2011 QCCA 2368, 2011 QCCA 2368

Unofficial English Translation Cossette c. R. 2011 QCCA 2368 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002540-107 (400-01-050500-081) DATE: December 19, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. MANUEL COSSETTE APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on June 23, 2010, by the Court of Quebec, Criminal and Penal Division, District of Trois-Rivières (the Honourable Judge Jogues Lavoie), which dismissed the appellant's motion to exclude evidence and convicted him of cannabis production (section 7(1)(2)(

b) of the Controlled Drugs and Substances Act ); [ 2 ] For the reasons of Rochette, J.A., with which Chamberland and Bouchard, JJ.A. agree: THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the judgment under appeal; [ 5 ] GRANTS the motion to exclude evidence brought by the accused and SUBSTITUTES the conviction with an acquittal; [ 6 ] The application for leave to appeal from the sentence thereby becomes moot. JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. Mtre Maurice Biron BIRON & SPAIN For the appellant Mtre Thierry Lavoie CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: November 23, 2011

REASONS OF ROCHETTE, J.A. [ 7 ] A search telewarrant was issued [1] on January 26, 2008, authorizing Sûreté du Québec police officers to enter the appellant's domicile, [address 1], Saint-Narcisse, to search for certain things therein and seize them. The appellant argues that his motion to exclude the evidence gathered as a result of this search should have been granted and that he should have consequently been acquitted of the charge of having, on this same date, produced cannabis. [ 8 ] It would be helpful to relate some of the facts. [ 9 ] On the morning of January 25, 2008, Ms.

Nicole Daviault, who lives at [address 2], in Saint-Narcisse, was the victim of an attempted break-in. She fled her domicile and sought refuge with one of her neighbours, from where she called the police. Police officers arrived on the scene shortly thereafter and investigated. That evening, a search telewarrant and a general telewarrant were requested by a peace officer and issued the next day, at 00:34 a.m., based on the following information: [ translation ] ... So, this morning around 9:30 a.m., Ms. Nicole Daviault, the victim, went to take a shower after speaking on the telephone with her sister.

As she was getting out of the shower, she heard the front doorbell ring. She put on her bathrobe and went into the room from which she could see the front door. She thought it strange that someone would use that door because people usually went to the side door. The doorbell kept ringing, but she couldn't see anybody there. Then, everything went quiet and a few seconds later she heard noise at the side door, and the doorbell ringing once again, but this time from the side door. Ms.

Daviault stayed in the same room from which she could see the front of the house and then saw a young man coming from her yard (side door), stopping in front of her house, on the right side near the snow bank. He then took a gun-like weapon (will a long barrel) that was in the snow and retraced his steps toward the back of the house. Seeing this, Ms. Daviault went to the basement to hide, but when she got to the landing leading to the basement, she stopped and looked toward the patio door giving onto the back yard. It was then that she saw the youth with his gun.

He folded the gun open and took two cartridges from his coat pocket, loaded and then closed the weapon. Ms. Daviault then went down to the basement and telephoned her brother-in-law Mr. Fernand Dessureau, who lived next door. From the basement, she tried calling 911, but it appeared that the line had been cut. She then heard noises coming from upstairs, she heard knocking at the door and then glass breaking. Hearing this, she went out the basement door, which leads to the side of the house, and went to her next door neighbour's house, where there was no answer.

She then ran down the street and went a little farther to one of her neighbours, Ms. Gaétane Germain. From there, she called 911. Ms. Daviault described the individual as : a young man in his twenties, about 5', wearing black pants, a short grey and white coat in a camouflage pattern with a fur-trimmed hood, a white hooded sweatshirt (which was pulled over the individual's head) and under the hood he was wearing a baseball cap with a red visor. Ms. Daviault describes the firearm as: a hunting weapon, a gun about three feet in length, which folds opens into two with two holes where two cartridges can be inserted.

The weapon was dark-coloured. As for the cartridges, she says that they were quite large and silver coloured. After meeting with Ms. Daviault, police officers met with the residents of A Street. Some of the neighbours saw a lady running down the street in her bathrobe and an individual going into [address 1] . Ms. Massicotte, who lives at [address 6], claims to have seen an individual running toward the village at around 10:00 a.m. He was wearing a tuque, a black coat, he was relatively tall, of average build and was holding something long in his hands, a hockey stick perhaps. Ms.

