r v. THE, 2013 QCCQ 6641

Unofficial English Translation Choubert Mombrun c. R. 2013 QCCQ 6641 JD 2489 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Criminal and Penal Division" No.: 500-01-018964-095 DATE: June 26, 2013 ______________________________________________________________________ PRESIDING: THE HONOURABLE SYLVIE DURAND, J.C.Q. ______________________________________________________________________ JEAN CHOUBERT MOMBRUN Accused - petitioner v.

THE QUEEN Prosecutrix - respondent ______________________________________________________________________ Decision on a motion to exclude evidence ( Sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ I. CHARGES [ 1 ] The petitioner is charged with possession of instruments used in the falsifying of credit cards (342.01 Cr. C .), possession of information that would enable a person to use a credit card (342(3)(

a) Cr. C. ), possession of credit cards obtained by the commission in Canada of an offence (342 Cr. C .), possession of instruments adapted or intended for use to commit forgery (369(

b) Cr. C .), and possession of money obtained by crime (355 Cr. C. ). II. GROUNDS IN SUPPORT OF THE MOTION TO EXCLUDE EVIDENCE [ 2 ] At the outset of the trial, Mombrun filed a motion to exclude evidence obtained through the execution of a search warrant at his residence. [ 3 ] He maintains that the grounds alleged in the information to obtain the search warrant were insufficient. [ 4 ] First, the petitioner alleges that the information to obtain is not based on reasonable or probable grounds to believe that his home likely contained objects that would provide evidence of the commission of the alleged offences.

The police officers' actions were based on mere suspicions. [ 5 ] Second, he alleges that the search warrant was obtained following an unlawful trespass into his home by the police officer. III. ISSUES [ 6 ] The main issues to be decided are essentially the following: First, were there sufficient credible and reliable grounds to permit the justice of the peace to issue the search warrant? Second, did the information to obtain contain elements that were obtained by unlawfully trespassing into the petitioner's residence? IV.

INFORMATION TO OBTAIN THE SEARCH WARRANT [ 7 ] The affidavit in support of the information to obtain the search warrant relates the following. [ 8 ] In October and November of 2008, an informant registered with the Service de police de la Ville de Montréal (the Montreal police department) provided information about a system for forging credit cards and fake identity documents.

[ 9 ] Allegedly, a certain Roberto Dupuy (Dupuy) acted as a middleman to obtain forged credit cards and fake identity documents. He went to the manufacturer’s residence to pick up the cards. The manufacturer appeared to have the equipment required to forge the cards at his home in Laval (para. 3.1). [ 10 ] A few weeks later, the source reported that Dupuy [ translation ] "has a black partner" and that [ translation ] "the location where the forging takes place is not used as a residence.

The manufacturer's residence is a bungalow in Laval" (para. 3.1). [ 11 ] Discussions took place between the informant, Dupuy, and a person by the name of Metelus. [ 12 ] Through various physical surveillance operations, the police were able to observe the three men in different locations in Montreal.

The source reported that the discussions were about how to purchase fake identity documents. [ 13 ] At a certain point, Metelus told the informant that he would try to contact the manufacturer and that another meeting had to be scheduled so that the informant could give him his photograph and the order could be placed. [ 14 ] Paragraphs 1 to 18 concern Roberto Dupuy and Metelus almost exclusively and concern observations made in October and November of 2008.

There is reason to believe that Dupuy and Metelus appear to be a team of middlemen to obtain cloned credit cards. [ 15 ] The investigator then checked certain information regarding Metelus: He drove a Mazda 3, and this car was owned by Carrosserie Idéale, Fix Auto, located at 1395 Tellier in Laval. [ 16 ] On December 2, 2008, during the physical surveillance of the Fix Auto located at 1395 Tellier, the police officers noted down the licence plate numbers of some of the cars in the parking lot outside this garage.

These included a car with licence number ... . [ 17 ] This car, with licence number ..., belongs to Randy Salomon Châtaigne (Châtaigne), who has prior convictions for fraud. [ 18 ] Châtaigne lives at ... in Laval. [ 19 ] The owner of ... is Jean-François Châtaigne.

