficking.

[58] The Debot factors must be looked at together and not in isolation. The review must be conducted on the totality of the circumstances, which include the degree of detail of the "tip", the informant's source of knowledge, and indicia of the informer's reliability such as past performance or confirmation from other investigative sources: Garofoli, at paras. 62 and 68; R. v. Rocha, at para. 16.

[59] All three confidential sources provided detailed and current information. The information, looked at individually but particularly viewed as a whole, was highly compelling. Each of the confidential sources has strong indicia of reliability and credibility. Aspects of the information provided was corroborated by outside information. Further, on some points, the confidential sources were corroborative of each other. Considering all of the circumstances, I find that the information provided by the confidential sources was credible, compelling, and corroborated.

c. Grounds to Believe that the Search of the Target Address Would Afford Evidence of the Offences

[60] In order to establish reasonable grounds to believe evidence of the offences would be located at the target address, the Crown accepts that there needs to be credible information that the Applicant was involved in drug trafficking and that there is a nexus between the Applicant's drug trafficking and the target address.

[61] In terms of the affiant's belief that the Applicant had committed or would commit the offences of possession of controlled substances for the purpose of trafficking and/or possession of proceeds of crime, as set out above, I am satisfied that there were reasonable and probable grounds for the affiant's belief. Indeed, the grounds were strong.

[62] The key issue in this case is whether the affidavit discloses reasonable grounds to believe that evidence of the offences would be found at the target address.

[63] Ms. Gadhia attacks the affiant's grounds on two main bases. First, she argues that there is a lack of credible information that the person seen during surveillance at the target address was the Applicant. Specifically, the only information identifying the Applicant as the person seen at the target address was the information of DC Syed. Ms. Gadhia argues that DC Syed's identification of the Applicant as the person seen at the target address on March 24, 2023 and March 26, 2023 is not credible.

[64] Second, Ms. Gadhia argues that there is no nexus between the alleged criminal offences and the target address. She submits that the three sightings of the person believed to be the Applicant at the target address is not sufficient to establish that evidence of drug trafficking would be located at the address. She submits that the police failed to investigate, and therefore did not provide, any information to the issuing justice about who owned or rented the address or who else lived at the address. On this basis, the police presumed that any black male emerging from the address during surveillance was the Applicant. Further there is no evidence that the Applicant conducted drug trafficking at the address, and no evidence beyond speculation that he was storing controlled substances at the target address or "re-upping" his supply before returning to the Humber Boulevard addresses to continue with his drug trafficking.

[65] Some review of the history of the matter is necessary to evaluate the Applicant's arguments.

[66] In March of 2023, police began an investigation into the Applicant's possible involvement in drug trafficking. Officers received information from three confidential sources. All of them stated that someone known as "Ricky" was trafficking controlled substances in the area and inside of 101 Humber Blvd.

[67] Based on information obtained from a confidential source confirming the Applicant's identity, the affiant conducted investigative background checks in relation to the Applicant using various police databases.

[68] The affiant learned that the Applicant:

• Was listed on CPIC as being subject to a s. 110 order under the Criminal Code prohibiting him from possessing firearms starting August 17, 2020 for a period of five years;
• Had an address of 3-76 Rockcliffe Blvd in Toronto listed both in the CPIC system and the Police Service Intellibook System;
• Was described in CPIC as a male, non-white, 182 cm in height, 170 lbs; in another database, the Police Intellibook System, he was described as male, non-white, black, 183cm in height, 75 kg in weight, curly short hair, brown eyes and slim build;
• Had a photograph on file with the Toronto Police Service in CPIC under a known offender number, Dajae Jamari Montaque with a date of birth of September 29, 1998 and in the Police Intellibook System;
• Based on a search using the police Versedex system, he had nine entries on file with Toronto Police Service, seven of which were in relation to Criminal Code matters and two in relation to Highway Traffic Act matters;
• All of the occurrences listed the Applicant's address as 3-76 Rockcliffe Blvd in Toronto or 76 Rockcliffe Blvd in Toronto;
• Ministry of Transportation checks revealed an address on file for the Applicant of 3-76 Rockcliffe Blvd in Toronto.

