R. v. Boussoulas, 2018 QCCQ 11866

Gilpin c. R. 2018 QCCQ 11866COURT OF QUÉBEC CANADAPROVINCE OF QUÉBECDISTRICT OF ABITIBITOWN OF EASTMAINCriminal and Penal DivisionNo.: 614-01-001329-172 DATE: November 28, 2018______________________________________________________________________ BY THE HONOURABLE MARIE-CLAUDE BÉLANGER, J.C.Q.______________________________________________________________________ HOWARD GILPINAccused - Applicant v.

HER MAJESTYProsecutor - Respondent ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO EXCLUDE EVIDENCE (Sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms)______________________________________________________________________ [1] The Eastmain Department of Eeyou Eenou Police Force obtained and executed a telewarrant to search a 2015 GMC Acadia,licence plate number [...], allegedly owned by the applicant’s daughter Cynthia Gilpin. [2] The applicant has brought an application seeking the exclusion of the drugs (47 grams of cocaine) seized pursuant to section24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the search telewarrant was obtained by the police in violationof his right to be secure against unreasonable search and seizure, protected by

section 8 of the Charter. [3] The applicant contends that the search telewarrant should be quashed as having been improperly issued.

According to him, thetotality of the circumstances does not demonstrate reasonable grounds for the belief that a criminal activity was related to the vehicletargeted by the telewarrant and did not support its issuance. [4] He says that at best, the pattern of drug trafficking established by the observations of the sources on which the “information toobtain the search telewarrant” (hereafter ITO) produced by the affiant is based, could be sufficient to demonstrate reasonable grounds tobelieve that his 2003 Dodge Ram pickup truck was associated to criminal activity, but certainly not his daughter’s 2015 GMC Acadia.

LEGAL PRINCIPLES [5] The principles governing the review of search warrants are well established and not in dispute. [6] Justice Campbell of the Ontario Superior Court of Justice provided a thorough

summary of these general principles inR. v. Boussoulas: [1] 1. The Burden on the Applicant [5] When an accused seeks the exclusion of evidence obtained through the execution of a search warrant, the burden is upon theaccused to establish: (1) that the police search was conducted in violation of the accused’s right to be secure against unreasonable searchand seizure, contrary to s. 8 of the Charter of Rights; and (2) that the evidence seized by the police as a result of the search should beexcluded pursuant to the principles applicable under s. 24(2) of the Charter.

When it is alleged that a judicially-authorized searchwarrant is invalid, the judicial review of the impugned search warrant begins from a presumption of validity, with the onus on the partyseeking exclusion to demonstrate its alleged invalidity. See Quebec (Attorney General) v. Laroche, 2002 SCC 72 , [2002] 3S.C.R. 708, at para. 68; R. v. Sadikov, 2014 ONCA 72 , 314 O.A.C. 357, at paras. 35, 83; R. v. Campbell, 2010 ONCA588 , 261 C.C.C. (3d) 1, at para. 45, affirmed, 2011 SCC 32 , [2011] 2 S.C.R. 549, at para. 14. This is the burden thatis upon the accused in the present case. 2.

The Scope of Review – Could the Justice Have Issued the Search Warrant? [6] When a trial judge is asked to review the sufficiency of an information to obtain (ITO) a search warrant, the judge must notapproach the question of the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather,the reviewing judge must determine, based on the record that was before the issuing justice, as amplified on the review, whether theissuing justice could properly have issued the search warrant.

The question is not whether the reviewing judge would have issued thesearch warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were“reasonable grounds” justifying the issuance of the search warrant. See R. v. Garofoli, at p. 1452; R. v. Bisson,

(SCC), [1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v.Pires; R. v. Lising, 2005 SCC 66 , [2005] 3 S.C.R. 343, at paras. 8, 30; R. v. Ebanks, 2009 ONCA 851 , 97 O.R. (3d)721, at para. 20, leave denied, [2010] 1 S.C.R. ix; R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, at paras. 39-43; R. v.Sadikov, at paras. 37-38, 83, 88; R. v.

Eftekhari, 2012 ONSC 5140 , 266 C.R.R. (2d) 213, at para. 3. [7] In approaching this review of the sufficiency of the ITO, the reviewing court must appreciate that the justice who issued theimpugned search warrant made his or her decision based upon the contents of the ITO as a whole, and approached his or her assessmentof the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of theITO. See R. v. Vu, 2013 SCC 60 , [2013] 3 S.C.R. 657, at para. 16; R. v. Evans, 2014 MBCA 44 , [2014] M.J. No. 129,at para. 10; R. v.

