)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5874

CITATION: R. v. Browne, 2013 ONSC 5874 COURT FILE NO.: 12-90000137-000 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – COREY BROWNE )))))))) ) )) Chris de Sa, for the Crown Robert Nuttall, for the Defendant HEARD: September 9 – 13, 2013 HAINEY J. REASONS FOR DECISION Overview [1] Mr. Browne is charged with a number of drug-related offences. The Crown’s case depends on evidence seized as a result ofthe execution of a search warrant at 2:46 a.m. on October 6, 2009 at Mr.

Browne’s residence, at 701 Don Mills Road, Apartment 2408 inthe City of Toronto. [2] The grounds for the issuance of the search warrant were based upon information provided to a police officer by aconfidential informant and the search warrant was obtained by the use of the telewarrant procedure in

section 487.1 of the CriminalCode. [3] Mr. Browne applies pursuant to section 24(2) of the Charter of Rights and Freedoms (the “Charter”) to exclude theevidence seized by the police pursuant to the search warrant on the ground that his rights under

section 8 of the Charter were violatedbecause:

a) The information contained in the Information to Obtain the Search Warrant (“ITO”) was not a sufficiently reliable andcredible basis upon which the justice could have issued the search warrant;

b) There were no exceptional circumstances to justify the execution of the search warrant at night pursuant to

section 488 ofthe Criminal Code;

c) The manner in which the search was carried out was unreasonable, and

d) The failure to provide a copy of the telewarrant to Mr. Browne breached his rights under

section 8 of the Charter. Record [4] The record before me on the application included the following: 1) The ITO that was sworn by Detective Constable Ryan Russell. Although the ITO has been redacted to protect the identityof the confidential informant, I was provided with an un-redacted version pursuant to the “step six” procedure outlined by the SupremeCourt of Canada in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421. Mr. Browne was provided with a judicial

summary ofthe edits in the redacted version of the ITO. 2) The testimony of the following witnesses: • Sergeant Oliver Febbo; • Sergeant Mike Forestall;

• P.C. Rene Kuhn; • P.C. Stephen Carmichael; • Ms. Gail Gaskin; • Detective Michelle Little; • P.C. Stuart Philp; • P.C. Jeffery Taveres; 3) A Statement of Admissions and Agreed Facts; Facts [ 5 ] At 12:45 a.m. on October 6, 2009, a search warrant was issued by justice of the peace Malik pursuant to

section 487 of the Criminal Code authorizing the police to enter apartment 2408 at 701 Don Mills Road between the hours of 1 a.m. on October 6, 2009 and 6:59 a.m. on October 7, 2009 to search for a firearm. The offence specified in the search warrant was unlawful possession of a handgun by Corey Browne on or about the 5 th day of October, 2009. [ 6 ] The search warrant was issued on the strength of an ITO that was sworn by Detective Constable Ryan Russell. In the ITO, D.C. Russell relied extensively upon information received from a confidential informant (“CI”).

As indicated above, the copy of the ITO provided to Mr. Browne has been redacted to protect the identity of the CI. Mr. Browne has also been provided with a judicial

summary of the redacted portions of the ITO. [ 7 ] The information provided by the CI as disclosed in the redacted ITO and the judicial

summary is as follows:

a) Corey Browne is a black male with brown dreads and a goatee. He is about 5’ 10” – 6’ tall. He has a medium build and weighs approximately 180-200 pounds;

b) He lives with his younger brother, “Junior”, who the CI also described in detail. They live in apartment 2408 at 701 Don Mills Road. The CI described the length of time and circumstances under which he/she has known Mr. Browne;

c) According to the CI, Mr. Browne is a drug dealer who sells cocaine and marihuana from his apartment and in the area of Flemington Park. The CI has purchased drugs from Mr. Browne and described the length of time and circumstances under which he/she has purchased drugs from him;

d) The CI also described the nature and quantities of drugs purchased from Mr. Browne, the details surrounding the CI’s purchase of drugs from him and the location or locations where the drugs were purchased. The CI advised that Mr. Browne could always be located loitering in the area of the apartment buildings in the Flemington Park area;

e) The CI saw Mr. Browne within a month when he/she purchased a specified quantity of a controlled drug from him. The CI provided information regarding the quantity of crack cocaine observed in Mr. Browne’s possession and details known to the CI about Mr. Browne’s drug dealing activities;

f) The CI advised that Mr. Browne is currently in possession of a gun. The CI observed Mr. Browne to be in possession of the gun in his apartment. The CI gave a detailed description of the gun and advised that Mr. Browne has the gun for protection so that he does not get robbed;

g) The CI also gave details regarding the circumstances and timing of a previous occasion when he/she saw Mr. Browne with a gun; [ 8 ] The ITO indicates that D.C. Russell showed the CI two photographs of Mr. Browne and the CI identified the man in the photographs as the person he knew as Corey Browne who he/she had seen in possession of a gun. [ 9 ] The ITO indicates that D.C. Russell also conducted a number of checks on the police database concerning Mr. Browne. This produced the following information:

a) Mr. Browne resides at 701 Don Mills Road, Apt. 2408. His mother, Gail Gaskin, and his younger brother, Dre Gaskin, also live at the same address. His brother was described by police as a black male with brown braided hair, 6’3”, 240 pounds;

b) Mr. Browne was described by police officers who dealt with him in February 2009, as a black male, 6’ tall, 205 pounds with black hair in a toque and a beard;

c) Mr. Browne had been previously investigated by police 78 times;

d) Mr. Browne has a criminal record including convictions for possession of cocaine, obstructing a peace officer and failing to comply with a recognizance. He had been investigated by police in the Flemington Park area a number of times between 1999 and 2004.

