R. v. East, 2011 ONCJ 502

Citation: R. v. East, 2011 ONCJ 502 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — PAUL EAST ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) I. Bell For the Crown A. Abbey For the Defendant/Applicant Heard: August 22, 2011 REASONS for RULING (Charter S. 24(2) Exclusionary Motion) MELVYN GREEN, J.: A. INTRODUCTION [1] Paul East, the defendant and applicant, is charged with six counts of possession of controlled drugs for the purpose oftrafficking. These drugs, as particularized, include cocaine, marihuana, heroin, MDMA (“XTC”), hydromorphone andmethamphetamine.

East (hereafter, the defendant) pled not guilty and elected to proceed by way of trial in the Ontario Court of Justice. He has also applied, by way of preliminary motion, to have the evidence of the drugs that ground these charges excluded from his trialpursuant to s. 24(2) of the Charter. [2] The evidence of the drugs is the product of a search warrant executed at the defendant’s home on November 18, 2010. TheInformation sworn to obtain that warrant (the “ITO”) was redacted by the Crown to protect the confidentiality of an informant whoserved as the source of much of the information contained in the ITO.

The defendant withdrew an application to cross-examine theInformant who swore the ITO. He also effectively declined the opportunity to secure judicial summaries of the redacted portions of theITO, as authorized by R. v. Garofoli (1990), (SCC), 60 C.C.C. (3d) 161 (S.C.C.). [3] In view of the redactions to the ITO, Crown counsel fairly concedes that the remanet of the ITO – that disclosed to thedefence and subject to judicial review – is insufficient to afford reasonable and probable grounds for issuance of the warrant and,

accordingly, the search of the defendant’s home and the seizure of the drugs alleged to be in his possession violates the defendant’ rightto be secure against unreasonable search or seizure as guaranteed by s. 8 of the Charter.

Nonetheless, the Crown maintains that, in thecircumstances of this case, the admission of the seized drugs at the defendant’s trial would not bring the administration of justice intodisrepute and, as a result, the defendant’s application to exclude such evidence should be dismissed. [4] The defence, on the other hand, says that, even apart from the patent breach of his client’s s. 8 privacy rights, the redactedITO contains prejudicial misrepresentations and non-disclosure that, through design or negligent drafting, misled or seriously riskedmisleading the issuing justice, thereby compromising any claim of good faith that might otherwise be advanced on behalf of the ITO’sInformant.

Exclusion, says the defence, must follow in order to preserve the long-term integrity of the justice system. [5] Like counsel for the Crown and defence, I am of the view that the disposition of the defendant’s motion is largely governedby R. v. Blake (2010), 2010 ONCA 1 , 251 C.C.C. (3d) 4, a relatively recent decision of the Court of Appeal. My

interpretationof the application of this judgement and related authorities to the evidence led on this motion follows. B. THE LEGAL FRAMEWORK [6] The broad contours of Blake closely parallel those of the motion before me. As set out at para. 17 of the Court of Appeal’sjudgement: In

summary, the Crown was content to have the reasonableness of the search determined exclusively on the basis of the redactedinformation. The defence did not challenge the validity of the confidential informant claims, seek access to the identity of thoseinformants nor challenge the editing done by the Crown to protect the identity of those informants. The trial judge in Blake had ultimately excluded the evidence of the seizures, resulting in an acquittal.

On appeal, the Crown did notcontest the trial court’s ruling that the redacted ITO failed to conform to the statutory prerequisites for the issuance of a warrant. Absenta lawful warrant, that search (as has been conceded in the case before me) was unreasonable and violative of the respondent Blake’s s. 8rights. [7] The remaining question (as, again, in the instant case) was whether the analytical model prescribed by the Supreme Court inR. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 favoured exclusion of the seized evidence as a just and appropriate remedyunder s. 24(2) of the Charter.

The Court of Appeal was well aware that, as said by the Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 102: The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seekingsearch warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosurethat attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely tomislead the justice of the peace.

They must refrain from concealing or omitting relevant facts. And they must take care not to otherwiseexaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant. [8] The Court of Appeal agreed that a serious breach of the respondent Blake’s constitutional rights had occurred. However, itheld that the ultimate balancing did not warrant exclusion as the police conduct evinced no evidence of bad faith and admission of thereal evidence seized in that case facilitated attainment of society’s interests in a determination on the merits.