Shiers, 2003 NSCA 138 , 219 N.S.R. (2d) 196, at para. 13; R. v. Wilson, 2011 BCCA 252 , 272C.C.C. (3d) 269, at para. 52; R. v. Sadikov, at para. 82. 3. Facial Challenges and Sub-Facial Challenges to Search Warrants [8] Challenges to search warrants may be launched on the basis of the facial validity of the ITO. In such circumstances, theapplicant contends that the substantive contents of the ITO, on their face, are such that the justice could not have issued the searchwarrant.

Alternatively, such a challenge may be advanced on a sub-facial basis, with the accused attacking the accuracy and/or thereliability of the substantive content of the ITO. Each of these types of search warrant challenges requires a different type of review. [9] When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO anddetermine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant.

The record that is examined for the purpose of determining the facial validity of the search warrant is the ITO – and only the ITO. Therecord is not enlarged or amplified by any additional evidence. See R. v. Araujo, at paras. 19, 36, 40, 50; R. v. Wilson, at para. 39; R. v.Sadikov, at para. 37. […] [11] Of course, search warrants may be attacked on both a facial and sub-facial basis. The accused in the present case haschallenged the validity of the search warrant in both ways.

In such circumstances, the reviewing court must stay focused on the ultimatetest, namely, whether on the basis of the record before the issuing justice, as amplified on review, but without reference to any excisedinformation, there remains a sufficient basis upon which the justice could have issued the search warrant. The focus of the inquiry is onwhether the record contains reliable evidence that might reasonably be believed, and on the basis of which the warrant could haveissued. See R. v. Nguyen, 2011 ONCA 465 , 273 C.C.C. (3d) 37, at paras. 23-25; R. v.

MacDonald, 2012 ONCA244 , 290 O.A.C. 21, at paras. 9-10; R. v. Farrugia, 2012 ONCJ 830 , [2012] O.J. No. 6341, at para. 34; R. v. Sadikov,at para. 69, 85-86, 88. […] 4. Information From Confidential Sources - When the ITO is Redacted [16] When the ITO contains factual information provided by a confidential informant, and portions of that ITO have been redactedin order to preserve the confidentiality of that source, according to steps five and six of R. v. Garofoli, at p. 1461, there are two possiblemeans by which the validity of the search warrant may be assessed.

These two options are not mutually exclusive alternatives, but ratherare two possible steps that may be taken sequentially or cumulatively in assessing the validity of the warrant. See R. v. Burgher, 2014ONSC 4527 , at paras. 28-36. [17] First, the validity of the search warrant may be assessed solely on the basis of the information revealed by the redacted ITO.

Ifthe Crown relies solely on the redacted ITO, however, and the information has been so heavily redacted that the reviewing judge cannotconclude that the remaining information was sufficient to justify the issuance of the search warrant, the warrant must be set aside. See Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), (ON CA), 173 C.C.C. (3d) 466 (Ont.C.A.),at paras. 10, 22-23. [18] Second, if the editing process renders the search warrant unsupportable, the Crown may apply to have the trial judge considerso much of the redacted ITO as is necessary to support the search warrant.

However, the judge should only accede to such a request ifsatisfied that the accused can be made sufficiently aware, by way of a judicial

summary, of the nature of the redacted material so as to beable to challenge it by argument or evidence. See R. v. Garofoli, at p. 1461; R. v. Blake, 2010 ONCA 1 , 251 C.C.C. (3d) 4, atparas. 15-17; R. v. Learning, 2010 ONSC 3816 , 258 C.C.C. (3d) 68, at paras. 104-108; R. v. Rocha, 2012 ONCA707 , 292 C.C.C. (3d) 325, at paras. 55-56; R. v. Eftekhari, at paras. 4-5. This is known as the “step six” procedure, as outlinedin R. v. Garofoli, at p. 1461, where Sopinka J. stated: 6.

If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so muchof the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied thatthe accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicialsummary of the excised material should be provided if it will fulfill that function.