He is also the owner of ... in Laval. [ 20 ] On December 9, 2008, the physical surveillance of the location at ... began. [ 21 ] The police observed Randy Salomon Châtaigne exit the building at this address, go to various places, return, go out again, and return once again. [ 22 ] Then, between December 9, 2008, and January 13, 2009, nothing happened. [ 23 ] On January 13, 2009, around 8:40 a.m., the location at ... was placed under physical surveillance. [ 24 ] Châtaigne was observed leaving this address, going to several locations, and then going to ..., which is the petitioner's address.

This is a two- or three-storey building. [ 25 ] Châtaigne rang the bell and entered. [ 26 ] The officers checked behind ... and observed two vehicles parked there. One of them had licence number ... . Searches revealed that this vehicle belonged to the petitioner, and the address ... corresponded to that on the petitioner's driver's licence. [ 27 ] At 2:43 p.m., Châtaigne exited the building. He went to Centre Multiservice Concorde (computer sales and repairs). One of the officers [ translation ] "saw Châtaigne at the computer with the clerk, whom he seemed to know well.

He was behind the screen and it was impossible to tell what he was doing" (para. 3.29). [ 28 ] Châtaigne then exited the business. [ translation ] "He seemed to be holding something under his coat" (para. 3.29). [ 29 ] Châtaigne returned to ... and entered after being buzzed in. [ 30 ] Officer Annie Lévesque, who had been ordered by her supervisor to confirm the number of the apartment where Châtaigne was going, was already inside the building.

She pretended to be looking for an apartment that was advertised as being “for rent". [ 31 ] The officer saw Châtaigne enter and head toward the basement apartments. [ 32 ] Not knowing which of the two apartments Châtaigne was going to, she decided to go down to the basement and ring the doorbell of apartment 1, the first door she came to. [ 33 ] The petitioner's spouse , Karine Paul-Hus, answered the door and invited her in to visit the apartment.

She explained that her apartment would be vacant as of April 1 because she and the petitioner had purchased a house. [ 34 ] The officer visited the apartment and met the petitioner as well as their two children. [ 35 ] When the officer entered the kitchen, she observed Châtaigne [ translation ] "sitting alone at the kitchen table, wearing his coat. He was working on a laptop computer that was set up on the table, and he was also using a black cellular telephone that was beside the computer.

As the tour of the apartment continued, the officer saw a small table beside the kitchen table, on which sat a printer that was churning out pages at full throttle. He saw a black rectangular platform about 10 inches high X 16 inches wide X 18 inches deep, above which was a black, cube-shaped box, about 15 inches X 15 inches X 15 inches, with a window and a number code appearing on the top right corner. The cube was also working full steam and making a high-pitched noise.

As he approached Randy Salomon Châtaigne, while following the unknown woman who was showing him the yard outside, Châtaigne folded his laptop screen down partially, leading

the officer to believe that Châtaigne did not want him to see what he was doing at that moment" (para. 3.29). [ 36 ] On January 14, the investigator in the case made some checks and found that the petitioner had been [ translation ] "questioned for credit card fraud" in 2006 and was "suspected of credit card fraud" (para. 3.30) in 2005.

The individuals he was with during these two events have prior convictions for credit card fraud. [ 37 ] The investigator then thought that he had reasonable grounds to believe that a search of the premises at ..., apt. 1, would yield information related to the offences being investigated. [ 38 ] More precisely, he believed that there were reasonable grounds to seize: • credit cards and cards with magnetic strips • equipment used to forge counterfeit cards • computers and electromagnetic media • money • laminated papers and cards • passport photographs • bank profiles • passports • rental evidence. V.

ADMISSIONS [ 39 ] It is admitted that, on the date of the search, the petitioner resided at ..., apartment 1, Laval. [ 40 ] It is admitted that the property seized at this residence belongs to the petitioner. VI.

PETITIONER'S CASE [ 41 ] The petitioner called Karine Paul-Hus, the petitioner's spouse, who related the following. [ 42 ] On January 13, 2009, she was indeed living at ..., apartment 1, with her spouse (the petitioner) and their two children. [ 43 ] The building contains eight apartments, two of which are in the basement. [ 44 ] To enter the building, a person must be buzzed in remotely or have a key. [ 45 ] At a certain point, a woman knocked on her apartment door. She did not identify herself as a police officer but stated instead that she was looking for an apartment.

Paul-Hus explained that she had to make an appointment through someone named Fabienne before visiting the apartment. [ 46 ] The woman was very insistent. She was almost inside the door and was therefore able to see the inside of the apartment. [ 47 ] Because the woman was so insistent, Paul-Hus agreed to let her in to visit the apartment. [ 48 ] Paul-Hus was certain that the woman was able to see Châtaigne even before she entered the apartment because he was seated at the kitchen table, which was visible from the entranceway. VII.