[69] On the basis of this information, on March 15, 2023, the affiant directed DC Taylor to attend the address of 3-76 Rockcliffe Blvd in Toronto to locate an indicator that the Applicant was residing at the address, or for any associated vehicles. DC Taylor was unable to locate any indicator of the Applicant living or frequenting the Rockcliffe Blvd address, or any associated vehicles.

[70] In light of the negative results from DC Taylor's attendance at the Rockcliffe Blvd address, the affiant requested access to personal information with the City of Toronto under s. 32(g) of the Municipal Freedom of Information and Protection of Privacy Act. On March 17, 2023, the affiant learned that the Applicant was an active client with the City of Toronto with an address listed as 3-42 Pendeen Avenue in Toronto and a phone number of 647-336-9625.

[71] The affidavit does not specify the currency of the information obtained from the MFOIPPA query.

[72] The affiant then did investigative checks at the target address, but was unable to locate any association of the Applicant to the address.

[73] On March 23, 2023, police began conducting static surveillance in the area of the target address in the hopes of locating the Applicant and surveilling his actions. The following observations were made on March 23, 2023 and following:

• On March 23, 2023, members of the Guns and Gangs Task Force attended the target address and observed an unknown male black wearing a black ¾ length coat in front of the target address, however, members were unable to confirm the identity of the male; there is no indication of which officers made the observations on March 23, 2023; the surveillance was discontinued due to poor lighting;

• On March 24, 2023, members of the Guns and Gangs Task Force returned to the target address; at 4:58pm a Beck taxi arrived at the target address; DC MacLean observed an unknown male exit the target address and board the taxi; the taxi was surveilled to 26 Sandcliffe Road; the unknown male exited the taxi and returned a short time later; the taxi was then followed to the area of 101 Humber Blvd; the unknown male exited the taxi and proceeded on foot; the affiant advised that, at this time, DC Syed identified the male as the Applicant; the affiant does not specify how DC Syed was able to identify the unknown male as the Applicant; the person who DC Syed identified as the Applicant was then seen walking up the driveway of 104 Humber Blvd in Toronto and went out of sight; sometime later, the person identified as the Applicant and an unknown male exited 104 Humber and proceeded to 101 Humber, where they entered through the front door; the person identified as the Applicant was not seen again during surveillance on March 24, 2023;

• The officers were unable to conduct direct surveillance at 101 Humber Blvd due to the nature of the apartment building and the risk of being detected;

• The affiant directed DC Rogers to attend the Toronto Community Housing hub to review video from 101 Humber Blvd where the Applicant was seen entering with the unknown male; video surveillance, which was not dated or time stamped, was seized and captures two men enter the front entrance vestibule of 101 Humber Blvd; one of the males, believed to be the Applicant, used a FOB to gain access to the entry door into the building; the pair took the elevator to the 10th floor and were not seen again on the video;

• On March 25, 2023, officers from the Guns and Gangs Task Force returned to the target address and the area of Humber Blvd. Officers located a male, believed to be the Applicant, exiting 104 Humber Blvd, however, officers were unable to confirm the identity of the male; surveillance was discontinued;

• On March 26, 2023, members of the Guns and Gangs Task Force conducted surveillance on 101 Humber Blvd; a person believed to be the Applicant was seen exiting the side door of 101 Humber Blvd wearing a black coat, black hat, and grey pants; he boarded a taxi; the taxi took him to the target address where he exited and entered the target address; about 1.5 hours later, the person believed to be the Applicant was seen exiting the target address and boarding the same taxi. The taxi was followed to the area of Humber Blvd; the person believed to be Mr. Montaque exited the taxi and entered 121 Humber Blvd through the front doors.

[74] Turning to Ms. Gadhia's arguments, I am unable to accept her first submission that the affiant lacked credible and reliable information identifying the Applicant as the person seen exiting or returning to the target address during surveillance. The affiant was cross-examined on his reliance on DC Syed's identification of the Applicant during surveillance. Specifically, she suggested to the affiant that the video surveillance seized from 101 Humber Boulevard capturing two people entering the building on March 24, 2023, one of which is said to be the Applicant, does not match DC Syed's clothing description for the Applicant. DC Syed described the Applicant as wearing green pants when he exited the target address on March 24, 2023. She asserts the person alleged to be the Applicant captured on video surveillance is not wearing green pants.