Bilodeau, who lives at [address 4], claims that around 10:00 a.m., while she was cleaning, she saw a lady dressed only in her bathrobe running down the street to [address 5]. There, the lady banged insistently on the door. A few seconds later, Ms. Bilodeau saw a man walking in the street, coming from St-Joseph street, go into [address 1], the individual seemed to be walking normally . He was dressed in dark clothing and was wearing a white hood over his head, he was about 5'8" with an average build. Also, she claims to know the person who lives at [address 1], Mr. Manuel Cossette. He works with her husband.

But she added that the individual in question was not Manuel. She did say, however, that his brother [2] lives there from time to time. But she does not know him . Mr. Philippe Morin, who lives at [address 3], apt. 4, claims that this morning, around 10:00 or 10:15 a.m., while he was watching television, he saw a man through his window who was about 5'9", wearing a black coat with an anorak-style good, slightly longer than hip-length, and a dark tuque . This man was pacing from the front of the building to the entrance. He tried to go in, then left on foot going east.

Around 11:15 a.m., after receiving this information, Sergeant Mario Blais as well as Officers Eric Grandbois and Eric Duguay went to [address 1] where they were greeted by a young man who looked to be about twenty, and was wearing a black sweater and dark jeans. He identified himself as Marc-André Cossette . Sergeant Blais explained the ongoing investigation and asked if he had just come in from outside, the young man answered that yes, he had just come from his father's house . At that point, Sergeant Blais saw a grey coat and a checkered shirt on a kitchen chair.

He asked the young man if he could take his coat and shirt to show the victim as well as another coat that was there, a green coat with a brown fur-trimmed hood. Officer Duguay t hen showed these objects to the victim, Ms. Daviault, but she did not identify them . Sergeant Blais noticed that this individual was nervous during the meeting. The officers then left.

Then, around 12:10 p.m., Officer Denis Desjardins from Forensic Identification Services processed the crime scene at [address 2] after being authorized to do so by the victim. This is when Officer Desjardins noticed footprints at the front door that went to the side door where that door's glass had been shattered . From there, these same footprints went to the back of the house, to the patio door. Moreover, there was a single set of footprints at the front door and the patio door. Officer Desjardins followed the footprints into the street. The footprints led him to the front door of [address 3] . (Where Mr.

Philippe Morin noticed an individual prowling in front of the building.) Then, Officer Desjardins noticed that the footprints went back toward [address 2] and continued on to [address 1] . The footprints went into the driveway of [address 1] and did not continue down the street. They stopped at [address 1] . Officer Desjardins did not go onto the property to verify the footprints. Officer Desjardins confirmed to us that the footprints found at [address 2], [address 3] that go all the way to the driveway of [address 1] are the same and are 30 cm long .

Further, when Officer Desjardins was processing the scene at [address 2], he noticed that the side door window was shattered with an object that possibly resembled the butt of a hunting rifle. The screen was also broken and there is a noticeable L-shaped mark measuring 120mm X 75mm. Furthermore, during surveillance of [address 1] at 9:40 p.m., two individuals came out of the house and left in a Honda Civic. These individuals were intercepted to check if the clothing worn by the suspect and the boots and weapon were in the car.

These individuals were identified as Manuel Cossette, living at [address 1] and his brother Marc-André Cossette. IN CLOSING : I am requesting a search telewarrant,

section 487 Cr. C. for [address 1] at St-Narcisse to seize the following objects therein: A white hoodie-type sweatshirt, a camouflage-patterned grey, white and black coat with fur-trimmed hood, a baseball cap with a red visor, a pair of winter boots measuring approximately 30 cm corresponding to the footprints at the scene, and a dark-coloured hunting rifle folding open into two, measuring about 3' in length, and the corresponding ammunition. These items would yield evidence of an attempted breaking and entering,

section 348 Cr. C. and of use of a firearm in the commission of an offence,

section 85 Cr.