In words apposite to theimmediate defendant’s case, Doherty J.A. concluded, at para. 33: Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behindthe redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves inaccordance with the applicable legal rules.

If there were a taint of impropriety, or even inattention to constitutional standards, to be foundin the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’slegitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant. [Emphasisadded.] (See, also: R. v. Rapkin, 2010 ONCA 521; R. v. Learning (2010), 2010 ONSC 3816 , 258 C.C.C. (3d) 68 (Ont.

S.C.J.).) [9] The defendant’s position is that, unlike Blake, the conduct of the police in drafting the ITO tendered to secure the warranthere discloses at least “a taint of impropriety” or, at minimum, “inattention to constitutional standards” and, accordingly, exclusionshould follow. Given the nature of the improprieties alleged (a matter to which I shall soon return), some introductory reference need bemade to the manner by which search warrants and their supporting ITOs are properly to be read upon judicial review.

Importantly, ITOsare neither legislative instruments nor appellate dicta, nor are they to be construed as such. Although directed to sufficiency assessments,the comments of Justice Hill in R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. (G.D.)) also affordinstructive guidelines in the context of a s. 24(2) analysis of defective ITOs. As said at para. 20 (citations omitted): 1.

Quality of drafting Search warrants are statutorily authorized investigative aids issued most frequently before criminal proceedings have been instituted.Almost invariably a peace officer prepares the search warrant and information without the benefit of legal advice. The specificity andlegal precision of drafting expected of pleadings at the trial stage is not the measure of quality required in search warrant information. 2.

Review of the whole document The appropriate approach for judicial review of search warrant information is scrutiny of the whole of the document, not a limited focusupon an isolated passage or paragraph. Reference to all data within the four corners of the information provides the fair and reasonablecontext for the assertions in question.

3. Drawing reasonable inferences A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious.

In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person. Probable cause does not arise however from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation. The Court of Appeal’s reasoning in R. v. Nguyen, 2011 ONCA 465 , reflects the application of a number of these insights on a s. 8 sufficiency analysis.

As said at para. 23 of that case, “misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant”. [ 10 ] On a s. 24(2) inquiry (and particularly one, as here, where probable-grounds insufficiency is conceded), the focus is not only on whether such defects exist but, if so, whether their extent or gravity is such to call into question the good faith of the police responsible for their occurrence.

This assessment clearly bears on the first branch of the Grant analysis – that is, the seriousness of the Charter- infringing state conduct. Given the tension in the instant case (as in Blake ) between the second line of inquiry under Grant (the profound impact of the breach on the defendant’s Charter-protected interests) and the third (a strong societal interest in an adjudication on the merits), the determination of the first consideration inevitably impacts on the final balancing under s. 24(2). C.

APPLYING THE LAW TO THE DEFENDANT’S CLAIMS [ 11 ] Commenting on the conduct of the police in Blake , the Court of Appeal said, at para. 25, that, Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so.

The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. The police acted with similar constitutional decorum here, as disclosed in the record before me.

If there is some other cognizable evidence of bad faith (such as misleading material misstatements or non-disclosure) it must be found in a textual analysis of the here- redacted ITO, as informed by any testimony or exogenous documentation bearing on the claims of constitutional misconduct. The only evidence before me other than that available to the issuing justice (excepting, of course, the ITO redactions) is, first, that contained in the notes of the officer, Det.

Johnston, who led the surveillance operation at the defendant’s home at 67 Ringley on the day preceding the issuance of the ITO and, second, a single police Occurrence Report respecting a 2009 investigation of the defendant. [ 12 ] A review of these materials leads the defendant to advance several instances that, he alleges, amount to such misconduct on the

part ITO’s Informant to merit exclusion. My critical canvass of these and related considerations follows. (

a) The “Continuing” Surveillance [ 13 ] The first involves the assertion that, following the receipt of information from their confidential informant, “Members of the Gun and Gang Task Force attended 67 Ringley Avenue [the defendant’s address], for the purpose of continuing surveillance” (p. 9, para. 5 of the ITO; emphasis added).

