R. v. Hobin, 2023 NSPC 12

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Hobin, 2023 NSPC 12 Date: 20230419 Docket: 8535764 8535766 8535768 8535770 8535772 8535774 8535776 8535778 8535780 8535782 8535784 8535785 8535786 8535787 8535788 8535789 8535801 Registry: Dartmouth Between: His Majesty the King v.

Prince Joseph Hobin Judge: The Honourable Judge Bronwyn Duffy Heard: March 10, 2023 in Dartmouth, Nova Scotia Decision April 19, 2023 Charges: ss. 86(2) , 86(1) , 88(1) , 91(1) , 92(1) , 95(1) , 88(1) , 117.01(1) , 91(2) , 92(2) Criminal Code of Canada s. 5(2) Controlled Drugs and Substances Act Counsel: Maile Graham-Laidlaw, for the Public Prosecution Service of Canada Patrick MacEwen, for the Defence By the Court: [ 1 ] The Court has for decision on an application proceeding by voir dire the matter of R. v. Prince Joseph Hobin. [ 2 ] Mr.

Hobin is charged with a 16-count Information of various unauthorized possession and other firearms and weapons-related charges, some straight Indictable and others carrying a Crown election, the latter on which the Crown elected to proceed by Indictment. He is also charged with a single count CDSA Information, a straight Indictable allegation of possession for the purpose of trafficking cocaine. Defence election was to Provincial Court, and trial proper is scheduled for 2-3 May 2023. Mr. Hobin is remanded to a federal institution by consent.

He was on statutory release when charged with these allegations. [ 3 ] The Defence filed a Charter [1] application, alleging a breach of

section 8. The Applicant is seeking a finding that Mr. Hobin’s rights guaranteed by

section 8 have been violated, and moves to exclude the evidence seized during the search of his residence. [ 4 ] The Charter application was heard by standalone voir dire on 10 March 2023. Counsel agreed that leave to cross-examine the affiant of the Information To Obtain (ITO) is not as-of-right, and the Crown consented to a limited right of cross-examination. [ 5 ] The evidentiary basis for the application was an ITO with no redactions, tendered by consent together with the issued search warrant, the testimony of Det./Cst.

Matthew Luck, and a read-in by consent of the seized items pursuant to that search warrant executed on 27 November 2021, which were noted as follows: 1. safe with 566.2 grams of cocaine; 2. key to above safe; 3. $1315 Cdn. currency; $30 US currency; 4. Apple iPhone; Alcatel flip phone; 5. digital scale;

6. number of baggies; 7. Dominion Arms 12-gauge loaded shotgun; 8. 9mm Ruger loaded handgun; 9. 57 x 9 mm cartridges and 19 x12-gauge shotgun shells; 10. four rifle cartridges; and 11. a switchblade knife. [6] A book of cases was filed by the Crown in advance of the hearing, and oral argument proceeded on the March 10 hearing date.Written submissions were filed by the Applicant defendant on 3 April 2023, and Crown reply on 11 April 2023. There were no further oralsubmissions on the return date of 19 April 2023. [7] Counsel are agreed on the issue; namely, the validity of the search warrant pursuant to

section 8. Put another way, the issue beforethe Court is whether sufficient grounds existed to issue the warrant. If the grounds for the warrant are found to be insufficient, it must bedetermined whether a remedy should issue pursuant to section 24(2) of the Charter. The question for this Court is whether the search warrantwas properly issued – was there sufficient credible and reliable information to permit the issuing justice to authorize the warrant. [8] Counsel are also agreed on the applicable law.

As such, a brief review of the law follows, but the focus of this decision is theapplication to the subject ITO. Preliminary Issues: Burdens, Standards and Leave to Cross-Examine [9] The burden of proof lies with the applicant to satisfy the court on a balance of probabilities that there has been a Charterinfringement such that a remedy under section 24(2) of the Charter lies (R. v.