e) On July 30, 1998 Mr. Browne was acquitted of firearms charges after a trial. The allegations were that while a search warrant was being executed in an apartment he threw a firearm onto the roof next door. The police recovered the firearm and two other firearms in a bedroom of the apartment. Mr. Browne’s co-accused was found guilty of all of the firearms charges;

f) In February 2004, Mr. Browne was acquitted of possession of cocaine for the purpose of trafficking. The allegations were

that he was smoking a marihuana cigarette while driving and when stopped, the police seized 15.81 grams of cocaine and $1,415 which he had in his possession. Although it was not disclosed in the ITO, Mr. Browne admits he was convicted of unlawful possession of the cocaine. [ 10 ] The ITO also indicates that D.C. Norton attended at 701 Don Mills Road, apartment 2408 on October 5, 2009 and made the following observations:

a) The building kiosk for 701 Don Mills Road showed the name “G. Gaskin” with an entry code of “#0036”;

b) D.C. Norton went to the 24 th floor and heard male voices coming from apartment 2408. He also smelled the strong odour of marihuana coming from the apartment;

c) There were lights on inside apartment 2408 that were visible from outside the apartment. [ 11 ] In the ITO, D.C. Russell requested authorization to execute the search warrant at night. In paragraph 12 of the ITO he swore that he had reasonable and probable grounds to conclude that Mr. Browne was still in possession of the firearm and that he “firmly believed” he was still in possession of it. He further swore as follows: I am requesting night time entry to ensure police officers are given enough time to gather the resources necessary to execute this warrant.

Any delay in the execution of this warrant could result in the loss of evidence. Any delay in seizing the firearm places members of the public in danger. … Authorization to search during the night time hours will allow police to secure evidence for a criminal investigation and secure a greater level of safety for the police, Corey Browne and any found-ins alike. [ 12 ] It is admitted that officers from the Toronto Police Services Gun and Gang Task Force with the assistance of the Emergency Task Force executed the search warrant at 700 Don Mills Road, apartment 2408 at 2:46 a.m. on October 6, 2009.

The door to the apartment was breached and Mr. Browne and Steven Hanslip were found in the living room of the apartment. [ 13 ] Beside them were several bags containing crack cocaine totaling 69.14 grams with a street level value of $13,820. A further quantity of 1.64 grams of crack cocaine, valued at approximately $200, was located in a bedroom. Also found in the apartment were four digital scales and $2596 in cash. [ 14 ] The evidence established that the entry into the apartment was carried out by the Emergency Task Force under the supervision of Sergeant Mike Forestall.

Sergeant Forestall testified that it was his decision to conduct a dynamic entry by breaching the apartment door and utilizing a distraction device. The ETF officers’ entry into the apartment involved no prior notice to the occupants. A battering ram was used by the ETF officers to break open the door without first checking to see if it was open. Once the door was open an explosive device known as a “distraction device” or “flash bang”, was thrown into the apartment. It made a very loud noise and emitted a bright light. The ETF officers then entered the apartment with their guns drawn. P.C.

Kuhn was the first ETF officer to enter the apartment. He observed Mr. Browne on a couch in the living room screaming. P.C. Kuhn forced him to the floor and hand cuffed him. Once the ETF officers had determined that the apartment was safe and all three of the occupants were under their control, they turned the apartment over to the Gun and Gang Task Force officers to carry out their search of the premises. [ 15 ] The ETF officers also entered Mr. Browne’s mother’s bedroom with their guns drawn. His mother, Gail Gaskin, was in bed in her bedroom.

According to Detective Michelle Little, after the ETF officers had cleared the apartment, she went into Ms. Gaskin’s bedroom. The ETF officers then turned Ms. Gaskin over to her. She assisted Ms. Gaskin to get dressed and then escorted her to a chair in the hallway outside of the apartment. Detective Little had no note and no recollection of accompanying Ms.

Gaskin to the bathroom. [ 16 ] The officers then conducted a search of the apartment and located the items referenced above. [ 17 ] Sergeant Forestall testified that he made the decision to employ a dynamic entry and use a distraction device because he was concerned about the safety of his team of police officers and the possibility that the evidence of the firearm could be lost. He explained that in arriving at this decision he took into account the fact that they were searching for a firearm and that Mr. Browne was reported to have a previous history with drugs and guns. He also considered the fact that Mr.

