R. v. Brown, 2013 ONSC 2848

CITATION: R. v. Brown , 2013 ONSC 2848 COURT FILE NO.: 12-30000114 DATE: 20130517 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - TIAVEN BROWN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Beverley Olesko , for the Crown Hilary Dudding , for the Accused ) ) HEARD: April 10-12, 15-16, 2013 reasons for DECISION: Charter s. 24(2) aPPLICATION G.R. Strathy J.:

[1] Tiaven Brown came before me, for trial with a jury, on charges related to the possession of three prohibited firearms andammunition, possession of heroin and cocaine for the purposes of trafficking, possession of proceeds of crime and breach of a probationorder. [2] He brought an application under s. 24(2) of the Charter for an order excluding evidence of the guns, ammunition, drugs andmoney seized on the execution of a warrant to search his residence at Unit 1, 2041 Victoria Park Avenue, Toronto.

I will refer to theapartment unit as “1-2041” or the “Premises” and the apartment building at 2041 Victoria Park Avenue as the “Building”. Mr. Brownasserts that his right to privacy under s. 8 of the Charter was infringed and that the admission of the evidence would bring theadministration of justice into disrepute. For the reasons that follow, I agreed and granted his application. I. Background [3] In this section, I will set out the background facts, including the evidence before the Justice of the Peace who issued the searchwarrant, as amplified by the record on this application. In

section II, I will explain the legal principles to be applied in determiningwhether the warrant can be sustained. In

section III, I will make my factual findings and will apply the legal tests to those facts. Insection IV, I will express my conclusions. [4] In overview, Detective Constable Baheer Sarvanandan a plainclothes officer with Toronto Police Services, 41 Division, MajorCrime Unit, swore an information to obtain a search warrant (ITO) on April 12, 2011, stating that he had reasonable and probablegrounds to believe that drugs would be found in the Premises.

His ITO was based on, and referred to, information provided by twoconfidential sources, which I will refer to as CS1 and CS2, as well as observations that he and another officer, D.C. Choo-Wing, hadmade in the course of their own surveillance of the Premises and the Building. I will describe the contents of the ITO shortly. [5] A search warrant was issued on April 13, 2011. It was not executed that day as there were not enough officers available to doso. D.C. Sarvanandan re-applied for a warrant on April 21, 2011, adding some fresh information received from the confidentialinformants.

A warrant was issued and executed on that date, resulting in the seizure of the evidence at issue. 1. The evidentiary record on this application [6] The evidentiary record initially before me consisted of the ITO, heavily redacted to conceal information that could identify theconfidential informants, the notes of the two police officers, also redacted, and the evidence of the two officers at Mr. Brown’spreliminary inquiry. [7] At the outset of trial, the defence brought an application for disclosure of the police files and “handlers’ notes” relating to theconfidential informants.

I dismissed that application: R. v. Brown, 2013 ONSC 2610.[1] The Crown did, however, produce a redactedversion of the handler’s notes made by D.C. Sarvanandan when dealing with the confidential informants. [8] The defence also brought an application to cross-examine D.C. Sarvanandan as the affiant of the ITO. I ruled that he could becross-examined on the observations he and D.C. Choo-Wing had made in their surveillance on April 8 and 9: R. v. Brown, 2013 ONSC2528, [2013] O.J.

No. 1935. [9] The Crown indicated that it would be asking me to review the unredacted ITO and to follow the “Step 6” procedure outlined inR. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421. To that end, the Crown prepared an initial draft judicial

summary of theredacted ITO, which I approved, subject to minor amendment. At the request of the defence, I also prepared a supplementary judicialsummary concerning the redactions in the ITO. I was satisfied that the redacted ITO and the summaries provided the accused withsufficient knowledge of the nature of the excised material to challenge the authorization: see R. v. Garofoli at para. 90. [10] D.C. Savarandan was cross-examined by the defence, in accordance with my ruling. At the request of the defence, I also grantedleave to cross-examine D.C. Choo-Wing as a sub-affiant of the ITO. Finally, Mr.

Brown himself testified on the application. 2. Description of the Location [11] In order to understand the evidence that follows, I will give a brief description of the Premises and its location. Victoria Park is amajor north-south avenue in Scarborough. The Building is located on the east side of the street, south of Ellesmere Road. It is aresidential townhouse/apartment building, containing about ten units. The units are three-level, with a ground floor, an upper floor and abasement.

Unit 1-2041 had a walk-out patio on the north side of the Building. [12] The individual units in the Building are accessible through a main hallway running the length of the Building. The front door ofeach unit is on this hallway. Access to the hallway, from Victoria Park, is through two sets of glass doors located at the west end of theBuilding. The first are double doors giving access to a small vestibule. Inside that room there is a single glass door, leading to the mainhallway. Access through that door was meant to be controlled by a lock and a security system, but D.C.

Sarvanandan testified that thelocks on this door, and the back door were broken.

[ 13 ] D.C. Sarvanandan testified that 1-2041 is the first unit inside the front door of the Building, and is located at the extreme west end of the hallway on the north side of the Building. [ 14 ] The hallway terminates at the east end of the Building, where a glass door provides access to the rear of the Building. Behind the Building, there is a small laneway, running north-south parallel to Victoria Park, with a children’s playground to the east of the laneway.

The laneway continues north and south of the Building, and contains parking space for residents and visitors. [ 15 ] I turn to the evidence adduced on the application, beginning with the ITO. 3. The ITO [ 16 ] The ITO sworn by D.C. Sarvanandan is divided into eight sections: Overview, Background of the Investigation, Investigation, Conclusion, Night Grounds, Entry without Prior Announcement, Grounds for Sealing Order, Appendix “D” and Appendix “E”. (

a) Overview [ 17 ] In the first part of the ITO, the affiant deposed that he received information from CS1 that he/she had purchased drugs by attending 1-2041. He stated that on receipt of this information, plain clothes officers set up observations and corroborated that such activity was taking place “out of” 1-2041. He stated that, “thereafter”, a second confidential source provided information that “constant foot traffic” had been observed through the front door and the back door of 1-2041.

He stated that the dealer had been observed going in and out of an un-plated vehicle parked in spot #33 at 1-2041 and was observed retrieving items and doing hand-to-hand-transactions with customers. [ 18 ] The last paragraph of the Overview stated: The writer conducted further observations of the dealer after positively identifying the dealer with a mug shot (R.I.C.I. picture). The dealer was seen by the writer entering apartment #1-2041 Victoria Park Ave, Toronto by opening the door with a key. Also constant foot traffic in and out of the apartment was seen.

The individuals only spent a short time in the apartment, their appearance resembled drug users. [ 19 ] I will discuss these statements later in these reasons. (

b) Background of the Investigation [ 20 ] This part of the ITO set out the information D.C. Sarvanandan had obtained from CS1 and CS2. In

summary, CS1 claimed to have made “numerous purchases” from a man known as “Sean” at 1-2041 and in the parking lot behind the townhouse complex. “Sean” was described as a “male black with brown skin complexion, approximately 22-24 years old, short hair, occasionally wears reading glass, about 5’5” height with small build.” According to this source, “Sean” always carried cell phones and gave out different cell phone numbers to different customers. [ 21 ] The ITO stated that CS2 reported that “Sean” lived at 1-2041. The source observed frequent foot traffic going in and out of 1- 2041.