RESPONDENT'S CASE [ 49 ] Officer Annie Lévesque is the witness heard in support of the respondent's case. She related the following: [ 50 ] On January 13, 2009, the investigator asked her to go into the building to see where Châtaigne was. [ 51 ] She saw that an apartment was for rent and decided that she would use this as her excuse for being there – her "cover", as she put it. She had some paper and a pencil and was pretending to write something down when Châtaigne entered.

She saw Châtaigne go down into the basement. [ 52 ] She first went to apartment 3 or 4, upstairs, to knock on the door and ask which apartment was for rent. [ 53 ] She was told that the apartment for rent was in the basement, but she was not told which one. [ 54 ] She knocked at apartment 1, and Ms. Paul-Hus opened the door and invited her in to visit the apartment. [ 55 ] She did not see Châtaigne at first. She only saw him as her visit was nearing its end. [ 56 ] She observed that Châtaigne was sitting in front of a laptop, and that a printer was working full throttle. She saw a box on the printer.

She did not see anything appear in or above the box.

[ 57 ] She left. She told the investigator that Châtaigne was there and reported her other observations. [ 58 ] In cross-examination, the officer stated that she would not have entered the apartment if she had known that Châtaigne was there. All she wanted to do when she knocked on the door was find out how much the rent was and when the apartment would be vacant, so that she could continue playing out her cover. [ 59 ] She confirms that she did not know the purpose of the cube and the platform she saw beside Châtaigne. VIII.

GROUNDS OF THE MOTION [ 60 ] As stated, the motion to exclude evidence is based on two grounds, one of which is unlawful trespass into the petitioner's home based on a false pretext for the purpose of gathering evidence to obtain a search warrant later on. [ 61 ] This allegation also states that Officer Lévesque made a misleading statement by suggesting that valid consent was acquired before she entered the petitioner's residence. [ 62 ] What should be made of this? [ 63 ] It is difficult to believe Karine Paul-Hus when she says that, because of the police officer’s insistence, which bordered on intimidation, she had no choice but to accede to the request to visit her apartment. [ 64 ] This allegedly insistent person is a young woman who has introduced herself as a student at Montmorencey CEGEP.

There is nothing threatening about her. Moreover, Paul-Hus was not home alone. She was with her husband, their two children, and Châtaigne. [ 65 ] The couple were trying to sublet their apartment rather quickly because of their imminent move to their new property. How, then, can we believe that Ms. Paul-Hus would not have readily agreed to the visitor's request? How can we believe that she almost felt intimidated?

If she had been, it would have been easy for her to tell the visitor to make an appointment with the person responsible for the rental. [ 66 ] I therefore find that this part of Paul-Hus's testimony should be set aside. [ 67 ] That being the case, did the police officer’s false pretext have the effect of rendering her visit an unlawful trespass? [ 68 ] Insofar as the real issue here, in my opinion, is whether there were sufficient grounds to authorize the search warrant, it seems pointless to examine this aspect of the police investigation. [ 69 ] For the purpose of discussion, I take it as proved that her entry into the Mombrun residence was in accordance with accepted practices for police investigations, and that the officer obtained valid consent to visit the apartment at issue. [ 70 ] The issue that remains, therefore, concerns the other ground of the motion, namely, the allegation that the information to obtain was not based on reasonable or probable grounds to believe that the premises contained objects that would provide evidence relating to the commission of the alleged offences. [ 71 ] What should be made of this?

First, we must analyze the information to obtain. IX. THE INFORMATION TO OBTAIN The drafting of the information to obtain [ 72 ] The first observation that comes to mind upon reading the information to obtain is its unclear drafting. It makes the document difficult to read. [ 73 ] Indeed, a simple chronological list of the facts serves as a basis for establishing the grounds. And again, this chronological list is not the easiest thing to read.

It requires the reader to constantly refer back to earlier paragraphs to make connections and understand who the [ translation ] "unknown men" are that are referred to during the police surveillances. For example, even after Metelus is identified by name, the narrative later refers to him as an unknown man. The same is true with regard to the many licence plate numbers that appear throughout the narrative. [ 74 ] No analysis is performed. [ 75 ] For example, it is obvious that the location the fake cards were manufactured was a critical element of the investigation.

