R. v. Van Der Hoek, 2010 BCSC 1926

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Van Der Hoek , 2010 BCSC 1926 Date: 20101221 Docket: 40267-2 Registry: Port Alberni Regina v. Kathy Audrey Van Der Hoek, also known as Kathy Audrey Cote, also known as Kathy Audrey Chan, and Travis Daniel Cote Before: The Honourable Mr. Justice Verhoeven (Appearing via Videoconference) Ruling on Application to Exclude Evidence (Delivered Orally) Counsel for Federal Crown: T. Morgan Counsel for Defence, appearing via Videoconference: K. Bradley Place and Date of Hearing: Port Alberni, B.C. December 7, 8, 9, 2010 Place and Date of Judgment: Nanaimo, B.C.

December 21, 2010 [ 1 ] THE COURT: These are my reasons for judgment on the voir dire ruling regarding the defence application to exclude evidence.

Introduction [ 2 ] On August 16, 2008, Port Alberni RCMP conducted a search of a home on Pemberton Road in Port Alberni, and of three vehicles, on the authority of a search warrant issued by a Judicial Justice of the Peace, in relation to possible cocaine possession and trafficking offences. [ 3 ] On the search, the police discovered and seized a plastic container holding 146 grams of cocaine, in six baggies, and a bottle containing 406 pills of MDMA, or in other words “Ecstasy”.

They also discovered and seized a number of other related items: digital scales, plastic baggies, an empty plastic container with cocaine residue, five cellular telephones, and approximately $25,000 in cash. [ 4 ] The accused persons, Kathy Van Der Hoek and her son Travis Cote, who resided in the home, are charged with possession of cocaine for the purposes of trafficking, and possession of MDMA (Ecstasy) for the purpose of trafficking. [ 5 ] They apply for an order that would exclude evidence relating to the charges against them, on the ground that the evidence was obtained in a manner that infringed or denied their rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms , and that the admission of the evidence would bring the administration of justice into disrepute, pursuant to s. 24(2) of the Charter .

They argue that the search warrant authorizing the search of their Pemberton Road home and their vehicles should not have been issued. Therefore, they argue, the search was unlawful, was in violation of their Charter rights, and so the evidence should be excluded. [ 6 ] The primary argument of the defence is that the search warrant application failed to set out "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" ( R. v.

Morelli , 2010 SCC 8 , at para. 40 ). Overview [ 7 ] The search warrant application was made on the basis of an information to obtain (ITO) submitted to the Justice of the Peace by Constable Jon MacIntyre of the Port Alberni RCMP on August 16, 2008, the day of the search. [ 8 ] The defence application to exclude the evidence was heard on a voir dire at the commencement of trial. The only witness was Constable MacIntyre.

There was an agreed statement of facts for the purposes of the voir dire. [ 9 ] Much of the information set out in the ITO came from six confidential sources, identified in the ITO as Sources “A” through

“F”, and one anonymous informant, identified as Source “G”. The defence argues that the information from the sources consists of littlemore than bald, conclusory statements in the nature of, "Kathy Van Der Hoek is selling cocaine from her residence." The defence arguesthat such statements lack supporting detail and could be based on nothing more than rumour or gossip, and that aggregating severalstatements of such ilk does not add to their overall credibility. The defence says "zero plus zero still equals zero," quoting C. Hill J. in R.v. MacDonald, [2005] O.J.

No. 551. [10] The defence argues that the information provided by the sources was not sufficiently compelling, credible, or corroborated bypolice investigation, within the sense of those terms as found in the decision of the Supreme Court of Canada in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, at 1168. [11] The Crown argues that, as set out in Debot, the standard of reasonable and probable grounds must be met in the totality of thecircumstances.

The Crown further argues that it would be wrong to examine each item of information from each source separately andindividually, ignoring the overall context. [12] The Crown argues that the information in the ITO reveals that the police were conducting an investigation extending fromOctober 2006, when the first confidential information was obtained, to August 16, 2008, when the ITO was prepared and the searchwarrant obtained. [13] The Crown argues that the information from the sources was credible, that the items of information contained from each ofthe sources reinforced the others, and was supported by corroborative information obtained through the police investigation.

The Crownargues that the information presented to the Justice of the Peace was interrelated and interconnected. Therefore, when taken as a whole,the evidence was credible, reliable, and formed a proper basis for the Justice of the Peace to find reasonable and probable grounds, asrequired. [14] The Crown argues that in conducting their investigation the police rightly connected pieces of information coming fromseparate sources together with their own information, in order to "put two and two together" as they are entitled to do: R. v. Charlton, (BC CA), [1992] B.C.J. No. 1405, per Cumming J.A.