The defendant fastens on the word “continuing”, alleging that it is misleading in that it prejudicially implies that the defendant had been the subject of prior or sustained police surveillance and that this is not substantiated by police notes of their investigation, as disclosed to the defence and filed on this motion.

In my view, “continuing” here bears the same meaning as “continuous” or “constant”, nor is there any language elsewhere in the ITO to suggest that the defendant was earlier a person of interest to the Task Force or which otherwise lends support to the risk of judicial misapprehension that grounds the defendant’s complaint. The defendant’s reading, in short, is contrary to a plain reading of the text of the ITO, contextually unsupported and most unlikely to have been shared by the issuing justice. (

b) The Locations of Interest [ 14 ] The second concern relates to the Informant’s statement that he directed his “crew to attend the area of both 67 Ringley Avenue [to] conduct observations and surveillance on the location and person of interest [the defendant]” (p. 9, para. 7 of the ITO; emphasis added). I am inclined to the view the reference to “both” as no more than an innocent drafting error. Adopting the language of Nguyen , at para. 33 , the “error may have been the result of inadvertence or carelessness on the [affiant] officer’s part, but it is relatively meaningless and it is difficult to believe that the Justice of the Peace reviewing the affidavit could have been misled”. (

c) The Visitors [ 15 ] The same may be fairly said of the third attack on the ITO, which is directed to the assertion that at 11:25am, “Det. Johnston #1018 observed a male and female walk up to 67 Ringley Avenue and enter into the side door of the premises … [and at] 11:31AM, the male and female exited from the side door” (p. 9, para. 8; emphasis added). Johnston’s notes, as filed on this motion, record a male and female approaching the house at 11:25am but only the male entering through the side door and then leaving at 11:31am.

This very minor inconsistency could have had no bearing on a justice’s decision whether or not to issue the search warrant. Nor was it misleading or risked confusion in any material fashion as both persons are characterized as “white” in Johnston’s notes while the defendant is described as “black” and the Informant, relying on Johnston’s input, later reports the defendant emerging from the same side door 12:47pm. This trivial inaccuracy was of no consequence.

(

d) The Description of the Target Premises [ 16 ] The next complaint refers to the Informant’s statement that “Det. Johnston confirms the description of the residence to be consistent with the description provided by the C[onfidential] S[ource]” (p. 10, para 14). Earlier in the ITO, the Informant asserts that the CS advised the police that the defendant lived in the basement unit at 67 Ringley Avenue and that the building was “a small bungalow, red brick exterior with a front door and side door”. While otherwise consistent with this information, Det.

Johnston’s notes of his observations make no reference to the house having a “red brick exterior” or, for that matter, any other manner of exterior. This inconsistency (if such it is) could not have realistically affected the issuing justice’s assessment of the reliability of the CS or, more generally, the sufficiency of the Informant’s grounds. In my view, Det. Johnston’s recorded observations of the house may not be as complete as those provided by the confidential informant, but they are, as asserted in the ITO, “consistent with the description provided by the CS”.

Further, the immediately preceding paragraph in the ITO speaks of Det. Johnston seeing the defendant “exit out of the side door” of the house at 67 Ringley, thus affording significant confirmatory value irrespective of the building’s actual cladding. I note, as well, that there is no evidence before me, either intrinsic or extrinsic to the ITO, to suggest that the edifice at 67 Ringley is, in fact, in any way not “consistent with the description provided by the CS”. (

e) The Allegations of Prior Criminal Misconduct [ 17 ] Other than boilerplate recitals, the “reasonable grounds” tendered in support of the search warrant occupy about eight pages of the ITO. Of these eight pages (considerable portions of which are redacted), about two and a half un -redacted pages are devoted to information gathered from checks of police data bases and, as summarized in some detail, two Toronto Police Service “Occurrences” in which the defendant is named.

In addition, three undated criminal convictions are referenced to the defendant; none involve drugs or are in any other way relevant to the determination of probable cause. All of this information appears immediately under the rubric “Corroboration of Source Information” in the ITO. [ 18 ] As to the two Occurrence Reports, the more recent, dated February 27, 2009 (approximately a year a half before the ITO at issue was sworn), is said to list the defendant’s address as 67 Ringley Avenue.

