)) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 4460

CITATION : R. v. Dominic Luckman-Kelly, 2013 ONSC 4460 COURT FILE NO.: 12-10000 626 0000 DATE: 20130626 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Respondent – and – DOMINIC LUCKMAN-KELLY Applicant )) )) )) )) ) )) Onelia Delgado , for Her Majesty The Queen Cydney G.

Israel , for the Applicant DUNNET J.: (Orally) RULING ON GAROFOLI APPLICATION Background [ 1 ] This is an application under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding the evidence gathered by the police pursuant to a search warrant in alleged breach of the applicant’s Charter rights. [ 2 ] The applicant submits that the affiant breached his duty to make full, frank and fair disclosure of material facts and misled the issuing justice with respect to the reason required for the issuance of the telewarrant.

Further, the grounds to request the warrant were based on information provided by a confidential informant and there was no reliable corroborating evidence which would form a reasonable ground for belief that a firearm and the applicant would be located in the residence. Application for the Search Warrant [ 3 ] On February 1, 2012, Police Officer Rasih Pala of the Toronto Police Service swore an information to obtain a search warrant under the telewarrant provisions of the Criminal Code , applying for a telewarrant to search the residence of the applicant at 524 Quebec Avenue in Toronto.

The officer swore that he had reasonable grounds to believe that a firearm and ammunition would be located in the residence. The information was sent by facsimile to the Telewarrant Centre and eleven minutes later, the warrant was issued by a Justice of the Peace in North Bay. [ 4 ] At 11:25 p.m. on February 1, 2012, the police executed the warrant and the applicant was located inside the residence. In the upstairs bedroom, the police found a loaded semi-automatic handgun and four rounds of ammunition, along with identification of the applicant.

As a result, he was charged with various gun offences. [ 5 ] In the information, the officer relied on information he obtained from a confidential informant for whom he was the police handler. He stated that the informant had a criminal record and he had never been charged with perjury, obstruct justice, obstruct police, or public mischief. [ 6 ] The informant was motivated to provide reliable information in the hope of receiving monetary consideration for the information provided.

Although the informant had not received any consideration for the information, the officer stated that the informant had no motivation to lie and provided the information at his/her peril. [ 7 ] The informant had provided information to the police on nine prior occasions that had resulted in the arrest of suspects and the seizure of firearms, ammunition, drugs and cash. [ 8 ] In January of 2012, Officer Pala had a conversation with the informant and learned that the applicant was in possession of a firearm.

The informant described the applicant as male, black, 18 years old, five feet eight inches tall, weighing 145 pounds, with thick lips, a wide nose and afro styled hair. He was currently living at 524 Quebec Avenue and always carried the firearm. [ 9 ] The officer informed the issuing justice that he had conducted computer checks and learned that the applicant was born on December 8, 1993 and was eighteen years of age. He had criminal convictions that included robbery and unauthorized possession of a prohibited or restricted weapon.

On January 14, 2010, he was arrested and charged with first degree murder and following a preliminary

hearing, the charge was stayed. [ 10 ] In the information, the officer stated that he showed the informant a photograph of the applicant from the Toronto Police Service Repository Index for Computerized Imaging (RICI), an electronic database of images, descriptor and offence information of persons charged with various offences.

The informant positively identified the applicant as the person of interest in the investigation. [ 11 ] In the RICI photograph, the applicant is described as male, black, with a height of 184 centimetres and weight of 73 kilograms, slim build, medium complexion, brown eyes, thin face and black afro hair. [ 12 ] The officer also reviewed Field Information Reports (FIRs), an electronic record of names, addresses, dates of birth, descriptors and dates of contact of persons investigated by the Toronto Police Service.

On August 13, 2008, March 28, 2009 and May 13, 2009, the applicant gave the Toronto address of 524 Quebec Avenue to the police.

