2010 NBCA 89, 2010 NBCA 89

COURT OF APPEAL OF NEW BRUNSWICK 31-10-CA FABIAN TROY KELLY APPELLANT FABIAN TROY KELLY APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Kelly v. R., 2010 NBCA 89 Kelly c.

R., 2010 NBCA 89 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Green Appeal from a decision of the Provincial Court: December 8, 2009 (conviction) Appel d’une décision de la Cour provinciale : Le 8 décembre 2009 (condamnation) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: Interim Release Order dated April 30, 2010 Procédures préliminaires ou accessoires : Ordonnance de mise en liberté provisoire datée du 30 avril 2010 Appeal heard: September 23, 2010 and October 13, 2010 Appel entendu : Le 23 septembre 2010 et le 13 octobre 2010 Judgment rendered: December 16, 2010 Jugement rendu : Le 16 décembre 2010

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at hearing: For the appellant: George E. Kalinowski For the respondent: Jill C. Hartlen Avocats à l’audience : Pour l’appelant : George E. Kalinowski Pour l’intimée : Jill C. Hartlen THE COURT The appeal against conviction is allowed.

The admission into evidence of the marihuana seized from the appellant’s home on December 15, 2006 as a result of violations of his right to be secure against unreasonable search or seizure would bring the administration of justice into disrepute. The evidence in question is excluded pursuant to s. 24(2) of the Charter . There being no admissible evidence in support of the charge, the Court directs a verdict of acquittal. LA COUR L’appel de la déclaration de culpabilité est accueilli.

L’utilisation en preuve de la marihuana saisie au domicile de l’appelant le 15 décembre 2006 par suite de violations de son droit à la protection contre les fouilles, les perquisitions ou les saisies abusives est susceptible de déconsidérer l’administration de la justice. Les éléments de preuve en question sont écartés conformément au par. 24(2) de la Charte . Puisqu’il n’y aucun élément de preuve admissible à l’appui de l’accusation, la Cour ordonne l’inscription d’un verdict d’acquittement.

The judgment of the Court was delivered by DRAPEAU, C.J.N.B. [ 1 ] In light of the events captured by the record on appeal, it is necessary to state a truism: police officers are not above the law and Canadians rightly expect and assume they will discharge their professional responsibilities with punctilious respect for the law. After all, the official motto of the RCMP is “maintiens le droit”, not “the end justifies the means”.

Indeed, the proposition that our country is founded upon principles that recognize the supremacy of the rule of law is enshrined in the introduction to the Canadian Charter of Rights and Freedoms . That text, the contents of which form part of the supreme law of the land, goes on to enunciate a number of rights that all Canadians, no matter how modest their station in life, are entitled to enjoy to the fullest extent, free of unauthorized state interference.

Of those rights, one of the most cherished is guaranteed by s. 8, the right to be secure against “unreasonable” search or seizure, and its breach in relation to a person’s home is viewed by most citizens, and all courts, as particularly offensive. It is now settled law that a police search complies with s. 8 only if it was executed in a reasonable manner and was authorized by a law, which itself meets minimum constitutional standards. [ 2 ] Section 11(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, is one of those enabling provisions.

It allows a judge to issue a search warrant but only if he or she is satisfied by information on oath – invariably provided by a police officer through an Information to Obtain (ITO) – that there are reasonable grounds to believe the thing to be searched for,

commonly a controlled substance, is in the place to be searched. Neither outright falsehoods nor what might be called lies of omission have their place in the application process, the deponent’s duty to the court, and to the administration of justice in general, being to ensure the ITO, in essence, tells the truth, the whole truth and nothing but the truth.

Of course, there are exceptions to that broadly formulated obligation, but none are in play here. [ 3 ] That said, s. 11(7) of the CDSA allows a police officer to search a place for a controlled substance without a warrant if the conditions precedent to issuance exist “but by reason of exigent circumstances it would be impracticable to obtain one”.

Exigent circumstances exist when the thing to be searched for is at imminent risk of disappearance. [ 4 ] It is trite law that positive results do not retroactively clothe a search with the mantle of reasonableness: the search must be authorized at law before it is undertaken.

However, evidence gathered as a result of a search that, in one way or another, violates s. 8 may yet form part of the record at trial if its admission would not bring the administration of justice into disrepute. [ 5 ] Those elementary postulates of law animate the debate over the sustainability of the appellant’s conviction on a charge of possession of marihuana for the purpose of trafficking (ss. 5(2) and 5(3)(

a) of the CDSA ). [ 6 ] While the marihuana seizure underlying the charge against the appellant was effected at his home in accordance with a search warrant, the latter’s issuance and the seizure itself followed closely on the heels of a warrantless police break into and search of those premises. Neither that entry nor the follow-up search was disclosed in the ITO.

Although satisfied the ITO contained evidence upon which the warrant judge was entitled to infer reasonable grounds for the belief that marihuana “could” be in the appellant’s residence at the time of the proposed search, the trial judge concluded the prior warrantless police break-in, entry and search were unlawful and violative of the appellant’s constitutional right to be secure against unreasonable search or seizure. [ 7 ] Nonetheless, the trial judge admitted into evidence, over the appellant’s objection, the marihuana seized “pursuant to the warrant” on the basis that its admission would not bring the administration of justice into disrepute.

Predictably, that ruling led to a finding of guilt and the conviction under appeal. [ 8 ] The appellant, Fabian Troy Kelly, argues for reversal and acquittal on the grounds that the trial judge erred: (1) in concluding the authorizing judge could infer the requisite reasonable grounds existed with respect to his residence; (2) in failing to find the warrant had been improperly obtained (ground of appeal added at the hearing with leave of the Court); and (3) in finding the admission into evidence of the marihuana would not bring the administration of justice into disrepute.

The latter complaints bring into sharp focus the conduct of the ITO deponent in obtaining the search warrant for Mr. Kelly’s residence. [ 9 ] For the reasons that follow, I respectfully agree with Mr. Kelly’s complaints.

In my view, the search warrant was improperly obtained because the ITO: (1) does not provide evidence capable of satisfying the legal prerequisites for issuance in relation to his residence ; (2) features misleading allegations concerning the critical issue of that location as a place where marihuana would be found; and (3) does not disclose information, which the ITO deponent had to know was both relevant and significant.

Those circumstances, coupled with the prior unlawful police break, entry and search, convince me the admission of the marihuana seized from the appellant’s home would bring the administration of justice into disrepute. In the result, I would allow the appeal, set aside the conviction, exclude the impugned evidence pursuant to s. 24(2) of the Charter and direct a verdict of acquittal. I. The Context as it Concerns Mr. Kelly’s Residence [ 10 ] The account that follows is sourced in the ITO, the testimony provided in first instance and the admissions in the written submissions on appeal.

As will be seen, that account is sprinkled with commentary, which is provided for contextualization and significance-highlighting purposes. [ 11 ] In the fall of 2006, Mr. Kelly resided in a mobile home (occasionally described as a “trailer” home) at 120 Cassidy Circle, Fredericton, New Brunswick. The property, which is situated in a residential area called Kelly’s Mobile Home Park, came to the attention of the RCMP in the month of October 2006, as a by-product of their surveillance of one Timothy Price, who was under active investigation for suspected involvement in drug trafficking.

The police targets included several other individuals, but not Mr. Kelly. Indeed, before the eve of the search of the residence at 120 Cassidy Circle on December 15, 2006, the police did not know Mr. Kelly lived there. [ 12 ] The investigation (code-named “Operation Jellybean”), which lasted at least from early September to mid-

December 2006, involved the full gamut of information-gathering means at the disposal of the police, including searches of indices for owners of motor vehicles and real property, searches of police databases, an undercover operation, confidential informants, search warrants, tracking warrants, number recorder warrants, wiretap authorizations and extensive daily surveillance, both electronic and physical. Ultimately, Operation Jellybean led to the laying of charges against 21 individuals, including Mr. Kelly.