Collins, (SCC), [1987] 1 S.C.R. 265 (at para.21-22)). [10] Under section 24(2), the applicant must satisfy the court on a balance of probabilities “having regard to all the circumstances” thatthe admission of the evidence “would bring the administration of justice into disrepute”. [11] A presumption of validity exists with respect to a search warrant and the sworn information supporting the warrant. The burden lieson the accused to displace this presumption. (R. v. Collins (1989), (ON CA), 48 C.C.C. (3d) 343 (Ont.

C.A.), at p. 35). [12] If the Defence wants to cross-examine the affiant, a proper leave application with supporting material must be made. (R. v.Garofoli, (SCC), [1990] S.C.J. No. 115). As noted, counsel dealt with this matter by consent. [13] There is no rule of automatic standing in challenging a search. Only a party who can establish a personal right to privacy; that is, areasonable expectation of privacy, can challenge a search. Mr. Hobin has standing to challenge the search of his residence; it is his personalprivacy rights that are the subject of the alleged violation.

Sufficiency of the ITO [14] In Garofoli, the Supreme Court of Canada formulated the test for determining the sufficiency of information underlying a warrant: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere. (p. 1452) [15] This standard was confirmed in R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R 253. In R. v. Saunders, 2003 NLCA 63, [2003] N.J.

No. 309 (C.A.), affd [2004] S.C.J. No. 66, the Newfoundland and Labrador Court of Appeal cautioned reviewingjudges to consider the totality of the information, rather than to engage in an exercise of parsing each bit of information, as did our Court ofAppeal in R. v. Liberatore, 2014 NSCA 109. [16] It is a similar assessment whether the court is assessing “grounds to believe” to obtain a warrant (Garofoli) or “grounds to believe”to arrest without warrant (R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140). [17] In Debot, Wilson, J., stated the following at page 215 concerning the sufficiency of grounds: 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? Secondly, 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, Iconcur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.

Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [18] Furthermore, Wilson, J., reaffirmed the following principles when considering the grounds of belief: i. the appropriate standard of proof is one of "reasonable probability" rather than proof beyond a reasonable doubt" or "prima faciecase"; ii. hearsay evidence may contribute to the establishing of probable cause; iii. the basis of informant information must be such as to be not "bald conclusory statements" or "mere rumour or gossip".

Debot, supra, at pages 213, 214, 215. R. v. Warford, [2001] N.J. No. 330 (C.A.) [19] In R. v. Garofoli, the Supreme Court of Canada summarized the factors to be considered in assessing whether information meetsthe reasonable grounds standard at p. 1456:

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. ii) The reliability of the “tip” is to be assessed by recourse to the “totality of the circumstances.” There is no formulaic test as to whatthis entails. Rather, the court must look at a variety of factors including:

a) the degree of detail of the “tip”;

b) the informer’s source of knowledge;

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [20] With respect to the degree of corroboration of information that may be required, the comments of Wilson J. in R. v. Debot, supra,must be borne in mind: …it should not be necessary for the police to confirm each detail in an informant’s tip so long as the sequence of events actually observedconforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

As I noted earlier, however, the level ofverification required may be higher where the police rely on an informant whose credibility cannot be assessed or where few details areprovided and the risk of innocent coincidence is far greater. R. v. Debot, supra, at p. 218 See also R. v. Murrin, [2005] N.J. No. 215 (S.C.) [21] In cases where the informant is a known confidential source, as opposed to an anonymous tipster, the need for additionalindependent corroboration of the information is less important. As noted by the Quebec Court of Appeal in R. v.

Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80, evidence which is independent and corroborative of the information obtained from the informeris not required as a “rule of law”, particularly where the informer has a history of providing reliable information. Fish J.A. wrote for thecourt at pp. 82-83: Bennett, unlike the present matter, involved a warrantless search and arrest, carried out – which again is not the case here – on the allegationsof an informer unknown to the police.

We are concerned instead with a search authorized by warrant on grounds furnished by a “coded” informer of known identity and provenreliability. He had provided the officer who swore the information with detailed and specific reasons for believing that evidence of drugtrafficking would be found in the Respondent’s apartment. The informer had personally seen cocaine in that apartment a few days earlier. He gave the police the full name, approximate age, and full address of the Respondent, and a description of the Respondent’s apartmentbuilding and of the location of the Respondent’s unit in that building.

