R. v. Forrest, 2022 ONCJ 418

CITATION: R. v. Forrest , 2022 ONCJ 418 DATE: August 31, 2022 INFORMATION No.: 20-LE-8385 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DONALD FORREST Before Justice R. Marion Mr. R. Pollock ................................................................ for the Federal Crown Mr. R.

Russon ........................................................................... for the Accused Matter Heard: December 6, 14, 22, 2021; January 14, May 12, June 30, July 4, 7, 2022; August 31, 2022 MARION J.: RULING ON EXCLUSION OF EVIDENCE PURSUANT TO S. 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS Outline : [ 1 ] Donald Troy Forrest is charged on count 1 with possession of fentanyl for the purpose of trafficking on count 1, contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ); on count 2 with breaching a release order by virtue of his possession of controlled substances and on count 3 with breach of a release order by possessing drug paraphernalia, both contrary to s. 145(5) (

a) of the Criminal Code ; on count 4 with possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA . [ 2 ] The accused has brought a Charter Application, alleging the breach of his Charter protected rights, pursuant to ss. 8, 9 and 10(

b) of the Charter of Rights and Freedoms . As a remedy for the breach of his Charter protected rights, the accused seeks an order excluding evidence, pursuant to s. 24(2) of the Charter . The accused acknowledges, that if the evidence obtained as a result of the

impugned search is not excluded, all of the elements of the offences charged are made out. [ 3 ] Pursuant to a warrant dated September 9, 2020, a search of the accused’s residential premises on September 10, 2020 occurred. Subsequent searches of the accused once arrested yielded the evidence establishing his responsibility for the offences charged. [ 4 ] The applicable sections of the Charter are as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right. 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the 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 of justice into disrepute. [ 5 ] The accused has challenged both the facial validity and sub-facial validity of the warrant obtained pursuant to s. 11 of the CDSA authorizing the search of the residential premises. [ 6 ] A Voir Dire was held to deal with the Garofoli Application and the Charter Application. [ 7 ] After substantial argument, on the first day as to facial validity, the Crown opted to unredact part of paragraph 26 of the Information to Obtain (ITO) related to information provided by a confidential informant referred to as “Source A”.

Despite the accused’s objection, I considered that the ITO, as recently unredacted, was facially valid. The Applicant then sought leave to cross- examine the Affiant and Sub-Affiant which was granted subject to restrictions set out in my Ruling on May 12 th , 2022. [ 8 ] The Crown called several officers involved in the execution of the search warrant and arrest of the accused. [ 9 ] The warrant, in the case at bar, authorized a search of “124 Erie Street South, Leamington, Ontario.” The target of the investigation was the accused, Donald Forrest. The property was owned by Roy Lee.

The building was a rooming house. Mr. Forrest had a room (bedroom) and Mr. Lee an apartment on the first floor. There were several occupants of rooms on the second floor. The property was notoriously known to police officers as “a drug house.” The officers involved in the execution of the warrant were familiar with the layout of the building, its multi-residential occupation and its residents. Officers had entered the building on two occasions in July of 2020 pursuant to warrants.

The building is on the corner of Erie Street West and Montgomery Street, in Leamington, Ontario. [ 10 ] PC Mark Rodgers led the entry made by officers, at 2:04 p.m., on September 10 th , 2020. Officers entered through a door leading to common areas, a kitchen area and a living room. Officers Mark Rodgers, Chris Wilson (the Affiant) and Chris Renaud made a sharp right turn down a hallway to an area known to be Mr. Forrest’s room. They entered the room where Mr. Forrest was passed out on the bed.

PC Rodgers immediately arrested him for possession of fentanyl for the purpose of trafficking and handcuffed him behind his back. During a subsequent frisk search, PC Rodgers located two large bundles consisting of 40.96 grams of fentanyl. He stated that the rest of the team was clearing the remainder of the building. He never gave Mr. Forrest his rights to counsel explaining: “I heard a

commotion going on upstairs and from what I could hear, an officer challenging another person upstairs, telling him to get on the ground, stop resisting.” As a result, he turned Mr. Forrest over to PC Renaud and went upstairs to assist. He indicated that he located other parties and evidence upstairs. He stated: “At least four were arrested” but was uncertain as to how many “were charged, at least one.” PC Wilson advised that there were 6 persons on the second floor. Mr. Forrest was arrested at 2:07 p.m. and later turned over to Transport Officer Brad Scott, at 2:25 a.m.