Browne had been the target of a previous search for firearms and had reportedly thrown a firearm off a balcony during the search. Sergeant Forestall was also concerned that there may have been a lookout on the balcony of the apartment and that the officers’ presence could have been compromised. He testified that this could have increased the risk to their safety and the risk of losing the evidence. He also considered the fact that he understood there was more than one person in the apartment and this heightened his concern that the evidence could be lost.

Having considered all of these factors Sergeant Forestall decided to employ a dynamic entry with a distraction device to ensure the police officers’ safety and to prevent the loss of the evidence. [ 18 ] Ms. Gaskin, who is 58 years old, testified that she was asleep in her bed when she was awakened by a loud bang. She then saw a number of police officers in her bedroom with their guns drawn and pointed at her. She had to go to the bathroom but the police officers told her not to move. Eventually a female police officer came into her bedroom and escorted her to her bathroom.

The female police officer watched her urinate while she sat on the toilet. According to Ms. Gaskin she left the bathroom door open and other male police officers, who were in her bedroom, also watched her urinate while she sat on the toilet. The female officer then got Ms. Gaskin a robe and escorted her out of the apartment where she sat on a chair in the hallway while the search proceeded for about an hour. [ 19 ] When the police had finished searching the apartment, Ms. Gaskin was given a copy of the search warrant by one of the officers.

She then re-entered her apartment and found that the apartment was a “mess” and that a number of items in the apartment were damaged. She also determined that $2500 in cash that she had placed in the pocket of a man’s leather coat in the hall closet was missing. [ 20 ] Ms. Gaskin testified that she noted that the following items in her apartment were damaged following the search:

a) The front door of her apartment was broken and would not close or lock;

b) The metal door to the hall closet was ripped off and bent in the middle;

c) The mesh on the speakers of her television in the living room was ripped and totally destroyed;

d) A DVD player and an amplifier in her other son’s bedroom were broken and a picture of Bob Marley had been pulled off thewall and ripped;

e) Her bed was broken. [21] Detective Little testified that although she had no notes or recollection of escorting Ms. Gaskin to the bathroom she wasadamant that she would have ensured Ms. Gaskin’s privacy while using the toilet. She testified that she was certain that she would nothave allowed any male officers to look into the bathroom while Ms. Gaskin was on the toilet. [22] P.C.

Tavares testified that he was responsible for preparing the search warrant package which was filed as exhibit number 15.He examined the premises after the search was completed and only noted the damage to the apartment door and door frame caused bythe dynamic entry. He agreed under cross-examination that any damage to items in the apartment would be “in the eyes of the beholder” and that there wasno other damage to anything in the apartment that was “apparent” to him. Position of the Parties [23] Mr. Browne submits that the search of his apartment violated his rights under

section 8 of the Charter and, as a result, theevidence obtained should be excluded under section 24 (2) of the Charter. He argues that the search warrant was obtained withoutreasonable grounds because the CI did not provide credible and reliable information to support the claim that a firearm would be found inhis apartment. Further, the CI’s information was not compelling and it was not sufficiently corroborated. Mr. Browne also submits thatthere were no exceptional circumstances to justify a night time entry and the authorization to conduct the search at night was unjustifiedand unreasonable. Further, Mr Browne argues that his rights under

section 8 of the Charter were further breached by the unreasonablemanner in which the search was conducted because of the dynamic entry, the use of a distraction device, the damage done to propertyand the violation of his mother’s privacy. He also submits that the failure of the police to show him a copy of the search warrantbreached his Charter rights. [24] Mr. Browne argues that the evidence should be excluded under section 24 (2) of the Charter because the breaches of hisCharter rights were serious and the admission of the evidence seized would bring the administration of justice into disrepute. Finally,Mr.

Browne submits that I should not accede to the Crown’s request to proceed pursuant to the “step six” procedure that is outlined inGarofoli. He argues that to do so would unfairly interfere with his right to make full answer and defence. He submits that I shouldconsider his application on the strength of the redacted ITO only and that I should not consider the un-redacted version of the ITO. [25] The Crown submits that I should follow the “step six” procedure in Garofoli because the redacted ITO together with thejudicial

summary make Mr. Browne sufficiently aware of the excised material to enable him to fully challenge it in argument or byevidence. Mr. de Sa further submits that the ITO contained reasonable grounds upon which the justice could properly issue a searchwarrant. The information provided by the CI was credible, compelling and corroborated in many respects. Further, he maintains that thenight time search was warranted to prevent the loss of the evidence and to ensure the safety of the public and the investigating policeofficers.

Crown counsel also submits that the manner in which the search was executed was reasonable under the circumstances.Sergeant Forestall’s evidence makes it clear that he had reasonable concerns for the officers’ safety and for the possible loss of evidence.This clearly justified the use of a dynamic entry with a distraction device. [26] Further, Crown counsel submits that the alleged damage was not unreasonable and may not have been caused by the policeofficers in any event. Crown counsel further submits that Detective Little’s evidence should be accepted and that Ms.