However, prior to the search of his residence on December 15, 2006, none of the information-gathering means mentioned above unveiled direct evidence implicating Mr. Kelly or his residence in the drug trafficking activities under constant and close scrutiny. [ 13 ] That said, in the course of the investigation, Mr. Price was observed attending at 120 Cassidy Circle. He did so on four occasions over a period of nearly four months. [ 14 ] Thus, surveillance personnel placed Mr. Price and his vehicle at 120 Cassidy Circle on three occasions in the month of October 2006, more precisely on the 17th, 21st and 30th.

However, there is nothing in the ITO, which was sworn by the primary and lead investigator, to indicate that, on any of those occasions, Mr. Price actually met Mr. Kelly or entered, obtained anything from or made a delivery to the residence at 120 Cassidy Circle. [ 15 ] On October 31, 2006, the investigators conducted a Forward Looking Infrared Radar (FLIR) check on the residence at 120 Cassidy Circle. The results were negative for a heat source consistent with a marihuana grow-operation. [ 16 ] I pause to record a point of some significance. At trial, the ITO deponent testified reasonable grounds to search Mr.

Kelly’s residence did not exist at the end of October 2006. Yet, there is nothing in the ITO to alert the issuing judge to this understanding of the evidential record by the primary and lead investigator. Nor does the ITO identify what information, if any, came to light after the end of October that caused the deponent to change his view and to conclude there existed, on December 15, 2006, reasonable grounds to believe marihuana and other “things to be searched for” were in the residence at 120 Cassidy Circle. [ 17 ] In fact, Mr.

Price and his vehicle were spotted at 120 Cassidy Circle only once between the end of October and his arrest on December 15, 2006. That was on December 4, 2006. Once again, there is nothing in the ITO to suggest that, on this occasion, Mr. Price met with Mr. Kelly or accessed any building at 120 Cassidy Circle. Nor is there any evidence in the ITO to permit the inference that Mr.

Price retrieved anything from or made any delivery to that location. [ 18 ] During the evening of December 14, 2006, the ITO deponent delivered an unsigned draft ITO to a judge of the Provincial Court in anticipation of his attendance before her the next day. At a voir dire into the admissibility of the evidence seized from 120 Cassidy Circle, Mr. Kelly testified that, at around midnight on December 14, 2006, an individual, whom he later identified as the ITO deponent, attended at his home at 120 Cassidy Circle and attempted to buy cocaine from him. Mr.

Kelly’s response was that he did not “like that stuff” and that he “definitely [did not] have it around [his] house or [himself]”. He concluded his exchange with the ITO deponent by telling him “to hit the road”. Mr. Kelly’s full testimony on point is as follows: Q. All right, thank you. And if I could just take you to the day before, December 14 th , 2006, the night before, did you have any unexpected late night visitors? A. Yes I did. Q. Can you tell me about that? A.

It was between the 14 th late night and the 15 th like 12:00, late 11:00 – 12:00 I had a – I was asleep on the couch and my doorbell was being – they were ringing the buzzer. The buzzer was ringing. The doorbell was going off repeatedly so it sounded like it was something important or emergency. It woke me up from a dead sleep. So I woke up and answered the door. Q. And what happened when you answered the door? A. There was a gentleman there and he asked me if Tim lived there.

Q. And what did you tell him? A. I said no there was no Tim there; that he must have had the wrong address. Q. And what else, if anything, happened? A.

Well, he asked me if I knew a Tim and asked me if there had been a Tim there and I said no, and he asked me – he told me that he was a friend of Tim’s, a close friend or an associate, and he pointed at his nose and his nostril and tapped at it, and I said, “You got something wrong with your nose or something?” and the guy said, “Do you have any cocaine to sell me if Tim’s not here?” And I directly told the guy I said no I don’t like that stuff, I definitely don’t have it around my house or me and to hit the road. Q. All right. And did you know that individual? A. At the time no I did not. Q.

Did you ever see that individual again? A. Yes. Q. When? A. After the 15 th of December, about a month and a half after that I was picked up by the Fredericton City Police after they did the search at my residence. Be a month and a half or a month and three weeks later I was picked up at work and brought in for questioning. They brought me in to start the twenty-four, and when I was in the city lockup the gentleman that rang my doorbell that night that I answered the door was – I recognized the guy, he was standing outside my cell. Q. And do you know who that was? A.

Yes, I do now; it was [the ITO deponent of] the Drug

Section RCMP, Saint John. Q. And did [the ITO deponent] look any different at that time than he does today? A. A little bit different. Like he looks like he dropped a few pounds on the belly and shaved his goatee off. He’s running a moustache now and today he’s wearing a suit and tie. He’s sitting right there. But that night he had on like black jeans and black cowboy boots.

I did recognize the boots today and that night when I was in the city lockup he had the same black leather cowboy boots on and a pair of jeans and a tight black T-shirt. [ 19 ] The ITO deponent had earlier testified during his cross-examination that he could not recall going to the door of the residence at 120 Cassidy Circle during the late evening of December 14, 2006, or early morning of December 15, 2006. The full context of his testimony is as follows: Q. Have you ever been to 120 Cassidy Circle?

A. Yes. Q. When was that? A. I drove by that during a couple incidents where I was out on the surveillance team myself. I was there the day to deliver the search warrant to that residence. After, I was by there a couple times looking for Mr. Kelly to serve documents to him. Q. Would you have been there the day before the search warrant was executed on say the 14 th of December late evening/early morning hours of the 15 th of December, 2006? A. I was on surveillance that day. I don’t recall that I was there, but I was working that night until 11:30 or quarter to 12 that night, but I don’t recall that. Q.

Well, do you recall going to the door of the residence? A. On the 14 th ? Q. Fourteenth, late evening/early morning hours of the 15th, of 2006? A. I don’t recall that, no. Q. So I just want to be clear on this; when you say you don’t recall are you saying I don’t remember, maybe I did, or are you saying I absolutely did not? A. I’m saying I don’t recall if I was there or I was not there. I have – I have no recollection of being there; I don’t have a recollection of not being there. Q. Well, it just seems to me that’d be something you’d remember if you were there or not, and your evidence is you don’t recall? A.

I don’t recall. It’s two and a half years ago, Your Honour. As I said, I was the lead investigator on this file and this file involved 120,000 intercepted telephone conversations, 250 individuals that were investigated as potential suspects, and I can’t recall every possible moment of where I was or where I wasn’t. [ 20 ] At the close of the defence’s case on the voir dire , the Crown moved to recall the ITO deponent to “rebut”, in unspecified ways, a number of statements made by Mr.

Kelly during the course of his testimony, including those bearing on the ITO deponent’s attempted purchase of cocaine on the eve of the application for the warrant. The trial judge rejected the motion in relation to the latter for the following reasons: THE COURT: All right. Well, I think, as indicated, he was asked – he does not even recall being there, so with respect to the evidence that was given by Mr.

Kelly versus the evidence given by [the ITO deponent], again I think it goes to weight […] that the Court attaches to it and I’m not sure where it’s going to fit in the argument with respect to the warrantless search, but I’m going to deny the motion for the rebuttal evidence on that matter. [Emphasis added.] Most critically, the underlined ruling makes plain the trial judge found Mr. Kelly’s evidence regarding the attempted purchase of cocaine was credible: if it were otherwise, his testimony on point could not have weighed in the balance.