Upon verification, the police were able to confirm that the physical description of the premises and of the alleged traffickers corresponded tothose furnished by the source. And they were able to determine that the respondent had a previous conviction for trafficking in narcotics. [22] The Quebec Court of Appeal went on to find that the information outlined above was sufficient to establish the requisite reasonableand probable grounds for a search warrant. R. v.

Beauregard, supra, at p. 83. [23] In 1993 the Supreme Court of Canada laid the groundwork that essentially established the practical standards for sufficiency ofgrounds, which applies whether it is grounds to obtain a warrant or grounds to arrest without warrant (R. v. Wiley (1993), (SCC), 84 C.C.C. (3d) 161 (S.C.C.); R. v. Grant, supra; R. v. Plant (1993), (SCC), 84 C.C.C. (3d) 203 (S.C.C.).) As ourCourt of Appeal stated in R. v. Morris, 1998 NSCA 229, the existence of reasonable grounds is essential to balancing privacy with effectivecrime detection (para. 29).

The tipping point where the state’s interest carries the day is founded in credibly-based probability, as directed bythe Supreme Court in Hunter v. Southam, (SCC), [1984] 2 SCR 145. [24] Justice Watt provides a review of procedure for warrant challenges in R. v. Sadikov, 2014 ONCA 72. A facial validity challengerequires the reviewing court to evaluate the ITO and determine whether a justice could have issued the warrant based on the information inthe ITO on its face (R. v. Araujo, 2000 SCC 65).

Sub-facial challenges go behind the form of the ITO to attack the reliability of its content.As is the case here, they involve an amplified record, but do not substitute the view of the reviewing judge for that of the issuing justice. Thetask of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on thereview, the authorizing justice could have issued the warrant (Sadikov, supra, at para 38). [25] ITOs are ex parte applications; accuracy and full disclosure are key.

An ITO must set out reasonable and probable grounds forbelieving that: an offence has been committed; that the things sought to be found exist, and will afford evidence in respect of the offence; thatthe things will be found in the place to be searched; and the placed described is actually the place sought to be searched. [26] This ITO is rife with insufficiencies, some more problematic than others. [27] The ITO is drafted as a 487.1 Criminal Code (CC) warrant “in relation to”

section 11 CDSA. The ITO purported to search for both

drugs and firearms. In a case where the intended search was for drugs, and firearms were found in the execution of the warrant, theappropriate application is for a

section 11 Controlled Drugs and Substances Act (CDSA) warrant, and the firearms located can be shelteredunder that warrant. Where the intended search is for firearms, the application should be made under

section 487 CC. In this case, where bothcontrolled substances and firearms were sought to be found, the application should have been pursuant to both

section 487 CC and

section 11CDSA. Instead, the ITO listed only

section 11 and

section 487.1, the latter which does not give authority to search, it is only the means bywhich to get the authority (by telephone). The warrant itself was even more deplete in its form – it listed only

section 487.1, with no referenceto either

section 11 or

section 487. I consider this more of a procedural rather than substantive issue, but I note it as relevant to the analysis inthe context of the whole. [28] The provisions of the legislation in the “(Offence(s))”

section of the ITO are drafted incorrectly; again, a relatively minor issue,though reference to incorrect charging sections is certainly not ideal. [29] There are errors in cross-referencing throughout the ITO that are more fundamental to its sufficiency – the reference to paragraphsthree and four in paragraph one do not relate to what is stated in paragraph one. Similarly, in paragraph four, there is a bracketed notation tosee paragraph seven, subparagraphs e and f, such subparagraphs which do not exist. [30] The affiant, Detective Constable Matthew Luck testified on the voir dire.

In paragraphs two and six, there is reference to an allegedassociate of Mr. Hobin, but this individual was misidentified as another person with the same name, as elicited on cross-examination byreference to different birthdates, with the result that the person identified in paragraph 2 is not the person identified in paragraph 6. Det./Cst.Luck testified fully and frankly as to this mistake, and I do not believe it was sinister in the slightest. As was the case in R. v. Chipman, 2020NSSC 354, also involving a single source and a mistake on the part of the affiant, Det./Cst.