It goes without saying that if the Crown is dissatisfiedwith the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence. […] 5. Reasonable Grounds [21] In order to assess the sufficiency of an ITO used to obtain a search warrant, the court must determine whether, in the totality ofthe circumstances, the ITO reveals the necessary “reasonable grounds.” This standard does not require proof beyond a reasonable doubt,or even the establishment of a prima facie case.

Rather, this standard is one of credibly-based probability, and requires proof ofreasonable probability or reasonable belief. At the same time, it requires more than an experienced-based “hunch” or reasonable

suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in theITO, then the search warrant could have issued. See Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v.Storrey, (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Law, 2002 BCCA 594 , 171 C.C.C. (3d) 219, at para.7; R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont.C.A.), at para. 22; R. v. Shepherd, 2009 SCC35 , [2009] 2 S.C.R. 527, at paras. 17, 21-23; R. v.

Bush, 2010 ONCA 554 , 259 C.C.C. (3d) 127, at paras. 37-38; R. v.Sadikov, at para. 81. [22] Moreover, when the police rely upon information from a confidential informer to meet this standard, consideration must begiven to whether the information from the informer is compelling, credible, or corroborated by other aspects of the police investigation. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another. See R. v.Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont.C.A.), at pp. 218-219, affirmed, (SCC), [1989] 2S.C.R. 1140, at pp. 1168-1171; R. v.

Plant, (SCC), [1993] 3 S.C.R. 281, at p. 297; R. v. Rocha, at para. 16; R. v.Eftekhari, at para. 21; R. v. Farrugia, at para. 40. [7] In the present case, the applicant attacks the facial validity of the ITO. He did not offer any evidence or argument putting thesubfacial validity of the ITO in jeopardy. [8] In order to protect the identity of the confidential informants in accordance with the informer privilege, the Crown redactedcertain portions of the ITO. The prosecutor further applied to use the “step six” procedure of Garofoli [2] to have the judge consider theredacted portions of the ITO on review.

The Court examined the proposed judicial

summary of the redacted information provided by theCrown prosecutor and added some information to many paragraphs of the redacted material. The Crown agreed to disclose thisadditional information to the applicant, and it was included in the judicial

summary. The Court was then satisfied that the judicialsummary, while maintaining the secrecy of the identity of the confidential informants, would ensure that the applicant was sufficientlyaware of the nature of the redacted information to permit a valid challenge. The applicant declared himself satisfied with the judicialsummary.

ANALYSIS [9] On January 24, 2017, a presiding justice of the peace issued a telewarrant allowing the peace officers of the district of Abitibito search the 2015 GMC Acadia bearing registration plate number Y66 HTA. [10] The warrant was issued on the basis of reasonable grounds to believe that an offence of possession for the purpose of traffickingwas committed, that cocaine, marijuana, money, scales and dime bags would be found in the vehicle, and that these items would affordevidence in respect to the offence. [11] The information relied upon by the affiant in the ITO is mainly, if not solely, provided by three different informant sources.Those sources provided information on the basis that their identities remain secret.

Aside from two allegations from Source A that wereconfirmed by police knowledge or police observation, [3] the ITO is void of investigative corroboration. [12] A police remark included in the ITO by the affiant explains why conducting traditional surveillance of suspected drug dealers isa challenge. Eastmain is, as are many Cree communities, a small village where limited roadways and lack of traffic make it difficult forpolice surveillance vehicles to hide.

Moreover, everybody or most of the community members know the identity of the officers of theirpolice department, making it difficult for them to go unnoticed or be inconspicuous. [13] I do understand that there could be, in small communities, limitations to the police’s possibility of conducting surveillanceactivity. This being said, it does not lower the standard of reasonable grounds.

The amount of available information and observation mustmeet the threshold of credibly based probability. [14] When dealing with an ITO based mostly on information provided by confidential informant sources, it is relevant to share theSupreme Court of Canada’s teachings on the factors that should be considered: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling?

Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather,I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.

Weaknesses in onearea may, to some extent, be compensated by strengths in the other two. [4] [15] Many decisions have confirmed that information given by an informant may, if consistent with the information provided by oneor more other informants, be considered as corroborating each other. It can be used to assess the credibility of the informants andconsidered when determining the weight given to the information provided. [5] [16] Justice Dionne of the Superior Court of Quebec, in Deschamps v.