On April 5, 2009, he told the police that he resided at 120 Woolner Avenue in Toronto. [ 13 ] The officer stated that Police Officer MacNeil searched the Canadian Firearms Registry Office (CFRO) and found that the applicant did not have a licence to possess a firearm. [ 14 ] In the information, the officer requested that the authorization to search be extended for a period of four days to allow the police to complete their investigation and to execute the warrant when they could verify that the applicant was physically present in the area.

Cross-examination of Police Officer Rasih Pala [ 15 ] The applicant sought and received leave to cross-examine Police Officer Pala on certain issues in the information on the basis that cross-examination would elicit testimony tending to discredit the existence of a precondition to the authorization. [ 16 ] The officer testified that the application was urgent because it was a firearms related investigation.

He was reminded that this was not the reason he gave the issuing justice on the initial contact forms submitted to the Justice of the Peace by facsimile at 6:36 p.m. on February 1, 2012, which stated that the application was urgent because “mobile surveillance is being conducted at present.” [ 17 ] The officer testified that he did not know why he used those words and there was nothing in his notes to refresh his memory about mobile surveillance at 524 Quebec.

He testified that it is common practice to have several investigations “on the go” at the same time and he believed that there was a team in the area of 524 Quebec. [ 18 ] In the information sent by facsimile at 7:12 p.m., the officer stated that it is impracticable to appear before a Justice of the Peace in person to request the warrant for the following reason: time of day. The issuing justice certified that the information was obtained at 7:19 p.m. and the telewarrant was issued at 7:30 p.m. [ 19 ] Officer Pala’s notes at 7:13 p.m. state: I/R warrant granted 2012.02.01 9 p.m. 2012.02.05 6 a.m.

I/R crew complete warrant on another address [ 20 ] In cross-examination, the officer testified that he received information that his crew had completed a warrant at another address that was not related to 524 Quebec.

He acknowledged that as of 7:30 p.m. when the warrant for 524 Quebec was granted, he knew that there had been no mobile surveillance at 524 Quebec Avenue. [ 21 ] He acknowledged that he did nothing to advise the issuing justice of his changed understanding of the circumstances and did not seek another search warrant with the references to the mobile surveillance omitted. [ 22 ] In the information, the officer listed his grounds for belief as follows: 1. direct knowledge 2. information passed on to me by other police officers based on their observations and interviews they have conducted 3. written reports I have read and 4. information received from one confidential informant. [ 23 ] Officer Pala acknowledged that he had no direct knowledge about the person of interest or about 524 Quebec.

When he was asked if he agreed that there was a huge privacy interest involved, given that this was a dwelling house, he said, “One thousand per cent.” [ 24 ] He agreed that other than information he received from Officer MacNeil who did a CFRO computer check and from Covert Operations that the informant had a history with the police, there was no information passed on to him by other officers based on their observations and interviews. [ 25 ] The officer also acknowledged that, contrary to what he stated in bold letters in the information, he did not rely on any surveillance reports to form his grounds for belief.

[ 26 ] Later on in the information, Officer Pala states: I find the information provided by [the informant] to be credible based on the investigation to date, including police database checks, observations and surveillance. [ 27 ] The officer acknowledged that there were no observations and the only surveillance was mobile surveillance that he believed was being conducted at 524 Quebec at the time that he drafted the information.

As previously noted, he admitted that there was no actual surveillance. [ 28 ] The officer was also questioned about why he capitalized the word “any” in the sentence, “The source has not received ANY consideration for any of the information he/she has given.” He explained that he wanted the issuing justice to understand that there was no consideration given in this case before the information was drafted. He added that some justices do not know the way the system works.

He acknowledged that typically no consideration is given to an informant before an arrest is made, although he did not make this clear to the issuing justice. [ 29 ] The officer agreed that after he reviewed the CPIC record, he did not bring to the attention of the issuing justice the fact that the robbery offence was in Youth Justice Court in Toronto and the unauthorized possession of a prohibited or restricted weapon in 2010 was in Youth Justice Court in Ottawa. [ 30 ] Officer Pala explained that if he had wanted details about the address of the applicant at the time of his arrest in Ottawa, he could have sent a CPIC message to the Ottawa police.