Luck was cross-examined on the error, and, quiteappropriately, admitted to it. The Crown Attorney adopted a fair approach and conceded the point, and appropriately agreed to excise bothenumerated paragraph six and the second half of the

summary paragraph on page 7 from the ITO, in accordance with the process identifiedby the Supreme Court in 1985 (R. v. Grabowski (SCC), [1985] 2 SCR 434). [31] The investigative queries in paragraphs three through eight denote 273 Wyse Road, Apt. 8 as the address of Mr. Hobin inDartmouth, NS. However, the single Source in the ITO says only that the “apartment overlooks Wyse Rd” and the “unit is the far left unitupstairs”. I agree with the Defence that nowhere in the ITO does the Source say that Mr. Hobin lives on Wyse Road, let alone 273 WyseRoad, nor does the Source say that Mr. Hobin lives in Apt. 8.

However, I do find that while the corroboration as to the address is notexacting, there is nevertheless some degree of corroboration, particularly when combined with the description of the apartment placement bySource A, and the investigator’s recall of the apartment location from an earlier file. [32] Turning to the Source qualifications, I afford particular focus to the qualifications on the issue of credibility, as this Information toObtain is supported by a single source.

I am mindful of the Supreme Court’s direction in Debot that weaknesses in one area may becompensated by strengths in another, and that of our Court of Appeal in R v. Wallace, 2016 NSCA 79 on the potential sufficiency of single-source ITOs. [33] At the outset of the

section entitled Confidential Human Sources, which I refer to herein as the qualifications, the affiant inparagraph nine references “confidential informants” in the plural form in several instances; however, this is a single-source ITO. This is acase of careless draftsmanship, and while on its own not particularly concerning, it contributes to the overall substandard quality. Source Aacted in the capacity of a confidential informant for 13 years, and provided in-person and telephone information to the handler regularly. I donote the drafting of the criminal record

section is not in conformity with the direction in R. v. Rocha, 2012 ONCA 707 (para. 8). [34] Paragraph 10 details that Source A associates freely with persons involved in criminal activity, that Source A is financiallymotivated to provide information to police, and has been paid for providing that information. In R. v. MacDonald, 2014 NSSC 218, atparagraphs 41 and 42, Justice Arnold notes: [41] Cst.

Green goes on to swear in subheading “a.” that “Source “A” associates freely with persons involved in criminal activity and haspersonal knowledge of the information obtained herein based on conversations and observations of persons involved unless otherwise stated.Source “A” has been paid for information supplied in the past.” The fact that Source “A” freely associated with criminals does not add muchto the sufficiency of this ITO.

Source “A” may have been paid by the police for information in the past, however Source “A” has no pastproven record of reliability so having been paid for information in the past by the police (for information that did not lead to successfulsearches or arrests) does not add to the reliability of Source “A” at all. [42] Most importantly, Source “A” has no past proven reliability as is noted in subheading “a.”: … Source “A” has not provided information in the past that has led to the execution of CDSA warrants, charges, and convictions under theControlled Drugs and Substances Act and the Criminal Code of Canada.

I have been in contact with Source “A” on a regular basis. [35] Paragraph 10(

i) does nothing to reinforce the pedigree of the Source: it states the information supplied by Source A has beencorroborated through the execution of search warrants and the arrest of individuals. It does not say how many. It does not say whether thosewarrants were successful, or whether those arrests resulted in convictions. The ITO is, in effect, completely silent on the past performance ofthis Source. [36] I turn to the information ostensibly provided by the Source in this ITO, contained wholly in paragraph 11, which states: 11. The information provided to me by D/Cst. Shannon is as follows: a.

Prince AKA Bucky sells crack b. Prince AKA Bucky was in possession of a handgun and a shot gun in the last 72 hours c. Prince AKA Bucky sells crack for Gerald McNamara d. Prince AKA Bucky operates a silver 4 door Kia

e. Prince AKA Bucky’s apartment overlooks Wyse Rd f. If you look at the front of the building Prince AKA Bucky’s unit is the far left unit upstairs g. Prince AKA Bucky is related to Fallon Mcnamara [ 37 ] The affiant swears that “the information provided to me by D/Cst. Shannon is as follows:”. The affiant does not say this information derives from Source A. This is a notable omission. The Crown is asking the issuing justice to make an inferential leap that this information to the handler is coming from the Source.