The foot traffic started in the mid-afternoon and went to the later hours of the night. Most of the individuals went in and out of the front door, but certain individuals went through the back door. The source observed “Sean” doing hand-to-hand transactions at the back parking lot and going in and out of a vehicle at spot #33 located at the rear of the Building. CS2 described “Sean” as a “gangster style male with short hair, male black with brown skin complexion, about 5’ height, approximately 24 years old and he had been seen wearing eye glasses.” (

c) Investigation [ 22 ] Under this heading in the ITO, D.C. Sarvanandan described the officers’ surveillance at the location. Due to its importance, I will quote it in full, with redactions indicated: On April 8 th , 2011 [redacted] the writer and DC Choo-Wing #7378 of 41 Division – Major Crime Unit conducted observations to verify the information provided by [CS1]. During the surveillance the writer observed numerous individuals going in and out of the front entrance of 1-2041 Victoria Park Ave, Toronto. The individuals walked into the door spent short period of time and exited the door.

The writer continued to observe the address. Such foot traffic clearly resembles a drug house from writer’s experience. During the same night at approximately 11:00 PM a male matching the description provided by [CS1] as Sean was seen exiting 1-2041 Victoria Park Ave. The male was seen at the rear parking lot entering into a hand to hand transaction with an unknown male white.

The male that came out of that address (1-2041 Victoria Park Ave Toronto) was a short male with brown skin, was wearing a white hooded sweat shirt inside, black jacket and blue baggy jeans. [Redacted], the writer conducted various police database checks. During this time Sean was identified as Tiaven BROWN with the date of birth of 1988 October 25 th . This male is known to Police with FPS [number redacted] & MTP [number redacted].

Furthermore, this male is currently on Probation for the offences of Assault with a weapon, Possession of Controlled substance for the purpose of trafficking and possession of ammunition. Also this male is currently on a firearms prohibition indefinitely.

Since confirming the identity of Sean as Tiaven BROWN, on April 9 th 2011 at approximately 10:00 PM, the writer and DC Choo-Wing #73788 of 41 Division – Major Crime Unit conducted further observations. During this time Tiaven BROWN arrived at the rear of the building in a Cab, he was seen going into the apartment via the back door. [ 23 ] The affiant then set out Mr. Brown’s criminal record, listing six offences as a youth and three as an adult, including trafficking in cocaine, possession of a firearm and “discharge firearm endanger life”.

He also set out the results of a Ministry of Transportation search, showing Mr. Brown having a home address of 1-2041 and owning a grey 1999 Nissan four-door vehicle, which is described as the same vehicle parked in spot #33. The affiant also set out information that Mr. Brown’s mother was the leaseholder of 1-2041 and that Mr. Brown had been living at that address since the summer of 2010. (

d) Conclusion [ 24 ] The conclusion of the ITO began with a

summary of the information received from the confidential sources. It stated that CS1 had “provided very valuable information in the past”. It also stated that the information received from the confidential sources had been corroborated by the observations conducted by the affiant and D.C. Choo-Wing. (

e) Night Grounds, Entry without Prior Announcement, Grounds for Sealing Order [ 25 ] These portions set out the affiant’s belief that 1-2041 “is operating as a drug house” and that Mr. Brown was living at the address. The affiant expressed concern that if too much time elapsed, evidence would be lost. He set out his belief that entry without announcement was required for safety reasons and to prevent destruction of evidence. A sealing order was requested for the safety of the confidential informants. (

f) Appendix “D” [ 26 ] This appendix provided information concerning the identity of the confidential informants. (

g) Appendix “E” [ 27 ] This appendix explained that the search initially authorized on April 13, 2011 had not been carried out due to a lack of available officers. It set out additional information from CS1 concerning his/her attendance at 1-2041 to purchase drugs. It also set out observations by CS2 of “constant foot traffic via front door of 1-2041 Victoria Park Ave.” and of “Sean” going in and out of his apartment to the back parking lot and in and out of his grey Nissan automobile. 4. The Officers’ Notes [ 28 ] Included in the evidence adduced by the Applicant are the notes made by D.C. Sarvanandan and D.C.

Choo-Wing in their police notebooks. These notes were used to cross-examine the officers, and the officers used the notes to refresh their memories. I will review some of the important parts of their notes prior to setting out the key points of their testimony, keeping in mind that the notes were prepared as an aid to their memories and could not possibly have been a complete record of everything they observed or did.

I also keep in mind that it is not uncommon in cases such as this for some matters to assume a significance with the benefit of hindsight that was not apparent at the time the observations were made. Thus, the fact that an event is not recorded in an officer’s notebook does not mean that it did not happen or was not observed—it may have been overlooked or regarded as not sufficiently important at the time, to mention two common examples.

That being said, the omission of an important matter in a police officer’s contemporaneous notes can raise a concern about the reliability of the officer’s subsequent evidence concerning that matter. [ 29 ] It will be helpful at this point to set out the officers’ notes of their own personal observations at the Building. I will also refer to the officers’ notes when I examine some of the evidence they gave on this application. (

a) D.C. Sarvanandan’s Notes [ 30 ] D.C. Sarvanandan’s notes on March 8 are as follows: 2011.04.08 Fri 2300 Commenced observations provided by source in regards to drug activity at 1-2041 Victoria Park Ave. – constant foot traffic via back door of 2041 seen going into unit located front north side of the 1 story [sic] building. Also observed several individuals went through back door in between both buildings. Individuals only spent short time they appeared to be drug users. In short time later

observed a male matching the description provided by source appeared in the rear parking lot. During this time H to H [hand-to-hand] transaction was observed with an unknown m/w [male white]. The male remained near a parked black BMW. Again entered into meeting several other individuals passing by the rear parking lot. Description of the male who came out of 1-2041 V.P. – male black 5’3 – 5’7 white/grey hoody black jacket bj [blue jeans] This male then met with with [sic] a m/b [male black] with a red puffy jacket got out of the black BMW [licence number].