But what is said about this subject? [ 76 ] In paragraph 3.1, it is alleged that the manufacturer possessed the equipment required to forge the cards at his residence in Laval. Later, however, in paragraph 3.7, the information to obtain reads: [ translation ] "the location where the forging takes place is not used as a residence. The manufacturer's residence is a bungalow in Laval". [ 77 ] The information to obtain provides no explanation for this apparent contradiction. [ 78 ] Did the manufacturer possess the equipment at his residence?

What does [ translation ] "the location where the forging takes place is not used as a residence" mean? Is it not used as a residence by anyone at all, or is it not the residence of the manufacturer? [ 79 ] It is then stated that the location of the manufacturer's residence is a [ translation ] "bungalow in Laval". Nowhere in the rest of the information to obtain is any mention made of a bungalow. It is never referred to again.

[ 80 ] These alleged facts are crucial and require an explanation insofar as the search was conducted at a residence – that of the petitioner – and this residence was not a bungalow. [ 81 ] In addition, the name Jean-François Châtaigne is referred to at one point. The information to obtain does not say who he is, other than to identify him as the owner of the premises where Randy Salomon Châtaigne was found. [ 82 ] It is also rather remarkable that the information to obtain refers to Dupuy and Metelus nearly all the way through, but Châtaigne and Mombrun are never mentioned again.

The petitioner's late appearance [ 83 ] The information to obtain contains thirty paragraphs, the first twenty-one of which deal almost exclusively with Dupuy and Metelus.

Frequent reference is made to other black men, but at no time is any connection made between the petitioner and these individuals, who were gravitating around Dupuy and Metelus. [ 84 ] Châtaigne is finally mentioned in paragraph 22, referring to December 2, 2008. [ 85 ] January 13, 2009, the date referred to in paragraph 28 (out of 30), is the first and only reference to ... and, at the same time, Mombrun (the petitioner). [ 86 ] On that date, Châtaigne was under physical surveillance.

It was one of the five locations he went to that day: first he was seen at ...., then at ..., then at ... and ...., then again at ... and finally at ... . [ 87 ] Thus, the petitioner's address is mentioned only with regard to that day, January 13, 2009. [ 88 ] The next day – that is, after Officer Lévesque’s visit to the petitioner's apartment – there was a check of the police information on the individual Jean Choubert Mombrun. [ 89 ] The officers then observed that Mombrun had been [ translation ] “ questioned for credit card fraud in 2006 and suspected of service card fraud in 2005” .

This also suggests that he has no criminal record. But what do the expressions [ translation ] "suspected" and [ translation ] "questioned" mean, exactly? No details were provided in this respect. [ 90 ] The information to obtain also states the names of the people with whom Mombrun was [ translation ] "questioned" and [translation] "suspected". These individuals do have prior convictions for credit card fraud. [ 91 ] Officer Lévesque saw Châtaigne at Mombrun's home. She saw a printer that was churning out pages, a box, a platform, and so on.

She had no idea what the latter two objects, which were above the printer, were used for. The police officers informed the investigator of her observations, including, of course, the presence of Châtaigne at the petitioner's home, sitting beside this printer that was busily churning out pages. [ 92 ] No other checks were made after that.

Between January 14 and 20, 2009, nothing was done to validate anything whatsoever. [ 93 ] On January 20, the application for authorization was filed before the justice of the peace, and the search warrant was authorized. [ 94 ] On January 28, 2009, several objects were seized at the appellant's house. The list appears in the seizure report. [ 95 ] Summarized briefly, in addition to the computer, the printer and scanner, the items seized were three boxes containing over nine hundred credit cards, as well as various amounts of money totalling $20,000. X.

THE PRINCIPLES APPLICABLE IN A GAROFOLI HEARING [ 96 ] In order to comply with

section 8 of the Charter , prior to conducting a search, the police must provide reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search. [1] [ 97 ] It is up to the accused to demonstrate that the information to obtain did not justify issuing the authorization. [2] [ 98 ] The informant must lay out the facts completely, sincerely, clearly and concisely, so that the justice of the peace may decide, solely on the basis of the alleged fact appearing therein, whether to issue the search warrant. [ 99 ] The informant must clearly set out not only the facts, but also the reasons justifying the issuing of a search warrant. [3] [ 100 ] As the Court of Appeal notes in Cossette , [4] however, this does not mean that the work of the police officers should be examined with a fine-toothed comb. [ 101 ] Suspicions are not sufficient to justify issuing a search warrant. [ 102 ] The reviewing court should not consider whether it would have issued the warrant itself, but whether there was sufficient credible and reliable evidence to permit a judge to issue the warrant. [5] [ 103 ] This review should be carried out prudently and with deference. [6] [ 104 ] The results of a search cannot provide ex post facto proof of the reliability of the contents of information to obtain.