[75] The affiant rejected this suggestion and maintained that he had no reason to question or doubt the information he relied on that the person seen at the target address and captured on video surveillance on March 24, 2023, and then again seen on March 26, 2023, was the Applicant.

[76] The affiant was entitled to rely on the information of DC Syed identifying the Applicant. I do not accept that the video surveillance shows the Applicant unequivocally wearing pants that are not green. It is open to interpretation and the affiant's evidence that, from his perspective, the video surveillance was consistent with the information he received from DC Syed is credible.

[77] The Applicant has failed to identify anything misleading or inaccurate about DC Syed's identification. Even if there were frailties in DC Syed's identification, I am not satisfied that the affiant knew, or ought to have known, that he should not rely on DC Syed's information.

[78] I do however find merit in Ms. Gadhia's submissions that the ITO does not disclose reasonable grounds to believe that evidence of the offences would be located at the target address.

[79] The affiant set out his grounds for his belief that evidence of the offences would be located at the target address in two parts of the affidavit. First, under "Grounds to Believe", the affiant stated:

48. Mr. Montaque has been identified as a drug trafficker in the area of 101 and 121 Humber Boulevard in the city of Toronto. Mr. Montaque's identity has been confirmed by both the Toronto Police Service and by the confidential sources.

49. Through database checks, investigative techniques and surveillance, Mr. Montaque's identity and residence have been confirmed.

50. Mr. Montauk has been observed exiting his residence located at 3-42 Pendeen Avenue in the City of Toronto where he enters a cab and attends the area he is known to conduct his drug trap transactions.

51. Furthermore Mr. Montauk has been observed exiting 101 Humber Boulevard in the City of Toronto entering a cab and returning to his address at 3-42 Pendeen Avenue where he leaves a short time later in a cab to return to 121 Humber Boulevard.

52. I believe that the confidential source/s information is compelling, corroborated and clear. I believe that through the investigation as a whole that Mr. Montaque is trafficking controlled substances in the City of Toronto and storing them along with other items of evidence at his residence located at 3-42 Pendeen Avenue.

53. I believe that these items will support evidence to the offences listed above.

54. Please refer to the following appendixes or the detailed information supplied by the confidential sources, along with an assessment of their credibility. In addition to the entire account of the information provided by them, but not limited to, the following:

55. the confidential and anonymous source/s have been proven to be reliable and credible. The confidential and anonymous sources have proven to be reliable and are outlined in the following appendices.

[80] Later, in the section entitled "Summary of Grounds", the affiant stated:

As outlined in the foregoing paragraphs, there are reasonable grounds to believe that the criminal offences listed in paragraph one (1) of this my information have been, or will be committed. Furthermore, I have reasonable grounds to believe that there is evidence related to the offences listed in paragraph one (1) inside the place is below:

PLACE related to MR. DAJAE MONTAQUE

30. 3-42 Pendeen Avenue in the City of Toronto

a. Confidential sources in this investigation have given information that Dejae Montaque is responsible for trafficking controlled substances in the city of Toronto.

b. Mr. Montaque has been observed by members of the Toronto Police Service exiting his residence at 3-42 Pendeen Avenue and then entering 101 and 121 Humber Boulevard in the City of Toronto where it is believed that he conducts his drug transactions and business.

c. Mr. Montaque has been observed by members of the Toronto Police Service returning to his home residence located at 3-42 Pendeen Avenue in the City of Toronto to leave again and return to the 121 Humber Boulevard.

d. From my experience (sic) that drug traffickers need and rely on having a home base to store their illicit substances (content redacted) … By having a home base to store these illicit substances the risk of seizure by law enforcement and or rival drug traffickers is minimized.

e. Therefore, based upon the information contained above I believe Dejae Montaque is using the address of 3-42 Pendeen Avenue in the City of Toronto to keep in store evidence in relation to the offences set out in paragraph one (1) and furthermore items set out in Appendix A will be located within this address.

[81] To begin with, I would observe that the confidential source information does not assist in establishing a link between the Applicant, drug trafficking activities, and the target address.

[82] Therefore, on the issue of whether the affiant had reasonable grounds for the belief that evidence of the offences would be found at the target address, the grounds are based on database checks, surveillance, and the affiant's experience as a police officer.

[83] I will begin first by addressing the information available to the affiant about the Applicant's connection to the target address.