[ 21 ] During the morning of December 15, 2006, Mr. Price and two other targets, Troy Albert and Gregory Quigg, were arrested. Soon after, the draft ITO was updated to reflect those arrests and the fact that cocaine had been seized during personal and vehicular searches incidental to those arrests. However, and most significantly, the draft ITO was not amended to mention the previous night’s failed cocaine solicitation from Mr.

Kelly and his assertion that cocaine was definitely not kept around his home. [ 22 ] At any rate, in coordinated moves that followed closely upon the arrests mentioned above, the ITO deponent attended before the previously approached Provincial Court judge to swear the updated ITO and seek search warrants while fellow officers were dispatched, with the ITO deponent’s knowledge and approval, to the targeted premises with specific instructions: they were to enter and “secure” those premises against removal or elimination of incriminating evidence. [ 23 ] The ITO includes marihuana in the inventory of “things to be searched for”.

That list comprises, as well, “Cocaine, […], scales, vacuum sealer machine, plastic bags or wrap, money, score sheets, mobile telephones, documents to support residency, documents to support ownership of The Detail King business [Mr. Price’s automobile cleaning and detailing business], telephone records and cutting agents”. Those things are believed to be in each of four premises in Fredericton:

(1) The Detail King business at 245 E Stone Bridge Court;

(2) Mr. Price’s residence at 151 Claremont Drive; (3) the residence at 120 Cassidy Circle; and

(4) Troy Albert’s residence at 79 Regent Street. Other places to be searched include any vehicles located at those premises, the “property and shed” at those residential addresses and two specific vehicles, one owned by Mr. Price, the other by Mr. Albert. [ 24 ] It will be noted Mr. Kelly is not named in the ITO as a target of the investigation.

Furthermore, he is not identified as an owner or occupant of 120 Cassidy Circle, one of many places where the “things to be searched for”, including marihuana, were believed to be located. [ 25 ] The final version of the ITO consisted of 171 paragraphs and 90 attachments (transcripts of intercepted communications and a record of conviction). Mr. Kelly is not named in the ITO. Nor is he identified as a participant in any of the communications referenced in the ITO (including its attachments) or in any of the 120,000 communications intercepted over the course of the investigation.

In fact, only a small number of ITO provisions actually mention 120 Cassidy Circle. However, the ITO does establish grounds to believe Mr. Price and Mr. Albert were part of a network engaged in drug trafficking in the Fredericton area. It also shows that, prior to his arrest on December 15, Mr. Price attended at 120 Cassidy Circle on the four occasions previously mentioned.

Finally, the ITO features the following assertion, which stands alone as a direct allegation that the “things to be searched for” were in the residence at 120 Cassidy Circle: “I believe the trailer located at 120 Cassidy Circle is a location for both selling and storing drugs. Surveillance has placed Price going to this trailer on October 21, 2006, after a deal involving Court, Fitzpatrick and Gregoire. Subsequent to this, Price has been observed on several occasions by surveillance at this location”.

I will return in short order to this key provision of the ITO, one that is, at best, misleading. [ 26 ] As mentioned, while the deponent attended upon a judge of the Provincial Court for the search warrants, fellow officers were dispatched to the premises specified in the ITO. After noting there were no vehicles in the driveway of 120 Cassidy Circle, and without any indicators pointing to the possibility of persons inside Mr. Kelly’s residence, the officers knocked on the front door and, with no response forthcoming, forced open the front door and entered, identifying themselves as “police”.

The officers carried out a search of every room, for the stated purpose of confirming the residence was unoccupied. In the process, the officers broke open the locked door to a guest bedroom. Once the search was completed, the officers withdrew, without removing anything. [ 27 ] None of the officers who broke into Mr. Kelly’s home and testified at the voir dire could identify a presenting circumstance indicative of a real risk of destruction or removal of incriminating evidence from the premises.

The officers simply complied with the instructions to enter 120 Cassidy Circle that had been given by a superior officer at RCMP headquarters. This officer gave those instructions without any acquaintance with the circumstances actually prevailing at 120 Cassidy Circle and without information from any source that there was indeed a real danger of imminent elimination of evidence at 120 Cassidy Circle. [ 28 ] Within an hour of the forcible police entry into Mr. Kelly’s residence, search warrants were issued for the several places specified in the ITO.

The one at issue here authorized a search at the following places: “The residence, property, vehicles and shed located at 120 Cassidy Circle in the City of Fredericton, County of York, Province of New Brunswick, being a mobile home trailer in Kelly’s Court”. The “things to be searched for” were described in these terms: “Cocaine, Cannabis (marihuana), scales, vacuum sealer machine, plastic bags or wrap, money, score sheets, mobile telephones, documents to support residency, documents to support ownership of The Detail King business, telephone records and cutting agents”.

As indicated in my introductory remarks, nothing in the ITO alerted the issuing judge to the prior police entry into and warrantless search of Mr. Kelly’s residence. [ 29 ] Be that as it may, following the warrant’s issuance and delivery at the scene, Mr. Kelly’s residence was

searched again, this time for the stated purpose of looking for “the things to be searched for”, including marihuana. That second search resulted in the seizure of seven pounds of marihuana, the basis for the conviction under appeal. [ 30 ] At the voir dire , Mr. Kelly described in these terms the state of his home when he arrived from work on December 15, 2006: Q. Mr. Kelly, could you state your full name for the court? A. Fabian Troy Kelly. Q. And could you please speak clearly when answering my questions. Now, on December 15 th , 2006 were you employed? A. Yes I was. Q. And where were you employed? A.

Kelly’s Homes Limited, Fredericton. Q. And where do you reside today? A. One twenty Cassidy Circle, Kelly’s Mini Home Park. Q. And did you reside there on December 15 th , 2006? A. Yes. Q. Now, on December 15 th , 2006, I realize it’s a while ago, do you recall if you worked that day? A. Yes I did. Q. And do you recall approximately what time you would have returned home from work? A. I worked from 8:00 till 5:00 and I was home shortly after five. Q. All right, and what, if anything, did you find at your residence when you returned home that day? A.

That my front door was busted, the door casing and the lock was busted, the door was shattered, and my place was torn apart and things were in shambles, and there was another door inside, a hallway spare bedroom door kicked in and the door casing broke and the lock broke , and there was some paperwork on the table, kitchen table in my kitchen.

Q. And do you know what that paperwork was, do you recall? A. Yes I do. It was a search warrant for 120 Cassidy Circle. [Emphasis added.] [ 31 ] The trial judge reviewed the ITO and found it contained evidence allowing the warrant judge to infer reasonable grounds for the deponent’s belief that the things to be searched for “could” be in the residence at 120 Cassidy Circle.

In coming to that conclusion, the trial judge made the following observations and findings: 1. [The ITO deponent], of the R.C.M.P., testified that he was involved in an investigation, known as “Operation Jellybean” regarding a number of individuals in Fredericton and their involvement in the drug scene. 2. Commencing in September of 2006, a number of warrants were obtained throughout the investigation, and a number of people and places were targeted for surveillance.

On December 14, 2006, based on telephone conversations that one of the main “persons of interest” was going to get a shipment of cocaine, [an ITO was drafted for submission to a Provincial Court judge]. 3. On December 15, 2006, because of concerns that some of these “persons of interest” were aware the police were watching them, it was decided to arrest a number of individuals in order to prevent the possible destruction of potential evidence, and three individuals were arrested, being Tim Price, Roy Albert and Gregory Quigg. Upon their arrest, Mr. Albert, who was with Mr.

Price, had cocaine on him. [The ITO deponent], because of the arrests, went back to his office and redrafted the last pages of the [ITO] to include the information about the 3 arrests. At this same time, Sgt. [H.] of the R.C.M.P. who was the Team Commander dispatched officers to 3 locations in or around the Fredericton area for the purpose of protecting evidence, due to the fear that once word of the 3 arrests became known, others who were under surveillance might try to destroy evidence. 4. [The ITO deponent] presented [a judge of the Provincial Court] with the revised [ITO] and warrants which she signed.