I then observed m/b with the black jacket open back door of 2041 – furthest [or furthest east] door. He then walked with the m/b with the puffy red jacket. He then open [sic] the furthest unit on the north side closest to VP [Victoria Park] with a key. Both entered the Apt. unit. Such activity corroborates source information as drug activity. Requested additional units to take points further west and north conduct observations but activity took place with 2041 VP compound…. [ 31 ] D.C. Sarvanandan made no notes of his observations on April 9, 2011. (

b) D.C. Choo-Wing’s Notes [ 32 ] D.C. Choo-Wing’s notes for April 8, 2011 are as follows: 2300 Set up [near] alleyway behind LCBO at Vic Park/Ellesemere. Monitor movements re suspected drug trafficking activity. Obs. 1 main m/b take

part in sev [several] short meetings with ppl at alleyway/laneway off of main street. Obs. M/B short 5’3- 5’7 with white hooded sweater black vest on top and dark pants. During meetings ppl that meet w. M/B leave area after meeting. Appears have no other reason for entering laneway. Laneway dark – lit by few lights posted in lot. Obs. 2 nd M/B – M/B taller than wht hoody – wearing puffy red jacket w hood park newer model black BMW 5 series at N end alleyway meet w/ M/B w/wht hoody enter 2041 Victoria Pk Ave. This was only person that accompanied M inside among sev, short meetings. Obs.

BMW Lic [number] Back to 41 Stn. 0100 2011- 04-09/. [ 33 ] His notes for April 9 are as follows: Set up w/ obs of 2041 Victoria Pk Ave re suspected drug activity – info recd fr escort. 2200 Obs. Taxi cab pull up to address M/B exit 5’7-5’8 with hooded sweater w/vest jckt black BBall cap. ? glasses blck frame or dark frame, dark jeans med build. Walk around for couple min. then enter 2041 Vic Park fr. Back door – doesn’t come out. 5. Cross-Examination of D.C. Sarvanandan, the Affiant of the ITO [ 34 ] D.C. Sarvanandan testified on cross-examination, in

summary, as follows, concerning the events of April 8: • The initial surveillance began at 11:00 p.m. on April 8, 2011 and ended at 1:00 a.m. on April 9; • when he first arrived at the Building on April 8, he walked down the central hallway of the Building to familiarize himself with the location and he identified 1-2041 as the first unit at the front of the Building closest to Victoria Park; • he conducted surveillance from outside the front of the Building and observed foot traffic going into 1-2041—he first said about four or five people entered 1-2041 and they appeared to be drug users; • he saw some people come into the Building through the front door and some through the back door—by his estimation, about four people came through the front door and two or three came through the back door—later he said that he saw about four people go into unit 1-2041; • somewhat later in his evidence he said that about two or three people went into the apartment through the side patio entrance and that he saw a total of four to six people go into 1-2041; • still later in his evidence, he said that he saw people coming through the front door of the Building and quickly disappearing through the door of 1-2041—he then said that he saw four people in total going into 1-2041, at least two from the front and two from the back—he admitted that he said in the ITO that the traffic was “constant” through the back door and agreed that it was not accurate and was a mistake; • he also said that when he was conducting surveillance from the back of the Building he saw “about two” people go into 1-2041 via the back door of the Building—he said that he would wait until they went through the back door, and that after they had passed through the door he would walk up to the door at the back of the Building and observe them going into 1-2041; • he first saw “Sean” on April 8 in the latter part of his observations, around 12:30 a.m. and close to 1:00 a.m., when he saw him in the hallway at the west end of the Building and watched him go out of the east door and into the parking lot and up the alley—he acknowledged that there was no record in his notes of having observed “Sean” coming out of the Building; • he then saw “Sean” have several brief interactions with other individuals and saw one “hand-to-hand” transaction; • he also saw “Sean” meet with another black male, who appeared to be a friend, who came out of a black BMW parked behind the Building and watched the two men go through the back entrance to 2041 and into the last entrance at the front, which he knew was 1- 2041; and • he said that when “Sean” returned to the Building with the other man, he used a key to open the door to 1-2041, and that is how he connected “Sean” to 1-2041.

[35] He testified that he conducted further surveillance on April 9 and observed the target get out of the cab, which stopped about 10meters from the back entrance to the Building. He said that he was close enough to see the person’s face. [36] I will have more to say about D.C. Sarvanandan’s evidence in due course. 6. Cross-Examination of D.C. Choo-Wing [37] D.C. Choo-Wing testified that D.C. Sarvanandan asked him to conduct surveillance on April 8 in the north-south lanewayrunning behind the Building. D.C.

Sarvanandan described the suspect and told him to keep an eye out for the suspect and for drug userswho might deal with him. He conducted his surveillance primarily in the laneway, at a distance of between 10 and 200 meters from theBuilding. He had a clear view of the rear of the Building. D.C. Sarvanandan was with him about half the time and told him at one timethat he was going to be on the Victoria Park side. [38] D.C. Choo-Wing testified that at some time a man he thought was the target of the investigation appeared in the laneway behindthe Building.

He did not see where the man came from, nor did he recall whether D.C. Sarvanandan was with him at the time. He sawthe man have brief interactions with three to five people in the laneway over the entire time he observed him. He estimated that theremight have been 15 minutes between each interaction and that the interactions took place over about an hour to an hour and a half. Hecould not say when he first saw the target, but it was before midnight. He and D.C. Sarvanandan went off duty around 12:45 a.m. [39] He agreed with defence counsel that he did not see anyone go into the Building through the back entrance.

He said that he wouldhave made a note if he had seen anyone he thought was involved in drugs going into the Building. He did not see constant foot trafficgoing into the doorway at the back of the Building. In fact, he did not describe any foot traffic into or out of the back door of theBuilding, other than at the end of the surveillance, as described below. [40] D.C. Choo-Wing testified that he saw a second black man arrive in a black BMW shortly before they finished their surveillance.He watched the target accompany that man through the rear entrance of the Building.

He was about 30 to 40 feet away from them whenthis happened. He did not move any closer to look where they went inside the Building because it was “too risky” and he thought that themen would be suspicious if they noticed him. He was concerned that if he went up to the glass door at the back of the Building to take alook inside, he could blow his cover and expose himself to danger. He testified that he did not see D.C. Sarvanandan go up to the door tolook in the Building after the two men went inside and he said that in his opinion it would have been dangerous to do so. He did notrecall whether D.C.

Sarvanandan was with him when he saw the two men go into the Building. [41] D.C. Choo-Wing testified that he and D.C. Sarvanandan went back to the location the next night, April 9, and parked their car inthe laneway about 20 feet north of the playground at the rear of the Building. The front of their vehicle was facing away from the backdoor of the Building. They stayed in that location from 10 p.m. to 1:00 a.m., and he remained in the car the whole time. He could notremember whether D.C. Sarvanandan got out of the car at any time.

He saw a taxi pull up in the laneway behind the Building and saw ablack man, between 5 foot 7 and 5 foot 8, get out of the taxi and go through the back door of the Building [42] D.C. Choo-Wing testified that he did not recall D.C. Sarvanandan following the two men to observe where they went after theyentered the Building. He agreed that had this happened, he would have remembered it, because he would have had safety concerns, forthe reasons mentioned above. 7. Evidence of the Applicant [43] Tiaven Brown testified. He admitted that he was a drug dealer, but he said that he was a prudent drug dealer.