He did not do that in this case. [ 31 ] He was unaware that the CPIC record that he reviewed was incorrect and that the applicant did not have a criminal record, because he had entered a plea of guilty to assault on the robbery charge and received a conditional discharge and the charge of unauthorized possession of a weapon had been withdrawn. [ 32 ] He agreed that he searched the Criminal Information Processing System (CIPS), a computerized program that is designed to manage prisoners within police facilities and track cases through the court process, and it was from his review of CIPS that he learned about the murder charge in Toronto that was stayed.

He could not remember whether the applicant had an Ottawa address when he was arrested in Ottawa on that charge in January 2010. Submissions of the Applicant [ 33 ] The applicant submits that the reason that the officer gave for the urgent telewarrant was false.

Even if he believed that mobile surveillance was being conducted at 524 Quebec at the time, once he learned that he had made a mistake, he failed to bring this to the attention of the issuing justice before the warrant was executed more than two hours later. [ 34 ] The applicant contends that the officer changed his reason for obtaining the telewarrant to “time of day” and yet, there was no urgency or impracticability, given that he had received the information from the informant in January. [ 35 ] The applicant asserts that the failure to point out to the issuing justice that there was a four inch difference in height and sixteen pound difference in weight between the description of the applicant given by the informant and the RICI photograph may have misled him.

It may also have led him to overlook the discrepancies in the descriptions, particularly in height, given the stated urgency and the fact that the warrant was issued only eleven minutes after it was received. [ 36 ] It is submitted, moreover, that Officer Pala misled the authorizing justice because, contrary to his statements in the information, the officer admitted that he had no direct knowledge and there were no interviews, surveillance reports, mobile surveillance, or observations grounding the authorization. [ 37 ] The applicant also contends that the officer failed in his duty to be full and frank by failing to advise the issuing justice that the applicant’s previous arrests were as a youth and the most recent arrest was made in Ottawa. [ 38 ] It is submitted that the officer chose to inform the issuing justice that the applicant was arrested for murder, but he failed to advise the justice that the arrest was made in Ottawa.

It is asserted that either the officer failed to enquire about the address of the most recent arrest, or he knew that the most recent arrest was made in Ottawa and not in Toronto – which would tend to undermine the officer’s belief that the applicant would be located at 524 Quebec - and failed to disclose this information to the issuing justice. [ 39 ] The applicant contends that the information should be amplified to reflect that at the time of the information, he had no criminal convictions. [ 40 ] It is the position of the applicant that after excision based upon the failure of the officer to be full, frank and fair and after amplification to provide a more reliable criminal history, the authorization to search the applicant’s dwelling house cannot stand, as it was obtained in breach of the applicant’s s. 8 Charter rights.

Submissions of the Crown [ 41 ] The Crown submits that the applicant has examined the conduct of the officer piece by piece and has put police conduct on trial rather than the sufficiency of the information. [ 42 ] The Crown concedes that there were no observations or surveillance in this case and that these words should be excised from the information.

It is submitted what remains within the four corners of the information continues to provide a basis for the decision of the issuing justice. [ 43 ] It is submitted that the reason for the telewarrant was the time of day, because Officer Pala was working in the evening and he

was the one with first-hand knowledge of the information provided by the informant. [ 44 ] It is the Crown’s contention that failing to bring to the attention of the justice that a conditional discharge is a finding of guilt and not a criminal conviction was not a matter of bad faith on the part of the officer.

The Crown submits that having told the issuing justice that the applicant was eighteen years old, it follows that his criminal record for preceding years was as a youth and it was unnecessary to bring this to his attention. [ 45 ] The Crown submits that the totality of the circumstances in the information provided by the informant was compelling, credible and corroborated. [ 46 ] The informant had provided information on nine prior occasions that had resulted in arrests.