A secondary search at headquarters resulted in a finding of 3.51 grams of methamphetamine. A search of Mr. Forrest’s room yielded 7 digital scales, a debt list, a cell phone and $106.00 in Canadian currency. At 2:55 p.m., PC Scott arrested Mr. Forrest for possession of methamphetamine for the purpose of trafficking and cautioned him and gave him his rights to counsel. Mr. Forrest requested to speak to his lawyer, Dan Topp.

At 3:22 p.m., PC Scott facilitated this contact and the accused spoke to his lawyer. [ 11 ] While hearing submissions with respect to excision and amplification following the cross-examination of the Affiant and Sub-Affiant, I became aware of an issue that had not been raised by counsel in challenging the facial validity of the warrant. Although in paragraphs 14(

c) and 17 of the ITO, the Affiant attempted to delineate the specific area to be searched as being the room occupied by Mr. Forrest, the warrant obtained permitted a search of the entire multi-residential building. [ 12 ] Upon identifying the issue, I requested that submissions be made on this issue as part of closing argument. [ 13 ] Initially, the Crown took the position that my initial ruling on facial validity precluded me from any further ruling on the issue.

The Crown, however, altered its position stating: “…there’s no question that Your Honour has jurisdiction to reconsider or revisit a previous ruling, but an Order related to the conduct of the trial can be varied or revoked only if the circumstances have materially changed and I suspect that what Your Honour on the part of defence counsel, because of the importance of the issue, was to indirectly revise his application and address this issue.” Submissions on Jurisdiction to Reconsider Facial Validity : [ 14 ] Defence counsel in its application raised the issues of facial and sub-facial validity of the ITO.

Counsel’s focus was on the drafting of the ITO and insufficiency of the information provided and no submissions were made as to the lack of specificity of location on the warrant itself. I initially ruled at the conclusion of the argument made that the warrant was facially valid. [ 15 ] Once I reintroduced this issue, the Crown claimed prejudice but declined my proposal to re-open which would have permitted the Crown to call any evidence pertinent to the issue. I doubt that any other evidence could be called on this narrow but significant issue or that any prejudice can be made out.

What evidence could the Crown call regarding the adequate description of the place to be searched? [ 16 ] I do not agree that raising this issue altered the conduct of the trial. Validity of the warrant was the focus of this litigation. As part of the process in a Garofoli Application, there is initial consideration of the facial validity as a first step. If the warrant is facially invalid, that negates the need to deal with sub-facial validity and possible cross-examination of the Affiant.

I raised this issue during submissions as to amplification and excision and while still in the process of assessing the validity of the warrant. My initial ruling which permitted step two of the process did not in any way preclude my consideration of the validity of the warrant whether facially or sub-facially at any time during this process. Discussion as to the Scope of the Warrant and Facial Validity : [ 17 ] The warrant obtained permitted a search of the entire building at 124 Erie Street. The number of rooms or identity of the occupants of the rooming house were not identified in the ITO.

The layout of the rooms and common areas was not set out. The entrance to Mr. Forrest’s room was directly available through a door from the exterior which gave immediate and direct access to his room. Police, however, entered through a door which entered into common areas (kitchen, living room and foyer). Near the staircase to the second floor, an interior door was used by police to access Mr. Forrest’s room. [ 18 ] The description of the property to be searched, as described in the ITO, is confusing. Paragraphs 14(

c) and 17 read as follows:

“14(

c) I am applying for a CDSA Search Warrant of the residence, specifically the room that Donald Troy Forrest rents , to find Fentanyl, currency, packaging materials, cellular phones, debt lists, drug paraphernalia, and any identification or documents relating to Donald Troy Forrest, by searching the residence owned by Roy Ley located at 124 Erie Street South, Leamington, Ontario.” [My emphasis]. “17.

The location to be searched proposed within this information to obtain is the residence, described as a two story, block house with basement, and detached garage located at 124 Erie Street South , in the Municipality of Leamington, Ontario. Multiple rooms within this residence are rented. Access to this residence can be gained through 2 doors facing to the north off of Montgomery Street and a basement entrance on the south side of the residence.