Therefore, it is not a case of "zero plus zero equals zero" as thedefence argues; it is a case of "two plus two equals four". In fact, the Crown argues that the information provided is corroborative interse, so that the whole is greater than the sum of the parts. On that basis, the applicable arithmetic metaphor is "two plus two equals five". [15] For that concept the Crown relies upon the decision of the Newfoundland and Labrador Supreme Court – Court of Appeal inR. v. Saunders, 2003 NLCA 63.

There the decision of the majority (Wells, C.J.N and Rowe, JJ.A.) considered whether the Justice of thePeace could have found that "credibly-based probability had replaced suspicion" on the basis of the ITO. The majority said at para. 15: If one “deconstructs” each item of information from source “A” and then that from source “B” and then that from source “C” and appliesthe test as against each item individually, as did the Trial Judge, then the answer may well be “no”, as the trial judge concluded.

But, ifone considers the “totality of the circumstances” one sees that the information from the three sources is corroborative inter se; becauseof this, the whole of their information becomes greater than the sum of its parts. To put it another way, the sequence of pictures drawnby the three sources tells a consistent story: Mr. Saunders sold hash oil, he kept it at his residence, he had hash oil at his residence onApril 1, 2001.

As such the whole could enable the Justice of the Peace to conclude that credibly-based probability had replacedsuspicion. [16] Likewise, here, the Crown says that the defence argument deconstructs the information from the sources and the otherinformation, ignoring the overall picture presented to the Justice of the Peace. [17] The defence further argues that some portions of the ITO are irrelevant, inflammatory or prejudicial, and should be excised. [18] The Crown argues, in the alternative, that even if the court finds that the search was unlawful, the evidence should not beexcluded.

Issues [19] The issues are as follows: 1. Should the search warrant be set aside? 2. Should the evidence be excluded pursuant to s. 24(2) of the Charter? Analysis Issue 1: Should the search warrant be set aside? Legal Principles: Review of the Search Warrant [20] I will first deal with the legal principles applicable to a review of the search warrant. [21] A mere conclusory statement made by an informer is not sufficient to establish reasonable and probable grounds.

In R. v.Greffe, (SCC), [1990] 1 S.C.R. 755, Lamer J. referred with approval to the following passage from the Ontario Courtof Appeal judgment of Martin J.A. in Debot (1986), (ON CA), 30 C.C.C. (3d) 207, at 218-19, regarding the test forassessing information from a confidential informer:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search . . . Highly relevant . . are whether the informer's "tip" contains sufficient detail to ensure it is basedon more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are anyindicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story bypolice surveillance. [22] A

summary of the applicable principles with respect to evaluation of evidence of informants is found in the decision ofSopinka J., for the majority, in R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421, at para. 68: Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what thisentails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [23] In considering the “totality of the circumstances”, weakness in one area may be compensated for by strengths in the otherareas: R. v.

Jir, 2010 BCCA 497, at para. 28, citing Debot, and Charlton, at para. 29, where Cumming J.A. stated: The inability to assess the credibility of the informant may be compensated for by the quality of the information as well as by anycorroborating or confirmatory evidence. [24] The “reasonable grounds” standard is essentially that of reasonable or credibly based probability. The standard is lower thanthe standard of proof required for a criminal conviction (beyond a reasonable doubt), and it is also lower than the civil standard of proof(balance of probabilities).

It envisions a practical, non-technical, and commonsense probability as to the existence of the facts andinferences alleged; more than mere suspicion is required: Jir, para. 27. [25] The question is not whether I would have issued the search warrant in the circumstances, but whether there was reliableevidence that might reasonably be believed, on the basis of which the authorization could have issued: Garofoli, at paras. 55 and 56; R.v. Aurajo, 2000 SCC 65, at para. 51; R. v.

Morelli, 2010 SCC 8, at para. 40. [26] If there was no adequate basis for the issuance of the search warrant, then the search was unreasonable and therefore inbreach of the rights of the accused under s. 8 of the Charter, which protects against unreasonable search and seizure: Garofoli, para. 55. The ITO [27] The search warrant was sought and obtained to allow a search of the residence at 4611 Pemberton Road, Port Alberni, andthree motor vehicles, a 2006 Dodge Charger, a 2004 Cadillac Escalade, both registered to Ms. Van Der Hoek, and a 1997 Jeep GrandCherokee, registered to Mr. Cote.