[84] The information the affiant relied on to link the Applicant to the target address was one entry in a City of Toronto's database which stated that the Applicant had an "active address" of 3-42 Pendeen Avenue. The question is, what can be reasonably inferred from the fact that the target address was listed as an "active address" for the Applicant in a City of Toronto database? In my view, the assertion that the Applicant lived at the target address, based on the fact that it came up as an "active address" in this database is speculative.

[85] First, unlike with the CPIC and the MTO databases, which were explained in the affidavit, the affidavit does not provide any information about the nature of this database, the manner and reason that information is collected, nor the currency of the information.

[86] For example, it is not known whether the information in the database is associated with property tax or utility bills, in which case there might be an inference available that the Applicant was presently residing at the address listed in the database. However, without some information about the nature of this database, it is not possible to infer that "active address" means the person is resident at the address.

[87] There is also no information about the currency of the information. The affiant provided information about when the search was conducted, but not when the information was last updated in the database. The fact that the address was listed as "active", without some explanation of what this designation means on the database, does not lead to a reasonable inference that the Applicant lived at the address at the time the police searched the database.

[88] Further, the affiant did not provide a description of the physical layout of the target address in his affidavit, but did provide a photograph of the front exterior of the house. The target address is a townhome with what appears to have a basement, main, and upper level. There is no information in the affidavit as to whether the floors represent separate units, or whether the address is a single home. There is no information in the affidavit as to who else lives at the target address or if the target address is registered to the Applicant as an owner, renter, or resident. The affidavit also does not disclose any efforts to confirm the identity of the owners and/or lessees of the target address, and who else lives at the address.

[89] Of course, the information from the City of Toronto database cannot be looked at in isolation. It must be assessed in the context of the surveillance observations which Mr. MacAdam says provide circumstantial evidence that the Applicant lived at the target address.

[90] Over the course of four days of surveillance, the Applicant was seen on two days at the target address.

[91] As noted above, the Applicant was seen on March 24, 2023, leaving the target address by taxi. He travelled to an address on Sandcliffe Road and then to 101 Humber Boulevard with another male. He was not seen returning to the target address on March 24. He was seen again on March 26, 2023, leaving 101 Humber Boulevard, traveling to the target address, and 90 minutes later, leaving the target address and traveling to 121 Humber Boulevard.

[92] In my view, the evidence of the Applicant's attendance at the target address on two occasions over four days of surveillance, combined with the reference in the City of Toronto database to the target address as an "active address" for him goes no further than to establish a possibility that the Applicant lived at the target address.

[93] As explained above, the reference to the target address as an "active address" in a City of Toronto database is not particularly probative of whether the Applicant actually lived at the address at the time the search warrant was issued, given the lack of information in the affidavit about the currency of the information and whether "active address" refers to a residential address.

[94] Even assuming the Applicant's attendances at the target address on March 24 and 26, 2023, combined with the database information was sufficient to establish reasonable grounds to believe the Applicant resided at the target address, the ITO still falls short in establishing reasonable and probable grounds to believe evidence of the offences would be located at the target address.

[95] It is well-accepted that information that a person is trafficking drugs is not, without more, sufficient to justify a search of their home. Otherwise, information that a person is involved in trafficking drugs would make that person a "ready-made grounds for belief" to search their home or other property, as Fairburn J.A. stated in Herta, at para. 189. See also R. v. Le, 2014 BCCA 166, at para. 42. There must be some evidence linking an address to evidence of a crime in order to establish reasonable grounds to search.

[96] That is not to say there must be direct evidence linking an address to evidence of a crime in order to establish reasonable grounds to search, as noted in R. v. Kalonji, 2022 ONCA 415, at paras. 23-24. Grounds can be established on the basis of reasonable inferences: see also R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409.

[97] In this case, the mere fact that the Applicant was observed leaving the target address to go to a suspected trap house on one day of surveillance, and leaving a suspected trap house to return to the target address and later leave the target address to return to a suspected trap house on another day of surveillance is not, in my view, evidence which rises to the level of reasonable grounds to believe evidence of drug trafficking and items related to drug trafficking would be located at the target address.

[98] At no time was the Applicant observed conducting drug transactions or acting in a manner suggesting that he was in possession of, transporting, or storing controlled substances at the target address. There is no indication in the affidavit that the Applicant was seen carrying anything in or out of the target address (whether leaving from or returning to the target address), consistent with storing and/or retrieving controlled substances from the target address.