R. [6] states: Contrairement aux prétentions de l’appelant, le Tribunal est d’avis que les renseignements obtenus par le dénonciateur sont davantageque de simples racontars ou rumeurs.

Le mandat a été autorisé suite aux renseignements de trois informateurs différents qui ont donné, ensubstance, les mêmes informations et qui sont ainsi corroborés entre eux. [17] The confidential informants provided information dating from five months prior to the issuance of the warrant, up until the daythe ITO was sworn in and the telewarrant issued. [18] The affiant provides a brief description of each confidential informant in his ITO. Source A has no criminal record and decided

to give information to the police for the greater good of the community as he (the masculine pronoun is used throughout the ITO regardless of the actual gender of the informant) is affected by the negative effects drug consumption has on the youth of the community. He was himself a drug user a long time ago and understands very well the consequences of this addiction on someone’s life. He has provided information to the police previously that led to the issuance of a search warrant. No additional information was provided as to the result of the search, charges being laid or conviction entered.

The affiant mentions that the controllers of the source never directed the informant other than to have him report what he knew about criminal activities. There is no information pertaining to his source of knowledge of the details he provided. [ 19 ] Sources B and C have no criminal record either. They also provided information for the greater good of the community. Source B has teenagers of his own and wants to participate in making a better place for the youth. Neither were directed by the affiant, their controller, other than to ask them to report their knowledge of criminal activities in the community.

Again, there is nothing in the ITO indicating the origin of their knowledge of the criminal activities they described. [ 20 ] The affiant mentions that he believes the information provided by the three sources to be true. What are the grounds that support the reliability of the sources? First, the absence of a criminal record is relevant. Secondly, the motives for the collaboration of each source are stated.

It explains why the sources provided information to assist the police department in their drug investigation and excludes motives of revenge or personal agenda against the applicant. [ 21 ] What is missing in the source description and would have been helpful are details about how the sources obtained their information.

This weakness has an impact on the reliability of the information provided by each source. [ 22 ] Generally speaking, the ITO provides information of three natures supplied by the sources: the alleged cocaine and marijuana trafficking by the applicant in the Eastmain community using his Dodge Ram pickup truck, the fact that he stores his drugs at his camp, and the manner in which he acquires his drugs. [ 23 ] The last entry of the ITO is dated January 24, 2017, the date of the issuance of the telewarrant.

It is one of the two paragraphs of the ITO mentioning the GMC Acadia, the target of the impugned search telewarrant. As it is highly relevant, I will reproduce it here: 38. On 2017-01-24, I (Investigator Myles Blackned #129) received information from Officer Mathew Boucher #847 who met with Source A in this Investigation. Source A informed Officer Boucher that Howard Gilpin left to Val-d’Or to pick up drugs. Howard will be returning today or tomorrow. Howard is using his daughter’s GMC Acadia because his Dodge Truck is at the garage. [ 24 ] Source A provided information 30 times during the 5-month investigation.

He gave many details about the nature of the applicant’s criminal activities and his whereabouts. He is clearly close to him as he provided many details of his day-to-day activities. [ 25 ] On his first reported contact in this file, in August 2016, he mentioned the following: • Howard Gilpin is over 50 years old, he is unemployed, and on income security. • He is the biggest drug dealer in Eastmain right now. • He sells cocaine and marijuana to the community members. • He drives a Dodge pickup truck and he has fancy lights custom built on his pickup.

If his lights are orange, it’s a signal to his customers that he has drugs. • When he comes from down south after picking up his drugs, he drops it off at his cabin located on the side of the access road at km 44. • He had seen him in a public place with a lot of cash on him. • He gases up every day at the gas station because he goes to his camp every day. • He uses different vehicles to pick up his drugs at his cabin at km 44.

He would use his daughter’s vehicle; Veronica Gilpin has a GMC black pickup truck and Cynthia Gilpin has a GMC Acadia. • Howard was arrested two years ago by the Eastmain police detachment when they intercepted a package containing drugs inside. • He often makes day trips to pick up his drugs, he leaves frequently as well, almost every week. [7] • Howard uses the garbage dump, casino and Norther store to meet his clients. [8] [ 26 ] The information about the applicant’s arrest was confirmed by the affiant.