C. [Unabridged reproduction.] [Emphasis added.] [ 10 ] The Crown described the property seized as a result of the execution of the search warrant as follows: [3] • Two (2) metal lamp shades; • Two (2) lamp transformers; • One (1) scale with a 2610-gram capacity; • One (1) squirrel-cage being used as a ceiling fan; • 25.81 grams of cannabis and bulk leaves; • 20 cannabis two-foot plants (flowering); • 1010.78 grams of cannabis in bulk in a cardboard box; [4] [ 11 ] The officers did not find any evidence related to the ongoing investigation. [ 12 ] In support of his motion to exclude evidence, the appellant basically alleged that the police officers had no reasonable grounds supporting their information because of the [ translation ] "inconsistencies in the statements made by the neighbours" and the insufficiency of their investigation. [ 13 ] The trial judge rejected the appellant's submissions.

He found that the information contained reasonable grounds to believe that evidence relating to the offence committed at Ms. Daviault's home would be found in the appellant's residence. He listed the grounds as follows: Ms. Daviault's description of the individual who broke into her house; the testimony of the neighbour living across the street from her, Ms. Marilyne Bilodeau, who [ translation ] "claims to have seen the person who was following Ms.

Daviault as she fled her residence, ... at the accused's house"; this person’s identification of [translation] “the accused’s brother”; the footprints in the snow between the victim's residence and that of the accused. [ 14 ] The judge added that police officers need not have [ translation ] "incontrovertible evidence or evidence pointing in the same direction to request a search warrant" and that [ translation ] "according to the observations made by the police officers at the time, there was a reasonable probability based on objective facts that evidence pertaining to the commission of the crime of attempted breaking and entering would be found in the residence of the accused". [ 15 ] Following this decision, the evidence gathered in the course of the search was filed in the record and the appellant did not submit a defence.

He was convicted and sentenced to ninety (90) days' imprisonment, to be served intermittently, payment of a fine in the amount of $2000, the whole with a twenty-four (24) month probation order and a twenty-year weapons prohibition. * * * [ 16 ] Regarding the verdict , the appellant argues that the issue raises a question of law.

He adds: Marc-André Cossette does not fit the description of the offender; the identification of his clothing was negative and witnesses stated that he was not the individual being sought; police officers did not ask the complainant to identify the accused's brother. [ 17 ] The appellant also alleges that: It is false that the complainant was followed by an individual, based on the testimony of a

neighbour; nobody identified Marc-André Cossette; the footprints in the snow could not establish the chronology of the movements; the information did not indicate that the appellant's shoes and those of his brother do not match the footprints in the snow. [ 18 ] Thus, the appellant summarizes, the grounds given in the information were insufficient. The only relevant ground relates to the footprints in the snow, but the information does not mention the [ translation ] "negative identification of the boots".

Since the information was not supported by reasonable grounds, the search was unreasonable. [ 19 ] If a violation of the Canadian Charter of Rights and Freedoms [5] (the "Charter") is established, the evidence gathered must be excluded pursuant to section 24(2) . The appellant raises the seriousness of the Charter-infringing State conduct, unjustifiable under the circumstances, the high expectation of privacy, since it was his residence that was searched, and the relative interest of society in seeing the case—a small-scale marijuana production [ translation ] "for personal consumption"—judged on the merits.

Accepting the results of the search as evidence would increase the likelihood of bringing the administration of justice into disrepute. * * * [ 20 ] A search is reasonable within the meaning of

section 8 of the Charter if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable. [6] [ 21 ] In this case, did the law authorize the search? It is all a question of circumstances. In Hunter v. Southam Inc. , Dickson J. summarizes the minimum standard consistent with

section 8 of the Charter as "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search". [7] [ 22 ] The informant must state the facts fully and frankly, without attempting to mislead the judge. [8] Both favourable and unfavourable aspects must be disclosed, as Fish J. recently pointed out on behalf of the Supreme Court majority: [58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice.

When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure.

