R v. KP, 2011 NUCJ 27

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. KP, 2011 NUCJ 27 Date: 20110919 Docket: 09-10-03 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: KP ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Plaintiff): C. Punter Counsel (Defendant): C. Lyons Location Heard: Iqaluit, Nunavut Date Heard: May 26, 2011 Matters: Ruling on voir dire (Reasons for judgment for a ruling delivered September 6, 2011, regarding an application under the Canadian Charter of Rights and Freedoms , ss. 8 & 24) REASONS FOR JUDGMENT (NOTE: This document has been edited for publication)

I. OVERVIEW [ 1 ] The accused, KP, is charged with possession of marijuana for a trafficking purpose and possession of money obtained through trafficking. [ 2 ] The police seized marijuana and cash from his home as a result of a search warrant issued by a local Justice of the Peace (JP). [ 3 ] The police officer (the officer or Constable

M) who applied for the warrant provided the Justice of the Peace with information, under oath, about drugs he expected to find in KP's house, on the basis of information supplied to him by a confidential informant. [ 4 ] The officer had worked with this confidential informant for the past two years and tips from the informant had resulted in arrests and convictions.

The informant had been paid for information in the past, and his or her tips had led to the seizure of both drugs and alcohol during this period. [ 5 ] The officer told the Justice of the Peace that his informant said KP had a pound of marijuana in his house two days earlier and was selling at the gram level with the assistance of his brother.

The officer also advised the Justice of the Peace that the confidential informant said he or she had made a buy from KP, also two days earlier. [ 6 ] In addition, the officer told the Justice of the Peace that his informant had been talking with an unknown third party (on the very same day that the officer was applying for the warrant) who said there was still a large quantity of marijuana at KP's house. [ 7 ] The issue in the case was whether there were grounds for the Justice of the Peace to issue the warrant on the basis of the information provided by the officer's confidential informant. [ 8 ] The law requires that the officer must convince the Justice of the Peace that there was probable cause to issue the search warrant.

This is not a high standard for the police to meet.

The police do not need to prove that the accused is guilty of trafficking - they only need to show that there is a reasonable probability that drugs are in the house. [ 9 ] In determining whether probable cause to search the house existed, the Justice of the Peace was not permitted to consider information presented as coming from an unknown third party. [ 10 ] The detail provided by the officer's confidential informant about his or her own drug dealings with KP was slim, but sufficient to provide grounds for a warrant to search the house, if - and only if - there was a sufficient basis for the Justice of the Peace to believe that the informant was a credible source of information. [ 11 ] This was the problem with the case: The Justice of the Peace could not draw any inferences or conclusions about the informant's credibility because the officer was not forthcoming about the informant's track record for providing reliable information generally.

In addition, the informant had provided the officer with false information about supposed drug dealings by the accused, KP, in the past. Lastly, the officer misled the Justice of the Peace about his own past dealings with the accused, KP. [ 12 ] The confidential informant was at best a 'dodgy' source, and the information he or she provided was no better.

In the absence of information from another source or independent evidence corroborating the confidential informant, no Justice of the Peace could properly consider the information provided by him or her as probable cause to issue a search warrant for KP's home. [ 13 ] The warrant was declared invalid, and the search of the house a breach of KP's rights under the Charter of Rights and Freedoms

(Charter) to be secure against unreasonable search or seizure. [ 14 ] The final question was what becomes of evidence obtained as a result of a breach of KP's constitutional rights? This determination must be made in accordance with relatively new criteria and guidelines provided by the Supreme Court of Canada. [ 15 ] The evidence was excluded from KP's trial. The admission of this evidence would be an affront to the integrity of the prior judicial authorization process and bring the long term administration of justice into disrepute. II. INTRODUCTION A.

Procedural background [ 16 ] The accused, KP, is charged with possession of cannabis marijuana (in an amount less than 3 kilograms) for the purposes of trafficking contrary to s. 5 (4) of the Controlled Drug and Substances Act (CDSA), and also being in possession of property (money, exceeding $ 5, 000) knowing that the property was obtained through the commission of a crime, contrary to s. 354 (1)(

a) of the Canadian Criminal Code (CCC). [ 17 ] The offences are alleged to have been committed in Kimmirut, on February 4, 2010. The previous day, on February 3, 2010, and pursuant to s. 11 of the CDSA- the police had obtained a warrant from a Justice of the Peace to search KP's home. The police executed the warrant on the 4th of February and seized the drugs and money which are the subject of the charges. [ 18 ] KP made some initial appearances in May of 2010 and again in October 2010. Eventually, he retained counsel and entered a plea of 'not guilty' in January 2011. The trial was set for April 4, 2011. [ 19 ] Prior to the start of the trial counsel for KP brought a motion pursuant to

section 8 of the Canadian Charter of Rights and Freedoms to exclude the drugs and money as evidence on the basis that his constitutionally protected right to be "secure against unreasonable search" had been violated when the police searched his home. [ 20 ] The motion was heard in a voir dire conducted on May 26, 2010. The completion of the trial awaits the outcome of this motion. [ 21 ] The issues to be determined in this voir dire are: 1. Was there a proper basis for the Justice of the Peace to issue the search warrant? 2. If there was no basis for the search warrant to be issued, then is there a breach of KP's Charter protected right, under

section 8 , to be secure against unreasonable search or seizure? and 3.If there is a breach of KP's Charter rights, will the evidence of the search nonetheless be admitted into evidence at KP's trial, or excluded from evidence pursuant to s. 24 (2) of the Charter? [ 22 ] I pause to note that counsel for KP had also pleaded additional grounds for relief under

section 9 of the Charter respecting his client's right not to be arbitrarily detained or imprisoned. Nothing further, however, beyond the basic pleadings was filed in further support of this ground and no argument respecting s. 9 was advanced by counsel when the motion was heard. I will not, accordingly, consider s. 9 of the Charter. B. Search Warrants: the basic requirement for issuance of a Warrant

[23] Both the Canadian Criminal Code and the Controlled Drug and Substances Act have provisions police may use to apply for searchwarrants. When the warrant is issued it will authorize the police to search the place(

s) noted in the application. In Nunavut, most of theseapplications are heard by a Justice of the Peace (the issuing Justice of the Peace). The application for the warrant is made ex parte, that isin the absence of the target of the search. [24] It is not, however, a 'rubber stamp' process. [25] In order to obtain a warrant the investigating officer must provide "information" under oath to the Justice of the Peace.