He had a “program”in place to protect himself. He never let his “crackhead” customers know where he lived, because if he did they would be knocking onhis door all hours of the day and night, eager for a “fix” and bothering his mother and siblings. If his mother knew he was dealing indrugs, she would have thrown him out. Following his rule, he never permitted his customers to come to his home to buy drugs. Whenthey called him, he arranged a meeting outside his home, sold them drugs, and told them to leave. [44] I will return to the evidence in

section III. Next, however, I will outline the legal principles governing this application. II. Applicable Principles [45]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” A search isreasonable if it is authorized by law, if the law is reasonable, and if the search is carried out in a reasonable manner: Collins v. TheQueen, (SCC), [1987] 1 S.C.R. 265 at para. 23. [46] Section 487(1) of the Criminal Code states that an authorizing justice may issue a search warrant if he or she is satisfied byinformation on oath that there are reasonable grounds to believe that evidence of a criminal offence will be found.

Where a searchwarrant has been judicially authorized, it is to be considered presumptively valid by the reviewing justice. The onus is on the applicant toestablish that the statutory preconditions have not been met—that is, that there was no basis for the authorization of the warrant: R. v.Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 30; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 131. [47] If there is no basis for the authorization of the warrant, the search is unlawful and the person’s s. 8 right has been infringed.

Aperson whose right has been infringed may seek a remedy pursuant to s. 24(1) of the Charter. Section 24(2) provides that where “a courtconcludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, theevidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would

bring the administration of justice into disrepute.” [48] The issue before me is not whether I would have issued the warrant on the information provided to the Justice of the Peace. Thetest is whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable groundsto believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. Thecorrect approach is set out in R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, as amplified in R. v.

Morelli at para. 40: In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably bebelieved on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54(emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether there wassufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [49] The Supreme Court continued, at para. 41, to explain that on the voir dire the court reviews the evidence and excludes fromconsideration any evidence that has been shown to be erroneous.

The evidence may also be amplified to correct any minor errors, madein good faith: The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather,“the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, the reviewingcourt may have reference to “amplification” evidence -- that is, additional evidence presented at the voir dire to correct minor errors inthe ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attemptsto mislead the authorizing justice. [50] As a practical matter, the review requires that I examine the ITO that was before the Justice of the Peace and ask whether thefacts have been accurately stated, whether there was a failure to disclose material facts, or whether there was any misrepresentation ofthe facts.

The affiant has an obligation to make full, fair and frank disclosure of all material facts, favourable or unfavourable: R. v.Araujo at paras. 46-47; R. v. Morelli, at paras. 44, 58, 131.

I am required to excise evidence that should not have been before the justiceand ask whether, on the record, amplified by my review if required, the warrant could have been issued. [51] In carrying out the review, I must have regard to the nature and quality of the information that was before the issuing justice.Frequently, particularly when investigating drug offences, the police must rely on information or “tips” obtained from confidentialinformants, as was the case here.

As this information is provided by those who are not willing to have themselves identified, or to appearin court, and who often have motives that are not altruistic, the courts have insisted that such information be subjected to particularscrutiny. The court must ask whether the source was credible, whether the information was compelling and whether the information wascorroborated by police investigation: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at para. 53. These are not separate testsand it is the “‘totality of the circumstances’ that must meet the standard of reasonableness.

Weaknesses in one area may, to some extent,be compensated by strengths in the other two”: R. v. Debot at para. 53. [52] There is a high standard of review. I do not substitute my opinion for that of the Justice of the Peace who issued the warrant. Thewarrant should only be set aside if I am satisfied, on the whole of the material presented, that there was no basis upon which it couldhave been issued: see R. v. Garofoli at para. 62. [53] If I find that evidence was obtained in breach of the applicant’s s. 8 right, I am required to consider whether it should be excludedunder s. 24(2) of the Charter.

The leading case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 85 provides that I must makethree inquiries and then engage in a balancing process. The inquiries are: (

a) the seriousness of the Charter-infringing state conduct; (

b) the impact of the breach on the Charter-protected interests of the accused; and (

c) society’s interest in the adjudication of the case on its merits. [54] In making the first inquiry, I must consider whether the conduct was serious or minor, severe or innocuous, deliberate orunintentional, willful or negligent. The more deliberate the state conduct violating Charter rights, the more likely the evidence is to beexcluded: R. v. Grant, paras. 72, 74, 75. [55] After making these inquiries, I must balance my conclusions and consider the effect that admitting the evidence would have onthe long-term repute of the administration of justice: see R. v.

Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 36. [56] With these principles in mind, I now turn to the analysis of the evidence. I will focus on the evidence tendered by the affiant ascorroborative of the information provided by the confidential sources. III. Analysis [57] This

section is divided into three parts. In the first part, I will review the evidence that was before the Justice of the Peace, inlight of the additional evidence that has been adduced at this hearing. I will focus on the evidence of two central pieces of informationprovided by the confidential informants and going to the existence of reasonable and probable grounds for the search warrant. Thatevidence is: (

a) the existence of drug trafficking at or from 1-2041; and (

b) the connection between “Sean”/Tiaven Brown and 1-2041. [58] In the second part, I will ask whether the record, as amended by this review, contains sufficient reliable and credible evidence topermit a justice of the peace to find reasonable and probable grounds to justify the issuance of a warrant. [59] In the third part, I will ask whether, if the warrant should not have issued, the evidence should be excluded pursuant to s. 24(2) of

the Charter. 1. Review of the Evidence before the Justice of the Peace (

a) April 8 – Constant foot traffic through front entrance [ 60 ] D.C. Sarvanandan swore in the Overview

section of the ITO that he had observed “constant foot traffic in and out of the apartment [1-2041]”. In the Investigation

section he elaborated, saying he had: observed numerous individuals going in and out of the front entrance of 1-2041 Victoria Park Ave, Toronto. The individuals walked into the door spent short period of time and exited the door. The writer continued to observe the address. Such foot traffic clearly resembles a drug house from writer’s experience. [ 61 ] These statements painted a picture for the Justice of the Peace of a continuous stream of customers making their way through the front entrance of the Building and into 1-2041 to buy drugs.

It was clearly intended to corroborate the information allegedly provided by the two confidential informants. [ 62 ] There are several problems with this evidence. First, in his police notebook D.C. Sarvanandan recorded that the foot traffic to 1- 2041 was via the back door , not the front door of the Building. I will discuss this in more detail, but for now I note that in his evidence on the voir dire he did not portray this inconsistency as a slip or say that he really intended to put “front door” in his notes.

Instead, he testified that the foot traffic to the apartment was through both the front door and through the back door of the Building. He claimed he was able to tell from his surveillance vantage point that some of the traffic was coming from the back door of the Building and down the hallway to 1-2041. At the preliminary hearing he said that his observation point was too far from the Building to be able to give a description of the people going into the Building.

It is therefore somewhat difficult to conceive how he was able to see through the two glass doors at the front of the Building, down the corridor to the back of the Building and observe “constant traffic” via the back door. [ 63 ] Second, in his evidence on cross-examination, D.C. Sarvanandan first said that he saw about four people go into 1-2041 through the front door of the Building and two or three go into the Premises via the back door. Then he said that he saw approximately two or three people go through the patio entrance of the apartment, directly into the unit.