In the ITO, Constable MacIntyre stated that the police sought evidence to substantiate the offence ofpossession for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. They soughtevidence such as weigh scales, monies, cell phones, drug packaging material, score sheets (i.e. list of individuals indebted to the seller,quantity of amounts of drugs requested or sold to individuals, and buyer's contact information) and cocaine. [28] Constable MacIntyre set out several sources of information in the ITO identified as sources “A” through “G”.

The ITOsummarizes the investigation chronologically, commencing in October 2006; that is about 22 months prior to the search, and ending onAugust 16, 2008, when the search warrant was obtained. [29] In October 2006, Source B informed Constable MacIntyre that Kathy Van Der Hoek was selling ounces of cocaine from herresidence on Pemberton Road, and from her business, Electric Beach Tanning Salon, both situated in Port Alberni.

The ITO then sets outother information received from other sources and police investigative information leading up to and including August 16, 2008. [30] The information from the sources can be summarized as follows: 1. Ms. Van Der Hoek sells cocaine: Sources A, B, C, D, E, F, and G; 2. She sells to other lower level dealers: Sources A, C, D, E, F, and G; 3. She sells from her home on Pemberton Road: Sources B, C, G; 4. She sells from her tanning salon business: Sources B and C; 5. Tarmeet Binng is one of her dealers: Sources A, D, G; 6. Willie Sam is one of her dealers: Sources D, A, and, by inference, C; 7.

Trisha Georg is one of her dealers: Sources E and F; and

8. Travis Cote, co-accused, is one of her dealers: Source C. [ 31 ] The information from the confidential sources culminated with information on August 15, 2008, from Source C. On that day Constable MacIntyre was advised by Source C: (

a) that Kathy Van Der Hoek was picking up a significant quantity of cocaine on this date; (b) [Information redacted to protect confidentiality of the source]; (

c) that the person who was mainly selling for Kathy Van Der Hoek was still in jail; and (

d) that frequent buyers are coming to Kathy Van Der Hoek's residence on Pemberton Road to purchase cocaine. [ 32 ] During the course of the remainder of August 15, 2008, the police made a number of observations of the Pemberton Road residence, and conducted some surveillance at the residence. The application for the search warrant was made the following day, August 16, 2008. [ 33 ] Logically enough, the ITO sets out the information chronologically, in the order in which the police received information and conducted their investigation.

However this has the effect of making it somewhat difficult to appreciate the interconnective nature of the information for the purpose of reviewing the ITO. Supporting details and corroborative information must be discerned from sometimes disparate parts of the ITO. [ 34 ] Information regarding the pedigree of the informants is set out in some detail, and is generally quite strong. Each of the informants provided at least some detail. For example, Source A is described as a confidential informant who had provided information on at least thirty occasions over a period of more than two years.

The information from Source A had been verified as accurate and reliable through, among other things, several search warrants which when executed resulted in drug and property seizures and criminal charges. [ 35 ] Source A provided information on five different occasions over the course of the investigation. Source A names two of Ms. Van Der Hoek's alleged dealers, Mr. Binng and Mr. Sam, and identified Mr. Sam as her main dealer. On May 6, 2007, Source A advised Constable MacIntyre that Ms.

Van Der Hoek had recently sold a quantity of cocaine to Source A. [ 36 ] When Source B provided the information in October 2006 that Ms. Van Der Hoek was selling cocaine from her home and business, Source B had never previously provided information to Constable MacIntyre. However, by the time the ITO was prepared, Source B had provided information to the police on three occasions. The ITO states that the information provided by Source B had been proven accurate and reliable by being utilized in obtaining a search warrant which resulted in the seizure of drugs and criminal charges.

In February 2008, Source B reiterated that Ms. Van Der Hoek was selling cocaine from her home and business. [ 37 ] Source C had provided information to the police on at least 15 occasions. Information from Source C had been proven reliable by being used more than once to obtain a search warrant which resulted in a drug seizure and charges.

On cross-examination on the voir dire, Constable MacIntyre acknowledged that, to his recollection, Source C had received a payment of $500 from the police in relation to this investigation. [ 38 ] Source C provided information on several occasions during the course of the investigation. Source C stated that Ms. Van Der Hoek obtained cocaine at the kilogram level, that she never runs out of cocaine, that her son Travis Cote sells cocaine in small quantities, that Mr. Cote makes deliveries of the cocaine, that Ms.