There is nowhere else in this ITO that this information is directly stated to have been coming from Source A, the only confidential source providing information to support the issuance of this warrant. [ 38 ] Subparagraph a is the sort of bald assertion, with no inherent compellability or reliability, warned against by Wilson J. in Debot . The degree of detail provided narrows the type of drug, but provides no information about where the drug was observed, the amount, the location (of the drug or of Source A), how it was packaged, how the Source knows it was “crack”.

However, I remind myself what the Court notes in MacDonald , which is that the focus must remain on what is in the ITO when conducting a sufficiency analysis, not what is missing from it. [ 39 ] There are many questions arising from the allegations by Source A, but the focus is to remain on what is actually contained in the ITO. Nevertheless, the degree of detail in this subparagraph is minimal. Subparagraph b. is better, as it notes a timeline. That Mr. Hobin has a criminal record for robbery and firearms offences has some corroborative value.

Subparagraph c. offers detail for whom “Prince” sells, but with the excision of paragraph six and the second paragraph of the

summary on page 7 from the ITO, there is now little significance to the name Gerald McNamara. [ 40 ] Source A provides information on the colour and type of vehicle operated by “Prince”, and this is corroborated to the extent that police surveillance observed a vehicle matching that description at 273 Wyse Road. However, it is also noted that Parole Officer Hume informed the investigator that Prince Hobin does not own his own vehicle. [ 41 ] Earlier in these reasons, the ties to Wyse Road as the location of Mr. Hobin’s residence and the degree of corroboration of the Source information was plumbed.

The Defence raises that the Source does not specifically tie “Prince AKA Bucky” to Prince Hobin; there is no mention of the last name Hobin. This is a point to be considered in the sufficiency analysis, but it concerns me less than what I consider to be an inferential chasm, which is the absence of any information connecting the drugs and the guns to the apartment of Mr. Hobin. The Source, and the remainder of the grounds, offer no information that the contraband is expected to be located in the apartment of Mr. Hobin.

This is essential, in my view, to the issuance of the warrant; indeed it is prerequisite that there be reasonable grounds to believe the “things” in respect of which “offences” have been committed are in a “place” – namely, the residential building 273 Wyse Road, Apartment 8, Dartmouth, Nova Scotia. [ 42 ] In the final analysis, hearsay evidence is admissible to establish grounds, the issuing justice can draw reasonable inferences from the facts in the ITO, and the totality of the circumstances must meet the standard of reasonableness ( R. v. Durling , 2006 NSCA 124 . See also R. v.

Shiers , 2003 NSCA 138 ). [ 43 ] Single-source warrants can provide a sufficient basis for the granting of a warrant. R v. Wallace , 2016 NSCA 79 , is particularly instructive, also involving a single-source ITO: [ 39 ] Quite apart from the history that demonstrates that a tip from an informant can be sufficient, the submission of the appellant would render the balance of Garofoli criteria redundant.

That cannot be the law. [ 40 ] The reference to “…evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds” is limited to circumstances where the tip is nothing more than a bare conclusionary statement unsupported by details, demonstrated reliability, or other police work. …. [ 46 ] The affiant’s description of the information from the informer belies the notion that the warrant was based on a mere conclusionary statement. The trial judge rightly looked at the details provided by the informer.

The affiant deposed that the informer’s information was based on his or her firsthand observations.

This led the trial judge to conclude that the informer had been in the residence and was knowledgeable about the type and quantities of drugs being sold by the appellant. [ 47 ] Further, the affiant set out details that supported the reliability of the informer; he or she had provided information on two prior occasions that led to search warrants and consequent seizures of controlled substances and drug paraphernalia. [ 48 ] It is the totality of the circumstances set out in the ITO that determines if mere suspicion is displaced by credibly based probability.