The defendant is described as a suspect in a “domestic incident” in which the complainant, Claudia Flores, advises that she bore the defendant’s son some two years earlier. The intoxicated defendant, Flores complained, had removed their son from her home at 65 Ringley Avenue and taken him to his address next door at 67 Ringley. The defendant, the ITO continues, was then subject to conditions requiring him to live at 40 Ashridge in Scarborough and the defendant’s surety, his father, assured the police that the defendant was abiding by his conditions.

The resolution, if any, of this investigation is not reported in the ITO. [ 19 ] The second Occurrence dates to late-September of 2002, more than eight years before the ITO was sworn. It details an alleged altercation between the defendant and a woman named “Jurado” on the front lawn at 10 Stayner Avenue in Toronto which address, the ITO asserts, included the basement apartment residence of Jurado and the defendant. On attending the police observed bruising on Jurado’s face. The defendant was not present.

A search of the basement premises led to the arrest of man – not the defendant – for domestic assault and the discovery of several bags of marihuana, another containing psilocybin and yet another bearing traces of cocaine. During this search, 11 different persons attended the apartment attempting to purchase drugs. Jurado was arrested (presumably for drug-related offences) and held for a show cause hearing.

Further drugs (approximately five ounces of powder cocaine and two ounces of marihuana) and various paraphernalia were located during the execution of a search warrant at the same basement apartment two days later, on September 30, 2002. This portion of the ITO concludes with the assertion that the defendant’s criminal record indicates that on January 31, 2005 (more than two years later) “there was a stay of proceedings on these charges” – presumably drug- related charges arising from the police seizures at the Stayner address.

The exact charges are not set out, nor are the nature of or reason for the stay. [ 20 ] The only Occurrence Report filed on the instant motion is that referable to the late-February 2009 incident. It reports that the defendant was then on a drug-related recognizance requiring him, among other conditions, to reside with his surety at 40 Ashridge.

The complainant, Flores, initially reported that she and the defendant lived common law at 67 Ringley, a building owned by her parents, until a year earlier when she returned to her parent’s home next door, at 65 Ringley, while the defendant (as confirmed by Flores’ father and brother) continued “living”, rent free, in the basement apartment at 67 Ringley. The police re-interviewed Flores a few days later. As a result of her fresh account of the domestic incident, the author of this Supplementary Occurrence Report concluded, “no further action required”.

As to the fail to comply allegations, Flores, when questioned as to whether the defendant then resided at 67 Ringley, is reported to have replied, “I don’t know, he visits there and then comes here [65 Ringley]. I think he is there [67 Ringley] fairly often”.

Upon the defendant’s father (his surety) confirming that the defendant continued to reside with him at 40 Ashridge, the author of the Supplementary Occurrence Report again concluded, “no further action is required”. [ 21 ] Under the ITO rubric “Grounds to Believe that the Items are at the Location to be Searched”, the Informant asserts that the defendant “resides permanently at 67 Ringley Avenue, basement unit, in the City of Toronto on a permanent basis at this residence” (p. 12, para. 3).

Relying on the Occurrence Report dated February 2009, the defence alleges that this assertion is inconsistent with that portion of the police Occurrence in which the complainant expresses some ambivalence about whether the defendant actually resided at the target address.

The defendant says the Informant ought to have included the complainant’s reservations in the ITO to permit the justice of peace to make his own fully-informed determination about the matter. [ 22 ] There is substance to the defence contention that the complainant’s qualification of her earlier assertions respecting the defendant residing at 67 Ringley should have been placed before the issuing justice. (As should, in my view, have been a clear statement that no charges resulted from this police investigation, which I infer is the necessary implication of the repeated phrase “no further action is required” in the Occurrence Report.

I shall return to this latter concern in due course.) As to the former, I am not persuaded that the Informant acted in bad faith in forming or expressing his subjective belief that the defendant “resides permanently at 67 Ringley Avenue” or in omitting to report the complainant’s qualification of her earlier assertions as to the defendant’s place of residence. Nor do I believe that the issuing justice would have been misled by this omission. The complainant, when first interviewed by the police in response her 911 call, advised that the defendant had been at 67 Ringley for the past year.