Although the informant had a criminal record, the informant had not been charged with perjury, obstruct justice, obstructing police or public mischief. The informant identified the applicant from a RICI photo and provided a description, including the correct age. [ 47 ] The Crown submits that the height and weight differential is not significant. It is submitted that the failure to convert his height and weight to either imperial or metric measurements is of no moment.

The information from the informant was in feet and pounds and the information on the RICI photograph was in centimetres and kilograms and this was accurately stated by the officer in the information. [ 48 ] The officer believed on the information available to him at the time that the applicant’s criminal history included a conviction for violence and a similar conviction for the criminal activity alleged by the informant.

The officer also apprised the issuing justice of the first degree murder charge that was stayed. [ 49 ] The officer stated that the applicant had given the address of 524 Quebec to the police in three previous occurrences.

It is the Crown’s position that the fact that the applicant was arrested in 2010 in Ottawa on the murder charge did not lead to the inference that the applicant did not currently live at the Quebec Avenue address in Toronto, based on the information from the informant. [ 50 ] The Crown agrees that the officer made an error when he stated that there was mobile surveillance, but there was no intent to mislead the authorizing justice. It is the Crown’s position that mobile surveillance was not the reason the authorization was issued. It was relevant only to the issue of urgency.

It is the contention of the Crown that by the time that the officer learned of his mistake, the search warrant had already been issued. Analysis [ 51 ]

Section 487.1(1) of the Criminal Code states: Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with

section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter. [ 52 ] Officer Pala told this court that he made an urgent application to the Telewarrant Centre because the subject matter of the warrant he was seeking involved a firearm. He told the issuing justice that the reason for the urgency was that mobile surveillance was being conducted at the time. There was nothing in his notes about mobile surveillance in relation to 524 Quebec.

However, his notes state that seventeen minutes before the warrant was issued, “crew complete warrant on another address.” He testified that this meant that his crew had completed another investigation at a different address. As of that point in time, he knew that the crew had not been assigned to 524 Quebec but rather the other address. [ 53 ] In re-examination, Crown counsel asked the officer the following questions: Q. Given your knowledge at the time, did you know where your crew was at, or what was your belief? Where was your crew at when you started and completed this information for the justice? A.

I believed they were in the area of 524 Quebec. Q. You were asked, why you didn’t, after receiving the telewarrant, advise the Justice of the Peace about the mistake and belief that in fact they weren’t at 524, but at a different address getting a warrant? Why didn’t you advise the justice after you received the warrant? Is there a reason for that? A. No. [ 54 ] Whether or not his belief was honestly held that there was surveillance in the area at the time, the officer acknowledged that within minutes of the warrant being issued, he knew that the reason he had provided for the urgent application was false.

During the two hours that followed before the execution of the warrant, he did nothing to inform the issuing justice that the basis for his urgent warrant never existed. [ 55 ] He relied on the claim that mobile surveillance was in the area, despite having no evidence to believe that was the case. Nothing in his notes reveals that mobile surveillance was in the area.

The other address where the crew completed the warrant was not identified; there is no reason to believe that it was in the area of 524 Quebec. [ 56 ] While Officer Pala relies on the fact that it is common to have several investigations “on the go” at the same time, this cannot ground a reasonable belief that as a result, mobile surveillance is being conducted at a particular address. Officer Pala’s statement that mobile surveillance was in the area was based on no evidence and there is no discernible reason for his mistake in that regard.

[57] In addition, the officer claimed to rely on sources of information that simply did not exist to establish reasonable grounds.

Hetestified that other than the information he received from the informant and written reports he had read, he had no direct knowledge,contrary to what he stated in his grounds for belief. [58] One could argue that a claim of direct knowledge about the person of interest, the address and/or the alleged offence from asworn affiant is powerful evidence an issuing justice might rely upon in deciding to grant a warrant. [59] Also, of importance, in my view, is the fact that the officer stated on three occasions in the information that he was relying onobservations and surveillance and he acknowledged that there was no surveillance or any observations in this case.