APPLICATION TO THE PRESENT CASE

Section 8 of the Canadian Charter of Rights and Freedoms [ 105 ] Did the information to obtain a warrant to search Mombrun's home provide reasonable and probable grounds to believe that the petitioner had the evidence sought in his possession? [ 106 ] The teachings of the Supreme Court of Canada in Morelli [7] were not yet known at the time of the search. Nevertheless, the principles concerning applications for authorization had been clearly set out for a number years, since Hunter v.

Southam [8] and, more specifically, Garofoli. [9] [ 107 ] In this case, the application for authorization was based on the fact that Randy Salomon Châtaigne had been seen by a police officer at the petitioner's home and in the circumstances described above. [ 108 ] What connection is there between Châtaigne and Dupuy? Between Châtaigne and Metelus? That is, with the two people who were under physical surveillance and denounced by the informant?

What is the connection between Dupuy, Metelus, and the petitioner? [ 109 ] Their connection arises from the fact that Metelus drives a car that belongs to Fix Auto in Laval; that one of the cars parked at this same garage belonged to Châtaigne; and that Châtaigne had [ translation ] "already been convicted of fraud of $5,000 or less in 2008, charged with possession of credit cards in 2007, and suspected of service card fraud in 2008”. [10] [ 110 ] On December 9, 2008, one week after this [ translation ] "discovery" – that is, that Metelus and Châtaigne went to the same garage – a physical surveillance operation was set up at one of the locations that Châtaigne occasionally visited, namely, .... in Laval (it is not his address, since he resides on ...

Street). [ 111 ] Until then, ... (the petitioner's address) had never been a matter of interest in the investigation. [ 112 ] Then, on January 13, 2009, the same Châtaigne was observed entering ... a first time, coming back out, going to a computer centre where he was seen in the company of a clerk [ translation ] "whom he seemed to know well", exiting as he "seemed to be holding something under his coat" (para. 3.29), and then returning to ... . [ 113 ] Officer Lévesque saw him.

The warrant was issued on this basis. [ 114 ] Besides the fact that Mombrun had previously been [ translation ] "suspected" and [ translation ] "questioned" for credit card fraud, nothing connected him to the investigation underway. [ 115 ] As for Châtaigne, there might have been reason to suspect that he was connected to the card forging operation because of his comings and goings, or for other reasons, but until the police officer saw him at Mombrun's home, he was just one individual amongst all the others.

The only connection he had with Metelus was that they had once parked their cars at the same location. [ 116 ] And what did the officer see when she visited Mr. Mombrun's home? Châtaigne, sitting in front of a laptop, a printer that appeared to be working full tilt, and boxes, the purpose of which she does not know, located above the printer.

She also saw Châtaigne partially fold his laptop screen down when she walked by him. [ 117 ] Are these reasonable and probable grounds to believe that there was evidence to be found, not at the residence of Dupuy, Metelus or even Châtaigne , but at the residence of Mombrun ? [ 118 ] The investigation into Châtaigne was in its second day.

The one into Mombrun lasted only as long as it took to check whether he had a criminal record. [ 119 ] In my opinion, the facts the deponent had in hand when seeking the authorization to search Mombrun's home and which were provided to the justice of the peace fell far short of providing reasonable and probable grounds to believe that Mombrun was in possession of evidence relating to the offences.

At most, they established suspicions. [ 120 ] And, as the case law has reiterated on many occasions, suspicion and intuition do not justify issuing a search warrant. [11] [ 121 ] From all of the above, I find that the petitioner has established, on a balance of probabilities, that there was insufficient credible and reliable evidence to permit the justice of the peace to issue the warrant. [ 122 ] Consequently, the search constitutes a violation of

section 8 of the Canadian Charter of Rights and Freedoms .