The 3 locations named in the warrants were 151 Claremont [Drive], 120 Cassidy Circle, and 79 Regent Street. 5. The address of concern in this voir dire is 120 Cassidy Circle. 6. [The ITO deponent] testified that one of those arrested, Tim Price, had been under surveillance for some time. On October 21, 2006, Mr. Price was observed going to a business location called Naturally Fit, one of the businesses under surveillance. When he left the business, it appeared he had something under his shirt. Mr. Price got in his vehicle and drove to 120 Cassidy Circle. At this time, the police did not know who lived there.

The police followed Mr. Price to this location and observed him park in the driveway and exit the vehicle. Further surveillance was difficult because of 120 Cassidy Circle being in a trailer park and there not being many locations from which to closer observe Mr. Price. 7. On October 30, 2006, officers were following Mr. Price and observed him leave his residence, go to work, then leave there and go to 120 Cassidy Circle. He entered the residence, stayed about 2-5 minutes and left. He returned to his business, then left and went back to 120 Cassidy Circle. 8.

On cross-examination, [the ITO deponent] said the police were unaware of who lived at 120 Cassidy Circle, or if someone lived there, and they never noted any lights or vehicles. As well there was no phone service to 120 Cassidy Circle, and a FLIR test which was conducted was negative to substantiate a grow operation. 9. [The ITO deponent] said the R.C.M.P. believed that Mr. Price was possibly using this house as a “stash house” for drugs, but as of the October date they did not feel they had enough information for a warrant. 10.

In November 2006, it was noted that a Kelly’s Homes truck arrived at 120 Cassidy Circle and a male who they thought was Tim Price exited the vehicle and entered the residence. The police had also noted that a Kelly’s Homes truck had been seen at another location that was also under surveillance. On December 4, 2006, Mr. Price again went to 120 Cassidy Circle and was there for some period of time. At this time the police felt again that Mr. Price was stashing drugs there, and this address was added to the warrant.

11. On December 15, 2006, prior to the warrant being signed, a number of police were called to assist in securing locations while waiting for the warrants. They were told there were exigent circumstances as there was concern that parties might try to destroy or remove drugs and other evidence. The police officers arrived at 120 Cassidy Circle between 10:30 and 10:45 a.m.

According to the testimony of Sgt. [R.G.] of the R.C.M.P. who was accompanied by three other officers, they entered the residence to search for persons for the purpose of securing the residence and preventing any person found there from destroying any possible evidence. Sgt. [R.G.] said that they were only in the house approximately 2 minutes and never searched for anything other than persons. 12. Cst. [M.W.] of the R.C.M.P. was one of the officers accompanying Sgt. [R.G.]. He testified that they knocked on the door at 120 Cassidy Circle, and announced themselves as police.

Receiving no response, they forced the door open. He also stated that they were only in the trailer for about 2 minutes, long enough to ensure that there was no one inside. They then exited the trailer and remained at that address until the search warrant arrived before they commenced their search, at which time they found a quantity of drugs and some other drug paraphernalia in the trailer. 13. The defence called Mr. [R.W.] as a witness.

Mr. [R.W.], who lives at 112 Cassidy Circle, testified that on the date in question, being December 15, 2006, he was taking his garbage out when two vehicles pulled into 120 Cassidy Circle and persons exited the vehicles. He said he was about 30 meters away, and he heard a big [bang], so he started to walk towards #120 but he couldn’t see anyone, so he walked back to his trailer and stood and watched. By his estimation the officers were inside around 10 minutes, but he admitted on cross-examination that he wasn’t tracking the time. […] 19.

Having read the “Information to Obtain” and attachments that were presented to the issuing Judge, I am satisfied that pursuant to section 11(1) of the Controlled Drugs and Substances Act , and applicable case law, that the Judge had reasonable grounds to issue the search warrant for 120 Cassidy Circle. Considering the totality of the information contained, and the obvious inference one would draw from Mr.

Price’s visits to an apparently unoccupied trailer on a number of occasions and given the nature of the information relating to his involvement in the drug scene, it was reasonable to conclude that the possibility and probability of “the things to be searched for” as outlined in the warrant could be found at 120 Cassidy Circle. I therefore find that the warrant was properly issued. [ 32 ] It bears immediate mention that paragraphs 7 and 10 reflect palpable and overriding errors in the assessment of the ITO. In paragraph 7, the trial judge states that, on October 30, 2006, Mr.

Price entered the residence at 120 Cassidy Circle where he stayed “about 2-5 minutes”. There is no support in the ITO for that finding. In fact, Mr. Price was not observed entering the residence in question on October 30, 2006. In paragraph 10, the trial judge records that “[i]n November 2006, it was noted that a Kelly’s Homes truck arrived at 120 Cassidy Circle and a male who they thought was Tim Price exited the vehicle and entered the residence”. According to the ITO, no member of the surveillance team saw Mr. Price enter the residence at 120 Cassidy Circle during the month of November 2006. Rather, it is Mr.

Price’s brother, Jeffrey Price, who was observed entering the residence in question on an unspecified date during the month of November. The ITO deponent confirmed in his testimony that Jeffrey Price was not charged with any offence as a result of the investigation detailed in the ITO. These palpable errors in the assessment of the ITO undoubtedly played a role in swaying the trial judge’s conclusion that there were reasonable grounds for the issuance of the warrant to search Mr. Kelly’s residence. I will revisit this question shortly. [ 33 ] However, the trial judge did conclude Mr.

Kelly’s rights under s. 8 of the Charter were violated by the prior forcible police entry into and warrantless search of his residence. In her judgment, that entry and search could not be justified under s. 11(7) of the CDSA on the basis of “exigent circumstances”. In coming to that conclusion, the trial judge made the following observations: 20. The second issue the Court has to concern itself with is the warrantless entry into 120 Cassidy Circle. The 4 police officers who were dispatched to secure #120 were not part of the ongoing Operation Jellybean investigation.

They were dispatched by Sgt. [H.], from headquarters, and told that a warrant would be forthcoming but that they could enter the premises without the warrant due to exigent circumstances. 21. Section 11(7) of the Controlled Drugs and Substances Act reads: A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

22. Defence quoted Mr. Justice Dickson in Hunter et al v. Southam Inc. , 1984 CanLII 33 : The Canadian Charter of Rights and Freedoms is a purposive document, the provisions of which must be subjected to a purposive analysis.

Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It is not enough that a determination be made, after the fact, that the search should not have been conducted. This can only be accomplished by a requirement of prior authorization. Accordingly, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are prima facie unreasonable under

section 8. The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. 23. The Crown submitted the case of R. v.

McCormack 2000 BCCA 57 (CanLII) , 2000 B.C.C.A. 57 where the Court in that case stated that what must be present for a search to be authorized under section 11(7) is as follows: … To fall within the authorizing legislation, section 11(7) of the Controlled Drugs and Substances Act , two conditions must be satisfied, the conditions ordinarily required to obtain a search warrant must be present, and exigent circumstances must exist which make it impracticable to obtain a search warrant. 24.

The Crown goes on to argue that while the initial entry into 120 Cassidy Circle was made before the arrival of the warrant, this was only done to secure the premises from persons unknown destroying evidence. 25. As stated in the Crown brief, in R. v. Grant 1993 CanLII 68 (SCC) , [1993] S.C.J. No. 98, the Court stated at paragraph 32: … Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed … 26. In this case, the last sighting of Mr.