He relied on this non-existent information to help establish the reliability of his informant. [60] In confidential informant cases, corroboration is extremely important to the determination of whether an informant’sinformation can establish reasonable grounds: see R. v. Debot, (SCC), [1989] 2 S.C.R. 1140. Intentionally or not, theofficer’s reference to non-existent observations and surveillance misled the issuing justice on a factor of great importance. [61] Officer Pala said he also relied on the police database checks to satisfy himself of the reliability of the informant.

Theofficer’s checks confirmed the age of the applicant, the fact that he was black and his hair style. [62] I find it to be of significance that his checks also revealed that the informant said the applicant was four inches shorter inheight than the police records. The officer did not note this discrepancy in the information.

The officer also failed to convert the heightand weight measurements and this led, in my view, to the discrepancies being even less clear on the face of the information. [63] Officer Pala sought to bolster the reliability of the informant through FIRs, three of which stated that the applicant gave hisaddress as 524 Quebec in 2008 and 2009 and one of which stated that he gave his address as 120 Woolner in 2009. [64] The legitimacy of the officer’s reliance on this information is called into question, given that he knew that the charge forunauthorized possession of a weapon in 2010 was in Youth Justice Court in Ottawa.

He also knew that the applicant was arrested andcharged with murder on January 14, 2010, and he did not remember whether the applicant gave an Ottawa address. He agreed that hereviewed the CIPS information and he also could have sent a CPIC message to Ottawa to confirm the address at the time of arrest. [65] Given the officer’s reliance on FIRs identifying the applicant’s address at 524 Quebec, the failure to disclose the Ottawaconnection was a breach of the affiant’s duty to be full, frank and fair respecting material information in the information.

Thisinformation was both relevant to the corroboration of the informant and whether there were reasonable grounds to believe that theapplicant would be found at the residence. [66] The officer’s inclusion of erroneous information respecting the applicant’s criminal record was in part due to negligentomission and in part due to flaws in the CPIC system.

Officer Pala had the ability and opportunity to advise the issuing justice that whathe believed were convictions for robbery and unauthorized possession of a weapon were in Youth Court, but he did not. [67] His failure to correctly advise the issuing justice that the applicant did not have a criminal record, as opposed to advising thejustice that he had a record for serious and related offences, surely had an impact on the justice’s decision to grant the search warrant.

While the inclusion of this significant erroneous information was not due to negligence on the part of the officer, it is likely that thismisled the issuing justice. [68] I find that, on review, it is clear that the officer was negligent in his drafting of the information, if not intentionallymisleading. He breached his duty to provide full and frank disclosure of material facts. [69] In R. v.

Bisson, (SCC), [1994] 3 S.C.R. 1097, the court held that “errors in the information presented to theauthorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization anddo not by themselves lead to automatic vitiation of the wiretap authorization as was done by the trial judge.” Rather, the reviewing judgemust excise the erroneous or misleading parts of the warrant and then determine whether, in the totality of the circumstances, there wasreliable evidence that might reasonably be believed on the basis of which the warrant could have issued: R. v.

Araujo, 2000 SCC 65,[2000] 2 S.C.R. 992, at para. 54. [70] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8, the court held: If the reviewing judge concludes that, on the material before the authorizing judge as amplified by any evidence taken on review, therewas no basis upon which the authorizing judge could be satisfied that the preconditions for the granting of the authorization existed, thereviewing judge will conclude that the search or seizure contravened s. 8 of the Charter. The review is not a hearing de novo. Theproper standard of review was explained in Garofoli [R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421] as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record that was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [71] There is no issue that the references to “surveillance reports”, “observations and interviews” conducted by other policeofficers and “observations and surveillance” in the information should be excised.