Van Der Hoek keeps cocaine at her residence, and that she has sold cocaine at the ounce level from her business. Source C provided the August 15, 2008, information that Ms. Van Der Hoek was picking up a “significant quantity of cocaine” that day, that her main dealer was still in jail, and that frequent buyers would be coming to her house to buy cocaine. [ 39 ] Although Source C did not name Ms. Van Der Hoek's main dealer, the Crown argues that it can be readily inferred that the person mentioned by Source C would be Mr. Sam. Mr. Sam was identified as a dealer for Ms. Van Der Hoek by Sources A and D.

Source A described him as her main dealer. [ 40 ] The ITO sets out that after Mr. Sam had been identified as a dealer for Ms. Van Der Hoek by Sources A and D, he was arrested and charged with being in possession of cocaine for purposes of trafficking. While he was free on bail on the charge, Source A informed Constable MacIntyre that Mr. Sam was continuing to sell cocaine and was being supplied by Ms. Van Der Hoek. Mr. Sam was again arrested and charged with possession of cocaine for purposes of trafficking. He was convicted of the offences.

At the time the ITO was prepared, he remained incarcerated, serving a sentence. [ 41 ] As a minimum, the fact that Mr. Sam was charged and convicted with trafficking in cocaine serves to enhance the credibility of Sources A and D insofar as they alleged that he was a cocaine dealer. [ 42 ] Source D had provided information on two previous occasions. Source D's information had not previously been used in obtaining a search warrant. Source D identified Mr. Binng and Mr. Sam as dealers for Ms. Van Der Hoek.

Source D stated that she brought in “kilo levels” of cocaine and was the biggest supplier of cocaine in Port Alberni. [ 43 ] In May 2008, Source E stated that Trisha Georg was delivering and selling cocaine for Ms. Van Der Hoek. The same information had been provided by Source F a few months before, in November 2007. Source E had provided information on numerous occasions. To Constable MacIntyre's knowledge, Source E's information had not been used to obtain a search warrant. [ 44 ] Source F had provided information on at least one prior occasion. The information had not been used to obtain a search warrant.

[ 45 ] In the cases of Sources A, B, C, D, and E, the ITO adds that the reliability of the informant's information had been corroborated by police surveillance or other police investigations. [ 46 ] Source G was an anonymous informant. Therefore, as Constable MacIntyre stated in the ITO, he was unable to comment on Source G's reliability. Source G provided a phone tip to Constable MacIntyre on June 22, 2008. The information included that he or she had "heard" that Mr. Binng sells cocaine. The source also said that Mr.

Binng lives with his parents, that he associates with a female drug dealer by the name of “Cathy”, who owns the Electric Beach Tanning Salon, and lives in a house on Pemberton Road. For some reason Constable MacIntyre chose to spell “Cathy” with a “C”. [ 47 ] The police conducted some spot checks and some surveillance of the Pemberton Road home. They noted the presence of a vehicle registered to the father of Tarmeet Binng at the residence during surveillance in January 2007.

They observed Patricia Georg's vehicle there in January 2008 and on two occasions on August 15, 2008. [ 48 ] As noted in the relevant authorities, there is no formulaic test as to what is entailed by the "totality of the circumstances": Garofoli , para. 68 , and weakness in one area may be compensated for by strengths in the other areas, Jir , para. 28 . [ 49 ] Here, the pedigree of informants A, B, and C is strong, in terms of having provided proven reliable information in the past. As I have noted, the information provided by A and D concerning Mr.

Sam as a dealer in cocaine was demonstrated to be reliable by his convictions for cocaine trafficking. [ 50 ] Not all of the information provided by the sources could be described as potentially founded on nothing more than rumour. In June 2007, Source A told Constable MacIntyre that Ms. Van Der Hoek had sold Source A a quantity of cocaine, recently. This was direct, firsthand, compelling information confirming that Ms. Van Der Hoek was a cocaine dealer. [ 51 ] It also cannot be said that the information was entirely lacking in detail. Three sources, B, C, and G, said that Ms.

Van Der Hoek sells from her home on Pemberton Road. Several sources identified her dealers by name. Several sources provided information that said or suggested that she was a mid-level dealer who sold directly or through other persons. [ 52 ] On August 15, 2008, Source C said that Ms. Van Der Hoek was picking up a significant quantity of cocaine on that day. The ITO sets out a reasonable basis for believing that Source C was a reliable informant.

That information from Source C, in the context of all of the other information in the ITO, provided a basis upon which the Justice of the Peace could 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 set out in the warrant. [ 53 ] Looked at individually, as the defence contends, many of the statements attributed to the confidential sources set out in the ITO are conclusory statements lacking in significant detail.