Entrance to the apartment/room to be searched is gained directly through the door off of Montgomery Street, which is closest to Erie Street South and also from inside the residence. Access to the apartment/room rented by Donald Troy Forrest, can also be gained from the common living room of the residence. Photos of the property and residence will be attached to the Information to Obtain and contained in Appendix “D”.” [My emphasis] [ 19 ] The Affiant seeks to search “specifically the room that Donald Troy Forrest rents” for the purpose of obtaining evidence relating to Mr.

Forrest “by searching the residence owned by Roy Lee, located at 124 Erie Street South, Leamington, Ontario.” [ 20 ] This confusion is accentuated by statements in paragraph 17. “The location to be searched within this Information to Obtain is the residence, described as a two-storey block house with basement and a detached garage, located at 124 Erie Street South…”. Yet later in that same paragraph, the Affiant then describes the area to be searched as Mr.

Forrest’s room: “Entrance to the apartment/room to be searched is gained directly through the door off of Montgomery Street … and also from inside the residence.” [ 21 ] Yet at paragraph 25, the Affiant seeks a warrant for the entire building and detached garage: 45: I am requesting that the Warrant to Search be authorized for the dwelling house and detached garage, located at 124 Erie Street South, in Leamington, Ontario. [ 22 ] No further details are given regarding the structure or layout of the building or the relevance of the detached garage.

There is no discussion about which door will be used; the one leading to common areas habitually used by all residents or the one which accesses Mr. Forrest’s room directly. [ 23 ] In effect, the door which provides direct access to Mr. Forrest’s room was not used. Varying testimony was given to justify the use of the door which gave access to common areas. The Affiant suggested that on a prior occasion when a warrant was being executed, Mr. Forrest had escaped to the second floor through the door inside the building.

Other officers suggested that the exterior door was boarded up due to damage done in the execution of an earlier search warrant on July 30, 2020. The Affiant, however, acknowledged that surveillance referred to in the ITO indicated it was being used by visitors to Mr. Forrest’s property. [ 24 ] In this case, despite the small living area privately occupied by Mr. Forrest, a search was authorized of the entire building. The ITO did not contain any detail supporting such broad authorization. As a consequence, the scope of the search warrant by far exceeded what was justified.

When dealing with multi-use buildings, the description of the area to be searched must adequately differentiate the units within the building. In R. v. Campbell [1] , the Supreme Court of Canada expressed that the accused’s expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit.

In drafting ITO’s proposing to search more than one unit within a multiple unit building, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched. [ 25 ] With respect to a multi-unit, multi-use building, as was the case in R. v. Ting [2] , it is not enough to simply provide a street address to differentiate the building from others. The description must adequately differentiate the units within the building. [ 26 ] In R. v. White [3] , it was found that a condo resident had a reasonable expectation of privacy in common areas of the building.

This principle, in my opinion, extends to licensees occupying rooms in a building and who enjoyed a license to the shared use of common areas. [ 27 ] A high degree of precision is expected in the ITO and the warrant as to the areas to be searched. Lack of clarity and specificity as to location invites abuse and unbridled trampling of citizens’ rights to privacy. In R. v. Mignot [4] , a warrant granted was

deemed unlawful as it did not identify appropriately the area to be searched even though the officers were unaware that there were separate units in the building. The Court highlighted the need for careful drafting to prevent abuse: “132.

Officers must be very careful when summarizing investigations, being careful to set out grounds in relation to each of the targets and locations for which warrants are sought.” [ 28 ] The warrant itself must be clear and limited on its face with respect to the location to be searched. [5] [ 29 ] “An adequate description of the place to be searched is a fundamental component of a search warrant. The importance cannot be overrated. [6] [ 30 ] In the case at bar, the ITO lacked clarity as to the area sought to be searched and was insufficient to authorize the search of 124 Erie Street South.

Cross-Examination of the Affiant – Amplification and Excision : [ 31 ] The cross-examination of the Affiant was helpful as it did shed some light on the drafting of the ITO. The Affiant had very limited training or experience drafting ITO’s. He was the author of two ITO’s used to obtain warrants in July of 2020 with Mr. Forrest as the target allegedly trafficking in cannabis and methamphetamine. [ 32 ] I agree with the amplification as agreed to by counsel which consisted largely of technical errors and incorrect dates.

Amplification did not affect my finding on the facial validity of the warrant. [ 33 ] The ITO was the product of considerable cutting and pasting from previous warrants which is not in and of itself concerning except as it renders a considerable portion of the ITO to be irrelevant, confusing and as a result poorly organized. [ 34 ] Defence counsel submitted that I should excise a considerable amount of the ITO. The Crown in response agreed or asked me to simply give no weight to a significant portion of the ITO.