[99] The Crown concedes that paragraph 20 of the ITO, which implies that the Applicant was engaged in activities arguably consistent with drug trafficking, is inaccurate and must be excised.

[100] Paragraph 20, meant to flag for the issuing justice how the affidavit had been revised to remedy the deficiencies in the earlier application which was rejected, stated:

I believe that in paragraphs 36(a), 38 and 42 listed below, this denial has now been addressed. I believe this because Mr. Montaque has been observed exiting his residence located at 3-42 Pendeen Avenue, attending a trap house, then returning to his residence only to return to the trap house.

[101] The Crown concedes that this paragraph must be excised because there is no evidence that the Applicant was ever seen travelling in the manner described in paragraph 20. Specifically, there is no evidence that the Applicant was seen going from the target address, to a trap house (one of the Humber Boulevard addresses), back to the target address, and then back to a trap house. The statements of the affiant at paragraph 20 may have led the issuing justice to believe that there was conduct observed that supports an inference that the Applicant moved back and forth between the target address and the trap houses on Humber Boulevard because he was retrieving controlled substances at the target address to sell at the trap house.

[102] I agree with the Crown's concession. The paragraph is problematic firstly, because it provides an inaccurate impression of what observations were made, suggesting that the Applicant had been seen going back and forth between his home and a trap house on the same day or during one surveillance period.

[103] Secondly, the paragraph could have misled the issuing justice into thinking that the shortcomings of the previous application had been addressed, when the paragraphs cited did not add anything to the grounds to believe that evidence would be located at the target address. Paragraph 20 directed the Justice of the Peace to paragraphs 36(a), 38, and 42, however, the ITO did not contain a paragraph 36(a), paragraph 38 does not add anything to establish a connection to the target address (it simply states "It should be noted that I was present for both of these days of surveillance") and paragraph 42 confirmed that the police conducted surveillance on March 25th but had no confirmed sightings of the Applicant at the target address.

[104] The risk that paragraph 20 could have misled the issuing justice is compounded by the fact that the affiant did not include a copy of the first version of the ITO in the application he submitted. There was no opportunity for the issuing justice to compare what was in the original ITO to what was in the revised version to assess whether there was additional information connecting the address to evidence of drug trafficking in the cited paragraphs.

[105] The Crown argues that even though paragraph 20 of the ITO was inaccurate and requires excision, the revised ITO added several other new paragraphs in support of the affiant's grounds to believe evidence would be located at the target address.

[106] Having reviewed the specific paragraphs the Crown highlights, only paragraph 43 of the revised ITO added substantively to the information provided in the first ITO. Paragraph 43 sets out observations of the Applicant on March 26, 2023 exiting 101 Humber Boulevard, travelling by taxi to the target address and 90 minutes later, leaving the target address and travelling to 121 Humber Boulevard.

[107] The remaining new paragraphs the Crown points out do not assist in establishing the Applicant's connection to the target address, or more importantly, information in support of reasonable grounds to believe that evidence of the offences would be located at the target address. Specifically:

• Paragraphs 10, 11, 12 – these paragraphs provided additional information about the affiant's experience with 23 Division Major Crime Unit, the Primary Response Unit and the Toronto Police Drug Squad. While the affiant's background may support his qualification to give opinions, these paragraphs do not assist in establishing grounds to believe that evidence of the offences under investigation would be located at the target address;

• Paragraph 39 – does not add anything to the grounds to believe evidence would be located at the target address; it reads, "It should be further noted that (d)ue to the location of 101 Humber Boulevard in the City of Toronto and the fact the above address is an apartment building, conducting direct observations of the unit would not be practical without officers being detected";

• Paragraph 42 – is substantively new, but only confirms that attempts were made to locate the Applicant at the target address on March 25, 2023, but there were no confirmed sightings.