Later in his evidence, he said that he saw two people go into 1-2041 via the front entrance of the Building and two via the back entrance. Somehow, he concluded that a total of four to six people went into the unit. When he was asked how he could observe people going into the apartment from the back door, he said that after they went through the back door he would follow them and go up to the doors at the back of the Building and watch them as they walked up the corridor to 1-2041.

This answer suggests that he was at the back of the Building, not the front, when he claims to have seen people enter through the back door. [ 64 ] Third, D.C. Sarvanandan’s evidence is inconsistent with the evidence of D.C. Choo-Wing, who was positioned in the laneway behind the Building, and whose only assignment was to look for interaction between the target and suspected drug users. He was in a position to see any activity relating to the Building and, in particular, to observe anyone entering the Building from the back door. He did not see anyone until the target “appeared” at the back of the Building.

He did not see anyone else go into the Building and he did not see D.C. Sarvanandan go up to the back door of the Building to watch suspected drug purchasers walk up to 1-2041. Given that D.C. Choo- Wing expressed concern about the risk of approaching the Building to get a closer view of people, it would be surprising that he would not have noticed D.C. Sarvanandan walk up to the Building and peer through the glass door, if he had actually done so. [ 65 ] In my view, D.C.

Sarvanandan’s sworn evidence before me concerning the events of April 8, when compared to what he swore to in the ITO, what he wrote in his notes and the evidence of D.C. Choo-Wing, changed so often and revealed so many inconsistencies, that I have no confidence in it.

What started in his notes as “constant foot traffic” to 1-2041 via the back door of the Building, morphed in the ITO to “numerous individuals going in and out of the front entrance”, then morphed again in his evidence before me to possibly two going into the apartment via the front door of the Building and two going in from the back door and possibly two or three from the side entrance.

Moreover, if he observed two people go into 1-2041 from the back entrance, when he followed to watch them after they went through the back door, how did he see, or could he have seen, anyone enter the Premises via the back door from his surveillance point at the front of the Building? [ 66 ] As I listened to the evidence of D.C. Sarvanandan, I had the impression that he was making the story up as he went along, attempting to make up for the illogic and inconsistencies of his story by changing the evidence as he went. (

b) April 8 – Timing of Observations [ 67 ] The ITO states, in the first paragraph of the Investigation section, that the affiant observed numerous individuals go in the front entrance of 1-2041, stay a short time and then leave. In the next paragraph, it states that “During the same night at approximately 11:00 P.M. a male matching the description provided by CS1 as “Sean” was seen exiting 1-2041 Victoria Park Ave.” [ 68 ] These statements are difficult to reconcile with the evidence. The officers testified they arrived at the scene at 11:00 p.m. on April 8.

If the ITO is accurate, the target came out of the Building at that time. No one observed him re-enter the Building until nearly 1:00 a.m. He must have remained outside the Building while D.C. Sarvanandan was allegedly observing “constant foot traffic” into the Building and into 1-2041. If he was allegedly a drug dealer operating in 1-2041, why was there traffic into that apartment while he was doing business outside?

[ 69 ] Even if the 11:00 p.m. time was a slip, and the time was later, there are other difficulties with the sequence of events described by D.C. Sarvanandan on the one hand and D.C. Choo-Wing on the other. [ 70 ] D.C. Sarvanandan said that when he first arrived on the scene he spent about 20 minutes setting up the surveillance, checking out the interior of the Building to determine the location of 1-2041 and generally getting his bearings.

He then commenced his observations at the front of the Building. [ 71 ] After describing the “constant foot traffic via back door of 2041” in his notes, and noting several individuals going “through back door in between both buildings”, D.C. Sarvanandan recorded that a “male matching the description provided by source appeared in the rear parking lot.” I will return to this observation. [ 72 ] D.C. Choo-Wing’s notes record that his observations began at 11:00 p.m. He did not initially note anyone going into or coming out of the Building and simply noted that the black male he believed was the target took

part in several short meetings with people in the laneway. He said in cross-examination that he did not see the black male enter the laneway from the Building. This is consistent with D.C. Sarvanandan’s notes. [ 73 ] D.C. Choo-Wing could not say when the target appeared, but said that he observed between three and five interactions between him and other people in the laneway and that there was about 15 minutes between the transactions. He estimated that the male arrived in the laneway before midnight and that the officers left the scene around 12:45 a.m. [ 74 ] In cross-examination, D.C.

Sarvanandan was somewhat vague as to the time that he saw the man appear in the laneway, but appeared to say that he first saw him around 12:30. This is difficult to understand, since D.C. Choo-Wing testified that the officers left the scene at about 12:45 to go off shift and that he observed the dealer engaged in transactions with customers for about 45 minutes to an hour and a quarter. [ 75 ] This discrepancy in the timing raises two possible explanations. One is that “Sean” appeared behind the Building at 11:00 p.m. as the ITO states, casting doubt on the observations of D.S.

Sarvanandan that he saw constant foot traffic into 1-2041 after he had set up his surveillance at the front of the Building by 11:20 or so. The other explanation that “Sean” appeared in the backyard much later, in which case the three to five transactions, 15 minutes apart observed by D.C. Choo-Wing, would have to have been squeezed into a time frame that ended at about 12:45 a.m. when the officers went off duty. The evidence of D.C.

Choo-Wing did not give the impression that he waited a long time after 11:00 p.m. before the target appeared. [ 76 ] The discrepancies in the timing, both between the ITO and the officers’ evidence and between the evidence of the two officers, gives me further concern about the veracity of the evidence. (

c) April 8 – Person matching description of “Sean” seen exiting Apartment 1-2041 [ 77 ] D.C. Sarvanandan swore in the ITO that on April 8: [A]t approximately 11:00 p.m., a male matching the description provided by CS1 as Sean was seen exiting 1-2041 Victoria Park Ave. The male was seen at the rear parking lot entering into a hand to hand transaction with an unknown male white.

The male that came out of that address (1-2041 Victoria Park Ave, Toronto) was a short male with brown skin, was wearing a white hooded sweat shirt inside, black jacket and blue baggy jeans. [ 78 ] The reference to “1-2041 Victoria Park Ave” was clearly intended to convey to the Justice of the Peace that the affiant had observed “Sean” actually come out of townhouse unit 1-2041 and not simply the Building. [ 79 ] The first concern about this evidence, which I have already discussed, is that the officers’ observations began on April 8 at 11:00 p.m. and if “Sean” came out of the Building at that time and started to engage in drug transactions outside the Building, it casts doubt on D.C.

Sarvanandan’s description of steady foot traffic into the Building and 1-2041 in the early part of the evening. [ 80 ] The second concern is that nowhere in D.C. Sarvanandan’s notes does he describe the male coming out of 1-2041 or even coming out of the Building. His notes state that he observed a male matching the description who “appeared” in the rear parking lot. Had he actually seen the man come out of 1-2041, it seems highly probable that he would have recorded it in his notes as it would provide the crucial evidentiary link between “Sean” and 1-2041.