The complainant’s father and brother confirmed this information. Re-interviewed some five days later, the complainant expressed some uncertainty as to whether the defendant “resided” at 67 Ringley. Importantly, she maintained, “he is there [67 Ringley] fairly often”.

[23] In my view, it is ultimately of no material significance in the context of this search warrant application whether the defendantactually “resided” at 67 Ringley on November 18, 2010, as opposed to some other address, or whether, as the totality of the informationmay more convincingly imply, he routinely occupied that address. At minimum, the information derived from the 2009 OccurrenceReport uniformly supports the latter construction.

The police observations, as set out in the ITO, of the defendant exiting the side door at67 Ringley a mere twelve or so hours before the search warrant was issued and later returning to and remaining in those premises helpsconfirm the reliability of the CS in this regard, supports the Informant’s subjective conclusion and adds to the objectively probablegrounds for issuance of the warrant for that address.

While the complaint Flores’ qualification should have been put before the issuingjustice, its omission could not have had any impact on the learned justice’s decision to grant the application nor, in all he circumstances,does it lead me to infer bad faith on the part of the Informant. [24] I find much more troubling the inclusion of the detailed information (occupying nearly two pages of the ITO and ostensiblyderived from the Occurrence Report dated September 2002) respecting the earlier drug investigation and its sequelae.

The references inthe ITO to the 2009 Occurrence Report I have just reviewed are clearly material to issues the justice of the peace was required to decidein so far as they spoke to the defendant’s nexus to 67 Ringley (the proposed locus of the search), and were thus relevant to both thereliability of the CS and the reasonableness of the belief that the sought items were present at that address. No such claim can beadvanced respecting the 2002 Occurrence. The only address noted in regard to the 2002 Occurrence was 10 Stayner, not 67 Ringley.

There is nothing else in the Occurrence of potential relevance but for the suggestion that the defendant had earlier been the subject of apolice investigation into possession for purpose of trafficking in a variety of drugs – that is, assertions very much akin to the allegationsthat ground the search warrant application in the case before me. Other than its prejudicial effect, what material relevance explains theinclusion of this information in the ITO? [25] The case of R. v. Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont.

C.A.) is a seminal decision in Charterjurisprudence respecting search and seizure law, if only for its establishment of the “totality of the circumstances” standard in theassessment of probable cause. It also addresses the question of what reliance, if any, may be placed on prior criminal misconduct by theproposed target of a search. Justice G. Arthur Martin, speaking for the Court of Appeal, reasoned: One of the bases, among others that [the police officer] mentioned as providing reasonable grounds for searching the respondent, wasthat the respondent was reputed to be a drug user and drug trafficker.

Obviously, the fact that a person is reputed to be a drug user and adrug trafficker would not, by itself, constitute reasonable grounds for believing that that person was in possession of a prohibited drug.That is not to say, however, that a suspect's reputation as a drug user and trafficker may not be a relevant factor constituting part of thetotal circumstances that induce a reasonable belief that the suspect has upon his person a prohibited drug. … … I am of the view that the respondent's reputation in police circles as a drug user and trafficker was an item that [a police officer] couldproperly take into account, along with the other information he had, in deciding that there were reasonable grounds to believe that therespondent was in possession of a prohibited drug. [26] With some qualifications, Martin J.A.’s reasoning was largely affirmed by the Supreme Court on subsequent appeal: (1989), (SCC), 52 C.C.C. (3d) 193.

As said by Wilson J., at paras. 56-58: The significance of the past record and reputation of the appellant … presents a more difficult problem. It is surely beyond question thatreputation alone would never provide reasonable grounds for a search. The appellant, however, objects to any use of reputation as arelevant factor. … I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress anotherwise insubstantial case for searching a suspect.

At the same time I find it difficult to accept the proposition that the past activitiesof a suspect are irrelevant. Indeed, as Martin J.A. points out [citation omitted]: Evidence of bad character or prior criminal misconduct by an accused is excluded at his or her trial on a criminal charge, not on theground that the evidence has no probative value, but on policy grounds, because the prejudicial effect of such evidence outweighs itsprobative value. These policy reasons are obviously not as cogent at the investigatory stage where the liberty of the subject is not directly atstake.