Price at 120 Cassidy Circle was on December 4, 2006. On that date, Tim Price received a phone call from Chris (Quigley or Trites), which appeared to involve a drug transaction. Later that same day, Tim Price goes to 120 Cassidy Circle where he appears to receive a further cell phone call from this Chris, regarding an additional buy. Mr. Price leaves 120 Cassidy Circle and goes to his house. Later he has a meeting with this same Chris, and when Chris exits Mr. Price’s vehicle he has a ½ full plastic bag, believed by the police to contain cocaine and marihuana. 27.

However, between December 4 th and December 15 th (the day of the arrests) there does not appear to be any further activity noted at 120 Cassidy Circle. The police had already discovered that there was no land phone line at #120, so the issue of someone calling someone at that location to warn them was moot. Further, the police had not determined that anyone was living there, as the only information they had was of Mr. Price’s visits there, with, on occasion other vehicles being there at the same time, but all vehicles leaving when Mr. Price did. The police had Mr.

Price in custody, so he wasn’t going to be calling anybody to warn them. The police officers were aware that a warrant was being sought for a search of 120 Cassidy Circle. There was no evidence before the Court that would convince me that there was an “imminent” danger of destruction of evidence, such as to invoke “exigent circumstances.” It had been 11 days previous that Mr. Price had been at 120 Cassidy Circle, and the police only had suspicions that there may have been drugs there, and certainly nothing of a current nature.

While the police could have attended at the trailer and secured the premises from anyone entering until the warrant arrived, I cannot find the grounds to justify the warrantless entry on “exigent circumstances.” I therefore find there was a breach of the accused’s

section 8 Charter rights. [Emphasis added.] [ 34 ] The trial judge then turned her attention to s. 24(2). After referring to the most recent pronouncements of the Supreme Court of Canada on the principles that inform the application of s. 24(2), she rejected the defence motion for evidential exclusion. In her view, admission would not bring the administration of justice into disrepute. Her reasons for so concluding are as follows: 29. The defence quoted Mr. Justice Sopinka in R. v. Silveira 1995 CanLII 89 (SCC) :

“Yet the question remains, how should the police act in a situation where they have a serious and valid concern pertaining to the preservation of evidence while awaiting a search warrant. As a result of this case, police officers will be aware that to enter a dwelling house without a warrant, even in exigent circumstances, constitutes such a serious breach of Charter rights that it will likely lead to a ruling that the evidence seized is inadmissible.” 30. The Supreme Court of Canada in the recent R. v. Grant case

(2009) SCC 32, dealt with the exclusion of evidence under section 24(2), and said that a Court has to assess whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. The test for a Court to consider in whether to admit such evidence is to consider the following: 1) the seriousness of the Charter -infringing state conduct 2) the impact of the breach on the Charter -protected interests of the accused, and 3) society’s interest on the adjudication of the case on its merits 31.

The Court must assess under each line of inquiry and considering all the circumstances, determine whether the admission of the evidence would “bring the administration of justice into disrepute.” 32. In this case, the officers who entered 120 Cassidy Circle prior to the warrant being received said they did so because of “exigent circumstances” (which I have already determined did not exist).

They also testified that their initial entry was for the purpose of determining if there was anyone there, to prevent the possible destruction of evidence, and that an official search was not done for drugs and/or drug paraphernalia until the warrant was received, at which time they re-entered the trailer and searched it. 33. There is no evidence before the Court that the police knew the trailer was a dwelling house and occupied by anyone on an ongoing basis. Certainly there was no evidence in the “Information to Obtain” that would link the accused with 120 Cassidy Circle.

Even the Defence argued that there was nothing to link his client to the investigation. The police suspicions were that it was a place to stash drugs , and they did in fact find drugs and drug paraphernalia in the trailer. 34. The proliferation of drugs has risen to major proportions, and it is clear that society recognizes the necessity to curtail, control and eliminate where possible the dissemination of illegal drugs. Certainly society as a whole would be aware of the role drugs play in the numbers of crimes that come before the Court. 35. While I am satisfied that there was a breach of the accused’s

section 8 Charter rights, I do not find that it was an egregious one, and the administration of justice would not be brought into disrepute by the admission of the evidence found at 120 Cassidy Circle, pursuant to the warrant, and I do not exclude it. [Emphasis added.] [ 35 ] Once the seven pounds of marihuana found their way into the evidential record, the judge had no difficulty concluding the prosecution had discharged its burden of proof, finding Mr. Kelly guilty and convicting him of the offence charged (s. 5(3)(

a) of the CDSA ). He was eventually sentenced to 26 months in jail. [ 36 ] Following the filing of his Notice of Appeal, Mr. Kelly was released on bail pending this Court’s decision on the merits. II. The Issues [ 37 ] The present appeal raises the following questions: (1) did the trial judge commit reversible error in finding there was evidence before the issuing judge upon which she could be satisfied there were reasonable grounds for the ITO deponent’s stated belief that the “things to be searched for” were in Mr.

Kelly’s residence on December 15, 2006?; (2) did the trial judge commit reversible error in failing to find the warrant to search Mr. Kelly’s residence had been improperly obtained?; and (3) did the trial judge commit reversible error in concluding the admission of the evidence obtained from Mr. Kelly’s residence would not bring the administration of justice into disrepute?

III. Analysis and Decision A. The infringements of the appellant’s s. 8 rights

(1) The first police entry and search [ 38 ] The respondent does not take issue with the trial judge’s finding that the forcible entry into and warrantless search of Mr. Kelly’s residence were unlawful and violated his rights under s. 8 of the Charter . The officers who broke into Mr. Kelly’s residence and into one of its bedrooms, and conducted a search therein without prior judicial authorization knew of no exigent circumstances that might have legitimized their conduct.

At least one of those officers had significant experience in drug enforcement and was “surprised” by the order to break open, if need be, the door to 120 Cassidy Circle. For reasons that remain unexplained, the superior officer who issued that order did not share with the officers at the scene the intelligence, if any, which might have caused him to believe in the existence of exigent circumstances. Moreover, that officer did not testify at the voir dire . On the record at our disposal, I can only conclude the warrantless entry and search of Mr.

Kelly’s home was carried out with shocking insouciance for the law and Mr. Kelly’s constitutional rights. As will be seen, we need not determine whether that state of affairs would suffice to entail evidential exclusion. That brings me to the process which culminated with the issuance of the warrant to search 120 Cassidy Circle.

(2) The search pursuant to the warrant

a) The applicable standards [ 39 ] Under s. 11(1) of the CDSA , the issuing judge must be satisfied that the thing to be searched for is in the place to be searched. In the case at bar, the issuing judge had to be satisfied the ITO demonstrated: (1) the deponent believed an offence had been committed; and (2) evidence of that offence would be found in Mr. Kelly’s residence. The ITO also had to demonstrate this belief was based upon reasonable grounds.

In contrast, the question for the trial judge was whether “there was sufficient credible and reliable evidence to permit [the issuing judge] to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place” [emphasis added] (see R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 40 ).

Clearly, the trial judge applied an impermissibly low standard when she concluded the search warrant had been lawfully issued because “it was reasonable to conclude that the possibility and probability of the ‘things to be searched for’ as outlined in the warrant could be found at 120 Cassidy Circle” [emphasis added]. [ 40 ] Contrary to the trial judge’s assertion, a probability, perforce a possibility, that incriminating evidence could be found at Mr. Kelly’s residence did not constitute a legally sufficient basis for the issuance of the contested warrant.

The statements in Morelli , at para. 40 , eliminate any doubt that might have persisted on point and recall to center stage the celebrated case of Hunter v.

Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145, where the Court emphasized that a belief in the possibility of finding evidence at the specified place, even if reasonable, was not sufficient for the principled issuance of a search warrant: The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them.

To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions.