The reference to “mobile surveillance beingconducted at present” should also be excised, as well as the reference to “direct knowledge” in the grounds for belief. [72] The information should be amplified to reflect that the applicant was charged as a youth in 2009 and 2010. He received aconditional discharge on a plea of guilty to assault in 2009. The charge of unauthorized possession of a weapon was withdrawn. Thatcharge was laid in Ottawa in 2010 and the applicant was arrested in Ottawa on the murder charge in 2010. Therefore, as of the date of

the information, the applicant did not have a criminal record. [ 73 ] I have not been persuaded that the words “time of day” should be excised as the reason for the telewarrant.

Nor am I persuaded to amplify the information by adding the word “yet” to the sentence, “The source has not received ANY consideration for any of the information he/she has given.” [ 74 ] Therefore, the information, as excised and amplified, is almost entirely based on the information of a confidential informant. [ 75 ] While the credibility of the informant may have been made out, as he/she had provided information nine times in the past that led to arrests, the information here is neither compelling nor corroborated. All that the informant says is that the applicant always carries a firearm.

Conclusory statements by an informant are not a sufficient basis for the granting of a search warrant. [ 76 ] Further, the corroboration is of neutral factors that do not touch on the criminality of the applicant. The only corroborating description of the applicant is that he is male, black and has an afro. Also, the applicant identified 524 Quebec as his residence sometimes, but not all times, in the past.

In my view, the corroboration is weak. [ 77 ] Thus, an analysis of the sufficiency of the information in the information after excision and amplification does not provide any basis for the issuance of the warrant. The information is insufficient to establish reasonable grounds. Accordingly, without the warrant, the search was unreasonable and violated the applicant’s rights under s. 8 of the Charter .

Step Six of Garofoli [ 78 ] Before the commencement of this application, Crown counsel took a fresh look at the edited version of the information and unredacted much of the information that had previously been redacted, including an entire page devoted to the “Reliability of the Confidential Source.” [ 79 ] The Crown has submitted throughout these proceedings that the edited information provides a basis upon which the justice could have issued the search warrant.

The Crown did not resile from the position that the redacted information was sufficient to support the issuance of the warrant until the parties had completed their submissions on the s. 8 argument. [ 80 ] Crown counsel was content to have the validity of the warrant determined on the redacted version of the information and the defence did not challenge the editing of the Crown, which was done to protect the identity of the informant. [ 81 ] Crown counsel then took the position that if this court determines on a

section 8 ruling, based on the submissions that have been made, that the editing renders the authorization insupportable, counsel will apply to have the court consider the unredacted information, pursuant to step six set out in Garofoli , at para. 79 . [ 82 ] In R. v.

Learning , 2010 ONSC 3816 , 258 C.C.C. (3d) 68 at para. 106 , Code J. suggested that “[w]e need to develop experience with the use of judicial summaries in actual cases in order to determine whether Sopinka J.’s innovative ‘step six’ in Garofoli is a workable solution.” Crown counsel in Learning “carefully considered the matter” and decided not to rely on step six. [ 83 ] In R. v.

Sahid , 2011 ONSC 979 , 230 C.R.R. (2d) 239, the Crown acknowledged that the information on the redacted version of the draft search warrant affidavit was not sufficient to support the issuance of the search warrant and both counsel agreed that the court should have resort to step six. [ 84 ] In R. v. Brown , 2011 ONSC 6223 , [2011] O.J.

No. 4624, the Crown conceded that the redacted information to obtain, which was heavily edited to prevent disclosing information, which may have served to identify the confidential informant, did not meet the Debot criteria and the court invoked the use of step six. [ 85 ] In R. v. Rocha , 2012 ONCA 707 at para. 56 , Juriansz J.A. stated: It is difficult to understand why the Crown does not request the court to employ “step six” of Garofoli more frequently.