Gaskin must bemistaken that male police officers were watching her while she was on the toilet. Finally, Crown counsel argues that even if the searchbreached Mr. Browne’s rights under

section 8 of the Charter, the evidence should not be excluded under section 24 (2) because the three-pronged analysis in R. v. Grant strongly favours admission of theevidence. He argues that to exclude the evidence would bring the administration of justice into disrepute. Analysis “Step Six” Garofoli Procedure [27] In R. v. Learning, 2010 ONSC 3816 , [2010] O.J. No. 3092, Code J. dealt with a similar case in which the policerelied upon a confidential informant’s tip to arrest Mr. Learning and to conduct a search of his home.

He held that the solution to theconflict that arises between the requirement to assess the reliability of an informer’s tip and the requirement to protect a confidentialinformant’s identity is the “step six” procedure outlined in Garofoli. [28] In Garofoli, Sopinka J. stated at p. 195 as follows: … the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. Thetrial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material tochallenge it in argument or by evidence.

In this regard, a judicial

summary of the excised material should be provided if it will fulfill thatfunction. [29] In the Ontario Court of Appeal’s decision in R. v. Rocha, 2012 ONCA 707 , [2012] O.J. No. 4991, Juriansz J.A.endorsed Justice Code’s decision in Learning and recommended that in cases where the ITO under review is redacted to protect theidentity of the confidential informant the Crown should employ the Garofoli “step six” procedure and, apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial

judge may do upon providing the accused with ‘a judicial

summary of the excised material’ to attempt to ensure ‘the accused issufficiently aware of the nature of the excised material to challenge it in argument or by evidence’. [30] In this case I am satisfied that Mr. Browne is sufficiently aware of the nature of the information that has been redacted fromthe ITO. This is because he has been provided with a judicial

summary of the excised material. This enables him to challenge thesufficiency and reliability of the information provided by the CI. [31] For this reason I am satisfied on the strength of the aforementioned decisions of the Supreme Court of Canada and the OntarioCourt of Appeal that I should accede to the Crown’s request and follow the “step six” procedure in Garofoli.

Section 8 Analysis [32] Section 487 (1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there arereasonable grounds to believe that evidence of a criminal offence will be found at a specified location. [33] Where a search warrant has been judicially authorized it is presumed to be valid. On an application to challenge a searchwarrant under

section 8 of the Charter the applicant must establish that there was no basis for the authorization of the search warrant: R.v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253 at para. 131; R. v.

Pires, 2005 SCC 66 , [2005] 3 S.C.R. 343 at para. 30. [34] According to the Supreme Court of Canada in Morelli the issue for the reviewing court is not whether it would have issuedthe search warrant on the information provided to the justice but whether there was sufficient credible and reliable evidence to permit thejustice to find reasonable and probable grounds that an offence had been committed and that evidence of that offence would be found atthe specified location.

At paragraph 40, Fish J. stated as follows: 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’ … The question is not whether the reviewing court would itself haveissued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable andprobable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified timeand place. [35] In cases such as this where the police rely on a tip from a confidential informant the reasonable grounds for the issuance of asearch warrant depend upon an assessment by the issuing justice of the confidential informant’s credibility, whether the tip wascompelling and whether the tip was corroborated by the police investigation.

These are not separate assessments as it is the totality of thecircumstances that must meet the standard of reasonableness. Weakness in one area may be compensated by strengths in the other two:R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at para. 53. [36] The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of thesearch warrant, not whether there is some guarantee the confidential informant was telling the truth about the alleged criminal activity:R. v. Caissey, 2007 ABCA 380 , [2007] A.J. No. 1342 (Alta.

C.A.) at para. 23, affirmed 2008 SCC 65 , [2008] S.C.J.No. 66. [37] The standard of review is high. The reviewing court should not set aside the search warrant unless the applicant establishes onthe whole of the material presented that there was no basis upon which it could have been issued. The court should look to a variety offactors including:

a) The degree of detail of the “tip”;

b) The informer’s source of knowledge;

c) Indicia of the informer’s reliability such as past performance or confirmation from other investigative sources: R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paras. 62 and 68. Section 24(2) Analysis [38] If I find that the search violated Mr. Browne’s

section 8 rights under the Charter I must then consider whether the evidenceseized during the search of his apartment should be excluded from the evidence at trial under section 24(2) of the Charter. [39] I must make three inquiries and then engage in a balancing process according to the Supreme Court of Canada’s decision in R.v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 85. 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 person; and

c) society’s interest in the adjudication of the case on its merits. [40] In considering the seriousness of the Charter-infringing conduct I must determine whether the conduct was serious or minor,severe or innocuous, deliberate or unintentional or wilful or negligent. The conduct is to be placed on a continuum ranging from wilfulmisconduct to blameless conduct.

The more deliberate the state conduct that violated Charter rights the more likely the evidence will beexcluded. [41] Following these inquiries I must balance my conclusions and consider the effect that admitting the evidence would have uponthe long-term repute of the administration of justice: R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494 at para. 36.