This isnormally done in writing and the officer will complete a document called an "Information to Obtain Warrant (ITO)." In this document,the officer is required to provide the Justice of the Peace with information 'sufficient' to justify the issuance of the warrant. [26] In turn, the Justice of the Peace is required to act judicially and may only issue the warrant if the information provided by theofficer meets the 'criteria' set out in either the Controlled Drug and Substances Act or the Canadian Criminal Code. [27]

Section 11 of the CDSA says that the Justice of the Peace may only issue a warrant to search a place if he or she is 'satisfied' thatthere are "reasonable grounds to believe" that an illicit drug or drug related thing is present in that place, which is quite often the targetsuspect's home. [28] Similarly,

section 487 of the Criminal Code allows a Justice of the Peace to issue a warrant to search a place only if he or she is'satisfied' that there are "reasonable grounds to believe" that evidence of a crime is present in that place. [29] The Supreme Court of Canada has been clear that the phrases reasonable grounds and reasonable and probable grounds aresynonymous - and the two phrases appear, often interchangeably, throughout cases dealing with search warrants. [30] Similarly, the Court has said that the standard of "reasonable and probable grounds to believe" and that of "probable cause" (foundin the Fourth Amendment to the American Constitution) are identical and that whether expressed as 'reasonable grounds to believe' or"probable cause" the question is whether the evidence is sufficient to found a "credibility-based probability." The Court noted that: "The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point wherecredibly-based probability replaces suspicion." {Hunter v.

Southam, (SCC), [1984] 2 S.C.R. 145 at167} [31] Finally, in a leading case dealing with search warrants as well as confidential police informants, the Supreme Court made it clearthat the standard of "reasonable grounds to believe" and "probable cause" is not to be equated with proof beyond a reasonable doubt oreven a prima facie case.

The Court was clear that the appropriate standard of proof to establish reasonable grounds for a search warrantin front of the issuing Justice of the Peace is one of "reasonable probability." {R v Debot, (SCC), [1989] 2 SCR 1140, 52CCC (3d) 193 [Debot]; affirming the judgment delivered by Martin J., at (ON CA), 30 CCC (3d) 207, 54 CR (3d) 120(OntCA)} C. The position of the parties (Defence & Crown) [32] The search warrant in this case was issued by a Justice of the Peace.

The investigating police officer, Constable M, had presentedthe Justice of the Peace with an ITO which laid out the factual scenario which he believed satisfied the basic criteria to obtain thewarrant.

In this case, the Constable relied upon information given to him by a confidential informant (CI). [33] Counsel for KP suggests that his client's Charter right to be secure from unreasonable search was violated because there was nobasis for issuing the warrant in the first place - that it was not possible for the issuing Justice of the Peace to be satisfied that there werereasonable grounds to believe any illicit drugs were in KP's house.

[ 34 ] The lynchpin of defence counsel's argument is that the information relied upon by the Justice of the Peace to issue the warrant is that of a CI. Counsel acknowledges that valid search warrants are often based on CIs,' especially in drug cases. Counsel suggests, however, that in this case there was only a scanty bit of information in front of the Justice of the Peace respecting the reliability of the CI.

Counsel suggests that from a 'statistical' perspective it appears that the CI is actually unreliable. [ 35 ] In addition, counsel notes that the CI had been convicted of crimes of deception and violence and had provided false information in the past; including false information concerning KP. [ 36 ] Further, counsel says that there were important ambiguities in the information put before the Justice of the Peace. For example, counsel suggests that it is not clear whether the CI's source of information about drugs in KP's house is even 'first hand' knowledge.

Counsel also notes that there was inappropriate information put before the Justice of the Peace in the form of "double hearsay," which could not be relied upon by the Justice of the Peace. [ 37 ] Counsel for KP suggests that in the absence of any gauge by which to determine the reliability of the CI, the Justice of the Peace was left with bare accusations of criminal wrongdoing by KP. [ 38 ] Counsel argues that some corroboration of the CI's assertions was required before a warrant could properly be issued authorizing the search of KP's house and that the Justice of the Peace had no reasonable grounds for issuing the warrant in the absence of an independent corroborating investigation. [ 39 ] Thus, counsel argues, since there were no grounds to issue the warrant, the search was therefore unreasonable and a breach of KP's Charter protected right against such a search. [ 40 ] Finally, counsel urged the Court to conclude that the seriousness of the breach together with the privacy interest at stake favoured exclusion of the evidence under the criteria set out by the Supreme Court in Grant. [ 41 ] Crown counsel argued that there was more than sufficient information before the issuing Justice of the Peace to meet the relatively low standard required - namely, that there was a 'reasonable probability' that marijuana (in trafficking quantities) was present in KP's house. [ 42 ] The Crown's position is that the CI in this case is a paid informant who can be counted on to provide reliable information.

Crown Counsel noted, in particular, that this CI had provided information in the past which had resulted in drug seizures, as well as the arrest and conviction of two (2) people. [ 43 ] The Crown also suggests that Constable M was clear, in the ITO, respecting the source of his CI's assertion about drugs in KP's house - namely, that it was the CI's 'first-hand' knowledge or experience. [ 44 ] The Crown says that the CI's information about his or her most recent dealings with the accused, KP, was detailed and specific enough that it should be viewed as 'compelling' in nature, and under all the circumstances could be properly relied upon by the Justice of the Peace to issue the warrant. [ 45 ] Crown counsel also reminded the Court - and quite properly so - that it was not my function on this review to simply substitute my own view of the situation for that of the issuing Justice of the Peace.

I reminded Counsel, in turn, that this was a proposition with which I agree. [ 46 ] Finally, Crown counsel noted that should the Court contemplate that there was a Charter breach, this case was still far from a situation where the evidence could be excluded under the Grant test.

III. THE EVIDENCE [ 47 ] The only evidence in the voir dire consisted of the pleadings of counsel, the Information to Obtain (ITO), and a brief statement of additional facts which were agreed to between the parties. A. Additional agreed upon facts [ 48 ] Counsel for KP put certain facts before the Court with which the Crown took no issue; these are agreed or stipulated facts between the parties which I may consider as part of this review. [ 49 ] These additional facts relate to the same incident noted by Constable M in clause 12 in the ITO.

They are as follows: On November 25, 2008, Constable M arrested the accused KP and a friend at the Kimmirut airport when the two got off a flight from Iqaluit. The Constable searched their bags and also did a cursory body search of their clothing. [ 50 ] The arrest and search were conducted without a warrant. A marijuana joint was seized from KP's travel companion. No illicit drugs were seized from KP - no marijuana was found either in his (KP'

s) bags or in his personal possession. Both were held in cells for seven (7) hours and then released. B. The "Information to Obtain [ITO]" [Exhibit "A"] [ 51 ] The officer notes that he has been a member of the RCMP since 2003 and a member of the Iqaluit drug

section since February of 2008.