[108] For all of these reasons, I find that the ITO does not establish reasonable grounds to believe evidence of the offences under investigation would be located at the target address. While I have considered the affiant's opinion about the typical practices of those involved in drug trafficking, including his view that drug traffickers "rely on a home base to store illicit substances" to reduce the risk of the controlled substances being seized, without more the affiant's opinion is based on a generalization. In my view, the affiant's opinion that evidence of the offences would be found at the target address based on his experience in investigating drug trafficking can be afforded little to no weight in this case. When the information in the affidavit is looked at as a whole, the opinion lacks a foundation based in case-specific evidence and is based on generalizations about how people who traffick in controlled substances will behave: R. v. Morelli, at paras. 70-73; Herta, at para. 51; R. v. Coluccio, 2019 ONSC 4550, 440 C.R. (2d) 114, at para. 61; R. v. Aboukhamis, 2015 ONSC 2860, at paras. 35-38.

d. Conclusion

[109] While "reasonable grounds" can be based on reasonable inferences, the inferences cannot be speculative or so general so as to lack a foundation. When taken at its highest, granting the warrant in this case based on the information provided in the ITO amounted to an endorsement that if there are grounds to believe that a person is involved in drug trafficking, then reasonable grounds exist to search an address believed to be their residence. Without more, this does not amount to reasonable and probable grounds: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 7; R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at para. 47; R. v. Williams, 2019 ONSC 3219, at para. 137.

[110] I find that the ITO discloses insufficient grounds to believe evidence of the offences under investigation would be found at the target address, in breach of the Applicant's rights under s. 8 of the Charter.

V. Should the Evidence Seized be Excluded Under S. 24(2) of the Charter?

In R. v. Grant, 2009 SCC 32, at para. 71, and more recently re-affirmed in R. v. Beaver, 2023 SCC 21, at para. 116, the Supreme Court of Canada set out three factors for consideration in determining whether the admission of evidence obtained in a manner which infringes Charter rights would bring the administration of justice into disrepute:

A court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to: (1) the seriousness of the Charter-infringing conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits

As Fairburn J. (as she then was) stated in R. v. Moulton, 2015 ONSC 1047, at para. 122:

The purpose of s. 24(2) is to preserve the reputation of the administration of justice. The concept of bringing the administration of justice into disrepute relates to the reputation of justice as a whole and the need, through Charter rulings, to inspire (and not undermine) the public's confidence in the justice system. It involves an objective inquiry that explores what the reasonable person, knowing "all of the relevant circumstances and the values underlying the Charter, would conclude" in terms of whether admitting the evidence in an individual case would adversely impact the reputation of justice as a whole: Grant at para 68. This long-term, forward-looking approach to s. 24(2) can only be achieved by assessing each of the individual categories set out in Grant.

Balancing the relevant considerations is a qualitative determination and is not capable of mathematical precision: R. v. Beaver, at para. 117.

Seriousness of the Charter-Infringing Conduct

On the first factor, the seriousness of the Charter-infringing conduct, "the court's task … is to situate that conduct on a scale of culpability with inadvertent or minor violations at one end and wilful or reckless disregard of Charter rights at the other.": R. v. Marakah, 2017 SCC 59, at para. 61; Grant, para. 74). The more wilful, reckless, or deliberate the misconduct, the more the court will need to dissociate from that conduct: R. v. Moulton, at para. 123.

The Court in R. v. Beaver, at para. 121, further articulated the assessment as existing on a "scale of culpability". At one end of the scale is conduct that is willful or reckless disregard of Charter rights, systemic patterns of Charter-infringing conduct, or a major departure from Charter standards. On the other end of the scale is conduct that is inadvertent, technical, minor, or conduct that reflects an understandable mistake. The more severe the conduct, the greater the need for the court to dissociate from it.

Good faith effort by the police to comply with Charter protections will reduce the need to dissociate from the conduct. However, as the court noted in Grant, at para. 75, unfamiliarity with the law, negligence and wilful blindness must not be confused with good faith and should not be "rewarded or encouraged." See also R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-3; R. v. Buhay, 2003 SCC 30, at para. 59.

In this case, the ITO was insufficient in a material respect, as it did not establish reasonable grounds to believe that evidence of the offences under investigation would be located at the target address, the Applicant's residence. While I do not find that the police acted in bad faith or were wilful in disregarding for the Applicant's Charter rights, there was an unacceptable degree of carelessness and inattentiveness in the way the ITO was drafted.