Application of the Law to the Facts Reasonable and Probable Grounds [42] The first issue that I must consider is whether there was sufficient credible and reliable evidence in the ITO to permit theissuing justice to find reasonable and probable grounds to believe that Mr. Browne had committed the offence specified in the ITO(possession of a prohibited firearm without a licence) and that evidence of that offence would be found at his apartment. [43] Because the reasonable and probable grounds in the ITO were based upon the information provided by the CI, I must considerthe following questions concerning that information:

a) Was the information provided by the CI compelling?

b) Was the CI credible?

c) Was the information corroborated by the police investigation? Was the information compelling? [44] Defence counsel, Mr. Nuttall, submits that whether a confidential informant’s tip will be considered to be compelling willlargely depend on the specificity or quality of the details provided. The more specific the details are, the more confident a reviewingjudge may be that the information was based on firsthand knowledge as opposed to rumour or gossip. I agree. Two recent decisions ofthe Ontario Court of Appeal highlight this point: Rocha and R. v. MacDonald, 2012 ONCA 244 , [2012] O.J. No. 1673. [45] Mr.

Nuttall argues that most of the details provided by the CI were general in nature and do not support the claim of firsthandknowledge. He cites as examples the failure of the CI to describe how he/she gained access to Mr. Browne’s apartment or to describe theinterior of the apartment or how and where the drugs were stored, packaged and priced. [46] Crown counsel, Mr. de Sa, submits that the information is detailed and is clearly sourced from the CI’s direct observationsand personal knowledge of Mr. Browne. He cites the following details in the information provided by the CI:

a) Mr. Browne’s physical description;

b) The location of his home address;

c) Specifics about Mr. Browne’s apartment which demonstrate that the CI had been there;

d) The fact that Mr. Browne lives with his younger brother and specifics about his nickname and description;

e) The nature of the drugs that Mr. Browne sells and the locations where he sells them;

f) Mr. Browne’s association with Flemington Park and the fact that he could always be found loitering near the apartmentbuildings there;

g) The specific nature and quantity of drugs observed in Mr. Browne’s apartment and purchased by the CI from Mr. Browne;

h) The timing and location where the CI observed Mr. Browne with a gun and a detailed description of the gun and the factthat Mr. Browne had the gun for protection so that he did not get robbed;

i) The timing and circumstances under which the CI observed Mr. Browne with a gun on a previous occasion; [47] I agree with Crown counsel that the information provided by the CI was specific and detailed. The CI gave detaileddescriptions of Mr. Browne and his brother and provided specific details about the apartment and the drugs the CI had seen there. The CIdescribed the nature and quantities of drugs observed and purchased from Mr. Browne as well as details concerning Mr. Browne’s drugdealing practices. The CI also described the circumstances under which Mr.

Browne was observed with a gun and provided a descriptionof the gun. I am satisfied that this information had to come from firsthand knowledge rather than rumour or gossip. [48] For these reasons I find that the information provided by the CI about Mr. Browne, and in particular, his possession of drugsand a gun was quite compelling. Was the CI credible? [49] I agree with Mr. Nuttall that where evidence of a confidential informant’s credibility is lacking, the level of police verificationmust be greater.

I also agree that where the CI has prior convictions for dishonesty, this is to be considered a negative factor in assessingthe CI’s credibility. [50] The CI in this case has a criminal record for offences involving dishonesty, including obstructing a peace officer andattempting to obstruct justice. This raises obvious concerns about the CI’s credibility. Further, the CI provided the information in thehope of receiving either monetary or court consideration. The CI’s specific motivation is disclosed in the un-redacted ITO.

This alsoraises concerns about the CI’s credibility. [51] On the other hand, the ITO indicates that the CI’s previous police handler had used the CI numerous times in the past onmultiple drug investigations where the information provided by the CI had always proven reliable. Further, the ITO also indicates thatthe CI was cautioned by police as to the consequences of leading them into a false investigation and warned that consideration would notbe given to the CI if a firearm was not located at Mr. Browne’s apartment.

[52] There was, therefore, sufficient information before the justice who issued the search warrant to conclude that the CI was acredible source notwithstanding the CI’s criminal history and apparent unsavoury character. Was the information corroborated? [53] I agree with Mr. Nuttall that the police do not have to confirm the specific criminal activity alleged by the confidentialinformant. In the Supreme Court of Canada’s decision in R. v. Caissey, [2008] 3 S.C.R. No.451, where the confidential informant toldpolice there were drugs in Mr.

Caissey’s apartment, the court agreed with the majority of the Alberta Court of Appeal that “the policeindependently confirmed a number of details, including the identity of the respondent and his residential address, that no children livedin the home, the name of his roommate, and the description of his vehicle”. This confirmed that the confidential informant had actuallybeen in his apartment even though it did not show that there were drugs located there. [54] The Ontario Court of Appeal applied the Supreme Court’s reasoning in R. v. Caissey in the case of R. v. Rocha, 2012 ONCA707 , [2012] O.J. No. 4991.