This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed . [9] [Emphasis added] [ 23 ] That said, while police conduct should not be examined with a fine-toothed comb, [10] the fact remains that their conduct can render a breach of privacy unjustifiable. [ 24 ] Suspicions do not justify issuing a search warrant [11] and it is preferable, although not essential, to obtain affidavits from persons with the most direct knowledge of the facts. [12] The principles set out in Garofoli , a wiretap case, remain relevant to this day with respect to any authorization request. [13] In it, Sopinka J. writes the following for the majority: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge . [14] [Emphasis added] [ 25 ] In other words, the reviewing judge must "question ... simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued”. [15] Thus, the judge may uphold an authorization containing erroneous information: [ translation ] [28] Second, the affidavit should be reliable.

It should not attempt to mislead. Certainly, errors can occur and information therein can be erroneous, even deliberately misleading. This does not necessarily automatically invalidate the application for authorization if, once the information or assertion in question is withdrawn from the document, the affidavit still meets the requirements set out in the law. [16] [Emphasis added] [ 26 ] The judge must then exclude the erroneous material given in the information.

"Amplification" may be used to re-establish the facts when police have committed a good faith error. [17] [ 27 ] Finally, it is incumbent upon the accused to persuade the judge, on a balance of probabilities, that the information did not justify issuing the authorization sought. [18] [ 28 ] In my opinion, for the following reasons, the appellant has met this burden and I find that the motion to exclude evidence should have been granted.

* * * [ 29 ] It was Investigative Sergeant Sylvain Gobeil who asked for the telewarrants to be issued. He prepared his information based on facts related to him by his colleagues. The first time he visited the scene was when he brought the telewarrants to execute the search.

It would undoubtedly have been preferable to proceed otherwise since familiarity with the area was necessary to describe the involvement of each person and assess the relative weight of the information provided. [ 30 ] Let us consider the material given in the information. [ 31 ] The complainant, Nicole Daviault, described the offender as follows: [ translation ] ... a young man in his twenties, about 5', wearing black pants, a short grey and white coat in a camouflage pattern with a fur-trimmed hood, a white hooded sweatshirt (which was pulled over the individual's head) and under the hood he was wearing a baseball cap with a red visor. [ 32 ] The clothing is described, for the most part, in the search telewarrant, even though, at 11:15 a.m., on January 25, as stated in the information, three police officers had gone to the appellant's domicile where they found his brother, who agreed to hand over two coats that were seen on the premises, [ translation ] "to show the victim".

A police officer then showed the coats to the complainant who [ translation ] "did not identify them". This verification was therefore inconclusive. [ 33 ] The complainant's description of the suspect was vague: "a young man in his twenties, about 5'". In actual fact, Marc-André Cossette is thirty years old and about 5'7" tall. In the information, it appears that the police officers who went to the appellant's home that morning had thought him to be "about twenty", [19] but did not indicate how they came to this conclusion.

Moreover, the police investigator in charge of the case, François Bernier, testified as follows respecting the motion to exclude evidence: [ translation ] Q. [203] Second page, third paragraph, which begins with [ translation ] "Ms. Daviault". "Ms. Daviault described the individual as being a young man in his twenties." Is that right? A. That’s right. Q. [204] Good. Was ... Have you seen Mr. Cossette? Not Mr. Manuel Cossette but Mr. Marc-André Cossette. Have you seen him? A. Yes. Q. [205] He doesn't look like he's in his twenties at all, does he? A. He does not look it, no. He does indeed look older.

Q. [206] He looks older than his twenties, much older than his twenties ? A. Not very much older than his twenties. Late twenties, early thirties ... [Emphasis added] [ 34 ] The expression [ translation ] "about twenty" [20] is inaccurate. A more accurate retelling of the observations made by the police officers would have removed any suspicions weighing on the appellant's brother. [ 35 ] During their visit, the officers explained the ongoing investigation to Marc-André Cossette and asked him if he had just [ translation ] "come in from outside".

The suspect answered that he had just returned from his father's house. This statement was not verified despite Marc-André Cossette appearing more and more to be the primary suspect. Nor were there any attempts to have the complainant or the neighbourhood witnesses identify him. Was there ever any intention of looking elsewhere? [ 36 ] The version given by some of the A Street neighbours was no more convincing. Indeed, it was ambiguous and raised more questions, as shown in the information: [ translation ] ...