The scope and breadth of my ruling illustrate my opinion as to the improvident drafting of the ITO. 1) The 4 th and 5 th sentence of paragraph 12 – excised as agreed; 2) Paragraph 13 – should be excised; 3) Paragraph 14(b) – should be excised; 4) Paragraph 24 – the unknown and anonymous source information was not current. Although it is not excised, it is given no weight; 5) The criminal records of the confidential sources are not provided and a statement is made that they had no convictions for public mischief, perjury and/or obstruct justice is made.

The Affiant testified that he never provides details of a confidential informant’s criminal record and was unaware of his duty to do so;

6) Paragraph 28(

a) is amplified to reflect that the charges mentioned have since been withdrawn; 7) Paragraph 26(

c) should be excised; 8) Paragraph 29 – is given no weight as to unidentified confidential sources; 9) Paragraph 29-33 contains dated surveillance information not current or relevant to the warrant sought and is given no weight; 10) Paragraph 34(

b) states as to Source A: “The information states that Donald Troy Forrest is selling Fentanyl from 124 Erie Street South in Leamington.” No information in the ITO, attributed to Source A, indicates that Mr. Forrest is selling Fentanyl. The Crown agrees that I should give no weight as opposed to excising this paragraph to avoid the suggestion that the officer was deliberately misleading in a material way. The fact is Source A, as disclosed in the ITO, never advised as stated and it is effectively misleading. It is, therefore, excised; 11) Paragraph 34(

c) is a conclusory statement and, as agreed, the following is excised: “with the amount of vehicle, foot and bicycle traffic as well as short stays to and from the residence.”; 12) Paragraph 36 – The second sentence is excised as misleading. The rest of the paragraph is given no weight as it refers to traffic at the rooming house and not Mr. Forrest’s private residential area; 13) Paragraph 36(b) – “known to be involved in the Leamington drug Subculture” is excised; 14) Paragraph 36(

d) excised and amplified to read: “Surveillance conducted on September 9th, 2020 confirmed that persons attended the door with direct access to Donald Troy Forrest’s room. These short stays were consistent with drug related activity.”; 15) Paragraph 53 – all words following “drug trade” are excised; 16) Paragraph 55 – “of large amounts” in the first sentence and the last sentence are excised as being over-zealous drafting in an Information to Obtain.

Section 8 and the Validity of the Warrant : [ 35 ] There was no claim made that the warrant granted in the case at bar was improperly executed. There is no evidence that officers entered any private areas other than Mr. Forrest’s room, however, there is no evidence as to why officers directly went to the second floor and what “securing the building” meant. It is clear that residents were forced out of their rooms and eventually herded to the first floor living room.

[ 36 ] In the case at bar, the officers were familiar with the building and its use as a rooming house. Although it was indicated in the ITO that the building was a rooming house, there was no effort made to give particulars in support of a search extending beyond Mr. Forrest’s room. PC Quinton Loop knew and named the people that lived on the second floor: Bernhard Dyck, James Garant, Krystal Marentette, James Malott, Nicolas Beleutz, yet no one was named in the ITO. [ 37 ] There was no evidence in this case that the target, Mr. Forrest, was trafficking in drugs in the common areas or on the second floor.

As stated in Fernandez [7] : “Where a residence houses a number of occupants, absent evidence of a common usage of the spaces in question or evidence of mutual involvement in the offence in question, it is a defect of substance to permit an overall search of the premises in question.” [ 38 ] The warrant obtained was not facially valid. Mr. Forrest’s Charter protected rights under s. 8 were violated.

Section 9 [ 39 ] PC Wilson testified that he provided the grounds to arrest at the briefing which Constable Rodgers attended. Neither PC Wilson nor PC Rodgers articulated the grounds to arrest. [ 40 ] PC Rodgers described the immediacy of the detention and arrest as follows: “On the date in question I went into the room and I located Mr. Forrest on the bed and upon observing Mr.

Forrest I arrested him for possession of fentanyl for the purpose of trafficking and I handcuffed him on the bed.” After arresting him, he stood him up and searched him. [ 41 ] Entry into a private residence or room to effect an arrest is generally prohibited subject to exceptional circumstances when the law enforcement interest is so compelling that it overrides the right to privacy within the home. [8] [ 42 ] There were no exceptional or exigent circumstances in the case at bar. [ 43 ] The warrant issued authorized a search for a controlled substance and offence property and to seize it.