There may be many cases in which the Crown considers the redacted information to be inconsequential, but there must be cases in which the information is significant. [ 86 ] At para. 59, Juriansz J.A. added: I appreciate there may be practical questions about the procedure to be followed in applying step six of Garofoli and about the content of the judicial

summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve those questions. [ 87 ] Code J. in Learning , referred to the “undoubtedly controversial” nature of step six and warned at para. 105 of the “spectre of secret trials and violations of ‘the right to meet the case’”, where the court would decide the issue based on “evidence that the defence had never seen or tested, other than through the vehicle of a judicial

summary.” [ 88 ] In my respectful opinion, Juriansz J.A. was not endorsing resort to step six in every case. Moreover, I do not read his comments to suggest that, having taken the position that the redacted information is sufficient to support the authorization, Crown counsel would have the opportunity to embark on another s. 8 hearing based on further redacted information following an unfavourable ruling on s. 8. [ 89 ] Aside from fairness issues, it would consume significant resources in every case with a confidential informant to have a step six analysis.

It would be even more unworkable for every case with a confidential informant to have a hearing on a redacted warrant and then, if the Crown is unsuccessful, a second hearing whereby the court must draft a judicial

summary and new argument must be heard which concerns both whether the judicial

summary is sufficient and whether the additional information validates the warrant. [ 90 ] In any event, for the reasons stated above, there is no need to consider step six in this case. The totality of the circumstances

does not provide reasonable grounds for the issuance of the search warrant. Section 24(2) [ 91 ] The Crown submits that the evidence gathered by the police should be admitted at trial. It is asserted that the breach is minor and there is no evidence that the police acted without regard for the applicant’s Charter rights.

It is submitted that the firearm and bullets are real evidence and there is a strong societal need to have firearms cases decided on their merits rather than on technical breaches. [ 92 ] The applicant submits that the precondition to the urgent authorization was a sham or was based on a reckless disregard for the truth. There were significant breaches of the police obligation to disclose material in a full, frank and fair manner. Given that the officer knew that there were no observations and surveillance, the fruits of the search should not be admitted into evidence.

Seriousness of the Charter -Infringing State Conduct [ 93 ] The officer knew within minutes of receiving the warrant that the entire premise for the urgent warrant was false and he chose not to bring this to the attention of the issuing justice. In his testimony, he could provide no reason.

I find that his conduct in this regard was negligent. [ 94 ] Having misinformed the justice about the mobile surveillance, he also misinformed the justice in three places in the affidavit that observations and surveillance had been conducted, thereby implying there was further corroboration for the information provided by the informant. [ 95 ] The police resort to the telewarrant process when they believe that it is impracticable to appear in person before a Justice of the Peace.

The nature of this process demands attention to detail, which was lacking in this case. [ 96 ] In my view, this was not a mere inadvertent, technical, or minor breach. It was reckless and showed an insufficient regard for Charter rights. It would have a negative effect on public confidence in the rule of law. Impact on the Charter -Protected Interests of the Accused [ 97 ] A dwelling house attracts a higher expectation of privacy and the illegal search of a house is more serious than the search of a business or vehicle. The officer himself acknowledged the high degree of privacy in a residence.

Society’s Interest in an Adjudication on the Merits [ 98 ] The evidence of the firearm and ammunition is reliable and virtually conclusive of guilt on the offences charged. The offences are serious and the penal stakes for the applicant are high. [ 99 ] In R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 36 , the court held: 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 interest 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. [ 100 ] In this case, the stated urgency for the telewarrant was false.

There was no surveillance and no direct knowledge or interviews about the person of interest, contrary to what was stated in the information. There was no independent investigation other than common computer checks, some of which yielded incorrect information about the person of interest. The affiant knew that at least some of the information was false and he chose not to act on it. Disposition [ 101 ] Balancing of the factors favours exclusion of the evidence to protect the process and the long-term repute of the administration of justice.

The seriousness of the offences and the reliability of the evidence do not outweigh the importance of maintaining Charter standards. [ 102 ] The application is granted. DUNNET J. Released: June 26, 2013

CITATION : R. v. Dominic Luckman-Kelly, 2013 ONSC 4460 COURT FILE NO.: 12-10000 626 0000 DATE: 20130626 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – DOMINIC LUCKMAN-KELLY Applicant RULING ON GAROFOLI APPLICATION DUNNET J. Released: June 26, 2013