Some of the neighbours saw a lady running down the street in her bathrobe and an individual going into [address 1] . Ms. Massicotte, who lives at [address 6], claims to have seen an individual running toward the village around 10:00 a.m. He was wearing a tuque, a black coat, he was relatively tall, of average build and was holding something long in his hands, a hockey stick perhaps. Ms. Bilodeau, who lives at [address 4], claims that around 10:00 a.m., while she was cleaning, she saw a lady dressed only in her bathrobe running down the street to [address 5]. There, the lady banged insistently on the door.

A few seconds later, Ms. Bilodeau saw a man walking in the street, coming from St-Joseph street, go into [address 1], the individual seemed to be walking normally . He was dressed in dark clothing and was wearing a white hood over his head, he was about 5'8" with an average build. Also, she claims to know the person who lives at [address 1], Mr. Manuel Cossette. He works with her husband. But she added that the individual in question was not Manuel. She did say, however, that his brother [21] lives there from time to time.

But she does not know him . [22] [ 37 ] First, the individual running toward the village was not running toward the appellant's domicile, but in the opposite direction. This information was not in the information. He was not wearing a short "grey and white" coat, a white sweatshirt or a red baseball cap, but a large black coat and a tuque. This has nothing to do with the suspect.

[ 38 ] The person who entered [address 1] was in all likelihood the appellant's brother. But the information gives the erroneous impression that this individual followed the complainant whereas, according to Ms. Bilodeau, another neighbour, the individual who entered [address 1] [ translation ] "seemed to be walking normally" and was coming from St-Joseph Street. St-Joseph Street is a fair distance west of the appellant's residence, whereas the complainant's residence is to the east. Ms.

Bilodeau added that the individual, [ translation ] "of average build", was not the appellant, but maybe his brother whom, however, she did not actually know. [ 39 ] The trial judge therefore wrote, wrongly, that Ms. Bilodeau identified the accused's brother. The fact that the appellant [ translation ] "works" with Ms. Bilodeau's husband was not verified, which would have been simple enough to do.

At the hearing of the motion to exclude, he testified that he had gone to work at [ translation ] "the garage" located nearby that morning. [ 40 ] All in all, it is likely that the appellant was not on the premises and his brother, whom nobody identified as being anywhere near the complainant's residence, became a suspect even though the evidence gathered was not very probative. Investigator Bernier explained: [ translation ] A. ... you have to understand that our description of the individual, with the testimony of Ms.

Bilodeau, the neighbour, we knew that Manuel had a larger build, that it could not be Manuel Cossette that she had seen. She had mentioned that it could be his brother, who sometimes lived with Manuel. ... [ 41 ] But the investigator was not willing to limit the investigation. There is, at the very least, some confusion: [ translation ] A. Listen, we had an individual who ... I found that he was small, he was thin. I know very well through past experience that individuals who experience a traumatic event will give a description that may be distorted by certain elements.

So I was looking for an individual who was small and thin. I knew that it could not be Manuel , but I ... Yes, I thought, it could be Marc-André Cossette , indeed. It was still a very strong possibility that it was Manuel Cossette [sic] who had committed the crime at the time, in my mind. [Emphasis added] [ 42 ] And a little further on: [ translation ] Q. [292] Fine, Okay. Did you check with Marc-André Cossette’s father whether he had indeed just come from his place? A. When do you want to know if we checked? Q. [293] Before getting the search warrant. A. No.

No, because Marc-André Cossette was the suspect , we didn’t ask him who his father was, we didn’t find out where his father lived, we didn’t meet with Mr. Cossette. He was our suspect . We would have needed another warrant, which we didn't get. The information we had was that, indeed, he was home. We didn’t stop to find out ... We didn't take the time to find out if he had a valid alibi. He said he had come from his father's. What we did later in the investigation was to go meet with his father. And Marc-André Cossette had indeed met with his father that morning.