He also notes that in addition to conducting drug investigations, he has completed training in the drafting of search warrants and in the handling of confidential informants. [ 52 ] Under the heading "Grounds for Belief," Constable M tells the Justice of the Peace that he has a confidential informant [CI] known as "Source A." [ 53 ] The Constable then says - in clause 9 of the ITO - that ... “The following information is provided as a means of assessing Source A's credibility". [ 54 ] The evidence the Constable then provides to the Justice of the Peace about “Source A" is broken into three (3) categories: 1.

Information about the Constable's previous dealings with the CI - essentially concerning his or her general reliability 2. Historical information which the CI had, prior to this investigation, provided to the Constable concerning the accused, and 3. Information the CI gave to the Constable concerning this investigation and the drugs the Constable expected to find [ 55 ] It is important to examine what Constable M told the Justice of the Peace respecting each of these categories. Respecting the CI's general reliability, the Constable says that 1.

The CI is a drug user and associates with other drug users and traffickers

2. The CI has a criminal record with convictions for crimes of both violence and deception 3. The CI has provided information to the Constable for almost two (2) years - and has done so on more than ten (10) occasions 4. The CI's motivation for providing information is because: a. The CI trusts the Constable, and b. The CI gets paid for providing information 5. The CI's information has led to the seizure of over seven (7) pounds of marijuana, over 100 grams of hash, and a small quantity of illegal alcohol 6.

The CI has been paid four (4) times in the total amount of sixteen hundred dollars [$ 1600.00] for information provided in the past 7. Information provided by the CI has been used in the arrest of six (6) people and that two (2) of these people were convicted of offences 8.

The CI provided information on one (1) occasion which turned out to be incorrect - a quantity of marijuana was seized, but was much less than expected and for personal use rather than for trafficking purposes [ 56 ] All of this evidence about previous dealings is found in clause #9 of the ITO - items "a" through "h". [ 57 ] In addition, the Constable added a final item to complete clause 9 - namely, item "i." Clause 9 (

i) reads as follows: "Information supplied by Source "A" [the CI] is from firsthand knowledge unless otherwise stated." Respecting information which the CI had provided about the accused KP in the past, prior to the present investigation, the Constable says that 1. On May 20, 2008, the CI told the Constable that: (

a) KP sells marijuana for $ 60 a gram (

b) KP sells marijuana from his house [then house # 17, in Kimmirut] (

c) KP gets his supply of marijuana from Iqaluit 2. Months later, on November 20, 2008, the CI told him (the Constable) that KP was selling marijuana last week, that he ran out, and was going to Iqaluit soon to pick up more marijuana to bring back to Kimmirut to sell 3.

He (the Constable), based partly upon the information provided by the CI, arrested KP on November 25, 2008 for possession of a controlled substance and told the JP that "a very small amount of marihuana [sp]was seized during this incident but KP was not charged in relation to this incident." [ 58 ] This evidence of historical information supplied to the Justice of the Peace by the Constable concerning KP's past drug activity is found in clauses # 10, 11, and 12 of the ITO [specifically, clause 12 deals with the incident on November 25, 2008 when KP was arrested].

Respecting information which the CI gave the Constable about the drugs would eventually lead to the present charge(s), the Constable says that 1. On February 3, 2010, the Constable received the following information from the CI (Source 'A'): (a)"KP had a least a pound of marihuana [sp] in his house two days ago that he was selling at the gram level." (b)"Source 'A' purchased marihuana [sp] from KP two days ago." (c) "KP had his brother, PP, sell some of the weed for him in town in Kimmirut but KP keeps the weed at his house (

d) Source 'A' heard from an independent third party that KP still had a lot of weed left for sale at his house as of February 3, 2010 2.[Under the heading] "Investigator's comment: I do not know the identity or credibility of this independent third party but, according to Source 'A' they saw a large quantity of weed at KP's residence that day (February 3rd, 2010) and then told Source 'A' about what they saw." [ 59 ] This is found in clause 13 - items "a" through "e." of the ITO. The Constable also tells the Justice of the Peace that the accused KP now lives in house # 209 - B, and not # 17 as he did in 2008.

Such peripheral matters are not, however, at issue. [ 60 ] In clause 15 of the ITO - and, again, under the heading "Grounds for Belief" - Constable M says: 15. Based upon the information as listed in this document I believe that there is currently cannabis marihuana [sp] in house 209-B in the Hamlet of Kimmirut which is KP's residence and I believe that he is possessing this illegal drug for the purpose of trafficking. I believe this because of the following: (

a) Information provided by Source A which stated that there was at least a pound of marijuana two days ago; (

b) Information provided by Source A that they were told by an independent third party that, as of February 3rd, 2010, there was still a large quantity of weed in KP's residence; [ 61 ] Constable M then tells the Justice of the Peace why he thinks that this marijuana is still in the house and can be seized: He explains that although marijuana is quite popular in Kimmirut, "it is not believed that such a large quantity would be sold in a short period of time as, based on information provided by Source A, it is being sold at the gram level;" the Constable also explains that the small population of Kimmirut "would not delete a supply of cannabis that large in such a short time period, especially based upon the information provided by Source A that on February 3rd, 2010 an independent third party saw a large quantity of "weed" remaining at KP's residence." {clause # 15, ITO, items "c" and "d"} [ 62 ] I pause to note that it was also on February 3, when the Constable applied for the warrant and swore the ITO.

[63] Finally, at clause 18 of the ITO - and under the heading "Conclusion" - Constable M says that "Based upon the grounds as set out in this application I believe that KP is actively trafficking in cannabis marihuana and that there arereasonable and probable grounds to believe that the items to be searched for are in the place to be searched." IV. ANALYSIS [64] There is no question that when Constable M went before the Justice of the Peace and swore the Information to Obtain a searchwarrant that he honestly believed the accused, KP, had a substantial amount of marijuana in house 209-B.

The honesty of the officer'sbelief is not in question, and is not the issue in the case. [65] The issue in the case is whether there were reasonable and probable grounds for the officer's belief - and, in turn, whether,objectively speaking, there was any basis for the Justice of the Peace to issue the search warrant. A. The law (

i) The standard of review [66] In reviewing the question of whether the issuing Justice of the Peace had reasonable and probable grounds to grant the searchwarrant, I am not permitted to simply substitute my own view for that of the Justice of the Peace. [67] The Supreme Court of Canada dealt with this precise question of the respective roles of the Justice of the Peace and the reviewingJudge in the case of R v Garofoli, [1990] 2 SCR 1421, [Garofoli], in particular as it related to the role of "hearsayinformers." The Court referenced Illinois v Gates, 462 US 213 , to illustrate that the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth inthe affidavit, including the 'veracity' and 'basis of knowledge of the persons supplying hearsay information', there is a fair probabilitythat contraband evidence or evidence of crime will be found. {para 73 CanLii} [68] In Garofoli, the Court confirmed what had been said earlier, in Debot, supra, that the statutory requirement for issuance of thewarrant - and which the issuing Justice of the Peace must be satisfied is met - is one of "reasonable probability." [69] Respecting the role of the reviewing Judge, the Court in Garofoli was clear that the reviewing Judge should not set aside thedecision of the issuing Justice of the Peace unless he or she is satisfied "that on the whole of the material presented that there was nobasis for the authorization." {para 74 CanLii, note: Garofoli dealt with a 'wiretap authorization' but has beensubsequently cited with approval by the Court as applicable, equally, to cases involving search warrants} [70] In Garofoli, the Court set a clear rule and guideline for reviewing Judges respecting the standard of review in search warrant (andwiretap) cases: The reviewing judge does not substitute his or her own view for that of the authorizing judge.