Howard Gilpin was arrested on July 22, 2014, and he had, at the time the ITO was written, a pending case of possession for the purpose of trafficking. [ 27 ] On August 12, 2016, Source A saw a drug transaction, an exchange of drugs and money between the applicant and a known drug user in a public place. They left together in the applicant’s truck and the customer was dropped off. [ 28 ] In September 2016, Source A saw the applicant parked outside the residence of a known drug user who went to the applicant’s car window and left a few seconds after. Mr. Gilpin left as well.

This very brief encounter is akin to the behaviour of the culprits of a drug transaction. [ 29 ] On many occasions throughout this investigation, Source A informed the investigators about the applicant’s activities. Mainly, the information was about the applicant driving around in his Dodge pickup truck displaying his orange lights, meeting known drug users and driving them to the Northern store where an ATM is located or leaving shortly with them and coming back to the original

location. [9] [ 30 ] Although unemployed, the applicant was seen twice during the fall of 2016 with a large amount of cash in his possession. [10] [ 31 ] Source B’s information given on September 24, 2016, corroborates Source A’s allegations in many ways: • Howard Gilpin is one of the biggest drug dealers in Eastmain. • He sells cocaine and marijuana in the community of Eastmain. • He goes to his camp at km 44 almost on a daily basis and gases up every day. • Howard had a signal whenever he has something to sell, he drives around in his Dodge pickup truck and turns on his orange lights.

That’s how customers know he has drugs. • Howard is always at the casino, Source B believes that it is where he meets his customers. • He hides his drugs at his camp at km 44. [11] [ 32 ] Source B witnessed a transaction on October 6, 2016, between the applicant and Phyllis Mayappo, a known cocaine user.

On many occasions, he saw the applicant driving around with his orange lights turned on. [ 33 ] On January 8, 2017, Source C gave information to the affiant concerning Howard Gilpin: • He sells cocaine in Eastmain, 240$ for a gram. • Howard takes his clients to ATM machines to pull out money and he sells drugs to them. • Howard’s daughters are selling for him as well. • Howard meets his clients at the casino while he gambles. • He turns on his orange lights on when he has drugs and he drives around in town.

That’s his way of telling clients that he has drugs. • He leaves his drugs at his camp at km 44 before he comes to Eastmain. [ 34 ] Taken individually, much of this information could be considered generic, lacking in detail and source of knowledge. But read as a whole, the information provided by the confidential informants is corroborative and supports their credibility.

They give many details as to the modus operandi of the applicant that need to be underlined: the nature of the substances sold by the applicant, the model of his vehicle, the use of his orange headlights to inform clients of the availability of drugs, the location of his camp at km 44, the fact that he stores his drugs at this camp, the fact that he goes there almost if not daily and the fact that he fills his truck up with gas almost every day.

The fact that he sells the drugs at the casino is also corroborated by the three informants although Source A adds the garbage dump and the Northern store as regular spots of dealing. [ 35 ] Source A initially mentioned (on August 9, 2016) that the applicant works alone, and has no partner. But on August 15, 2015, he mentioned that Mr. Gilpin’s daughter Veronica and her boyfriend are helping him sell drugs.

That information is partly corroborated by Source C’s information that his daughters are selling drugs for him as well. [ 36 ] Source A was also corroborated by the police investigation pertaining to his pending file and by paragraph 33 of the ITO, which mentions that someone broke into Mr. Gilpin’s truck by breaking the side window looking for drugs or money inside. According to Source A, the applicant did not report this incident.

It was confirmed by police observation that plastic was covering the driver’s side window and that no police report was filed. [ 37 ] The information provided by the informants, read as a whole, is consistent with one another.

This consistency in the many aspects of the applicant’s activity gives their information credibility and reliability. [ 38 ] The issuing judge had credible and compelling information establishing reasonable grounds to believe that the applicant was involved in drug trafficking in the community of Eastmain. [ 39 ] Was the information sufficient to meet the threshold of credibly based probability that evidence related to that criminal activity would be found in the GMC Acadia? [ 40 ] It is true that most of the information concerning the applicant’s criminal activity is linked to the use of his Dodge Ram pickup truck. [ 41 ] The only mention of the GMC Acadia in the ITO are at paragraphs 1 j. and 38.

In 1 j., Source A mentions that the applicant uses the vehicles of his daughters, Veronica and Cynthia, to pick up his drugs at his cabin at km 44. In paragraph 38, Source A informs Officer Boucher that Howard Gilpin left for Val-d’Or to pick up drugs and will be returning today or tomorrow. Because his own truck is at the garage, he left with his daughter’s GMC Acadia.