In Rocha, Rosenberg J.A. concluded that the police’s confirmation of the address and layout of theinterior of a restaurant and the involvement of the respondent and his brother in the restaurant was sufficient corroboration of theconfidential informer’s tip that there were drugs at the restaurant. [55] In this case various aspects of the information provided by the CI were confirmed by the police investigation. This includedconfirmation of the following:

a) Mr. Browne’s physical appearance and his address;

b) The fact that Mr. Browne’s younger brother lived at the same address and certain details about his appearance;

c) Mr. Browne’s association with the Flemington Park area;

d) Mr. Browne’s previous convictions for cocaine related offences;

e) Mr. Browne’ previous association with persons in possession of illegal firearms;

f) The identification of Mr. Browne’s photographs by the CI;

g) Observations of specifics of Mr. Browne’s address provided by the CI. [56] The independent confirmation of the information provided by the CI in this case was more extensive than the independentconfirmation conducted by the police in R. v. Rocha. Although it did not confirm that Mr. Browne was in possession of a firearm, it didconfirm a number of details of the CI’s information and tended to demonstrate that the CI had actually been in Mr. Browne’s apartmentwhere the CI claimed to have seen a gun.

Totality of Circumstances [57] As I have already indicated, the assessment of whether the CI’s tip was credible, compelling and corroborated does notinvolve a separate assessment of each factor. The Supreme Court of Canada’s decision in Debot requires that I consider the totality of thecircumstances to determine whether there were reasonable and probable grounds for the justice to authorize the search warrant.

Inconsidering these three factors, weaknesses in one area may be compensated by strengths in the other two areas. [58] In cases like this, where the allegation relates to the possession of contraband such as a firearm, the totality of thecircumstances must be such as “to raise a reasonable probability” that the target is in possession of the suspected contraband: R. v. Lewis, (ON CA), [1998] O.J. No. 376 (Ont. C.A.). [59] According to Doherty J.

A. in Lewis at paragraph 16: The totality of circumstances encompasses factors which are relevant either to the accuracy of the specific information supplied by thetipster or the reliability of the tipster as a source of the information for the police. [60] I am satisfied having considered the totality of the circumstances and in particular the compelling nature of the CI’sinformation that the ITO constituted a sufficiently credible and reliable basis upon which the search warrant could have issued. Itherefore, do not find that Mr. Browne’s rights under

section 8 of the Charter were breached as a result of the issuance of the searchwarrant. Night Search [61]

Section 488 of the Criminal Code governs the authorization to execute a search warrant at night. It requires that the justicewho issues a search warrant must be satisfied that there are reasonable grounds for it to be executed at night. [62] In R. v. Sutherland, (ON CA), [2000] O.J. No. 4704, the Ontario Court of Appeal held that a search of ahome at night should only be authorized in exceptional circumstances. In R. v. Macdonald, 2012 ONCA 244 , [2012] O.J.

No.1673, the Ontario Court of Appeal approved the execution of a search warrant of a home at night where the ITO read as follows: I am respectfully requesting that a night time entry (after 9:00 PM) be granted with respect to the execution of the search warrant for 54Alhart Drive. I am requesting night time entry to ensure police officers are given enough time to gather the resources necessary toexecute this warrant. Any delay in the execution of this warrant could result in the loss of evidence. Any delay in seizing the firearmplaces members of the public in danger. [63] D.C.

Russell gave the same reasons in the ITO for requesting authorization to execute the search warrant at night. Although

Mr. Nuttall submits that there was more evidence of a history of violence and the possession of firearms on the part of the target of theinvestigation in MacDonald, I am satisfied that D.C. Russell provided reasonable grounds in the ITO for the authorization of a night timesearch. For example, he swore that he firmly believed that Mr. Browne was still in possession of the firearm. In R. v.

Clayton, 2007 SCC32 , [2007] 2 S.C.R. 725, the Supreme Court of Canada endorsed the following comments of Doherty J.A.: Criminal conduct involving the use of firearms, especially handguns, is a serious and growing societal danger. The law abiding segmentof the community expects the police to react swiftly and decisively to seize illegal firearms and arrest those in possession of them. [64] The ITO makes it clear that a night time search was warranted in order to prevent the loss of the firearm and to ensure thesafety of the public and the police.

In view of the nature and timing of the information provided by the CI that Mr. Browne was inpossession of a firearm, exceptional circumstances existed to justify the search warrant to be executed at night. [65] I therefore, do not find that Mr. Browne’s rights under

section 8 of the Charter were breached because the search warrant wasexecuted at night. Dynamic Entry with Distraction Device [66] Mr. Nuttall submits that there were no exigent circumstances to justify the dynamic entry and the use of the distraction device.According to the Supreme Court of Canada in R. v. Cornell, 2010 SCC 31 , [2010] 2 S.C.R. 142, the police must announcethemselves before forcing an entry into a dwelling house. It is agreed by counsel that the onus is on the Crown to establish that exigentcircumstances existed to justify the manner in which entry into Mr.

Browne’s apartment was gained. [67] In Cornell the majority of the Supreme Court concluded that a dynamic entry was justified because the police were searchingfor drugs that could easily be destroyed and the targets of the search were members of a criminal organization with a history of violence.Mr. Nuttall argues that those factors are not present in this case since the search warrant only authorized the seizure of a firearm, whichis not easily disposed of, and Mr. Browne does not have a history of violence or ties to a criminal organization. [68] Further, Mr.