Moreover, I think it is somewhat artificial to assume that any one factor, be it reputation or something else, is responsible forturning a previously "insubstantial" case into a sufficient one. Having said that, I add the following caveats to the use of reputation asgermane to the issue of a reasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search. A background of driving offences, for example, has little relevance to drug trafficking.

Second, if the reputation of the suspect is basedon hearsay rather than police familiarity with the suspect, its veracity cannot be assumed. [27] The Supreme Court’s condonation of Martin J.A.’s analysis is conspicuously limited to “the past record and reputation” of thetarget of a police search – not prior prosecutions that have concluded in something other than a conviction. In the matter before me, noreputational evidence is tendered, nor any evidence of drug-related conduct resulting in a finding of guilt.

The questionable informationin the ITO instead refers to a single police investigation that, seemingly incidentally, resulted in the defendant apparently being chargedwith drug-related offences. The event occurred some eight years before the sworn Information at issue was tendered to a justice of thepeace. The defendant was not present at the time the police initially attended the Stayner residence or, as appears from the ITO, at anyother time during the police investigation.

The only connection of the defendant to the basement premises on Stayner in which thevarious drugs were found is unsourced, unconfirmed and entirely limited to the conclusory assertion that, “The accused Jurado and Eastwere the residents of the basement apartment”. Again, as said by Wilson J. in Debot, supra, “… if the reputation of the suspect is basedon hearsay rather than police familiarity with the suspect, its veracity cannot be assumed”. Here, there is no basis to even assess thereliability of the posited nexus between the defendant and the residence in which the contraband was found.

Nor is there any otherinformation in the ITO connecting the defendant to the seized drugs. [28] At least equally troubling is the Informant’s presentation of the judicial resolution of this matter. As noted earlier, the ITO recitation of the 2002 investigation concludes with the words, “The Criminal Record for East indicated that on January 31st, 2005, there

was a stay of proceedings on these charges”. Again, there is no indication of what charges were stayed or, more importantly, the natureof the stay. Nonetheless, Crown counsel relies on this averment to demonstrate, he says, full and balanced disclosure by the Informant.

Ihave some difficulty with this assertion. [29] By way of close analogy, absent a successful Crown appeal and some probative purpose other than proclivity reasoning fromrepudiated suspicions of prior misconduct, it would be most improper to include in an ITO detailed information about the allegationsunderlying a previous charge for which the target of a proposed search had been acquitted at trial. The verdict of “not guilty”conclusively determined to the accused’s advantage all the factual issues in question at that trial: Grdic v.

The Queen, (SCC), [1985] 1 S.C.R. 810 and, as applied to the doctrine of issue estoppal, R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R.316, esp. at paras. 18-26. A closing notation in an ITO that the accused was found not guilty of certain charges hardly purges theprejudice that inevitably flows from the detailing of those factual allegations that were inevitably resolved in the accused’s favourthrough his or her acquittal. In short, no reference should be made in an ITO to such charges following an accused’s acquittal of them or,in particular, the evidence said to underlie them.

The fruits of the earlier inquiry may, of course, factor into a subsequent policeinvestigation of the same person but, in my view, they can no longer form part of the constellation of circumstances that may belegitimately advanced for consideration at trial or in any other proceeding for which judicial sanction is sought. [30] A stay of proceedings is not conceptually identical to an acquittal, but it bears a strong functional equivalence: apart from rarevariants such as those involving a defence of entrapment, a stay is a conclusive determination of the lis without any adverse findingagainst the accused.

Accordingly, I find unconvincing the Crown’s suggestion that a detailed exposition of allegations that led tocriminal charges being brought against the defendant in 2002 is somehow redeemed by the simple assertion that the prosecution wassubsequently stayed – especially where, as here, those allegations are expressly tendered as corroborative of a confidential informant. The prejudicial damage had by then been done. [31] Other than the legislative regime governing the treatment of unfit accused, Canadian criminal law recognizes only two speciesof “stays of proceedings”, both of which terminate a prosecution.