The affiant was well-aware that the ITO, as he initially drafted it, was rejected by the first Justice of the Peace because it did not provide sufficient grounds to search the target address. He then made representations in the revised ITO that he had addressed the deficiencies in the first application. As I have already addressed, the paragraphs he referred to as correcting the deficiencies did not do so. This information was misleading. Further, when the application was submitted the second time, the previous version of the application was not included to allow the justice considering the application to make a comparison. The problem became compounded when the affiant wrote paragraph 20 into the ITO, suggesting a pattern of travel between the target address and the suspected trap house (potentially consistent with a drug dealer "re-upping his drug supply) which was not supported by the evidence. All of this led to the affiant's conclusory and general opinion that evidence of the offences would be located at the target address.

In addition, having been alerted to the fact that the ITO was deficient in articulating a connection between the target address and the offences under investigation, the police took no steps to verify that the Applicant did, in fact, live at the target address. When they were unable to connect him to the home address which came up on his driver's licence and in various police databases, they resorted to a single, undated entry in a City of Toronto database that provided another "active" address for him. The ITO does not reveal any steps taken by the police to establish who lived at the address. Apart from seeing the Applicant enter or exit the address on two days of surveillance, there was nothing connecting the Applicant to the address and nothing observed that would support reasonable grounds to believe he was using his home to store controlled substances or implements of drug trafficking.

With respect, it should have been apparent that more was necessary. Greater care should have been taken in drafting the ITO. As Fish J. stated in R. v. Morelli, at para. 102:

Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

The Charter-infringing conduct in this case, while not egregious, was significant. This line of inquiry favours exclusion.

The Impact of the Breaches on the Applicant's Charter-Protected Interests

This line of inquiry considers the impact of the Charter breach on the Applicant's Charter-protected interests. This inquiry lies on a spectrum. The Court in R. v. Beaver noted, at para. 123, "The greater the impact on the accused's Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute."

The Applicant did not testify on the voir dire. However, I find that he had a high expectation of privacy in the home, and in particular, the room which he was using as a bedroom. In this case, the intrusion into the Applicant's reasonable expectation of privacy, in the absence of grounds for such an intrusion, is a serious violation and weighs strongly toward exclusion of the evidence.

Society's Interest in Adjudication on the Merits

The final line of inquiry considers societal concerns and asks whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence: R. v. Beaver, at para. 129; Grant, at para. 79. Factors which impact the analysis of this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the offences in issue: R. v. Beaver, at para. 129; Grant, at para. 79-84.

There can be no doubt that unlawful possession of a firearm is a serious offence. Society has a strong interest in seeing this case tried on its merits. I recognize that exclusion of the firearm will result in the Crown being unable to prove its case. I also recognize that the evidence is reliable. The expectation that charges will be determined on the merits is real and important: R. v. Blake, 2010 ONCA 1, at para. 31.

However, as Doherty J.A. explained in Blake, at para. 33:

If there was a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests.

Even if I would not go so far as to find impropriety in the police conduct in this case, there was sufficient inattention to constitutional standards to tip the scales in favour of exclusion in this case: R. v. Rocha, at para. 43.

Balancing

Section 24(2) requires a weighing of each line of inquiry. The balancing exercise aims to "ensure that evidence obtained through a Charter breach does not cause further damage to the justice system" and "address systemic concerns involving broad impact of admitting the evidence on the long-term repute of the justice system: R. v. Beaver, at para. 133.

The impact of firearms, particularly handguns, cannot be ignored in considering the potential of a search exclusion, but as the Court of Appeal said in R. v. Omar, 2018 ONCA 975, at para 56: "…there is no 'firearms exception' …". The test for considering whether to exclude evidence obtained contrary to the Charter remains the same.

Lauwers J.A. in R. v. Le, 2018 ONCA 56 at para. 151 commented:

What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct.

For this reason, it is important to look to the cumulative effect of the first two lines of inquiry. It is the cumulative effect of the first two lines of inquiry that the Court must consider and balance against the third line of inquiry. The third line of inquiry will seldom tip the scale in favour of admissibility where the first two lines of inquiry favour exclusion: R. v. Lafrance, at para. 90.

In the circumstances of this case, the reputation of the administration of justice would be jeopardized if the Court does not have sufficient regard for the unacceptable lack of attention to the Applicant's Charter rights which resulted in a serious violation of the Applicant's right to privacy.

Disposition

The evidence seized pursuant to the execution of the search warrant at the target address is excluded under s. 24(2) of the Charter.

R. Maxwell, J.

Released: September 16, 2025