Nuttall points out that in Cornell the police did not use a distraction device, which he submits is an extraordinarynew development adapted from warfare and counter-terrorism. Code J. considered the use of a distraction device during a search forcontrolled drugs in R. v. Thompson, 2010 ONSC 2862 , [2010] O.J. No. 2070. He concluded that exigent circumstances existedthat justified its use, although he referred to it as a “close call”.

The circumstances relied upon by the police in that case were the target’sprevious conviction for manslaughter, the possible presence of a pit bull dog, drug trafficking activity in the house and the nature of theneighbourhood. Mr. Nuttall submits that none of these factors are present in this case. [69] However, Crown counsel points out that the search warrant in Thompson did not authorize a search for a firearm which hesuggests creates a much more dangerous situation for the police and the public.

He further submits that Sergeant Forestall’s evidenceclearly establishes exigent circumstances justifying the use of a dynamic entry with a distraction device. I was impressed with SergeantForestall. He struck me as a responsible, highly trained and experienced ETF supervisor. He carefully conducted a dynamic entry riskassessment and reasonably concluded on the information that was made available to him that a dynamic entry with the use of adistraction device was necessary to ensure officer safety and to prevent the loss of the firearm that the police were searching for. I accepthis evidence.

I am satisfied that it was reasonable for him to conclude that exigent circumstances existed that made it necessary to enterthe apartment in the manner that the ETF officers did in order to ensure the safety of the officers and the public and to prevent the loss ofthe firearm. This is particularly the case in the light of the information that Mr. Browne had previously thrown a firearm off anapartment balcony during the execution of a search warrant.

I am therefore satisfied that the Crown has met its burden of establishingexigent circumstances to justify the dynamic search with a distraction device. [70] In arriving at this conclusion I am mindful of what Cromwell J. said in R. v. Cornell at paragraph 24 as follows: …the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises.

They cannot be expectedto measure in advance with nuanced precision the amount of force the situation will require … The role of the reviewing court inassessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements ofsafe and effective law enforcement, not to become a Monday morning quarterback. [71] I therefore do not find that Mr. Browne’s rights under

section 8 of the Charter were breached by the police officers’ use of adynamic entry with a distraction device. Damage to Apartment and Toilet Incident [72] With the exception of the damage to the front door of the apartment which was caused by the dynamic entry, I am unable tofind on all of the evidence that the investigating officers did any intentional or deliberate damage to the apartment or any of its contents.The evidence does not establish that the investigating officers caused any deliberate damage of the same magnitude as the police caused in the cases of R. v.

Gogol (1994), (ON CJ), 27 C.R. (4th) 357 (O.C.J.) and R. v. Rosales, [2010] O.J. No. 1358. Thepolice officers denied causing the damage that Ms. Gaskin described and P.C. Tavares’ search warrant package only records the damagedone to the apartment door as a result of the dynamic entry. He testified that no other damage in the apartment was apparent to him afterthe search was completed. I cannot conclude that Mr. Browne’s Charter rights were infringed by the police as a result of any of thedamage described by Ms. Gaskin. [73] With respect to Ms.

Gaskin’s complaint that $2500 of her money was missing from a black coat in the hall closet after thesearch, it is an admitted fact that only $675 was found by the police in the coat. The remainder of the money seized from the apartmentis admitted to have been found in other locations. I cannot find that Mr. Browne’s rights under

section 8 of the Charter were infringed bythe police’s seizure of money found in the apartment.

[ 74 ] With respect to Ms. Gaskin’s complaint that male police officers watched her urinate in the bathroom, I am unable to make a finding that this actually occurred. Although I accept Ms. Gaskin’s evidence that she believed they were watching her and I am sympathetic for what happened to her during the execution of the search warrant, I also accept Detective Little’s evidence that she would have ensured Ms. Gaskin’s privacy and would not have allowed male officers to watch her while she was on the toilet. I conclude on the evidence that Ms.

Gaskin is likely mistaken that male officers actually watched her urinate. In any event, even if the officers did watch her this would not constitute a breach of Mr. Browne’s Charter rights. [ 75 ] I therefore do not find that Mr. Browne’s rights under

section 8 of the Charter were breached by the police conduct while the search warrant was being executed. Failure to Show Warrant [ 76 ]

Section 487.1 (7) requires that in cases where a telewarrant is executed a copy of the warrant must be given as soon as practicable to the person who is ostensibly in control of the premises searched. Mr. Nuttall submits that the officers did not provide a copy of the search warrant to Mr. Browne and therefore breached his rights under

section 8 of the Charter . [ 77 ] However, the notes of D.C. Russell, that have been admitted for the truth of their contents record that Mr. Browne was advised of the search warrant and given a copy of it. There is no evidence to the contrary. Further, Ms. Gaskin, who I find was ostensibly in control of the apartment, testified that she was given a copy of the search warrant after the officers had completed the search. [ 78 ] In light of this evidence I find that the requirements of

section 487.1 (7) were complied with. Accordingly, Mr. Browne’s rights under

section 8 of the Charter were not violated by the officer’s failure to give him a copy of the search warrant.