If, based on the record which was beforethe authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization (or warrant), then he or she should not interfere.

In this process the existence of fraud, non-disclosure, misleading evidenceand new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether therecontinues to be any basis for the decision of the authorizing judge. {para 68} [71] Again, the Crown or police are not required to demonstrate the existence of reasonable and probable grounds to the Justice of the

Peace at a high standard of proof, only that it is likely - that there is a reasonable probability - that such grounds exist. [72] I am permitted to examine the ITO which was before the issuing Justice of the Peace. I am also permitted to consider any newevidence presented at the review. [73] It is common, for example, that counsel for the applicant (accused) will call and seek leave to cross-examine the 'informant' officerwho provided evidence to the Justice of the Peace under oath in the form of an ITO. It is also common for the Crown to call or at leastexamine this officer as well.

The Crown is also permitted to have the officer "amplify" upon any evidence in the ITO which they feelmay need clarification during the review. [74] If, after reviewing all of this information, I conclude that the Justice of the Peace who issued the warrant could have done so -acting judicially, of course - then I must not interfere. At the same time, I may do so if I am satisfied that there was no basis for theissuance of the warrant. (ii) Disclosure requirements in search warrants [75] Search warrants are generally obtained without notice to the target of the search.

It is therefore important that the officer whoswears the ITO make full, fair, and frank disclosure of all pertinent information, including information of an exculpatory nature,information that casts doubt on the reliability of the officer's grounds, and any other information which might militate against theissuance of the warrant. [76] The officer is entitled to make his or her case, but the ITO must present a full and balanced picture of the facts being relied upon toask for the warrant. [77] The case authorities have noted as well that while disclosure must be full and frank, it is not the job of the issuing Justice of thePeace to assess the merits of the prosecution's case.

In Re Church of Scientology and the Queen (No 6), the Ontario Court of Appealstressed that a search warrant is an investigative tool and that "police work must not be frustrated by a meticulous examination of thefacts that is appropriate to the trial process." {(1987), (ON CA), 31 CCC (3d) 449 (OntCA), 18 OAC 321, at 475}. [78] The officer, however, who completes an ITO must bear in mind the statutory requirement of probable cause must be met. (iii) Particular disclosure requirements for search warrants in Nunavut [79] The requirement of full and frank disclosure in an ITO is particularly true in Nunavut where our Justices of the Peace are invariablycommunity volunteers from all walks of life with varying degrees of educational, work, and linguistic experience.

These Justices of thePeace are lay people in a legal environment. They receive some training in search warrant procedures but do not have the benefit of theextensive training offered to lawyers and police officers. They do, however, possess common sense and community experience. [80] The ability of community Justice of the Peaces to make fine distinctions amid confusing or less than clear facts in an ITO is limitednot only by experience, but by the time they have available to attend to the task.

They are frequently drawn away from work or schooland called upon to assess whether probable cause exists to issue a warrant within a pressing time frame. [81] In addition, lay Justice of the Peaces place great faith in the opinions expressed by police officers - particularly when an officer saysthat a confidential source is reliable. It is therefore incumbent upon such officers, when drafting an ITO, to show respect for theseJustices of the Peace by being clear and unambiguous with information presented in support of their opinion.

Similarly, less experiencedJustice of the Peaces may become unduly influenced by multiple 'boiler plate' references in an ITO that there are "reasonable grounds tobelieve" that an offence has been committed. This is of particular concern in the current standard ITOs presented in support of drugseizure warrants.

[ 82 ] In contrast, I would note the practice of the Major Crimes Unit (MCU) in Nunavut who, when applying for "general warrants" before a Judge, avoid both boiler plate form and language. The ITOs drafted by the MCU are factually precise and clear.

Invariably they contain one statement by the MCU officer involved that he or she has reasonable grounds to believe the particular offence has been committed, and then follow with a detailed review of the investigation to that point, as it forms the basis for that opinion. (iv) Hearsay statements of non-confidential police informants [ 83 ] The ITO for a search warrant often contains hearsay evidence. This is permissible as long as the evidence is adequately sourced.

The officer swearing the ITO might rely upon information from a witness, an accomplice, a fellow police officer, a forensic expert, or an occurrence report. Each of these sources must be identified along with any information bearing on their credibility. This is essential so that the issuing Justice of the Peace can independently assess whether it is safe to rely upon the information presented. (

v) Hearsay statements of a confidential police informant [a CI] [ 84 ] In some cases the police source cannot be identified either because it is a confidential informer who is protected by informer privilege or because it is an anonymous tipster whose identity is not known to police. [ 85 ] The leading case which dealt with search warrants based on confidential police informers is, once again, Debot. [ 86 ] The Court, in Debot, was clear that a tip from an informer, standing alone, will not suffice to establish reasonable and probable grounds for a search.

Nor will it suffice for an officer who drafts the ITO to simply assert his or her own opinion that the informant is reliable. [ 87 ] However, various factors may buttress reliability and permit reliance on the CI's assertions.The reviewing judge must consider the "totality of the circumstances" in determining whether there were sufficient grounds to issue the warrant. [ 88 ] This "totality of the circumstances" test is driven by the answers to three questions, often referred to as the "three C's, which ask the following, namely: 1. Is the tip compelling? 2. Is the source credible? 3.

Has the tip been corroborated - that is, has the information from the tipster been confirmed through any independent police investigation or other source? [ 89 ] As was held by Wilson J. in Debot, "Weaknesses in one area may, to some extent, be compensated by strengths in the other two." If the tipster is anonymous then obviously some independent corroboration (or another source) would be required before it could be relied upon by a Justice of the Peace to issue a warrant.

Or, if the tip came from a known source then the reputation of the source for providing good information in the past becomes relevant - the better the reputation of the tipster, the less need there is for detailed information or independent investigation to confirm the tip before it could be relied upon to provide probable cause to issue a warrant.

