R v Charles, 2024 SKCA 8

Court of Appeal for Saskatchewan Docket: CACR3658 Citation: R v Charles , 2024 SKCA 8 Date: 2024-01-19 Between: His Majesty the King Appellant And Justin William Ryan Charles Respondent Before: Leurer C.J.S., McCreary and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Leurer In concurrence: The Honourable Madam Justice McCreary The Honourable Madam Justice Drennan On appeal from: 2023 SKPC 6 , Prince Albert Appeal heard: December 7, 2023 Counsel: Wade McBride, K.C. for the Appellant Thomas Hynes for the Respondent Leurer C.J.S. I.

INTRODUCTION [ 1 ] The Crown appeals against the acquittal of Justin Charles on various gun and drug-related charges after a trial before a Provincial Court judge. [ 2 ] The verdict was entered after the judge had concluded that two warrants were invalid. The first was to search Mr. Charles’s residence and a motor vehicle for drugs, firearms and ammunition. The second was to search Mr.

Charles’s cellphone seized during the execution of the first warrant for the purposes of obtaining evidence relating to the owner of that device and the purchase, sale or distribution of drugs. [ 3 ] Based on the judge’s conclusion that the two warrants were invalid, she found that Mr. Charles’s rights under ss. 8 and 9 of the Charter had been violated by the searches and his concurrent arrest. She also determined that the admission of the evidence uncovered based on the invalid warrants would bring the administration of justice into disrepute.

As a result, the judge ordered that the evidence gathered because of the two warrants should be excluded pursuant to s. 24(2) of the Charter : R v Charles , 2023 SKPC 6 , 632 CRR (2d) 357 [ Voir Dire Decision ]. Without this evidence, the Crown had no case against Mr. Charles, and the charges against him were dismissed. [ 4 ] The Crown has exercised its right to appeal against the acquittal under s. 676(1) (

a) of the Criminal Code . That provision entitles it to challenge the Voir Dire Decision “on any ground of appeal that involves a question of law alone ”. [ 5 ] I have concluded that the judge did not err in law in any way that affected the outcome of the Voir Dire Decision. Accordingly, the Crown’s appeal must be dismissed. II. BACKGROUND A. The warrants and the Charter application [ 6 ] On January 8, 2021, the Prince Albert Police Service [PAPS] obtained a warrant. It authorized officers to enter Mr.

Charles’s residence [Residence], and an identified automobile [Vehicle], to search for firearms, ammunition, methamphetamine and cocaine, described as the “Things” in the warrant. The warrant was granted by a justice of the peace, pursuant to s. 487 of the Criminal Code , based on the Information to Obtain a Search Warrant [ITO] of Constable Matthew Mesenchuk. [ 7 ] The warrant was executed on January 8, 2021. The events of that day were described in the Voir Dire Decision as follows: [15] The police began to execute the warrant at 2:07 p.m.

Constable Mesenchuk wanted to perform a “dynamic entry,” a euphemism for a process whereby police knock down the door with a battering ram, then swarm into the residence with guns drawn, shouting commands. He was overruled. Instead, the SWAT team was enlisted to effect entry using a “call and surround” procedure. The SWAT team arrived with a military-style armoured vehicle and bullhorns. SET [Prince Albert Street Enforcement Team] officers went door to door in the neighbourhood, telling residents to stay inside and take cover for their safety.

Police then shouted on the bullhorns telling the occupants to exit the residence. Meanwhile, pepper spray was deployed into the house, in effect smoking everyone out. Twelve people exited the residence. SWAT members then informed them they were all under arrest and handcuffed them. [16] Constable Banadyga was responsible for the formal arrests. He told each detainee the reason for their arrest and read them their rights. He performed the first formal arrest at 2:25 p.m. At 2:35 p.m., Constable Banadyga arrested Mr.

Charles for possession of a weapon, possession of a prohibited firearm, possession for the purpose of trafficking cocaine and possession for the purpose of trafficking methamphetamine. Three others were arrested for the same offences. Everyone else was arrested for firearms offences. The dozen or so detainees were searched and transported to the police station, where they were processed, given access to counsel, and questioned. Once

the residence was cleared, SET members entered the residence and began the search. [17] Constable Banadyga did not personally have grounds to arrest but was directed to do so by Constable Mesenchuk. The grounds for arresting Mr. Charles were the same grounds contained in the ITO, as no further evidence had yet been found. Everyone else was arrested for firearms offences, apparently on the shaky grounds that they were in a residence where police believed firearms were present.

When the house was cleared, SET members entered and conducted their search. [ 8 ] As a result of the search, the officers uncovered a rifle, shotgun, starter pistol and various quantities of ammunition. Among the other items the officers found were 8.5 grams of methamphetamine and 7.1 grams of crack cocaine behind a dresser in one of the bedrooms, a functioning scale, unused baggies and an army-green ballistics vest. The officers also seized a cellphone from Mr. Charles’s person [Cellphone].