I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure . [p. 167] [Emphasis added.] [ 41 ] All that said, one might still be tempted to turn a blind eye to the trial judge’s misstatement of the governing test if it weren’t for: (1) her palpable and overriding errors in the assessment of the ITO, which are particularized and fully discussed in paragraph 32 of these reasons; (2) certain findings of fact which flatly contradict her conclusion that the warrant judge could find the ITO provided the requisite reasonable grounds; and (3) the ITO’s actual failure to provide evidence upon which the issuing judge could conclude there were reasonable grounds for the deponent’s stated belief that “the things to be searched for” would be at 120 Cassidy Circle.

[ 42 ] No useful purpose would be served by a re-visitation of the palpable and overriding errors referenced above. Suffice it to say those errors open the door to appellate intervention (see H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 S.C.R. 401). Such is likewise the effect of the finding of fact detailed hereinafter because it precludes the view that the ITO provided evidence upon which the issuing judge could conclude to the existence of the requisite reasonable grounds. Thus, in substantiating her finding that Mr.

Kelly’s rights under s. 8 of the Charter had been violated, the trial judge noted Mr. Price had been last observed at 120 Cassidy Circle on December 4, 2006, some eleven days previous to the warrantless police entry into and search of the residence at that location. Critically, she went on to find “the police only had suspicions that there may have been drugs there” and that, on December 15, 2006, “nothing of a current nature” provided a basis for those suspicions. Recall that both the forcible entry and the issuance of the search warrant for Mr. Kelly’s residence took place near mid-day on December 15, 2006.

Furthermore, in her s. 24(2) analysis, the trial judge once again refers to “police suspicions” that 120 Cassidy Circle “was a place to stash drugs”. It is axiomatic that mere police suspicion of such a state of affairs, whether on December 15, 2006, or sometime previous, could not constitute a sufficient basis for the lawful issuance of the search warrant in relation to 120 Cassidy Circle (see R. v. Kokesch , 1990 CanLII 55 (SCC) , [1990] 3 S.C.R. 3, [1990] S.C.J.

No. 117 (QL) at para. 46 and Hutchison Bury, Search and Seizure Law in Canada, Vol. 1 (Toronto: Carswell, 2005), p. 16- 10). [ 43 ] In Kokesch , the majority agreed the home perimeter search for marijuana at issue in that case constituted an egregious violation of the occupant’s s. 8 rights. In coming to that conclusion, the Court remarked: Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.

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

It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent […]. [para. 45] [ 44 ] Having found “the police only had suspicions that there may have been drugs there” and that, on December 15, 2006, “nothing of a current nature” provided a basis for those suspicions, the trial judge could not conclude the warrant to search the residence at 120 Cassidy Circle had been properly obtained (see R. v. Morelli , at para. 40 ).

That brings me to the ITO provisions the respondent contends do, nonetheless, provide an evidential basis for those grounds. [ 45 ] Both sides agree R. v. Allain (S.) (1998), 1998 CanLII 12250 (NB CA) , 205 N.B.R. (2d) 201 (C.A.), [1998] N.B.J.

No. 436 (QL) articulates the framework for the review by trial courts of the sufficiency of the evidence placed before the issuing judge in a case such as the present one: The fact that Informations are subject to judicial scrutiny before a search warrant can be validly issued and the fact that the issuing judge's ultimate decision involves an exercise of discretion explain, at least in part, why any subsequent review must be undertaken from the standpoint that the impugned search warrant and Information are presumed valid.

See Fontana, The Law of Search and Seizure in Canada , 4th ed. (Toronto: Butterworths, 1997) at 72. Since the Information is presumed valid, it follows that the burden rests on the challenger to satisfy the reviewing judge that it does not comply with the substantive requirements set by law. Moreover, the reviewing court must not assess the substantive quality of the Information by confining itself to the evidence which is explicitly set out in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence.

This power has been recognized by our Court on several occasions. See R. v. MacDonald (F.D.) (1992), 1992 CanLII 2806 (NB CA) , 128 N.B.R. (2d) 447 (C.A.), and Valley Equipment Ltd. v. R. (1998), 1998 CanLII 12245 (NB CA) , 198 N.B.R. (2d) 211 (C.A.). It has also been acknowledged by the Ontario Court of Appeal in the oft-quoted case of R. v. Breton (M.) (1994), 1994 CanLII 939 (ON CA) , 93 C.C.C. (3d) 171 (Ont. C.A.).

In that case, the Court had no hesitation in deciding that the issuing judge had the power to draw the inference from the stated evidence that a particular individual had committed an offence, and that a narcotic was present at a particular location. It is settled law that the issuing judge is fully empowered to make all reasonable deductions which flow logically from the evidence stated in the Information, and this power must be factored into the review process.

Furthermore, the assessment by the reviewing court must take into account the totality of the Information, interpreting its constituent parts in context. See R. v. Arason (R.H.) and Derosier (G.L.) (1992), 1992 CanLII 1008 (BC CA) , 78 C.C.C. (3d) 1 (B.C.C.A.), at p. 25. It is therefore inappropriate to subject the Information to a microscopic analysis of its individual parts, each part being then viewed in isolation from its context. Finally, an overly strict

interpretation of the words used in the Information is not warranted by the jurisprudence, or by s. 8 of the Charter . This is particularly so where, as here, the evidence is uncontroverted that the deponent has acted in good faith throughout, and there is no evidence of fraud, reckless disregard for the truth, deliberate non-disclosure or intentional misstatement of the evidence. The reviewing court should be alive to the fact that, in most cases, the deponent is not trained in the niceties and subtleties of legal drafting.

In this regard, I fully endorse the views expressed by Gibbs J.A. in R. v. Melenchuk (R.) et al. (1993), 1993 CanLII 1011 (BC CA) , 24 B.C.A.C. 97, at para. 15 : [15] ... It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar. That being said, the reviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements.

It is indeed trite law that a warrant should only be issued where there is a credibly based probability that the items to be searched for are in the place specified in it. Where the Information does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannot be said to have been properly issued, and any search conducted under its authority can be challenged on the basis that it was not authorized by law . See R. v. Caslake (T.L.) , 1998 CanLII 838 (SCC) , [1998] 1 S.C.R. 51, at p. 60. [paras. 10-14] [Emphasis added.] See, as well, R. v.

Black , 2010 NBCA 36 , [2010] N.B.J. No. 171 (QL), at paras. 18-19 , Bell J.A. for the Court. [ 46 ] It is conceded the ITO offers no direct evidence that marihuana would be found in the residence at 120 Cassidy Circle during the search time specified in the warrant. However, the respondent relies heavily upon the proposition accepted in Allain that the substantive sufficiency of the ITO stands to be assessed on both the evidence that is explicitly articulated and all inferences that may be reasonably drawn from the record placed before the issuing judge.

I unhesitatingly agree and readily acknowledge that reasonable jurists may disagree on whether a particular inference is justified on the evidence, and that a reviewing court ought to refrain from substituting its view of the matter for that of the issuing judge except in the clearest of situations. However, there is a world of difference between inference and conjecture. On that score, I can do no better than repeat the Court’s observations in Parlee v. McFarlane ( 1999), 1999 CanLII 9446 (NB CA) , 210 N.B.R. (2d) 284 (C.A.), [1999] N.B.J.

No. 88 (QL): Moreover, there is no direct evidence of any agreement settling the boundary. As I mentioned earlier, the trial judge drew an "inference" that such an agreement had been reached. In Eastern Sprinkler Supplies Ltd. v. Woods (R.A.) Construction Ltd. et al. (1998), 1998 CanLII 12201 (NB CA) , 200 N.B.R. (2d) 382, at pp. 393-94, this Court drew the trial judge's attention to the sharp distinction between conjecture and inference.