In cross-examination, he first said that he “picked him [“Sean”] up” coming down the corridor of the Building from the west end and proceeding through the east exit door and then into the laneway. Somewhat later in his examination he said that although the observation was not in his notes, he actually remembered seeing “Sean” come out of the doorway of 1-2041. [ 81 ] Making due allowance for the fact that D.C. Sarvanandan and D.C. Choo-Wing were not conducting their surveillance from the same places at all times, and that they may have been observing different things at different times, it is noteworthy that D.C.

Choo- Wing, who was specifically directed to look for the target, and was focusing on the laneway behind the Building with a clear view of the rear door, in an area that was well-lit, did not notice the target leave the Building. He simply saw the target “appear” in the laneway, which was the same term used by D.C. Sarvanandan in his notes, where he recorded that the target “appeared” in the parking lot. [ 82 ] In the course of her submissions, Crown counsel acknowledged that D.C. Sarvanandan appears to have been mistaken about seeing “Sean” come out of 1-2041, but pointed out that D.C.

Sarvanandan did recall seeing him go into 1-2041. I now turn to that evidence.

(

d) Dealer seen entering 1-2041 by opening the door with a key [ 83 ] In the Overview

section of the ITO, D.C. Sarvanandan stated that: The writer conducted further observations of the dealer after positively identifying the dealer with a mug shot (R.I.C.I. picture). The dealer was seen by the writer entering apartment #1-2041 Victoria Park Ave, Toronto by opening the door with a key. Also constant foot traffic in and out of the apartment was seen. [ 84 ] This appears to be a reference to D.C.

Sarvanandan’s observations on April 8, although it is confusing, because he testified that it was on April 9 that he identified “Sean” as Tiaven Brown using the “mug shots”. [ 85 ] He did record the entry into 1-2041 with a key in his notes for April 8 and testified in cross-examination that he saw this occur on April 8, after “Sean” and the man who got out of the BMW had gone into the Building through the back door. [ 86 ] There is no reference to the door being opened with a key in the

section of the ITO headed “Investigation”, where the officers’ surveillance observations are detailed. That

section concludes with a statement that further observations were conducted on April 9, 2011 and “[d]uring this time, Tiaven BROWN arrived at the rear of the Building in a Cab, he was seen going into the apartment via the back door.” [ 87 ] D.C. Sarvanandan’s evidence was that Mr. Brown was not identified by the “mug shot” until April 9. Moreover, the alleged “constant foot traffic” was on April 8 and no such traffic was observed on April 9. It may have been sloppy drafting, but D.C. Sarvanandan testified that the observation of entry with a key was on April 8.

The ITO gives the false impression that the dealer was seen entering 1-2041 after he had been positively identified as Tiaven Brown by the mug shot. [ 88 ] Regardless of whether it was the 8 th or 9 th , I find D.C. Sarvanandan’s evidence on this issue to be unconvincing and improbable. [ 89 ] For D.C.

Sarvanandan to have observed “Sean” use a key to enter 1-2041, he would have had to leave his surveillance location after the dealer and his companion entered the Building, approach the well-lit rear of the Building, peer through the glass door at the back entrance, make a sufficient observation of the two men at the far end of the hallway to be able to see that the dealer used a key to enter 1-2041. D.C. Choo-Wing said, quite sensibly, that he would have been afraid of doing this for fear of being observed by the suspect, not only blowing his cover but endangering his life. [ 90 ] It is improbable that D.C.

Sarvanandan would have done this. Had he done so, it is highly probable that he would have been immediately observed by D.C. Choo-Wing, who was only 30 or 40 feet away, had just watched the two men go through the back entrance of the Building and who was undoubtedly waiting to see whether they or anyone else came out or whether anyone else went in. D.C. Choo-Wing had no recollection of anything of this kind happening. He said that, had it happened, he would have had safety concerns and would have remembered it.

Had it happened, it would have been obvious and remarkable and it would almost certainly have been observed, recorded and remembered by D.C. Choo-Wing. (

e) Investigation – April 9 – Tiaven Brown seen going into 1-2041 via the back door [ 91 ] The ITO states that at approximately 10:00 p.m. on April 9, Tiaven Brown arrived at the rear of the Building in a taxi and was seen going into 1-2041 via the back door. D.C. Sarvanandan made no notes at all of any observations on April 9. This is surprising, because he had allegedly identified “Sean” as Tiaven Brown as a result of the mug shot that day.

If he had in fact seen “Sean”/Tiaven Brown go into 1-2041 after having identified him from the mug shot, one would expect that he would have made a note of such significant corroborative evidence. Second, although D.C. Wing-Choo noted that the man went into the Building, he simply recorded that he “doesn’t come out”. It seems to me probable that D.C. Sarvanandan made no notes of the investigation on April 9 because nothing significant came out of it. [ 92 ] D.C.

Choo-Wing’s evidence was that on April 9 he made his observations from his vehicle, which was parked in the lot behind the Building, facing away from the Building. D.C. Sarvanandan was with him some of the time, but he could not recall whether he was there all the time or whether he got out of the vehicle. [ 93 ] D.C. Choo-Wing did not have any recollection or note of D.C. Sarvanandan going up to the back entrance of the Building to watch the target walk up to 1-2041. Again, had this occurred, I would expect that it would have stuck in D.C. Choo-Wing’s memory.

The Crown fairly concedes that the evidence does not support the assertion that Tiaven Brown was seen going into 1-2041 on April 9. 2. Discussion of the Evidence [ 94 ] It will be apparent from the foregoing that the evidence on the voir dire raises real concerns about the reliability and credibility of the evidence before the Justice of the Peace. The Crown acknowledges that some statements in the ITO should be excised. [ 95 ] I am conscious not to subject the drafting of the ITO to unrealistic or unfair scrutiny. It was prepared by a police officer, not a

lawyer: see R. v. Ngo , 2011 ONSC 6676 , [2011] O.J. No. 5023 at para. 34 . I am also conscious of the serious consequences of a finding that the search warrant cannot be sustained. [ 96 ] That being acknowledged, I found D.C. Sarvanandan’s evidence confusing and improbable. His explanation of the events of April 8 seemed to be a work-in-progress, with points of access to the Building and numbers of entrants shifting as the evidence unfolded. His notes contradicted his sworn ITO and his evidence on the voir dire contradicted both. [ 97 ] Before commenting further on D.C.

Sarvanandan’s evidence, I will turn to D.C. Choo-Wing’s evidence. The defence does not challenge D.C. Choo-Wing’s evidence about the events on the nights of April 8 and 9. Ms. Dudding submits that inconsistencies in the evidence of the two officers should be resolved by accepting the evidence of D.C. Choo-Wing. In assessing D.C. Choo-Wing’s evidence, I keep in mind that he was very new to the Major Crime Unit and he had no prior involvement in the investigation of the Premises. Coming fresh to the investigation, he may not have been quite as attuned as D.C.