The first is a stay entered by the Crown. The second is a court-orderedstay. This latter category results from a judicial finding of an abuse of process by the state (or, ordinarily, otherwise irredeemableinfringement of a defendant’s s. 7 Charter rights) or a determination that the defendant’s s. 11(b)-protected right to a trial withoutunreasonable delay has been breached. In s. 11(

b) cases (and in other court-ordered stays where, as frequently occurs, the disposition ofthe matter is by way of a preliminary ruling that precludes an adjudication on the merits) there is no trial and no determination of guilt. In the result, the Crown never rebuts the defendant’s presumption of innocence that, without both a successful Crown appeal (see s.676(

c) of the Criminal Code) and subsequent re-prosecution (neither of which are here asserted to have occurred), remains undisturbed.The Supreme Court has gone further. In R. v. C.I.P. Inc. (1992), (SCC), 71 C.C.C. (3d) 129, at 145, for example,Stephenson J., speaking for a unanimous court, stated that, "[t]he imposition of a stay is, to all intents and purposes, an acquittal". (See,also: R. v. Barnes (1991), (SCC), 63 C.C.C. (3d) 1 (S.C.C.), at 12; R. v. Potvin (1993), (SCC), 83C.C.C. (3d) 97 (S.C.C.), at 111; and the review and analysis of this jurisprudence in R. v. Field (2003), (ON SC), 23C.R. (6th) 165 (Ont.

S.C.J.), esp. at paras. 32-33.) [32] As to the second category of stays of proceedings (that is, those entered by the Crown), with extremely rare exception theexonerative effect of such stays seems beyond dispute: unless the proceeding are recommenced within one year (and the ITO notes nosuch recommencement), s. 579(2) of the Code dictates that “the proceedings shall be deemed never to have been commenced”. [33] With all due respect to the issuing justice, I cannot assume that, absent further explanation, he or she would have appreciatedthe legal implications of a stay of proceedings having been entered with respect to the 2002 charges – particularly where, as here, noassistance is provided as to the nature of or reasons for the stay.

Given the terminal effect of a stay, I can see no purpose being served bythe inclusion of the drug-infused details of the 2002 investigation other than to invite a here impermissible chain of inference-drawing. In the end, absent at minimum a clear and factually-grounded assertion that an adverse factual finding preceded and survived the entry ofa stay, detailed incorporation in an ITO of the allegations underlying stayed prior charges can only jeopardize fairness and risk workingan injustice.

This is especially true where, as on the redacted ITO before me, the detailing of the 2002 events serves as the primaryconfirmatory source of the information provided by the CS as to the defendant’s alleged drug dealing. In such circumstances, thecombination of potentially misleading and incomplete reportage in an ITO can have an inordinately prejudicial impact as it accounts forso much of the sufficiency assessment. This risk only amplifies the concern for a scrupulously fair recital of the “facts” placed before ajustice of the peace.

Carelessness in such matters cannot be condoned. [34] One must not lose sight of the nature of an application for a search warrant. It is fundamentally an ex parte request for judicialauthorization to do what would otherwise amount to an unjustifiable infringement of a person’s constitutionally protected interests. Speaking of ex parte motions for injunctive relief, Sharpe J. (as he then was) observed the following in U.S.A. v. Friedland, [1966] O.J.No. 4399, at paras. 26-27: The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief.

The ordinarychecks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factualand legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injusticewill be done to the absent party. As a British Columbia judge noted recently: There is no situation more fraught with potential injustice and abuse of the Court's powers than an application for an ex parte injunction. (Watson v. Slavik, [1996] B.C.J.

No. 1885, para. 10.) For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only itsside of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to makea balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points offact or law known to it which favour the other side.

The duty of full and frank disclosure is required to mitigate the obvious risk ofinjustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side. [Emphasis added.]

These passages were expressly endorsed by the Supreme Court in R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, atpara. 46, in the context, as here, of a review of the law governing the “kind of affidavit” upon which the police may rely in seekingjudicial authorization for conduct what would otherwise amount to an unconstitutional trespass on an individual’s privacy rights. TheAraujo court added, at para. 47, a “corollary to the requirement of an affidavit being full and frank is that it should never attempt to trickits readers”. (See, also, R. v.