On August 20, 2021, the PAPS obtained a second warrant, authorizing officers to search for data on the Cellphone that might relate to the sale or distribution of controlled substances. [ 9 ] After the second warrant was executed, Mr. Charles was charged with several drug and weapons offences. The Crown’s case against Mr. Charles rested on the evidence obtained from the execution of the two warrants. [ 10 ] In advance of the trial, Mr.

Charles gave notice of his intention to apply at the trial under s. 24 of the Charter for a stay of proceedings as well as an order excluding from evidence all exhibits seized by the police in execution of the two warrants, all statements made by him, and all observations made by PAPS officers subsequent to the issuance of the warrants. The application was grounded on Mr.

Charles’s contention that the initial ITO “did not provide a basis upon which a justice could conclude that there were reasonable and probable grounds to believe that [he] had committed or will commit the ‘Offences’ enumerated … nor that there were reasonable and probable grounds to believe that the ‘Things’ could be located in [his residence], contrary to s. 8 of the Charter ”. The notice of application also asserted that the warrant for the search of the Cellphone should not have been granted as the ITO sworn to obtain it was based on evidence gathered through the execution of the first warrant. B.

The trial [ 11 ] A voir dire was held in relation to Mr. Charles’s Charter application. At it, the Crown led the evidence of several witnesses, in part to amplify the information contained in the initial ITO. [ 12 ] The judge delivered the Voir Dire Decision in advance of the last day of trial. In it she found that “based on the ITO as amplified on review … the issuing justice, acting judicially, could not have properly issued the warrant to search the residence in question” (at para 49). The judge explained that, for this reason, Mr.

Charles’s arrest was arbitrary and thus contrary to s. 9 of the Charter : [50] An unlawful arrest is necessarily arbitrary and violates

section 9 of the Charter (see R v Grant , 2009 SCC 32 at para 54 [ Grant ] and R v Loewen , 2011 SCC 21 , [2011] 2 SCR 167). Under

section 495 of the Criminal Code , an arrest is not lawful unless the officer deciding to arrest believes on reasonable grounds that the accused has committed an indictable offence. Constable Mesenchuk relied on the same grounds for arresting Mr. Charles as he submitted in the ITO to justify the search warrant. As discussed above, the grounds were insufficient. The arrest was unlawful and violated Mr. Charles’s right to be free from arbitrary detention guaranteed by

section 9 of the Charter . [ 13 ] Based on this finding, the judge also determined that the search of the Cellphone was conducted in violation of s. 8 of the Charter : [52] Mr. Charles was searched incident to arrest, and police seized a cell phone. The arrest was unlawful, and the search incident to it violated Mr. Charles’s

section 8 right to be secure against unreasonable search or seizure. Based on the previous ITO and the items found during the search, police applied for a warrant to search the cell phone for evidence of possession of cocaine and methamphetamine for the purpose of trafficking. Because the first warrant has been found to be invalid, and his arrest unlawful, the cell phone was not lawfully seized by police. The ITO for the second warrant is based on information obtained through a breach of Mr. Charles’s Charter rights and could not have been lawfully issued. The search of the cell phone was thus conducted in violation of

section 8 of the Charter . [ 14 ] Having made these determinations, the judge turned to consider whether the evidence obtained in violation of Mr. Charles’s Charter rights should be excluded pursuant to s. 24(2) of the Charter . On this, after an examination of the evidence in the context of the factors as set out in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353, she wrote that “given the seriousness of the breach and the impact on [Mr. Charles], I find inclusion of the evidence in this case would bring the administration of justice into disrepute” (at para 61). [ 15 ] The Crown called no other evidence.

Having excluded all the Crown’s evidence, the judge found Mr. Charles not guilty of all charges. III. ISSUES [ 16 ] The Crown challenges the judge’s findings that Mr. Charles’s Charter rights were violated and contends that, even if they were, the judge erred in concluding that the admission of the evidence from the two warrants would bring the administration of justice into disrepute. I can accept neither line of attack against the Voir Dire Decision . I will address them separately. IV. ANALYSIS A. Mr. Charles’s Charter rights were violated 1. The judge identified the correct standard of review

[17] The Crown’s principal argument is that the judge applied the wrong standard in her review of the authorization by the justice ofthe first warrant. As context for its submissions, the Crown emphasizes that a reviewing judge’s task is to review the grounds in the ITO,not conduct a de novo hearing and should not set a warrant aside simply because they would not have granted it in the first instance.