But when we requested the search warrant, we had not met with his father (inaudible). [Emphasis added] [ 43 ] We will now consider the initial evidence gathered. I find that, at that point in their investigation, the police officers did not have reasonable and probable grounds to believe that the appellant or his brother had committed the offence. Not only was the appellant not seen on the premises, but a witness [23] asserted that the person she had seen was not the appellant.

Also, the circumstances surrounding Marc-André Cossette's arrival on the premises, the negative verification of the coats seen at the appellant's, and the discrepancies between his age and the offender's age were sufficient to divert suspicion from him, while also keeping in mind that in these matters, mere suspicion is not sufficient. [ 44 ] Only the footprints in the snow remain to be considered. The information states: [ translation ] Officer Desjardins confirmed to us that the footprints found at [address 2], [address 3] that go all the way to the yard of [address 1] are the same and are 30 cm long . ...

Furthermore, during surveillance of [address 1] at 9:40 p.m., two individuals came out of the house and left in a Honda Civic. These individuals were intercepted to check if the clothing worn by the suspect and the boots and weapon were in the car. These individuals were identified as Manuel Cossette, living at [address 1] and his brother Marc-André Cossette. [24] [Unabridged version]

[ 45 ] This information is inaccurate and incomplete. On cross-examination, Investigator Bernier testified: [ translation ] Q. [332] At nine forty (9:40 p.m.), two persons, Manuel Cossette and Marc-André Cossette, left in a car. A. That’s where Officer Gobeil made a mistake. It’s that, yes, Officer ... Mr. Manuel Cossette went out and Mr. Marc-André Cossette also, but they did not both go out at nine forty (9:40 p.m.). Manuel Cossette went out sometime after five, then Manuel ...

Marc-André Cossette, when he was stopped at nine forty (9:40 p.m.), he said: [ translation ] "Yes, I knew that you would meet me, you would stop me, my brother told me." and here, it is ... indeed, it was Sergeant Gobeil, when he drafted the warrant, he made a slight error. Q. [333] So, they weren’t together? A. No. Q. [334] At what time was Mr. Manuel Cossette intercepted? A. If you want, I could check in my ... Q. [335] Nine forty (9:40 p.m.)? A. Let me check my notes. Seven thirty-five (7:35 p.m.), Manuel Cossette left his domicile in his vehicle. At seven fifty (7:50 p.m.), we verified his vehicle and boots .

It was negative . He has a grey Acura, 902 TTS. Q. [336] Okay. At that moment ... that's right, at that moment, when they were identified, Marc-André Cossette and Manuel Cossette, when they were intercepted near [address 1]. A. Uh-huh. Q. [337] The boot prints were compared . A. The ones they were wearing at the time, yes they were . Q. [338] The ones they were wearing, and it turned out to be negative . A. That was the case, yes . Q. [339] But you don't mention that in the schedule? A. For us, it wasn't a factor ...

You know, that they weren't wearing the boots that were used in the commission of the crime, it didn't stop us from thinking that the boots that were used when the crime was committed were in the house. We didn't ... No, we didn't modify it, we didn’t mention it, that's true. We would have been shocked, in fact, if they had worn the same boots to go out, knowing that they would be checked. [ 46 ] The error is not negligible. It gives the impression that the work was done in haste, that the police officers had made up their minds that, whatever else happened, there would be a search warrant issued.

Moreover, the supposed outing of both brothers together shows a kind of connivance, whereas events unfolded differently. [ 47 ] The crucial fact that the boots and clothing of the [ translation ] "suspects" were examined is not openly mentioned. In the information, the officers should have confirmed that, according to that examination, neither the boots [25] nor the clothing worn or in the vehicle of either of the Cossette brothers fit the description given by the complainant or the assessment of the Judiciary Identification Services, which Investigator Bernier acknowledged at trial.

Instead, an unhealthy doubt as to the result of the interception was left to stand. [ 48 ] Add to that the fact that the footprints were observed between the complainant's residence, [26] the appellant's residence, [27] and that of Mr.

Philippe Morin, [28] but the crime scene technician was unable to determine the sequence of events, a fact that was not mentioned in the information, which states [ translation ] "the footprints found at [address 2], [address 3] and that go all the way to the yard of [address 1]" giving the erroneous impression that the tracks end at the appellant's residence. [ 49 ] Finally, the witness Morin gave his description of the individual he saw on his property: [29] [ translation ] Mr.