Conversely, if the reputation of the tipster is less well established then the Justice of the Peace must be cautious, and as a general rule would require additional information or compelling specific detail in the tip before it could be relied upon to issue a warrant. [ 90 ] The first question - whether the tip or information from a CI is "compelling" - is concerned with whether the tip is sufficiently detailed to preclude the possibility that it was based on mere rumour, gossip, or coincidence.

[ 91 ] The second inquiry concerns the credibility of the source. In Debot, the Court was clear that it was important "whether the informer (CI) discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past." {at pp. 218-219}. [ 92 ] Thus, in dealing with this second inquiry various questions are relevant. Is the CI in a position to know what he or she is talking about? Is the tip to the police based on his or her own direct knowledge or on hearsay from somebody else? If so, what is the ultimate source?

Does the CI have a track record for providing reliable information in the past? Has this led to arrests or convictions? Are there factors which detract from reliability? Does the CI have a criminal record - particularly for crimes of deception? Has the CI provided false information in the past? Negative factors are not necessarily fatal but must be disclosed so that the Justice of the Peace may make an informed independent assessment. [ 93 ] Finally, certain matters about the informers' trustworthiness may be capable of disclosing his or her identity, such as a criminal record.

This information, however, if pertinent and relevant, should nonetheless be disclosed to the issuing Justice of the Peace, on the assumption that the document can be sealed, and the identifying information edited out before it is disclosed to the defence. [ 94 ] The third aspect of the inquiry deals with independent confirmation of the CI's information. This can prove to be a powerful means of buttressing the CI's reliability respecting the alleged crime being investigated.

If the CI's information can be confirmed in certain details, then it might be safer for the Justice of the Peace to rely on other pieces of information that he or she has provided. But there must be a meaningful assessment of the quality of any so-called corroboration. For example, confirmation of neutral or readily discernable facts such as the target suspect's address or the type of car he drives may not add anything of substance to the CI's assertions. B. The information before the issuing Justice of the Peace (

i) The "double hearsay" evidence [ 95 ] Despite much 'boiler plate' references to "reasonable and probable grounds" throughout the ITO, the 'lynchpin' of Constable M's belief that KP had marijuana in the house is found in clause 15, where he tells the Justice of the Peace that on February 3, 2010: # 1 - The CI told him that there was at least a pound of marijuana in the house two days ago, and # 2- The CI was told by an unknown third party that there was still, on February 3, a lot of weed left in KP's house. [ 96 ] The Justice of the Peace cannot, of course, consider the evidence of this unknown third party - essentially "double hearsay" evidence - in coming to a determination as to whether there are reasonable and probable grounds to issue the warrant.

The reason for this is because there is no way of assessing the reliability of such an unknown party. [ 97 ] Constable M tells the Justice of the Peace that he cannot vouch for the unknown third party's truthfulness.

Nonetheless, he also tells the Justice of the Peace that he relies, at least in part, upon the information given to his CI by this person. [ 98 ] I am aware that the Justice of the Peace who issued the search warrant in this case is a lay person (trained in search warrants, likely), not learned or experienced in the law sufficient to dismiss "double hearsay" as a basis for establishing probable cause. [ 99 ] I know the Constable was aware that the Justice of the Peace is a lay person. Accordingly, the double hearsay should have never been put, under oath, before the Justice of the Peace.

The Constable's disclaimer is meaningless, as he asserts in clause 15(

b) that he relies on this double hearsay as a basis for the warrant. [ 100 ] In my view, however, this double hearsay from the unknown third party is not in and of itself fatal to the search warrant, as it is severable from the remaining information which the Constable relies upon and which he says constitutes reasonable and probable grounds for issuing the search warrant.

(ii) The overriding issue: The CI's reliability [ 101 ] Counsel for KP has suggested that the wording of clause 13(

a) in the ITO is ambiguous. In clause 13 (

a) the Constable tells the Justice of the Peace that on February 3, 2010, he received information from the CI that "KP had a least a pound of marijuana in his house two days ago and was selling at the gram level." [ 102 ] Counsel notes that the Constable does not say his CI told him, for example, that he or she (the CI) actually saw the marijuana or was told by KP that it was in the house, when supposedly, the CI made a buy. [ 103 ] I agree, however, with Crown Counsel that clause 9 (

b) of the ITO would allow the Justice of the Peace to conclude that the CI's information about the location of the marijuana is based on first hand-knowledge. Again, clause 9 (

b) says that “Information provided by Source "A" is from firsthand knowledge unless otherwise stated." [ 104 ] Counsel for KP argues further that there is little, if any, detail (in clause 13 of the ITO) surrounding the CI's information provided to Constable M about events a couple of days before February 3, 2010. The CI simply makes bald statements: that there was marijuana in KP's home, that KP sells from the house at the gram level, that KP's brother sells weed for KP around town, and that he or she made a buy from KP.

It may be, however, that more detailed information of this sort could jeopardize the CI's anonymity - I do not know.

Suffice it say that the so-called detail provided is slim indeed. [ 105 ] The Crown argues that the CI's information is not only sufficiently detailed but also compelling since he or she has provided reliable information leading to drug busts in the past. [ 106 ] In my view, despite the slimness in the CI's evidence about his or her supposed dealings with the accused in the couple of days prior to February 3, this evidence is sufficient to constitute probable cause for the issuance of a search warrant, if - and only if - the CI is a credible source of information.

Or, put more precisely, if there was evidence upon which the issuing Justice of the Peace could have drawn inferences to conclude that such was the case. [ 107 ] In this regard, the supposed dealings between the CI and the accused, KP, are a red-herring. The information respecting the details is only as good as the source of the information - especially when there is little 'detail.' [ 108 ] If there is evidence upon which the issuing Justice of the Peace is able to draw an inference that the CI is a reliable source of information, then he may draw further inferences.

At the relatively low standard required, he may infer that the hearsay evidence provided by the Constable constitutes probable cause to search KP's house, because, more likely than not, what the CI tells the Constable may be true. In such case a warrant should be issued. [ 109 ] If the CI is not a reliable source of information, or, more precisely, if the issuing Justice of the Peace is not able to draw any inferences in favour of the CI's reliability, then it is simply too dangerous for the Justice of the Peace to rely upon the hearsay evidence provided by the Constable.

Even at the relatively low standard allowed , it cannot be used as probable cause to search KP's house. In such cases, in the absence of other reliable hearsay or direct corroborative evidence, no warrant should be issued. [ 110 ] This case is about the reliability of Constable M's confidential informant, both generally, and in relation to the accused, KP. B.ii.1 CI's 'general' reliability [ 111 ] Respecting the CI's general reliability, Constable M tells the issuing Justice of the Peace that the CI has been providing information for almost two (2) years on more than ten (10) occasions.