But looking at the evidence in the aggregate, as I must, the ITO sets out sufficient credible and reliable evidence to permit the 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. The information provided by the various informants is strongly corroborative of the information provided by the other informants, together with information provided through the police investigation.

There were sufficient details, indicia of reliability, and corroboration to afford a reasonable basis for the issuance of the search warrant. [ 54 ] The question is not what additional evidence might have put the issue beyond debate; it is whether the entirety of the evidence before the Justice of the Peace was sufficient to provide reason to conclude "probability" had replaced "suspicion": R. v. Law , 2002 BCCA 594 , at para. 11 . [ 55 ] In

summary, this is not a case where the only evidence offered in the ITO is a conclusory statement from an informer, standing alone, which could be founded on nothing more than rumour or gossip, or several such statements, so that the "zero plus zero equals zero" concept applies. Excisions from the ITO [ 56 ] The defence argues that portions of the ITO must be excised and that after excision, the ITO would not afford reasonable and probable grounds.

The defence argues that much of the evidence in the ITO was not current at the time the search warrant application was made; therefore, as the Justice of the Peace must be able to conclude that evidence of the offence will be found at a specified time and place, dated information was of little value, could not be relied upon, and should be excised from the ITO. [ 57 ] In the circumstances of this case, in the context on an ongoing investigation over a length of time involving information from numerous sources, I am not persuaded that any of the evidence presented was not relevant on the grounds of being dated. [ 58 ] The defence argues that there was no evidence corroborating any connection between the cocaine dealer Willie Sam and Ms.

Van Der Hoek. The police did not connect Mr. Sam and Ms. Van Der Hoek through other investigative measures that could have been undertaken, it is argued. The defence further argues that the evidence relating to Mr. Sam's arrests and convictions for cocaine trafficking should not have been included in the ITO as they were not relevant and were merely inflammatory and prejudicial. [ 59 ] The police were in receipt of information from at least two and possibly three sources that Mr. Sam was a dealer for Ms. Van Der Hoek.

The context was that they had received information from virtually all sources that she was a mid-level dealer who sold to others. [ 60 ] There was a temporal relationship between the tip information about Mr. Sam and his arrest for cocaine trafficking. Source A said that Mr. Sam was dealing cocaine for Ms. Van Der Hoek on May 6, 2007. Source D corroborated that in June 2007. Mr. Sam's first arrest for cocaine trafficking was on September 25, 2007. Source A provided new information about Mr. Sam's continued cocaine dealings on behalf of Ms. Van Der Hoek on February 6, 2008, and April 15, 2008. Mr.

Sam was arrested for the second time on April 17, 2008. As noted, the arrests and conviction of Mr. Sam was, at a minimum, evidence of the reliability of the informant.

[ 61 ] The information relating to Mr. Sam and Mr. Binng was somewhat interrelated, as Source D stated that both Sam and Binng were dealers for Ms. Van Der Hoek. There was evidence linking Binng to the Van Der Hoek residence. Binng's connection to Ms. Van Der Hoek came from three sources: A, D, and G. Source C stated that her main dealer was still in jail on August 15, 2008, leading to the plausible inference that Source C was referring to Sam. [ 62 ] In

summary, there was at least some evidence linking Mr. Sam to Ms. Van Der Hoek as her dealer. [ 63 ] There was nothing misleading or inaccurate about the evidence presented in the ITO relating to Mr. Sam. In the context of all of the information presented, the evidence relating to Mr. Sam was relevant and not inserted for improper purposes. There is no requirement that the police carry out all available investigative measures prior to applying for a search warrant. Therefore, the police were not obliged to conduct further investigations to corroborate the alleged link between Ms. Van Der Hoek and Mr.

Sam. [ 64 ] The defence also objects to the inclusion in the ITO information relating to Ms. Van Der Hoek's daughter. The only relevance to the information seems to have been that her daughter was the owner of a black BMW 318is car. Source G, the anonymous tipster, had indicated on June 22, 2008, that “Cathy” lived in a house on the end of Pemberton Road where a black BMW was parked. A black BMW was observed at the residence by the police on August 15, 2008. Therefore, the evidence relating to the daughter's car was of some relevance to the tip from Source G.

In any event, the information in the ITO was not, in my view, misleading, prejudicial, or otherwise improper to include. [ 65 ] I am not persuaded that any excisions from the ITO are required. Issue 2: Should the evidence be excluded pursuant to s. 24(2) of the charter ? [ 66 ] In case I am wrong in relation to the issue of whether the search warrant should be set aside, I go on to consider whether, if the search was unlawful and in breach of the Charter rights of Ms. Van Der Hoek and Mr.