Subsection 24(2) of the Canadian Charter of Rights and Freedoms [ 123 ] To determine whether the evidence obtained through the search should be excluded under subsection 24(2) of the Charter , the Court must weigh the criteria set out by the Supreme Court of Canada in Grant . [12] [ 124 ] They are the following: (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. [ 125 ] By weighing each of these factors, we may determine whether, in light of the circumstances, the use of the evidence obtained as a result of the unreasonable search is likely to bring the administration of justice into disrepute.

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a) The seriousness of the Charter -infringing state conduct [ 126 ] As in Morelli , [13] the search and seizure were unjustified, but they were carried out pursuant to a search warrant by police officers who believed they were acting under a legitimate power. [ 127 ] This weighs in favour of admitting the evidence. [ 128 ] In Lavoie v.

R . , [14] however, the Court of Appeal of Quebec found that basing an application for a search warrant on [ translation ] "suspicions" was a dubious manner of proceeding and that the police officers could not be entirely absolved. [ 129 ] In that judgment, the Court of Appeal quoted Sopinka J., in R. v. Kokesch : [15] Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.

Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less. Any other conclusion leads to an indirect but substantial erosion of the Hunter standards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident.

It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent: see Hunter , supra , per Dickson J. (as he then was), at p. 160; and Greffe , supra , per Lamer J., at pp. 790 and 798. [ 130 ] In the present case, I find that, due to the irregularity of the police conduct, the degree of seriousness is high. (

b) The impact of the breach on the Charter -protected interests of the accused [ 131 ] The expectation of privacy is considerable here, since the search was conducted at a private residence and, moreover, at the residence of persons who had not been under any suspicion whatsoever until that point. [ 132 ] In Grant , [16] the Supreme Court of Canada affirms that, to determine the seriousness of the infringement, we must consider the interests protected by the right infringed and examine the degree to which the violation impacted on those interests. [ 133 ] The Court continues: [77] ...

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 134 ] In the present case, the expectation of privacy was very high because the search was conducted in a dwelling house. This factor therefore weighs heavily in favour of excluding the evidence. (

c) Society’s interest in the adjudication of the case on its merits [ 135 ] In Archambault , [17] the Court of Appeal noted: [ translation ] [ 76] It has been established that society always has an interest in ensuring that criminal matters related to serious offences are resolved one way or another before the courts.

That being said, the offences the respondents were charged with here are very serious and the evidence obtained through the search warrants demonstrates the importance and the seriousness of the offences . [ 136 ] Because the offences alleged in this case, while not the most serious, are nevertheless still quite grave, society has an interest in seeing the judicial process continue. [ 137 ] The evidence found at the petitioner's home is reliable material evidence.

It is essential evidence which, if excluded, is likely to lead to the acquittal of the accused. [ 138 ] As the Supreme Court states in Grant : [18] [81] ... exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. (

d) Balancing the factors [ 139 ] The balancing of all of the relevant factors is a qualitative, not quantitative exercise. [ 140 ] Each of the questions must be weighed and analyzed with a view to determining whether, ultimately, the use of the evidence obtained through a violation of

section 8 of the Charter is likely to bring the administration of justice into disrepute. [ 141 ] In this case, the first and second factors weigh heavily in favour of exclusion. [ 142 ] First, the degree of seriousness of the Charter -infringing conduct is high. Indeed, on its face, the affidavit did not establish reasonable and probable grounds, merely suspicions.

[ 143 ] Second, the conduct infringing the right to privacy is very serious because it was the consequence of a search of the petitioner's residence. His right to privacy was highly compromised. [ 144 ] The third factor, society’s interest in the adjudication of the case on its merits, remains.

This factor weighs in favour of including the evidence. [ 145 ] That being the case, as the Supreme Court tells us, we must take into account the long-term repercussions on the repute of the administration of justice: [19] [108] ... [We must focus] less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. And: [20] [111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.

To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term. [ 146 ] In light of all of the elements outlined above, and after weighing the three factors set out in Grant , I find that admitting the evidence would be likely to bring the administration of justice into disrepute. [ 147 ] Therefore, the motion to exclude evidence is granted. FOR THESE REASONS, THE COURT: GRANTS the motion to exclude evidence. __________________________________ SYLVIE DURAND, J.C.Q.

Mtre Mélanie Hébert For the prosecution Mtre Benoit Cliche For the accused Dates of hearing: April 29 and 30, 2013 May 1 and 2, 2013