In itsfactum, the Crown elaborated on this submission by referring to many authorities, including R v Garofoli, (SCC), [1990]2 SCR 1421; R v Pires; R v Lising, 2005 SCC 66, [2005] 3 SCR 343; R v Morelli, 2010 SCC 8, [2010] 1 SCR 253; R v Araujo, 2000 SCC65, [2000] 2 SCR 992; R v Ebanks, 2009 ONCA 851, 249 CCC (3d) 29; R v Campbell, 2011 SCC 32, [2011] 2 SCR 549; R v Vu, 2013SCC 60, [2013] 3 SCR 657; and R v Sadikov, 2014 ONCA 72, 305 CCC (3d) 421. [18] I take no issue with the Crown’s general description of the judge’s task in this case.

In Garofoli, Sopinka J. summarized the roleof a judge reviewing a judicial authorization in this way (at 1452): The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted 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 be anybasis for the decision of the authorizing judge. [19] It was with reference to this passage that, in Ebanks, MacPherson J.A. explained that judges who review wiretap affidavits orany other materials in support of prior judicial authorizations “work within a narrow jurisdictional compass” (at para 20).

He expanded onthis idea when he said as follows: [21] The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, anddetermine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issuedthe authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli at p. 1452. Nor is the review to takeon the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Pires; R. v.

Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30, “the review is simply an evidentiary hearing to determine the admissibility of relevantevidence about the offence obtained pursuant to a presumptively valid court order” (emphasis in original). [22] In a similar vein, the appeal court must demonstrate deference to the reviewing judge. As explained by Charron J.A. in R. v. Grant(1999), (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18: This court is also a reviewing court and the test in Garofoli is applicable on this appeal.

In addition, the usual deference is owed to thefindings of the trial judge in her assessment of the record “as amplified on the review” and her disposition of the s. 8 application. In theabsence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere withthe trial judge’s conclusion. (Emphasis in original) [20] I am satisfied that the judge was clearly aware of her limited role in this matter as described in the case law relied upon by theCrown.

In this regard, she demonstrated her proper understanding of the task she faced in her review of the decision made by the justicewho had issued the original warrants in the following passage from the Voir Dire Decision: [18] The test on review is whether the issuing justice, acting judicially, could have issued the warrant based on “reliable evidence thatmight reasonably be believed” (R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 [Araujo]).

If the ITO contains evidence the justice could findto be credible, reliable, compelling, and corroborated, and the evidence supports a reasonable belief that an offence has been committedand evidence of that offence will be found in that place, the warrant is facially valid, assuming other statutory criteria have been met (R vMorelli, 2010 SCC 8, [2010] 1 SCR 253 [Morelli]). The issuing justice can make reasonable inferences from the facts averred but may notfill in evidentiary gaps (R v Vu, 2013 SCC 60, [2013] 3 SCR 657).

The reviewing court must defer to the decision of the issuing justiceeven if, on the same evidence, they would reach a different conclusion. … [20] Here, much evidence was tendered detailing the investigation before the warrant was issued.

Fish J. in Morelli, gives a usefulsummary of the task of the reviewing court, including the proper use of amplification evidence, starting at paragraph 39: [39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established uponoath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

These distinct and cumulative requirements together form part of the“minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168). [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient 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. [41] 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, thereviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was notinitially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means of

circumventing a prior authorization requirement” (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “someminor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police hadthe requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors(para. 59).

In all cases, the focus is on “the information available to the police at the time of the application” rather than information thatthe police acquired after the original application was made (para. 59). [21] Amplification evidence is of limited use, therefore, to bolster the credibility or reliability of informants, for example. The issue iswhether the ITO placed before the justice, as excised, after amplification of technical errors on review, is sufficient to justify authorizing awarrant to search. (Emphasis in original) [21] The Crown does not challenge the correctness or the sufficiency of the judge’s

summary of this law, or her later synopsis of thelaw surrounding the use of confidential informants, as set out in R v Debot, (SCC), [1989] 2 SCR 1140, as summarized bythis Court in R v McElroy, 2009 SKCA 77, [2009] 8 WWR 243; R v Bissky, 2018 SKCA 102, 369 CCC (3d) 315; and R v Protz, 2020SKCA 115, 393 CCC (3d) 438. The Crown’s argument reduces to the proposition that, having oriented herself correctly to the applicablelegal principles, the judge nonetheless failed to properly apply those principles in her review of the justice’s decision to authorize thewarrants. 2.

The judge did not conduct a de novo hearing [22] Notwithstanding that the Crown did not challenge the judge’s statement of the law, it alleges that she misapplied it bysubjecting “virtually all of the information in the ITO to a de novo reassessment on an item-by-item basis”.