The trial judge was right to conclude the test was met. I would therefore not give effect to this ground of appeal. [ 44 ] The New Brunswick Court of Appeal in R v.

Goodine , 2006 NBCA 109 (para 2 ) comments on whether untested tips must always be corroborated via independent investigation, and concludes in the negative: Once unpacked the case on appeal boils down to the following narrow question, one of first impression in this Court: must the allegation of criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before the police can lawfully act upon that allegation and proceed to arrest its target? In my view, an affirmative answer is not ordained, as a matter of law. [ 45 ] In R v.

Caissey , 2007 ABCA 380 , a first-time informant’s untested information was coupled only with police confirmation that the

accused lived at the stated address and some other non-criminal details. The trial judge held that the information was sufficient for theissuance of the warrant and convicted the accused, held up on appeal with the majority saying the criminal aspect of a tip did not necessarilyhave to be corroborated (para. 23). The Supreme Court of Canada unanimously dismissed the accused’s appeal from conviction.

Speakingfor the Court, Chief Justice McLachlin stated: The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance forthe issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by themajority. R. v.

Caissey, 2008 SCC 65 , [2008] 3 S.C.R. 451. [46] However, as the Court stated in MacDonald, the mere assertion that a certain person is engaged in criminal activity or that drugswould be found at a certain place does not necessarily form a sufficient basis for the granting of a warrant depending on the detail provided inthe tip, the degree of corroboration, and the past proven reliability of the source (see also Debot). [47] On amplification of the ITO, two paragraphs were excised.

In my opinion, the ITO, after excision, does not contain sufficientcredible and reliable information to have permitted the issuing justice to authorize the warrant. There were errors throughout. Source A wasnot properly qualified and has no past proven reliability. There is no information connecting the drugs and the guns to the apartment of Mr.Hobin. The Source, and the remainder of the grounds, offer no information that the contraband is expected to be located in the apartment ofMr. Hobin.

There was not sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds tobelieve that an offence had been committed and that evidence of that offence would be found at the specified time and place. The searchwarrant should not have been issued. Because the warrant should not have issued, the subsequent search violated s. 8 of the Charter. TheDefence has met its burden, a

section breach is automatic and a 24(2) analysis must follow. Remedy: Section 24(2) Analysis [48] The analysis to be conducted under section 24(2) requires consideration of all the circumstances to determine if the admission ofthe evidence would bring the administration of justice into disrepute. The focus is on maintaining the integrity of, and public confidence in,the justice system.

The issue is to be viewed objectively: “…whether a reasonable person, informed of all the relevant circumstances and thevalues underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute?”(R. v.

Grant, 2009 SCC 32). [49] There are three factors in the section 24(2) analysis: (1) the seriousness of the Charter-infringing state conduct; (2) the impact on the accused’s Charter-protected interests; and (3) society’s interest in the case being adjudicated on its merits. [50] Each of these factors must be “weighed in the balance” to reach the ultimate determination of whether the administration of justicewould be brought into disrepute by the admission of the evidence. This calculus is “not capable of mathematical precision.” (R. v.

Harrison,2009 SCC 34). [51] The task for the court remains one of a contextual and flexible assessment to achieve a balance between individual and societalinterests with a view to determining whether the administration of justice would be brought into disrepute by admission of the evidence. Seriousness of the Charter-Infringing State Conduct [52] The purpose of this inquiry is to evaluate the state conduct, which can range from “inadvertent or minor violations” to “willful orreckless disregard of Charter rights” (Grant at Para.73).

The more severe the impugned conduct is along the spectrum, the more severe isthe need for courts to exclude evidence linked to that conduct. Some mitigating factors to the seriousness of the conduct include the need toprevent the disappearance of evidence, and good faith on the part of the police (Harrison, supra, paras 26, 27). [53] There is no evidentiary foundation to support the claim that the police did not act in good faith. The police proceeded appropriatelyin getting the warrant. During the course of the search, real evidence was located and seized by the police executing the warrant.