[ 42 ] This particular information was not corroborated by any police surveillance or by any other informant. It was the first and only time that the applicant was alleged to have used the GMC Acadia to pick up his drugs down south. [ 43 ] But not all information must be corroborated. [12] [ 44 ] The information provided by Source A was corroborated by the other two informants in many ways, giving credibility to his knowledge of the applicant’s criminality. His information is detailed as to Mr. Gilpin’s whereabouts. It appears from his information that he is close enough to know when and where Mr.

Gilpin comes and goes. He clearly has some knowledge of when he leaves town and comes back. [13] [ 45 ] In the information provided in paragraph 38, Source A clearly has personal knowledge of the fact that the applicant’s vehicle is at the garage so he cannot use it. He explains why Mr. Gilpin is taking his daughter’s GMC Acadia. When viewed in the context of the totality of the ITO, the information provided by Source A is corroborated and compelling. This information was very contemporary as it was given on the day the warrant was issued.

These factors combined balance out the absence of indication of the origin of Source A’s knowledge. [ 46 ] The applicant asked in his pleadings if the police could obtain a search warrant for any vehicle he drove from the south.

The answer to that question is yes, if there is reliable and compelling information establishing reasonable grounds to believe that drugs or other evidence are situated in the said vehicle, which was the case in the present ITO. [ 47 ] Taking into account the presumptive validity of the warrant, the low standard of review and the totality of the circumstances, I conclude that the issuing judge could have found reasonable grounds to authorize the search of the GMC Acadia. [ 48 ] The applicant’s rights protected by

section 8 of the Charter were not violated. [ 49 ] In light of my conclusion in relation to the sufficiency of the grounds provided in the ITO, there is no need to consider the admissibility of the evidence found in the vehicle. However, having heard the submissions of counsel on the issue, I have reached the alternative conclusion that, had I determined that there had been a violation of

section 8 of the Charter , I would nevertheless still have admitted the evidence under section 24(2) of the Charter. [ 50 ] According to the governing three part analysis, the Court must assess and balance the effect of the admitting of the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; (3) society’s interest in the adjudication of the case on its merits . [14] [ 51 ] As for the first part of the test, namely the seriousness of the state conduct, I conclude that the police acted in good faith in obtaining a search telewarrant.

As stated in R. v. Rocha : [15] Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen.

Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. […] [ 52 ] In this case, there is no evidence that suggests that the police acted recklessly, negligently or in ignorance of any statutory or Charter requirements. [ 53 ] Accordingly, the first factor of the 24(2) analysis strongly favours the admissibility of the evidence. [ 54 ] The second part of the test, the impact of the breach on the Charter protected rights of the applicant also militates in favour of the inclusion of the evidence. [ 55 ] If a place where the applicant has a high expectation of privacy is searched, the impact of the breach of

section 8 of the Charter will favour the exclusion of the evidence. As mentioned in paragraph 78 in R. v. Grant : [16] […] 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. [ 56 ] Here, the place searched was a vehicle that the applicant borrowed from his daughter.

The applicant had a low expectation of privacy in that vehicle, and thus, the balance is tilted in favour of admission of the evidence. [ 57 ] As for the last part of the analysis, the Court must inquire whether the truth seeking function of the trial is better served by admission or exclusion of the evidence. [ 58 ] The reliability of the evidence is an important factor in this part of the analysis. [ 59 ] Society’s expectation that charges will be determined on the merits is real and important.

The exclusion of reliable evidence undermines the accuracy and the fairness of the trial from the perspective of the public and may bring the administration of justice in disrepute. [ 60 ] In the present case, there is no question that the drugs seized are an inherently reliable and objective piece of evidence that is

critical to the Crown’s case. [ 61 ] This third aspect of the 24(2) analysis favours the admission of the evidence. [ 62 ] All three factors being in favour of the admission of the evidence, I see no need to balance out the three factors. The evidence would have been deemed admissible. FOR THESE REASONS, THE COURT: [ 63 ] DISMISSES the motion. __________________________________ MARIE-CLAUDE BÉLANGER, J.C.Q. M e Ratha Heang Lawyer for the accused - applicant M e Sabrina Girard Lawyer for the prosecutor - respondent Date of hearing: September 18, 2018