Cote, the evidence should be excluded under s. 24(2) of the Charter . [ 67 ] In written submissions, the applicants further argue that Ms. Van Der Hoek and her daughter were arbitrarily and unlawfully arrested at the home by a Constable Bouchard, just prior to the search being executed, and therefore prior to the police having obtained any incriminating evidence. Her daughter was not a resident of the home and has not been charged with any offence.

The argument was not pressed at the trial. [ 68 ] The approach that governs the determination of the admission of evidence obtained in breach of a Charter right was summarized in R. v. Reddy , 2010 BCCA 11 , 251 C.C.C. (3d) 151, at paras. 91 to 94 (B.C.C.A.), and R. v. Chuhaniuk , 2010 BCCA 403 , [2010] B.C.J. No. 1815 (QL) at para. 83 (B.C.C.A.) The approach set out in these two cases is based upon R. v. Grant , 2009 SCC 32 , and R. v. Harrison , 2009 SCC 34 . [ 69 ] There are, in brief, three factors to be considered: 1. The seriousness of the Charter -infringing state conduct; 2.

The impact of the breach on the Charter -protected interests of the accused; and 3. Society's interest in the adjudication of the case on its merits. [ 70 ] In relation to the first factor, the seriousness of the Charter -infringing state conduct, the court should consider whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts are condoning unlawful conduct of the state.

In that regard: the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law: Grant , para. 72 . [ 71 ] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

Admission of evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute: Grant, para. 74 . [ 72 ] Here, assuming that the search warrant ought not to have been issued, I would not characterize the police conduct as being severe, deliberate, reckless, or egregious. The police sought to comply fully with the law by obtaining a search warrant. They did not mislead the authorizing Justice of the Peace.

There was no argument that anything material was omitted from the ITO. Constable MacIntyre testified that all information that was relevant in the investigation was included in the ITO. [ 73 ] The argument of the defence is primarily that the evidence presented was inadequate. At best for the defence, in the circumstances of this case, that is a matter of opinion upon which reasonable people could differ. [ 74 ] There was no aspect of bad faith in the conduct of the police in this case. [ 75 ] In

summary, I do not regard the alleged Charter -infringing state conduct as being serious in relation to sustaining public confidence in the administration of justice and ensuring the state's adherence to the rule of law. [ 76 ] The second factor is the impact of the breach of the Charter -protected interests of the accused. A warrantless search of a residence is a serious intrusion of privacy and the right to be protected against unreasonable search and seizure: Grant , para. 113 . The warrantless search of the vehicles would also be a serious breach of the rights of the accused.

This factor, therefore, weighs in favour of exclusion of the evidence obtained. On the other hand, if Ms. Van Der Hoek was prematurely arrested when the grounds for arrest were

soon thereafter obtained, that would be fleeting and insubstantial interference with her Charter right to be protected against arbitrary arrest or detention. The timing of the arrest of Ms. Van Der Hoek and the arrest of her daughter were immaterial to the gathering of the evidence sought to be excluded. [ 77 ] The third factor involves consideration of society's interest in adjudication on the merits: Grant , paras. 79 through 86. Our society has an interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.

The court must consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. The seriousness of the offence may be a valid consideration. The reliability of the evidence is an important factor in this line of enquiry. As a corollary to that principle, the importance of the evidence to the prosecution's case may be considered. The exclusion of evidence having questionable reliability is of less concern than the exclusion of reliable evidence that effectively guts the case for the prosecution.

The evidence in this case falls into the latter category. In this case, consideration of the third factor militates in favour of admission of the evidence. [ 78 ] It is the task of the trial judge to weigh the various indications and to strike the appropriate balance concerning whether, in all of the circumstances of the case, the admission of evidence obtained by Charter breach would bring the administration of justice into disrepute: Grant , paras. 85 and 86 . [ 79 ] In the circumstances of this case, I would not exclude the evidence obtained in the search.

If there was a breach, I do not regard it as serious in the context of the first factor. In this case the non-serious nature of the breach, together with society's interests in the adjudication on the merits outweighs the impact of the breach on the Charter -protected rights of the accused. Conclusions [ 80 ] I conclude that the search warrant was properly issued. I further conclude that in any event the evidence seized in the search should not be excluded from admission into evidence at the trial. “Verhoeven J.”