Sarvanandan about what to look for and the significance of his observations. On the other hand, it was not his investigation and as such, he was not an affiant of the ITO and he did not have as much invested in it as D.C. Sarvanandan. I approach his evidence with these points in mind. Overall, I found D.C. Choo- Wing’s evidence to be credible. [ 98 ] There are five aspects of D.C. Choo-Wing’s evidence that are particularly significant when it comes to assessing the evidence of D.C. Sarvanandan. I have mentioned them already: (

a) D.C. Choo-Wing did not observe anyone coming out of the Building at any time; (

b) he did not observe anyone , other than the target and the other black male going into the Building at any time; (

c) he made no notes or observations of D.C. Sarvanandan going up to the back doorway of the Building, to watch where people who entered the Building were going; (

d) he did not observe D.C. Sarvanandan going up to the back doorway of the Building to watch where the target and the other black male went after they entered the Building close to 1:00 a.m. on the early morning of April 9; and (

e) he did not observe D.C. Sarvanandan go up to the back of the Building on April 9 to observe the dealer walk into 1-2041. [ 99 ] I cannot reconcile D.C. Sarvanandan’s note of “constant foot traffic via back door of 2041” [the Building] with D.C. Choo- Wing’s evidence that he observed no one go into the Building or, for that matter, come out of the Building. D.C. Choo-Wing’s job was to look for drug traffic involving the target at the back of the Building.

It is possible that he could miss one person going into or coming out of the Building, but he could not have missed all the foot traffic allegedly observed by D.C. Sarvanandan. [ 100 ] Nor can I reconcile D.C. Sarvanandan’s evidence that he—not once but twice—walked up to the back of the Building to look through the rear glass door to observe the accused enter 1-2041. This allegedly occurred at times when D.C. Choo-Wing was present and watching the Building. Had it occurred, it would have stuck in D.C.

Choo-Wing’s memory, because it would have surprised him, due to his own concern for safety and not to blow his cover. [ 101 ] I will briefly comment on Mr. Brown’s evidence. [ 102 ] Although Mr. Brown’s evidence is self-serving and must be treated with great skepticism, there is some logic to his assertion that he did not deal drugs out of his own apartment for two good reasons—it would put his own safety at risk and it would disturb his mother and siblings at all hours, risking him being thrown out of the house. He said that his customers contacted him by telephone and he met with them away from the apartment.

This evidence is consistent with the evidence of D.C. Choo-Wing, who observed the “target” engage in several short interactions in the laneway behind the Building, with the customers leaving immediately after the exchange. Mr. Brown’s evidence that he did not deal drugs in the apartment is not conclusive on this issue, but it is consistent with D.C. Choo-Wing’s observations. [ 103 ] The Crown conceded that the ITO as edited, to protect the identity of the confidential informants, could not provide a basis on which a search warrant could have been issued: see R. v. Garofoli at paras. 61-68 ; R .v.

Araujo at paras. 51-54 . I was satisfied, however, that the redacted summaries provided to counsel would permit a fair opportunity to challenge the warrant and that it was appropriate to accede to the Crown’s request to engage in the “Step 6” in Garofoli and review the unredacted ITO. [ 104 ] Having done so, it is my conclusion that while there are a number of shortcomings in the ITO which might be capable of correction by excision or amplification, there are two fundamental deficiencies that cannot be remedied.

They are the absence of corroboration of drug trafficking associated with unit 1-2041 and the absence of corroboration of a connection between “Sean”/Tiaven Brown and unit 1-2041 . It is apparent that the affiant was aware of the need to corroborate this information provided by the confidential sources. I have concluded that the evidence he put before the Justice of the Peace was so unreliable as to undermine the existence of reasonable and probable grounds. [ 105 ] The evidence of D.C. Choo-Wing and D.C. Sarvanandan, taken together, supports the observation of drug trafficking activity by Mr.

Brown in the alleyway behind the Building. D.C. Sarvanandan’s statement in the ITO that he had observed “constant foot traffic in and out of the apartment [1-2041]” was inconsistent with his own evidence and it evolved and varied as he recounted it. It was also inconsistent with the evidence of D.C. Choo-Wing. His evidence of his observations in the ITO fell far short of “full, fair and frank” disclosure and was misleading. I conclude that it was deliberately misleading. [ 106 ] The same can be said of his efforts to connect “Sean”/Tiaven Brown to unit 1-2041.

The Crown concedes that there was no evidence to support the assertion that D.C. Sarvanandan saw Mr. Brown exit the apartment . The Crown also appears to concede that D.C. Sarvanandan’s evidence concerning seeing Mr. Brown go into the apartment on April 9 cannot be supported—in my view this was a fair and appropriate concession as it is entirely inconsistent with the evidence of D.C. Choo-Wing, which I find credible. Nor do I accept D.C. Sarvanandan’s evidence that he saw “Sean” enter the apartment with the man from the BMW using a key. D.C.

Choo-Wing did not see him walk up to the back door of the Building to make this observation and it seems highly improbable that D.C. Sarvanandan would have put himself, and the undercover operation at risk by doing so. [ 107 ] There are other deficiencies in the ITO, including: • the exaggeration of the allegedly “constant” foot traffic observed by D.C. Sarvanandan—even on the most generous reading of D.C. Sarvanandan’s several versions in his evidence, the foot traffic he described could not be called “constant”, nor could it be said that

“numerous” individuals were observed; • conclusory statements without supporting detail, such as “such foot traffic clearly resembles a drug house from writer’s experience” and the statements that people going into the Building “resembled drug users”; • references in the ITO to information of the confidential informants being “corroborated” by the officers’ investigation were generalized and conclusory over-statements; • the failure to provide particulars of CS1’s criminal record and the reference to the absence of any record of charges or convictions for perjury or obstruction of justice—these are not the only offences of dishonesty that might cast doubt on the reliability of the informant: see R. v.

Rocha , 2012 ONCA 707 , 112 O.R. (3d) 742 at paras. 6 , 8, 33; and • the general statements concerning the previous experience with the informer: see R. v. Rocha at paras. 19-20 . [ 108 ] The Crown submitted that even if I did not accept D.C. Sarvanandan’s evidence linking the drug activity to 1-2041, there was still evidence from the informants and from the searches done by D.C. Sarvanandan to connect Mr. Brown to 1-2041 and to drug activity in or near the Premises, giving rise to reasonable and probable grounds to believe that drugs would be found in the Premises: see e.g. R. v.

Bouchard , 2013 ONCA 229 , [2013] O.J. No. 1659 at para. 4 . The difficulty with this submission is that the unreliability of D.C. Sarvanandan’s evidence concerning his own observations casts doubt on the reliability of his recounting of the information provided by the confidential sources.