We said: After referring to the principle that a contractual relationship will not easily be inferred in construction cases, the trial judge proceeded to “infer” and, as a result, found a direct contract between R.A. Woods and Eastern Sprinkler. This inference was drawn on the basis that the “direct contact between R.A. Woods and Eastern Sprinkler was so substantial in March and April”. A correct description of the nature of an inference can be found in Black 's Law Dictionary (6th Ed.) (St. Paul, Minn.: West Publishing Co, 1990), at p. 778.

It defines “inference” as follows: “In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted. A logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exits from the established facts. ...” An inference can only be drawn if it logically follows from the proven facts.

The fact that contact between R.A. Woods and Eastern Sprinkler was substantial in March or April of 1992 does not permit the legal inference of a direct contract between them. Such a deduction is simply not reasonable, and accordingly does not have the validity of legal proof. In Raworth (C.C.) & Sons Ltd. v. Moncton (City) (1957), 1957 CanLII 338 (NB CA) , 8 D.L.R. (2d) 478 (N.B.C.A.), at 485, McNair, C.J.N.B., referred approvingly to the oft- quoted statement of Lord Macmillan, in his dissenting opinion, in Jones v.

Great Western Railway Co. (1930), 47 T.L.R. 39 (H.L.), at 45 : “The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. ...”

The trial judge erred in law in inferring a direct contract from the fact that there had been substantial telephone contact in March and April 1992. [Underlining part of original text] Once again, we must underscore the fundamental difference between conjecture and inference. The first is not a reliable fact finding tool for the simple reason that it does not rest upon a compelling evidentiary foundation. As such, it has no place in judicial decision-making. The second is the product of a time-honoured fact-finding process. This process involves the extraction of a logical conclusion from cogent evidence.

As such, it is unquestionably a reliable weapon in the judicial fact finding arsenal . [paras. 42-43] [Emphasis added.] Those longstanding principles have withstood the test of time and were recently reaffirmed by Richard J.A., for a unanimous Court, in R. v. Martin , 2010 NBCA 41 , [2010] N.B.J. No. 198 (QL), at para. 36 . [ 47 ] I have carefully reviewed the ITO and conclude it does not provide any direct or circumstantial evidence upon which the issuing judge could find reasonable grounds for the ITO deponent’s stated belief that the things to be searched for were at Mr. Kelly’s residence.

At best, and as the trial judge found, the ITO gives rise to suspicions on the subject . In fact, the only clear assertions purporting to substantiate that belief are found at paragraphs 11 and 169 of the ITO: “I believe the trailer located at 120 Cassidy Circle is a location for both selling and storing drugs. Surveillance has placed Price going to this trailer on October 21, 2006 after a deal involving Court, Fitzpatrick and Gregoire. Subsequent to this, Price has been observed on several occasions by surveillance at this location”.

There are several problems with those assertions. [ 48 ] First, there is absolutely no basis in the ITO for the stated belief that the trailer at 120 Cassidy Circle is – or ever was – a location for selling drugs. The ITO deponent’s failed attempt at purchasing cocaine from Mr. Kelly on December 14, 2006, which, I repeat, went unmentioned in the ITO, would argue against the justifiability of that belief. [ 49 ] Second, the assertion that surveillance placed Mr. Price going to 120 Cassidy Circle on October 21, 2006, is misleading.

It immediately follows the allegation that 120 Cassidy Circle is a location for storing drugs and precedes the reference to “a deal involving Court, Fitzpatrick and Gregoire”. The message conveyed is that Mr. Price went to 120 Cassidy Circle on October 21, 2006, to store the drugs he acquired as a result of the referenced deal. However, the ITO establishes Mr. Price was not observed accessing Mr. Kelly’s residence on October 21. In point of fact, he drove to 120 Cassidy Circle but was not observed outside his vehicle. [ 50 ] Finally, and admittedly less significantly, Mr.

Price was observed at 120 Cassidy Circle only twice after October 21, 2006 and, therefore, not “on several occasions”. (

b) The obligations of the ITO deponent [ 51 ] The nature and scope of an ITO deponent’s duties and the potential consequences of their breach are aptly summarized in James Fontana and David Keeshan, The Law of Search and Seizure in Canada , 7 th ed. (Markham, Ont.: LexisNexis Canada Inc., 2007): A deponent is obliged to make full, fair and frank disclosure of the material facts so that the issuing judge is able to make a judicial assessment of whether the facts rise to the standard required to meet the test for issuance of the warrant […] Failure to make full disclosure of all relevant facts in the search warrant information may be a factor not only in quashing the warrant, but also in determining the outcome of a s. 24(2) application. […] [p. 103] [Citations omitted.] In seeking a search warrant, the ITO deponent must not only set out the relevant facts fully and truthfully, he or she must do so “plainly” (see R. v.

N.N.M. , 2007 CanLII 31570 (ON SC) , [2007] O.J. No. 3022 (S.C.J.) (QL), at para. 320 ; and R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, at paras. 46 and 47 ). Misleading statements and exaggerations of the available intelligence are not acceptable. Moreover,

the deponent’s disclosure obligations require him or her “to reveal, not to conceal, any unconstitutional investigative step by which the authorities have secured information relevant to the ongoing investigation” (see R. v. N.N.M . at para. 321 , R. v. Grant , 1993 CanLII 68 (SCC) , [1993] 3 S.C.R. 223, [1993] S.C.J. No. 98 (QL), at para. 90 , and R. v. Debot , 1989 CanLII 13 (SCC) , [1989] 2 S.C.R. 1140, [1989] S.C.J.

No. 118 (QL), at para. 53 ). [ 52 ] As flagged under the “Context” part of these reasons, the ITO does not inform the issuing judge of the following: (1) the ITO deponent’s view that, at the end of October 2006, the requisite reasonable grounds to obtain a warrant for 120 Cassidy Circle did not exist; (2) what events, if any, transpired between the end of October and the date of the issuance of the warrant to change that state of affairs; (3) the prior forcible police entry and warrantless search of 120 Cassidy Circle, and the intelligence gathered as a result of that search.

Even if the officers carried out that search for the stated purpose of ensuring no one was inside the mobile home, they could not avoid seeing what was there to be seen; and (4) the ITO deponent’s unsuccessful attempt at purchasing drugs from Mr. Kelly at that location during the evening previous to the application for the warrant. [ 53 ] The ITO consists of 171 paragraphs. As mentioned, very few of those pertain to 120 Cassidy Circle, and none plainly implicates Mr. Kelly or his residence in the drug activities under investigation.

Moreover, there were nearly one hundred attachments to the ITO, and none pointed to those premises as a location for the sale or storage of drugs. In addition, the deponent’s assertion in the ITO that he believes 120 Cassidy Circle is a location for the sale and storage of drugs could not be duty-compliant without at least contextualizing and nuancing it by the inclusion of the information detailed in the preceding paragraph.

The deponent’s failure to incorporate that information in the ITO can only be viewed as an extremely egregious breach of his duty: (1) to make full, fair and frank disclosure to the issuing judge; and (2) to set out the relevant facts truthfully, fully and plainly. [ 54 ] The ITO deponent’s breaches of duty and the ITO’s failure to provide more than suspicions about Mr. Kelly’s residence as a location for the sale and storage of drugs compel the conclusion that the warrant to search was improperly obtained insofar as that residence is concerned.

That being so, the trial judge committed reversible error in relying upon the warrant to legitimize the search that led to the seizure of the marihuana, an approach that ultimately prompted her to rule against the defence motion for evidential exclusion: While I am satisfied that there was a breach of the accused’s

section 8 Charter rights, I do not find that it was an egregious one, and the administration of justice would not be brought into disrepute by the admission of the evidence found at 120 Cassidy Circle, pursuant to the warrant , and I do not exclude it. [Emphasis added.] B. Section 24(2) [ 55 ] Great deference is owed to a trial judge’s appreciation of the effect admission of evidence obtained in violation of Charter rights may have on the repute of the administration of justice (see R. v. LeBlanc (K.R.) , 2007 NBCA 24 , 312 N.B.R. (2d) 321, at para. 28 , Richard J.A. for the Court).