Section 8 Conclusion [ 79 ] In conclusion, I do not find that Mr. Browne’s rights under

section 8 of the Charter were breached for any of the reasons advanced by him on this application. Accordingly there is no basis to exclude the evidence seized by the police from the apartment. Mr. Browne’s application under section 24 (2) of the Charter is therefore dismissed Section 24(2) Analysis [ 80 ] I have concluded that Mr. Browne’s rights under

section 8 of the Charter were not breached. However if my conclusion is incorrect and it is determined that his rights under

section 8 of the Charter were breached, I must consider whether the evidence obtained as a result of the search should be admitted into evidence notwithstanding that Mr. Browne’s Charter rights were infringed. As I have already indicated this requires me to engage in a balancing exercise and consider the following factors:

a) The seriousness of the Charter -infringing conduct;

b) The impact of the breach on Mr. Browne’s Charter -protected interests; and

c) Society’s interest in the adjudication of the case on its merits. [ 81 ] Having considered these factors I must then determine whether Mr. Browne has satisfied me on a balance of probabilities that the admission into evidence of the seized evidence would bring the administration of justice into disrepute. Seriousness of the Charter Infringing-Conduct [ 82 ] This factor involves the assessment of the police conduct to determine where it fits on a continuum ranging from intentionally misleading conduct at one end to mere inadvertence at the other end.

In Rocha , Rosenberg J.A. stated as follows: 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. [ 83 ] I agree with Mr. Nuttall that the main concern at this stage of the analysis is to preserve public confidence in the rule of law and its processes. [ 84 ] With the exception of the allegations relating to the damage to the apartment and the violation of Ms.

Gaskin’s privacy, there is no suggestion that the police acted in bad faith or wilfully violated Mr. Browne’s Charter rights. [ 85 ] With respect to the ITO, the night time search and the dynamic entry with a distraction device, I find that the police officers acted in good faith and their conduct should be situated at the less serious end of the continuum. I cannot conclude on the evidence that the officers deliberately and unreasonably damaged property or violated Ms. Gaskin’s privacy. Their conduct in this regard should also be situated at the less serious end of the continuum.

If I had concluded that they deliberately damaged property or deliberately violated Ms. Gaskin’s privacy, their conduct would be situated on the more serious end of the continuum. [ 86 ] For these reasons, this factor favours inclusion of the evidence. Impact of a Breach on Mr. Browne’s Charter -Protected Interests [ 87 ] There is no question that the search of Mr. Browne’s residence at night with a dynamic entry and a distraction device was a

most intrusive breach of his rights under

section 8 of the Charter. There are few, if any, other contexts in which a person has a higherexpectation of privacy than in respect of his or her residence. [88] This factor favours exclusion of the evidence. Society’s Interest in the Adjudication of the Case on the Merits [89] As Rosenberg J.A. said in Rocha, the principal factor to consider for this line of inquiry is the reliability of the evidenceseized.

At paragraph 39 he stated in part as follows: Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfairfrom the public perspective, thus bringing the administration of justice into disrepute. [90] The evidence seized in this case is very relevant and reliable. The charges against Mr. Browne are serious and there is noquestion that society has a strong interest in the trial of these charges. [91] For these reasons, this factor favours inclusion of the evidence.

Balancing the Three Factors [92] The Supreme Court of Canada described the balancing exercise that must be conducted under section 24(2) in R. v. Harrison,2009 SCC 34 at paragraph 36 as follows: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question ofwhether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighedin the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of thecriminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must beassessed. [93] In R. v. Blake, 2010 ONCA 1 , [2010] O.J.

No. 48, in which the Ontario Court of Appeal upheld the admission of evidence obtained in violation of

section 8 of the Charter following a section 24 (2) analysis, Doherty J.A. stated in part at paragraphs 32and 33: Having conducted the inquiries mandated by Grant … I would hold that the nature of the state conduct and society’s interest in theadjudication on the merits militate strongly in favour of admitting the evidence. The impact on the appellant’s s. 8 rights points stronglytoward exclusion. How does one balance these directly conflicting assessments?

Without diminishing the important negative impact onthe appellant’s legitimate privacy interests occasioned by the unreasonable search, I find compelling the argument that the exclusion ofreliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably andfrom a long-term perspective, have a negative effect on the repute of the administration of justice. [94] I am of a similar view in this case.

Balancing the three considerations mandated by the Supreme Court of Canada, I amsatisfied that the repute of the administration of justice would not suffer from the admission of the seized evidence even if Mr. Browne’srights under

section 8 of the Charter were infringed.. The seized evidence will be admitted. [95] I wish to thank counsel for the very helpful and professional manner in which they conducted this application. HAINEY J. Released: September 18, 2013 CITATION: R. v. Browne, 2013 ONSC 5874 COURT FILE NO.: 12-90000137-000 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – COREY BROWNE Reasons for Decision HAINEY J. Released: September 18, 2013