If I have serious doubts about the reliability of his evidence concerning his own observations that he saw “constant foot traffic” into 1-2041, I cannot safely assume that he provided full, fair and frank disclosure when he swore that one of the informants observed “frequent foot traffic…going in and out of 1-2041 Victoria Park Ave.” [ 109 ] The ITO refers to information received from CS2 after April 13, where it is recorded that CS2 “had observed during the afternoon hours constant foot traffic via front door of 1-2041 Victoria Park Ave.” As the Crown acknowledged, the handler’s notes prepared by D.C.

Sarvanandan refer to constant foot traffic but not with reference to the unit. [ 110 ] I am unable to accept D.C. Sarvanandan’s evidence that he saw the accused come out of and go back into unit 1-2041. In R. v. Bouchard , the surveillance showed the accused frequently coming and going from his home in connection with the suspected drug deals. The Court of Appeal held that these observations, when considered with all the other evidence, served to link the accused’s home as the base for his drug trafficking. The evidence of D.C. Sarvanandan does not permit me to make that link in this case. [ 111 ] R. v.

Debot requires an analysis of whether a tip is compelling, credible and corroborated by independent police investigation. Weaknesses in one area may be compensated by strength in the other two areas. As the Court of Appeal noted in R. v. Rocha at para. 22 , what is required is corroboration of the reliability of the informant, not corroboration of the commission of the offence. [ 112 ] The information provided by each confidential source was, on its face, compelling .

CS1 provided information setting out his/her personal means of knowledge of the activities of “Sean” and stating that he/she had personally attended at 1-2041 to purchase drugs from “Sean”.

CS2 provided information setting out his/her observations of “Sean”, including that: “Sean” lived at 1-2041; he parked his car in spot #33; there was “frequent foot traffic” into 1-2041 from mid-afternoon into the later hours of the night; and “Sean” was observed doing hand-to-hand transactions in the back parking lot and seen going into and out of his vehicle prior to meeting customers in the parking lot. [ 113 ] As to whether the source was credible , the ITO failed to disclose anything more than the existence of a criminal record for CS1 and the absence of charges or convictions for perjury or obstruction justice.

That was inadequate disclosure. So was the statement that the source had “provided very valuable information in the past which had been successfully acted on.” These deficiencies might have been capable of being compensated in the balancing process. [ 114 ] There are no concerns with respect to the credibility of CS2. [ 115 ] I am not able to find that the police corroborated the information provided by the confidential informants that drugs were being sold “out of” 1-2041 or linking the accused to 1-2041.

Moreover, the taint attached to the surveillance evidence undermines the reliability of the information attributed to the confidential sources. [ 116 ] For these reasons, the record before the Justice of the Peace, as corrected by my review, could not have established reasonable and probable grounds to believe that evidence of an offence would be found in 1-2041. Accordingly, the search was warrantless and prima facie unreasonable and infringed the Applicant’s right to be secure from unreasonable search and seizure. [ 117 ] I now turn to the question of whether the evidence should nevertheless be admitted. 3.

Section 24(2) and Grant analysis [ 118 ] I set out the framework for this analysis earlier in my reasons. I now ask whether Mr. Brown discharged the burden of proving, on the balance of probabilities and having regard to all the circumstances, that the admission of the guns, ammunition, drugs and money seized from his home would bring the administration of justice into disrepute. (

a) Seriousness of the Charter-infringing conduct

[ 119 ] As I noted earlier, this factor requires that I examine the nature of the state conduct to determine where it fits on the scale. I must look at the information provided or not provided to the justice of the peace and determine where it lies on the spectrum between intentionally false and misleading at one end and “mere inadvertence” at the other end. In R. v.

Rocha , Rosenberg J.A., giving the judgment of the Court of Appeal, stated at paras. 27-29: The touchstone of analysis of this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: R. v. Grant , at para. 72 .

Police conduct that shows “a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: R. v. Grant , at para. 74 ….

Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence.… The approach rather should be to look at the ITO and consider first if it is misleading in any way.

If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end. [ 120 ] For the reasons I have expressed, I have concluded that the ITO contained untrue or deliberately misleading information about the affiant’s own observations. This misconduct was of a most serious nature. My conclusions leave me with no confidence in the reliability of either that information or the affiant’s evidence concerning the information provided by the confidential informants. (

b) Impact of the breach on Charter-protected interests of the accused [ 121 ] There can be no question that the search of the applicant’s home was a highly intrusive breach of his right to be free from unreasonable search and seizure: R. v. Dhillon , 2010 ONCA 582 at paras. 56-8 . This points to the exclusion of the items seized. (

c) Society’s interest in the adjudication of the case on its merits [ 122 ] In R. v. Rocha , the Court of Appeal stated, at para. 39: In considering the third line of inquiry, the principal factor is the reliability of the evidence. As the majority said in R. v. Grant , at para. 81 : “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”. The court will also consider the importance of the evidence: R. v. Grant , at para. 83 .

The trial judge properly recognized that the importance of the evidence, especially as regards the contraband found at the house, favoured admission of the evidence. [ 123 ] The evidence in this case—real evidence of drugs and firearms—is highly reliable and relevant. The charges before the Court —involving loaded firearms and possession of drugs, a notoriously deadly combination—are extremely serious. Society has a strong interest in the trial of these charges. These circumstances favour inclusion of the evidence. (

d) Balancing the Inquiries and Factors [ 124 ] In R. v. Rocha , the Court of Appeal described the balancing process, at para. 40, by reference to R. v. Grant and R. v. Harrison : It remains then to balance the three inquiries in accordance with the test laid down in R. v. Grant and R. v. Harrison , 2009 SCC 34 . In particular see para. 36 of Harrison : The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 125 ] In R. v.

Morelli , Fish J., giving the judgment of the majority stated at paras. 108-110: In balancing these considerations, we are required by Grant to bear in mind the long-term and prospective repute of the administration of

justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. In my view, 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.

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices. [ 126 ] In this case, the balance is tipped by the deliberate inclusion in the ITO of information that was not just over-stated, opinion and advocacy, and deliberately vague (and there was some of that), but information that I find to be deliberately misleading at best and false at worst.

This is a case where I must conclude that in spite of the strong reasons to admit the evidence, the Court must disassociate itself from conduct that brings the administration of justice into disrepute. IV. Conclusion [ 127 ] Fully recognizing the consequences of excluding highly reliable evidence of very serious offences, I asked myself whether there was any basis on which the search warrant could be sustained or whether the evidence could be admitted in spite of the infringement of Mr. Brown’s constitutionally-protected rights. I was unable to do so.

In the result, I ordered that the evidence be excluded, with the result that the Crown offered no evidence and the accused was acquitted. ___________________________ G.R. Strathy J. Released: May 17, 2013 CITATION: R. v. Brown , 2013 ONSC 2848 COURT FILE NO.: 12-30000114 DATE: 20130517 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN - and - TIAVEN BROWN reasons for decision: CHARTER S. 24(2) APPLICATION G.R. Strathy J. Released: May 17, 2013