However, the need for deference evaporates once, as is the case here, the trial judge’s appreciation is founded upon errors of law and palpable and overriding errors in the assessment of the ITO. [ 56 ] The considerations that inform the principled application of s. 24(2) are: “(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” (see R. v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, at paras. 85-86 ; R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 21 ; and R. v. Martin , at paras. 67-96 , Richard J.A. for the Court). Those considerations must be balanced to determine whether the effect of admitting the evidence would bring the administration of justice into disrepute. [ 57 ] The constitutional rights violated here relate to a home. Although this factor will not always entail exclusion of the impugned evidence, it will invariably weigh heavily in its favour particularly where, as here, the violations are anything but minor or technical.

While the police investigators may not have known who the owner of 120 Cassidy Circle was, they had every reason to believe it was someone’s home and, as of the eve of the searches, at least the ITO deponent knew Mr. Kelly lived there. In R. v. Silveira , 1995 CanLII 89 (SCC) , [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38 (QL), the majority states: There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling-house". No matter how good the intentions of the police may have been, their entry into the dwelling-house without a warrant infringed the appellant's rights

guaranteed by s. 8 of the Charter . Moreover, there can be no artificial division between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant. The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid... The Narcotic Control Act itself recognizes the age-old principle of the inviolability of the dwelling-house. It must be the final refuge and safe haven for all Canadians.

It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized. This principle is fundamental to a democratic society as Canadians understand that term.

Thus, it can be argued that the unauthorized entry into a dwelling-house is so grave a breach of a Charter right that evidence secured as a result of such an unauthorized entry should always be excluded . [paras. 140-141] [Emphasis added.] Although the majority opted for admission of the contested evidence despite the seriousness of the breach of Mr. Silveira’s rights under s. 8, it provided the following caution to law enforcement officials, one that ultimately led Parliament to adopt s. 11(7) of the CDSA .

That caution bears repeating if only because of the emphasis it places on the importance of a person’s home for s. 8 purposes: This case has confirmed that to enter and search a dwelling-house without a warrant constitutes a very serious breach of the Narcotic Control Act and the historic inviolability of a dwelling place. Therefore, in the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2).

It is difficult to envisage how the admission of the evidence could not bring the administration of justice into disrepute since in subsequent cases, it will be very difficult for the police to claim that they acted in good faith if they entered the dwelling without prior judicial authorization. The police must now know that exigent circumstances do not provide an excuse for failing to obtain a warrant. It is up to Parliament to amend s. 10 if it wishes to provide for exceptions to the warrant requirement.

Although I do not wish to foreclose the possibility that the evidence may still be admitted under s. 24(2), it will only occur in rare cases. [para. 162] [ 58 ] Unlike Silveira, the case at hand features an improperly obtained warrant and the contested evidence consists of a controlled substance that a fair number of courts have described as a “soft drug”, in contrast to “hard drugs” such as heroin. Kokesch underscores the significance of the last-mentioned feature for s. 24(2) purposes.

In that case, the majority ruled against admission of the marihuana seized as a result of an unlawful home perimeter search: The final category of factors to be considered under s. 24(2) concerns the effect that judicial exclusion of relevant and probative evidence could have on the reputation of the administration of justice. If exclusion would occasion greater disrepute than admission, then the impugned evidence ought to be admitted: see Collins, supra , at pp. 285-86.

The offences with which the appellant is charged are serious offences, though narcotics offences involving marijuana are generally regarded as less serious than those involving “hard” drugs such as cocaine and heroin. The appellant would seem to be plainly guilty, and the impugned evidence is required for a conviction. It cannot be denied that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence.

However, I have concluded, not without reluctance, that the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This Court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. As Dickson C.J. stated in Genest, supra , at p. 92: “the breach was not merely technical or minor”.

The violation of s. 8 of the Charter that occurred in this case must be regarded as flagrant, and the disrepute to the justice system that would necessarily result from the admission of the impugned evidence cannot be counterbalanced by speculation about the disrepute that might flow from its exclusion. [paras. 56-58] [ 59 ] In R. v. Genest , 1989 CanLII 109 (SCC) , [1989] 1 S.C.R. 59, [1989] S.C.J. No. 5 (QL), the police broke into a home to search for drugs on the basis of an improperly executed search warrant.

The Court reviewed the trial judge’s s. 24(2) analysis and concluded he correctly applied the proper legal test in determining the evidence should be excluded. It followed that the Court of Appeal had erred in reversing that determination simply because exclusion would bring about an acquittal. The Supreme Court noted that, if this were the applicable threshold, evidence gathered in breach of Charter rights would almost invariably be included in the record.

While recognizing the chances of an acquittal increase with exclusion pursuant to s. 24(2), the Court observed that exclusion should not be reserved for instances where the impugned evidence “has no effect at all on the result of the trial” (para. 35). [ 60 ] In R. v. Morelli , the majority spotlighted the importance, for s. 24(2) purposes, of an ITO deponent’s breach of his or her duties in connection with the judicial authorization process:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts.

And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant. [para. 102] In my judgment, the repute of the administration of justice would suffer if this Court were to take a benign view of the breaches of duty committed by the ITO deponent in the present case. [ 61 ] Finally, a word about R. v. Cornell , 2010 SCC 31 , [2010] S.C.J.

No. 31 (QL) where Justices LeBel, Fish and Binnie, dissenting on point, found the “excessive” force used by the police gave rise to an “unreasonable search” within the meaning of s. 8.

In the course of the analysis that led them to opt for evidential exclusion pursuant to s. 24(2), the dissenting trio make observations that, in my respectful view, have significant traction in the execution of the task at hand: The issue here is whether society's interest in the adjudication of this case on its merits outweighs the interests of society, in the longer term, in discouraging routine disregard by the police of constitutional, statutory and common law safeguards designed to protect the sanctity of a person's home.

This is not a matter of "punishing" the police, but rather of helping to regulate their conduct in the interests of society as a whole. [paras. 150-151] [ 62 ] The police officers who first invaded Mr. Kelly’s home did so without a warrant and without exigent circumstances. One of those officers was an RCMP sergeant with significant experience in actual law enforcement; to his credit, he did not even attempt in his testimony to make a case for “exigent circumstances”.

The fact is that both he and his fellow officers at the scene knew of no evidence pointing to a present danger of “loss, removal, destruction or disappearance of the evidence sought […] if the search or seizure [was] delayed in order to [await the imminent issuance of the] warrant” (see Grant (1993), at para. 30). Nor did the superior officer who directed the entry into 120 Cassidy Circle share with them or the trial judge, for that matter, what information, if any, undergirded his call to action before the issuance of the warrant, which was expected momentarily.

That direction and its unquestioned execution reflect an intolerable indifference for the law and Mr. Kelly’s constitutional rights under s. 8. Additionally, the subsequent search was conducted pursuant to a warrant obtained without the requisite reasonable grounds and on the basis of material non-disclosure and misleading statements in the ITO. This is not a case where good faith police work militates in favour of evidential admission (see, on point, R. v. Kelly (R.W.) (1999), 1999 CanLII 13120 (NB CA) , 213 N.B.R. (2d) 1, [1999] N.B.J.

No. 98 (C.A.) (QL), para. 61 ). [ 63 ] To summarize, the record reveals: (1) four RCMP officers attended at Mr. Kelly’s residence, broke open its front door, entered and conducted a search of its interior, all without any prior judicial authorization and in the absenc

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