It was not a Feeney warrant under s. 529.1 of the Criminal Code authorizing a peace officer to enter a dwelling house described in the warrant for the purpose of arresting a person identified or identifiable by the warrant. [ 44 ] The Crown bears the burden of proving that there were reasonable and probable grounds to arrest the accused. These grounds were not articulated. Mr. Forrest was immediately arrested before the search, which led to the finding of fentanyl, was conducted. [ 45 ] The Crown has failed to discharge its onus and I conclude that Mr. Forrest’s rights under s. 9 of the Charter were breached.

Section 10(b) [ 46 ] Constable Rodgers arrested the accused. He then searched him incident to arrest and discovered fentanyl. He did not caution him or provide him with his rights to counsel. He turned the accused over to PC Chris Renaud and proceeded to the second floor to assist officers on the second floor.

[ 47 ] PC Renaud testified in-chief and never gave evidence of reading the caution or rights to counsel to the accused. At the conclusion of his testimony in-chief on December 14 th , 2021, I advised him not to discuss his evidence with anyone as he would be cross-examined on the next trial day. On December 21, 2020, he texted Mr. Pollock advising him that he failed to include in his notes that he had provided the caution and rights to counsel to the accused. On the following day while being cross-examined, he stated, that in reviewing his notes prior to cross-examination, he noticed the omission.

He professed to have an independent recollection of the event yet it was not in his notes and according to PC Loop, prior to the trial starting, PC Renaud appeared surprised to hear that he had read rights to counsel to Mr. Forrest. According to PC Loop, a meeting was held between PC Wilson, Renaud and himself where PC Renaud asked them who had given rights to counsel. [ 48 ] The timing of the disclosure and of the preparatory meeting by officers is curious.

PC Loop admitted that he was uncertain as to when the trial started but yet was steadfast that the aforementioned meeting occurred before the trial started. [ 49 ] The burden of proving a s. 10(

b) breach is on the accused on the balance of probabilities. The accused did not testify. Although I find the evidence of PC Renaud and PC Loop puzzling, there is no evidence to the contrary. [ 50 ] Consequently, I find that there was no breach of the informational component of s. 10(b). [ 51 ] The Crown concedes, however, and I agree that there was a breach of the implementational component of s. 10(b). After his arrest, the accused was turned over to Special Constable Scott.

He stated that he delayed the implementation of rights to counsel until he was advised of the nature of all of the charges against the accused. He claimed that this was how he was trained although no other officer testified that this was an existing practice. If this is true then there is a systemic problem. If it is not, the officer has falsified his evidence. Mr. Forrest was given access to counsel approximately one hour and 15 minutes after the arrest by PC Rodgers. In cross-examination he was asked if he thought the delay to speak to counsel was too lengthy.

PC Scott cavalierly replied: “No…because it will not change anything.” [ 52 ] There is no justification for the delay and I conclude that the accused’s s. 10(

b) rights were breached. Section 24(2) Analysis [ 53 ] “The admissibility of evidence under s. 24(2) is to be determined by the now well known three-pronged line of inquiry laid down in R. v. Grant.. .

The s. 24(2) focus is on the broad impact of the admission of the evidence on the long-term repute of the justice system.” [9] The First Line of Inquiry: The Seriousness of the Breach : [ 54 ] There is a range of concern in the case at bar permeating the investigation which ranged from the carefree or careless drafting of the ITO to the cavalier and dismissive attitude with respect to an accused’s Charter rights to counsel. [ 55 ] The privacy interest in a residential building is high and adds to the seriousness of the breach of s. 8. [ 56 ] There are multiple breaches of Mr.

Forrest’s Charter rights which also adds to the severity. [ 57 ] The Affiant, through no fault of his own, received little training or guidance with respect to drafting an Information to Obtain a Warrant. The ITO contains incorrect dates, a significant amount of irrelevant material, unsupported assertions, incorrect information and over-zealous conclusions. I suspect that as a result of the cutting and pasting from other warrants, it has no logical sequence or progression. In effect, the ITO is confusing.