[ 112 ] The Constable says that information from the CI has been used in the arrest of six (6) people - two (2) of whom were charged and convicted. This leaves open an obvious question about the 'remaining' four (4) people who were arrested. Were they charged and simply not convicted, or more importantly, were any drugs actually seized from them at all? Were these six people arrested in six separate incidents, or, for example, were all six arrested at once but the police were only interested in two? [ 113 ] Respectfully, this is something that the issuing Justice of the Peace should have been alert to.

Again, however, I am mindful that the issuing Justice of the Peace is not a legally trained professional.

But this, however, is all the more reason why such an ambiguity should not have been 'left on the table' by the Constable in the obvious hope that the Justice of the Peace would draw a favourable inference - namely, that drugs were in fact found on the 'remaining' four (4) people, but they simply escaped conviction or were not charged as a result of police discretion. [ 114 ] The Justice of the Peace is entitled to have - and Constable M is required to provide - basic information from which he (the Justice of the Peace) can draw reasonable inferences about the reliability of the CI. [ 115 ] The most basic information which the Justice of the Peace needs is, quite simply, the CI's 'track record' for providing information which turned out to be 'correct' or true, and for providing information which turned out to be 'incorrect,' or false. [ 116 ] Without such information, the fact that the CI was paid $ 1,600 on four (4) occasions and that relatively large quantities of drugs were seized based on information provided by the CI is not helpful to the Justice of the Peace in assessing the reliability of the CI and thus, in turn not sufficiently probative in determining if probable cause exists to search a person's home. [ 117 ] The Constable does not indicate that the arrests and convictions were for drug offences, but in fairness, given the full context of the ITO and the fact that the officer has been working for the past 2 years as a drug investigator, it would be reasonable for the Justice of the Peace to conclude that such was the case. [ 118 ] Crown counsel had argued that since the CI is paid, that this incentive adds to the credibility of the information he or she provides.

I disagree. First, payment may be an incentive to provide information, but we do not know, in this case, if it is an incentive to provide only accurate information. For example, we do not know if CI was paid for the information which he or she provided to the Constable in November of 2008 which turned out to be false. [ 119 ] There is an inherent danger in relying simply upon the profit motive.

While it can be an incentive, it may also result in unexpected or distorted approaches to fact. [ 120 ] Money may provide an incentive to provide good information, but there is ambiguity in relying upon payment as a measure of reliability. A simple example illustrates this: a CI might believe what they are told by a third party concerning drugs in Mr. X's car, and then cook up a small story about their own dealings with Mr. X in order to prompt a search of the car in the hope of getting paid. [ 121 ] The particular CI in KP’s case may in fact be reliable.

However, where the Crown intends to rely on the profit to establish that the CI is reliable, there must be clear information presented to the JP about how often the CI has been paid for good tips, compared to times (if such is the case) when he or she provided bad tips and were (presumably) not paid. [ 122 ] Constable M is under a duty to be 'up-front' with the Justice of the Peace about his CI's general track record for success and failure - consistent, of course, with being sufficiently discreet to protect his source.

This is a fine balance, indeed, but also something with which experienced drug investigators are quite familiar and are able to strike in the ITOs they draft.

And, if they are not so able, then they know not to reference the particular CI, or not proceed with the warrant application. [ 123 ] In this particular case, Constable M has not been plain and clear in the ITO about the CI's track record. [ 124 ] For example, in clause 9 (d), the Constable tells the Justice of the Peace that he has dealt with the CI for over two years, and "more than (ten) 10 times." But there is not even a rough approximation of the number of times that he has dealt with the CI. What does 'more than ten times' mean?

Is it closer to twelve (12) times, or closer, say to forty (40), or even (75) times? This is important information for

the Justice of the Peace to have in assessing the general reliability of the CI. [ 125 ] Indeed, I pause to note that such approximations have almost become standard fare in many ITOs, since the officer providing the Justice of the Peace with evidence under oath wants the Justice of the Peace to be confident - even at the relatively low standard required - that the CI is trustworthy.

When this type of information is missing, it raises suspicion. [ 126 ] I also pause to note that I do not agree with the argument put forward by defence counsel that the reliability of the CI may be assessed from a 'statistical' standpoint. That argument goes something like this: If the Constable had more than ten dealings with the CI and the CI's information resulted in only two convictions, then the CI's rate of providing reliable information is roughly twenty percent, or less.

Alternatively, if there were only two convictions but six arrests, then the CI's 'reliability rate' is roughly thirty-three percent. [ 127 ] This argument is based on the assumption that the 'remaining' four arrestees were not found in possession of any illicit drugs - which is something we do not know. In the absence of such information the statistical argument is invalid.

Although I reject the argument, nonetheless, the missing information is still, nonetheless, the 'rub' when it comes to assessing the general reliability of the CI. [ 128 ] In clause 9 (c), Constable M tells the Justice of the Peace that the CI provided information on one (1) occasion that turned out to be 'incorrect' (when the amount of marijuana seized was much smaller than expected and consistent only with personal use). [ 129 ] The Constable does not say whether this one (1) occasion was the only occasion in his two (2) years of dealings with the CI, where the CI provided incorrect - that is, false - information. [ 130 ] If this 'one occasion' referred to in clause 9 (

c) was the only occasion where the CI provided false information then Constable M should simply say so. An ITO is no place for such ambiguity. [ 131 ] Such information, just as with information about the CI's 'track record, is critical if the Justice of the Peace is to assess the CI's reliability. [ 132 ] Similarly, if the one occasion referred to in clause 9 (

c) where the CI provided false information is the same occasion noted in clause 12 where the CI provided false information about KP, then the Constable should indicate clearly that such is the case. [ 133 ] There is only one logical and common sense conclusion which the Justice of the Peace could draw from the Constable's statement, in clause 9 (

c) that "there was one occasion where the CI provided incorrect information,” namely, that this may have been the only time that the CI provided incorrect information, and equally, it may not have been the only such time. Clause 9 (

c) would not allow the Justice of the Peace, acting judicially, to infer anything else. [ 134 ] Finally - in terms of the CI's general credibility - there is the fact that he has been convicted of a criminal offence involving deception.

Indeed, the implication is that there is more than one (1) such conviction since the Constable says that that the CI has "a criminal record for violent and deceptive offences." {clause 9 (b)}. [ 135 ] The Constable provides no detail respecting the precise nature of the deceptive offence(s), although, in this regard I can appreciate that to do so might jeopardize the CI's anonymity. It would have been helpful, however, if the Justice of the Peace was told the number of convictions for deception.

And, although nothing turns on how many times the CI was convicted for 'dishonesty,' it adds to the difficulty that the Justice of the Peace has in assessing the general reliability of the CI - especially in this case, where other important information is lacking. [ 136 ] Suffice it to say that regarding the CI's criminal record for an offence involving deception, this is something which tells against the CI's general reliability. [ 137 ] At the end of the day, the Justice of the Peace has been left 'stuck in a fog' when it comes to any assessment of the CI's general

credibility. A sailor in such a fog may hear the lighthouse claxon, but without at least a glimmer of light from the beacon cannot move safely to shore.