Philippe Morin, who lives at [address 3], apt. 4, claims that this morning, around 10:00 or 10:15 a.m., while he was watching television, he saw a man through his window who was about 5'9", wearing a black coat with an anorak-style hood, slightly longer than hip-length, and a dark tuque . This man was pacing from the front of the building to the entrance. He tried to go in, then left on foot going east. [30] [ 50 ] This description is not consistent with that given by the complainant.

This is actually not surprising since, in March of 2008, Philippe Morin went to the police station and acknowledged that on the morning of January 25, 2008, he was the one who attempted to break in to the complainant's residence. [ 51 ] A review of the physical evidence—the footprints in the snow—and, more generally, of the related evidence, convinces me that there were no reasonable grounds to believe that evidence relating to the commission of the offence would be found in the appellant's residence.

Without stating that the police officers intended to mislead the judge, I find that all the relevant facts, particularly the unfavourable ones, were not fully disclosed as they should have been. This led the judge to draw an inference he would not have otherwise. More generally, the lack of depth in the police officers’ work, their hasty certainty that the appellant was not only a suspect, but the actual person they were looking for, maybe because [ translation ] "he was nervous", resulted in an unlawful invasion of the appellant's privacy.

[ 52 ] Suspicion and intuition do not justify issuing a search warrant. The appellant has convinced me, on a balance of probabilities, that his argument has merit. * * * [ 53 ] Finally, the appellant argues that the evidence obtained must be set aside because using it would be likely to bring the administration of justice into disrepute, under subsection 24 (2) of the Charter . I share his point of view. [ 54 ] In R. v.

Grant , the Supreme Court of Canada sets out the test underlying this approach: [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits .

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. ... [31] [Emphasis added] [ 55 ] With respect to the seriousness of the Charter -infringing State conduct, there are no extenuating circumstances. The officers had more than twelve hours to validate the evidence in their possession and identify its weaknesses. They did not pursue their investigation, and they set aside elements that weakened their conviction.

Even if they were not acting in bad faith, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". [32] [ 56 ] Moreover, the reasonable expectation of privacy is high in regards to a "dwelling-house". [33] The police officers could not have been unaware that their warrants authorized them to search an area that was highly protected by Charter values. [ 57 ] As for the impact of the violation on the accused's Charter rights, an unreasonable search or seizure that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, as in this case, [34] is more serious. [ 58 ] As for society's interest in seeing the case judged on the merits, the impact of excluding the evidence gathered in breach of the Charter should be considered.

In other words, is the criminal trial's truth-seeking function better served by using or by excluding the evidence. [35] Not only should the negative impact of admitting the evidence on the repute of the administration of justice be considered, but so should the impact of failing to admit that evidence. [ 59 ] My remarks in L'Espérance v.

R. can be directly applied to this case: [ translation ] [58] In this case, the use of the evidence gathered, the importance and reliability of which are not challenged, would serve society’s interest in seeing the case adjudicated on its merits and those who break the law brought to trial. But that is true in all cases similar to ours. On the other hand, the production of cannabis by the appellants is far from the highest level of seriousness.

It seems to me that, in this case, the negative repercussions on the reputation of the administration of justice if the evidence gathered through the unreasonable search were to be used far outweigh the negative effects of their exclusion. [36] [Citation omitted] [ 60 ] Overall, upon balancing the factors while attempting to characterize them, I conclude that using the evidence gathered at the appellant's residence would bring the administration of justice into disrepute. The privacy-infringing conduct is serious. As Fish J. writes in R. v.

Cornell , "[t]his is not a matter of ’punishing’ the police, but rather of helping to regulate their conduct in the interests of society as a whole". [37] Finally, the offence alleged against the appellant is not at the high end of the seriousness scale. [ 61 ] That being the case, the appeal from the sentence becomes moot. * * * [ 62 ] I would therefore allow the appeal, set aside the judgment a quo, grant the motion to exclude the evidence brought by the accused, and substitute the conviction with an acquittal. LOUIS ROCHETTE, J.A.