This confusion is highlighted in a most critical aspect – the Affiant seeks a warrant to search an entire building with multiple residents despite having a single target. [ 58 ] Systemic nonchalance with respected Charter protected rights is also displayed as it concerns rights to counsel in the

failure to even note it and in disregarding the importance of implementation without undue delay. In this case, there was a flagrant disregard by the officer charged with facilitating access to counsel. In explanation for the delay he dismissed its importance stating: “Because it will not change anything.” His response betrays a cavalier and careless attitude to an accused’s constitutional right to counsel. [ 59 ] In R. v. Gillespie [10] , Justice Munroe, at para. 76, refers to R. v.

Grant : “Ignorance of Charter law must not be rewarded, and negligence can never be equated with good faith… A pattern of abuse or a flagrant disregard of the Charter may require the court to dissociate itself from such conduct and tend to support exclusion.” Justice Munroe stresses the importance of right to counsel: “Regarding violations of

Section 10(b), the impact is on the accused’s freedom to choose to speak to the police as well as on his or her privacy, bodily integrity, and dignity. Moreover, the

Section 10(

b) interest go beyond these concerns, stated by the Court of Appeal in R. v. Noel .” “The right to counsel is also important in providing reassurance and advice on such questions as to how long the detention is apt to last, what can or should be done to regain liberty.” “The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are entirely at the mercy of the police while detained.” [ 60 ] Although the Supreme Court of Canada in R. v.

Le [11] dealt with a breach of Charter rights affecting members of a racialized community congregated in the backyard of a townhouse by police peering over a fence and then entering the backyard without consent, suspicion of criminal activity or investigative reason, the following statement of the majority of the Court applies to the circumstances in the case at bar: “The reputation of a particular community or the frequency of police contact with its residents does not licence police to enter a private residence more readily or intrusively than they would in a community with higher fences or lower rates of crime.” [ 61 ] Although the residents of 124 Erie Street South are not members of a racialized community, they are most certainly members of a marginalized community.

They are nevertheless entitled to enjoy the due respect of their Charter rights as any other citizen. [ 62 ] The seriousness of the breaches in this case militate in favour of exclusion. The Second Line of Inquiry: The Impact of the Breach on the Accused : [ 63 ] There is a broad reading favoured by the courts of the phrase “obtained in a manner.” [12] [ 64 ] There is a causal nexus between the evidence incriminating the accused and the breaches of ss. 8 and 9. Were it not for the search authorized, the evidence would not have been obtained.

The evidence, however, is not tainted by delay in implementing his s. 10(

b) rights. [ 65 ] The impact on the accused of the violations of ss. 8 and 9 of the Charter is significant. The Third Line of Inquiry: Societal Interest in an Adjudication on its Merits :

[ 66 ] The evidence obtained as a result of the search and seizure of the accused’s residence and of the accused is critical to the Crown’s case. [ 67 ] The substances found, are controlled substances and, in particular, fentanyl is a highly toxic and potentially lethal drug. It is a pernicious drug and a plague on the community. There is no doubt that society has a keen interest in an adjudication of the case at bar on its merits. [ 68 ] Society’s interest in an adjudication on its merits in this case is high and militates in favour of inclusion. Balancing the Factors Enunciated in R. v.

Grant : [ 69 ] Consideration of the lines of inquiry are not intended to be a process based on a mathematical formula. [ 70 ] There are competing societal interests in this case. There is a keen desire to eradicate the illegal distribution of highly toxic controlled substances and thus a decision on its merits as to the guilt of anyone accused of trafficking in these substances. There is also a critical interest in preserving the integrity of the warrant process to ensure that intrusions into the lives of citizens are duly authorized.

Authority to conduct highly intrusive searches which disrupt lives must be granted a s result of compliance with full, frank and honest disclosure by those who seek the authority. There is also a keen interest in ensuring every citizen is equally accorded the benefit of the freedoms and rights enshrined in the Charter .

An adjudication on the merits presupposes an adjudication grounded in legality and respect for constitutional norms. [ 71 ] In my opinion, the exclusion of the evidence would not impair in the long term the reputation of the administration of justice as would its inclusion. [ 72 ] The evidence of all property found and seized upon execution of the warrant obtained in this matter is excluded. [ 73 ] There being, as a consequence, no evidence to support a finding of guilt, the accused is found not guilty on all counts. Released: August 31, 2022 (Original signed by Justice R.

Marion) ________________________ Justice Ronald Marion