There is no such glimmer of light in this case - despite the Constable's assurances of safe passage, the Justice of the Peace is not in a position to move with confidence. [ 138 ] Because of the ambiguity surrounding the arrest of the six (6) people, the ambiguity about the "one occasion" where the CI provided false information, the failure of the Constable to provide even basic information about the CI's 'track record,' and the fact that the CI has at least one criminal conviction for an offence of deception, I am led to the following inevitable conclusion: the most that can be said - and the only conclusion that a Justice of the Peace, acting judicially, could draw respecting the CI's reliability - is that sometimes this CI provides good information, and that sometimes he or she does not. [ 139 ] Certainly, no Justice of the Peace, acting judicially, could have drawn any reasonable and objective favourable inference about the general reliability of this particular CI.

B.ii.2 Historical information about the accused [ 140 ] I have concerns respecting the historical information provided by the CI to Constable M about the accused, KP. These dealings are found in clauses 11 and 12 of the ITO. [ 141 ] First, in May of 2008, the CI told the Constable that KP was selling marijuana at $ 60 a gram from his home (house # 17) and that he gets his supply of drugs from Iqaluit.

Because of the "catch-all" clause in the ITO that the "CI's information is based on first-hand knowledge unless otherwise stated," we are to assume that the CI knows of what he or she speaks. [ 142 ] The fact, however, that the information is asserted as firsthand knowledge is irrelevant. This information is not probative of drug activity on KP's part any more than it would be if the same information was provided about anyone else living in Kimmirut. [ 143 ] In terms of "detail" there is none.

The fact that a gram sells for $ 60 is common knowledge akin to the price of bread, as is the fact that the capital city of Iqaluit is a drug distribution center, and many people in a small hamlet like Kimmirut would know where KP lives. [ 144 ] This information is simply the stuff of gossip and rumour which is capable of giving rise only to suspicion. In fact, there is no suggestion from Constable M that he acted on the May 2008 information at that time. [ 145 ] This May 2008, information is not only useless in terms of detail but begs the very question at issue in the case, namely, the reliability of the CI.

This evidence should not have been included in the ITO at all. Its inclusion, however, when one considers again that the issuing Justice of the Peace is not legally trained, is troubling. [ 146 ] Second on November 20, 2008, the CI told Constable M that KP had been selling marijuana the previous week, that his supply ran out, and that he would be going to Iqaluit soon to refresh his supply. [ 147 ] A few days later, on November 25, 2008, Constable M arrested KP based on this information.

The Constable says that he arrested KP based 'partly' based on this information - a distinction which is without difference. [ 148 ] Regarding this arrest, the Constable says that "A very small amount of cannabis marihuana [sp] was seized during this incident but KP was not charged in relation to this incident." {clause 12} [ 149 ] It is common police discretionary practice sometimes not to charge a person found with a very small amount of cannabis - a gram or a joint.

The clear implication, however, in clause 12 is that KP was actually found in possession of illicit drugs - that the marijuana seized was taken from him.

[ 150 ] We know, however, from the 'Additional Agreed Upon Facts' that such was not the case. The 'very small amount' (a joint) seized was taken from KP's friend - not KP. Nor could KP be considered a 'party' to his buddy's personal possession of a joint.

If this was the case, then all people travel at their peril in the company of others. [ 151 ] The point, however, is that the information provided by the CI about KP was false - and not just in relation to the amount of drugs. [ 152 ] In fairness, Constable M was not called as a witness (by either side) and thus had no opportunity to explain or amplify the discrepancy between the Stipulated Facts and clause 12 in the ITO. [ 153 ] Nonetheless, the end result is that the Justice of the Peace was almost certainly misled - it would be splitting hairs to suggest that he was not - into believing that the CI provided information which resulted in a small amount of drugs being seized from KP when such was not the case at all. [ 154 ] In the absence of any explanation, the statement in the ITO that "A very small amount of cannabis marihuana [sp] was seized during this incident but KP was not charged..." is pregnant with deception. [ 155 ] An issuing Justice of the Peace, in full possession of the facts of what happened on November 25, 2008, and acting judicially, could not possibly have come to a reasonable and objective conclusion that the CI was a reliable source of information concerning the activities of the accused, KP.

Indeed, the information provided by the CI which resulted in KP's arrest, and which turned out to be false, pointed to a contrary conclusion - namely, that the CI is a "dodgy" source of information concerning KP. [ 156 ] There are two (2) further troublesome aspects about clause 12 and the events in November of 2008. [ 157 ] First, Constable M does not say, in clause 12, that the information provided by the CI was "incorrect" - unlike, in clause 9(c), where he said that on "one occasion" the CI provided "incorrect information" which resulted in the seizure only of ‘personal use’ cannabis.

Instead, and in my view, the Constable has clearly left it open, in clause 12, for the Justice of the Peace to infer that the arrest of November 25 was simply premature. [ 158 ] Second, the implication, in clause 12, that the accused, KP, was found with a "very small" amount of personal use marijuana - even if it were true - is not probative of trafficking activity or inclination, any more than possession of an open bottle of beer in public is indicative of bootlegging.

Once again, while a professional drug investigator knows this, a community Justice of the Peace may not. [ 159 ] This is a case which required either additional reliable hearsay evidence or independent corroborative evidence in order to establish probable cause before a warrant could be issued. [ 160 ] The warrant application was both precipitous and premature.

By Constable M's own account, he believed that there were still trafficking quantities of drugs in KP's home two days after the CI's alleged buy from KP. [ 161 ] I am mindful that in a small community such as Kimmirut it would be difficult - although certainly not impossible - for the police to obtain corroborative evidence of drug activity from KP's house. Regardless, the standards respecting probable cause for the issuance of a search warrant do not adjust because of such difficulty. C. The Charter of Rights & Freedoms (

i) Section 8: The right to be secure against unreasonable search and seizure

[162] The hearsay evidence from the CI about his drug dealings with the accused, KP, on February 3, 2010 could not have been reliedupon without assessment of the source of that information. [163] There was insufficient evidence before the Justice of the Peace to allow any favourable inference respecting the general reliabilityof the CI.

The only useful evidence respecting information given by Constable M, concerning the accused, permitted only an adverseinference concerning the CI's reliability. [164] Therefore, since a properly informed, positive assessment of the CI's reliability was not possible, the issuing Justice of the Peacecould not, acting judicially, have relied upon the hearsay evidence of the CI as provided by Constable M as "reasonable and probablegrounds" to issue the warrant. [165] Without probable cause the warrant is therefore invalid.