Morelli, supra, at para. 102.) [35] Whether or not it amounts to trickery, the Informant’s inclusion in the ITO before me of detailed and patently prejudicialallegations respecting criminal conduct that a court had effectively dismissed (through the exercise of a Crown prerogative or as a properexercise of its own discretion) falls palpably short of the care and candour necessarily required of applicants for ex parte orders. Theoffensive passages cannot be fairly characterized as benignly gratuitous or mere surplusage.

Rather, they reflect a tendentious departurefrom the onerous obligations borne by those seeking judicial authorization for otherwise unlawful and unconstitutional searches. Whatmatters in the end is that the likely effect of the ITO was to unfairly paint the defendant as a recidivist drug trafficker and one who hadescaped justice in the past. Although framed in the context of a s. 8 sufficiency analysis, the “relevant question”, as said in R. v. Morelli,supra, at para. 59, is whether the ITO was misleading, not whether it was intentionally misleading” (emphasis in original).

In my view,the “relevant question” here admits to an affirmative answer – and is equally germane to consideration under s. 24(2) of an Informant’sadherence to his duty of care. Put otherwise, the Supreme Court’s earlier-noted injunction (Morelli, supra, at para. 102) to “guardagainst making statements that are likely to mislead the justice of the peace” was not honoured in this case.

The Informant’s conduct,whether or not disingenuous, was at least substantively negligent. [36] I am also troubled by the Informant’s failure to advise the justice of the peace as the actual charges laid against the defendantas a result of the 2002 investigation. Given his demonstrated access to various police data bases, this information was almost certainlywithin the ready investigatory compass of the Informant. If, in fact, the charges then faced by the defendant were not drug-related thenthey would have very little if any material bearing on matter upon which the justice was called upon to decide.

Such omission couldonly compound any other constitutional improprieties. [37] The Informant’s failure to educate the justice of the resolution of the 2009 police investigation attracts additional comment.The instant ITO was directed to drug-related offences while the 2009 investigation focused on unrelated matters (that is, possibleoffences of child abduction and failure to comply with a recognizance). However, the manner of their recitation in the ITO unfairlydisparaged the defendant.

In my view, the duty of care imposed on the Informant required him to disclose to the justice those additionalfacts that were known to him: that further police inquiries afforded no basis for criminal charges and that none were laid. While thisomission, standing alone, is not likely to have so prejudicially misled a justice as to result in the issuance of a search warrant that was nototherwise justified, it does reinforce my concern about selective reporting in the ITO.

Referring again to Morelli, supra, at para. 58: When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularlycareful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is topresent all material facts, favourable or not. [38] Clearly, the second and third branches of the analytical framework set out in Grant pull in opposing direction on the question ofexclusion. As in Blake, a judicial assessment of the first criterion is dispositive of the ultimate balancing.

Applying the language thereset out by the Court of Appeal, and for the reasons I have just expressed, I here find such “taint of impropriety or … inattention toconstitutional standards … in the police conduct” in obtaining the warrant to “tip the scales in favour of exclusion”. In the result, theapplication is granted and the evidence of the seizure resulting from the execution of the defective warrant is excluded from thedefendant’s trial.

As said in Morelli, supra, at para. 103, “[T]he repute of the administration of justice would … be significantly eroded,particularly in the long term if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacyas the search of our homes …”. (See, also, R. v. Greffe (1990), (SCC), 55 C.C.C. (3d) 161 (S.C.C.), at 193; R. v.Burlingham (1995), (SCC), 97 C.C.C. (3d) 385 (S.C.C.), at 408; R. v. Silveira, (SCC), [1995] 2 S.C.R.297, at para. 152; R. v. Hosie (1996), (SCC), 37 C.C.C. (3d) 385 (Ont. C.A.), esp. at para. 31; R. v.

Sutherland (2000), (ON CA), 150 C.C.C. (3d) 231 (Ont. C.A.), at para. 33; R. v. Calderon (2004), (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 87-94; and R. v. Van Puyenbrock (2007), 2007 ONCA 824 , 54 C.R. (6th) 374 (Ont. C.A.),at paras. 41-42.) D. CONCLUSION [39] For the reasons set out in the substance of this Ruling, the evidence of the seizures resulting from the execution of the searchwarrant are ordered excluded at the defendant’s trial. Released on September 27, 2011 Filed on October 6, 2011 __________________________ Justice Melvyn Green