The policedid what would be expected in the circumstances. The drafting of the ITO was substandard, but Det./Cst. Luck was frank in his testimony,admitting straightaway to the errors on which he was cross-examined. The officer’s behaviour was not in any way arbitrary, it certainly couldnot be described as the type of “unacceptable police conduct” from which the court should distance itself.

As noted by the Supreme Court inMorelli, supra, the “search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officerswho believed they were acting under lawful authority.” [54] In this case, the ITO was deficient in many respects, all of which were addressed earlier in these reasons and I will not engage inanother iteration of them here. That said, the police who executed the search and seizure believed they were acting under the lawful authorityof an issued search warrant.

I conclude this favours admission of the evidence, albeit narrowly, in relation to the first Grant factor. Impact on the Charter-Protected Interests of the Accused [55] The purpose of this inquiry is to determine the extent to which the breach undermined the Charter-protected interests of theaccused. This determination is made by examining the type of interest engaged by the infringed right, and then assessing the degree to whichthe interest was violated. [56] The intrusiveness of the search is of particular importance (Morelli), and the home is a place in which a person enjoys the highestexpectation of privacy.

Entry into a person’s private dwelling is an intrusion of the highest order. The Crown fairly and quite properlyconcedes that this factor weighs against admission of the evidence. Society’s Interest in an Adjudication on the Merits

[ 57 ] The purpose of this inquiry is to determine if the “truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” ( Grant ). This determination is made by assessing the reliability of the evidence, the importance of the evidence to the prosecution’s case, and factors pointing to exclusion. The seriousness of the offence is also a factor. [ 58 ] This evidence is highly relevant, real evidence, demonstrated in part by the effect of its exclusion - it would effectively end the trial. As to the seriousness of the offence, possession for the purpose of trafficking of a

Schedule 1 substance is among the most significant drug offences; it is straight indictable process, and is a designated substance offence. Several of the firearms allegations are also straight Indictable, and I agree with the comments of the Crown Attorney regarding the serious, ongoing concerns with gun violence and the jurisprudence detailing their corrosive effects on society. Individuals involved in retailing controlled substances expose themselves and the community to significant risk, going hand in glove with property crime and violence.

Offences of this nature regularly attract a period of incarceration, usually a federal penitentiary term, all of which supports that the community has an interest in adjudication at trial proper. A conviction also carries consequences in terms of ancillary orders such as firearm prohibitions and potential DNA collection. For these reasons, this third inquiry supports admission of the evidence.

Balancing [ 59 ] As the Supreme Court directs in Harrison , the three factors in the inquiry must be assessed with a view to achieving a balance among the interests affected to determine whether admission the evidence would bring disrepute to the administration of justice. [ 60 ] Fish J. in Morelli at paragraph 9 said “…the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued.” [ 61 ] The infringing state conduct in this case was the search of Mr.

Hobin’s home and the seizure of guns, drugs and money. The ITO was insufficient. It was beset with procedural errors. The single source was not properly qualified, in particular with respect to the reliability of the past information provided, how many arrests resulted, how many search warrants, how many negative searches, if any, and how many convictions resulted, if any. The officer misidentified an associated individual leading to the excision of two paragraphs from the sufficiency review.

There was not comprehensive investigation to corroborate the assertions of the Source, some of which were bald and conclusory. The linking of the accused to the address, the linking of the individual named by the Source to Mr. Hobin and the specification that the information actually derived from Source A all required varying degrees of inferential leaps. The most critical deficiency is the complete absence of information to connect the drugs and guns to the apartment of Mr.

Hobin, the “place” where the “things” were to be found, which is requisite to the issuance of the warrant. [ 62 ] The public’s confidence in the administration of justice is its backbone; in my view, it is not understating it to say this contributes to freedom and democracy. The proper administration of justice requires it.

When weighed in the balance, the public’s confidence in our justice system must not be undercut by unconstitutionally-obtained evidence that results in a significant curtailing of individual rights; the seriousness of the allegations and society’s interest in adjudication do not outweigh the factors favouring exclusion. [ 63 ] The evidence seized from the execution of this search warrant must be excluded. Thank you both for your advocacy. Bronwyn Duffy, JPC