The subsequent search is deemed to be without warrant, and the Crownoffers no justification for a warrantless search. The search in this case is therefore unlawful. [166] This unlawful search of KP's home and the seizure of the objects taken by the police (drugs, drug related items, and money) is abreach of

section 8 of the Charter of Rights and Freedoms as an unreasonable search and seizure. (ii) Section 24 (2): Exclusion of evidence [167] The next question is whether the objects seized by the police from KP's house should be excluded from evidence at his trial.Section 24 (2) of the Charter provides that if evidence was obtained as a result of a Charter breach then that evidence shall be excluded"if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration ofjustice into disrepute." [168] The criteria to be applied in this analysis is mandated by the Supreme Court in the case of R v Grant, 2009 SCC 32 ,[2009] 2 SCR 353, 245 CCC (3d) 1[Grant].

An application of the Grant criteria requires that I must be mindful of, and balance threefactors, namely: 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 [169] The Court's role is to balance the assessments under each of these lines of inquiry to determine whether, considering all thecircumstances, admission of the evidence would bring the administration of justice into disrepute.

C.ii.1 Regarding the Charter-infringing state conduct [170] First, the officer who swore the ITO was not 'up-front' with the issuing Justice of the Peace about the general reliability of hisconfidential informant - and, I have concluded, intentionally so. The officer told the Justice of the Peace that the informant had a criminalrecord for crimes of violence and deception.

Aside from this, however, the remaining information relevant to the informant's generalreliability is presented in ambiguous terms designed to 'lull' the Justice of the Peace into an unwarranted sense of confidence respectingthe informant's reliability. This is not a 'drafting' issue or a matter or form - what appears as transparency is, in fact, distortion. [171] Second, the officer, in my view, attempted to mislead the Justice of the Peace into believing he had seized drugs from the accused,KP, on a past occasion, when in fact he had not.

[ 172 ] Finally, the officer acted recklessly by going ahead with an application for a search warrant into KP's home based in large part upon what an unknown third party told his confidential informant, without taking further investigative steps to check out or corroborate this information. Instead - and in his haste obtain a search warrant - the officer improperly included this double hearsay evidence in an ITO presented to a lay community Justice of the Peace. The officer's 'disclaimer' in the ITO is disingenuous. [ 173 ] The state conduct in this case is disturbing.

It does not reach an egregious level, but it is much more than technical in nature. The Charter-infringing state conduct is serious enough in nature to weigh in favour of exclusion of the evidence obtained as a result of the search. C.ii.2 Regarding the impact of the breach on the Charter protected interests of the accused [ 174 ] The warrant authorizes entry into KP's home - a place where he would expect a high degree of privacy.

As such, the entry into a home without probable cause is a significant intrusion on Charter-protected interests, and something which would weigh in favour of excluding evidence obtained as a result. C.ii.3 Respecting Society's interest in an adjudication on the merits [ 175 ] The Court is required to ask whether the truth-seeking function of the criminal trial process would better served by the admission of the evidence or by its exclusion. In this case the breach does not undermine the reliability of the evidence, nor would admission of the drugs and money seized affect the fairness of a trial.

In addition, the evidence seized is crucial to the Crown's case. Finally, the alleged offence here involves drug dealing in a small community. The impact of illicit drugs on the mental health of our population are such that the public expects that people who are charged with these offences be prosecuted and their culpability determined through the truth- seeking function of the criminal trial process. All of this weighs in favour of not excluding the evidence from the trial.

C.ii.4 Respecting the balancing of the Grant test factors [ 176 ] The Supreme Court has said that the balancing exercise mandated by section 24 (2) is a qualitative one, not capable of mathematical precision, and that the inquiry is objective. It asks whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter would conclude that admission of the evidence would bring the administration of justice into disrepute. [ 177 ] The Court has said that it is not simply a question of whether the majority of the relevant Grant criteria favour exclusion in a particular case.

For example, dissociation of the justice system from police misconduct does not always trump the truth seeking interests of the system - nor is the converse true. [ 178 ] The Supreme Court has been quite clear that it is the long-term reputation of the administration of justice that must be assessed.

The fact of the Charter breach means some damage has already been done to the administration of justice, and that section 24 (2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the reputation of the justice system. [ 179 ] Considering the totality of the circumstances before me, I am of the view that the long-term repute of the administration of justice does require exclusion of the evidence obtained as a result of the search.

The short term public interest in having the case tried on its merits must, in this case, give way to the need to safeguard the integrity of the ex-parte prior judicial authorization process, which takes place before the Justice of the Peace, particularly in relation to searches of private homes. [ 180 ] The items seized as a result of the search authorized by the warrant are excluded from evidence in the trial. V. CONCLUSION

[ 181 ] The search warrant was based entirely upon information supplied by the CI. The CI said that he or she made a drug buy from the accused, KP, and that there were drugs in KP's house. [ 182 ] But the 'information' is only as good as its source. [ 183 ] The officer who swore the ITO failed in a most basic disclosure obligation to the Justice of the Peace. He did not tell the Justice of the Peace anything about his CI's track record of success.

Despite the fact that the officer had worked with the CI for over two (2) years, the Justice of the Peace was told only of that information from the CI which had resulted in the arrest and conviction of two (2) people. [ 184 ] Further, the CI - who had been convicted of at least one crime of deceit - had provided the investigating officer in the past with information about drug dealings by the accused which turned out to be false.

The accused had been arrested and detained based on this information, despite not being in possession of drugs. [ 185 ] This scarcity of the evidence respecting the CI's track record generally, added to the omission of the false historical evidence about the accused made it impossible for the Justice of the Peace to draw any favourable inference(

s) respecting the general reliability of the CI. [ 186 ] Thus, since the information is only as good as the source, it was not possible for the Justice of the Peace who issued the search warrant, acting judicially, to come to the conclusion - even at the relatively low standard of "reasonable probability" - that there were drugs in KP's home. [ 187 ] The warrant is declared invalid and the warrantless search of KP's home is a breach of his Charter protected right to be secure from unreasonable search and seizure. [ 188 ] The breach of KP's rights as protected by

section 8 of the Charter was a serious one. The officer who swore the ITO presented "double hearsay" evidence that he knew (or should have known) the community Justice of the Peace could not properly rely upon. In addition, the Justice of the Peace was misled into believing that drugs had been seized from the accused in 2008 when, in fact, such was not the case. [ 189 ] It would make a mockery of the search warrant authorization process and bring the long term administration of justice into disrepute if the objects seized in this case were allowed into evidence.

The drugs, money, and other items seized are accordingly excluded from evidence in KP's trial. Dated at the City of Iqaluit this 19th day of September, 2011 ___________________ Justice N. Sharkey

Nunavut Court of Justice