I unreservedly reject theCrown’s contention that the judge erred by examining the detail of the ITO or that she conducted an impermissible de novo hearing. [23] A reviewing judge must analyze the evidence that was before the authorizing justice to determine “whether there was reliableevidence that might reasonably be believed on the basis of which the authorization could have issued” (Vu at para 16, citing Araujo atpara 54).

In Morelli, Fish J. accepted that, in the case before him, the “deficiencies of the ITO … must be addressed in some detail beforedetermining whether it could support the issuance of the warrant” (at para 44). [24] As I see it, in this case, the judge did nothing more than engage with the evidence considering the appropriate legal criteria.Rather than being faulted, she is to be commended for the evident care with which she undertook this task. In short, her reasonsdemonstrate that she applied an appropriate level of deference to the decision of the authorizing justice while reviewing the ITO. 3.

The judge did not treat the Debot factors as silos [25] The Crown also asserts that the judge improperly treated the Debot factors as silos. In this regard, Debot invites considerationof three questions to assist reviewing courts when assessing the reasonableness of a warrantless search, which also apply in thecircumstances of a warrantless arrest. (at 1168): In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling?

Second, where that information was based on a“tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness.

Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [26] Of course, these three factors govern the grant of a warrant as well: see Bissky at para 27, citing Garofoli at 1456–57; see alsoJames A. Fontana & David Keeshan, The Law of Search and Seizure in Canada, 12th ed (Toronto: LexisNexis, 2021) (QL) at 4(6)(B). [27] A review of the Voir Dire Decision satisfies me that the judge did not approach the Debot questions as silos nor did she fail toexamine the “totality of the circumstances” as that case requires.

It is true that she conducted her analysis of the evidence under fourheadings, the first three of which asked, in turn, “Was the information credible?”, “Was the information compelling?” and “Was theinformation corroborated?”. However, she considered all this evidence, together with other evidence, such as that relating to Mr. Charles’scriminal record, in a discussion titled “Totality of the Circumstances”. She concluded under that heading as follows: [48] According to Debot, strengths in one area may overcome weaknesses in another, but weaknesses in all three areas do little toestablish the proper grounds.

A building may have four support beams, but if they are all weak, the building will collapse. I understandthe need not to reveal information that may tend to identify a confidential informant, but the ITO must be specific enough to allow theissuing justice to determine whether the information is credible, compelling, and corroborated or whether it is unbelievable, unreliable, orcontradicted.

These tips, taken individually or together, are too vague to allow the justice to properly assess the evidence. [49] In sum, I find that, based on the ITO as amplified on review, but with Appendix A excised, the issuing justice, acting judicially,could not have properly issued the warrant to search the residence in question. [28] The judge’s statement that “strengths in one area may overcome weaknesses in another” (at para 48) can only mean that shetook a holistic approach to her review of the evidence, which also conformed to the approach in Debot.

Simply put, there is no merit to thesuggestion that the judge approached her analysis by examining the Debot factors as silos. 4. The Crown’s arguments require this Court to ignore the judge’s reasons [29] The Crown also argues that the judge’s misapplication of the applicable standard of review is shown because she improperly

“rejected numerous reasonable inferences drawn by the authorizing justice and, on occasion, substituted them with her own”. Broadly, thereasonable inferences the judge is said to have erroneously rejected were that drugs, firearms and ammunition would be found in theVehicle and at the Residence. I will frame my consideration of this line of argument around the two places that were to be searched. [30] The judge found that, so far as the warrant authorized the search of the Vehicle, it was “clearly invalid” (at para 26). I see noerror in this conclusion. There was no evidence that Mr. Charles owned the Vehicle.

He was not seen driving it. As the judge noted, noevidence was placed before her of any kind that justified its search. The Crown did not contend otherwise in this appeal. [31] The existence of reasonable grounds to order the search of the Residence for drugs depended almost exclusively on theinformation provided by four confidential informants. One of them said nothing about drugs at all. Three of the four informants said thatMr. Charles “sells methamphetamine”.

As the judge correctly noted, none of them linked that assertion to the Residence being searched orotherwise afforded evidence that either cocaine or methamphetamine would be found at the Residence. I also did not see sufficientevidence of this connection elsewhere in the record upon which an inference of this conclusion could be reasonably drawn.

In thesecircumstances, I see no error in the judge’s determination that insofar as the warrant authorized a search of the Residence for cocaine andmethamphetamine, it was issued without reasonable grounds. [32] Relating to the search of the Residence for firearms, unlike the Crown, I do not interpret the judge to have found the warrant tobe invalid because the ITO did not allege that firearms offences had been committed. In saying this, I acknowledge the statements made atparagraph 25 of the Voir Dire Decision that discuss the absence of elements of the identified firearms offences.

However, as I read thedecision, the judge ultimately rejected the warrant to search for firearms at the Residence because of the weakness of the informationprovided by the confidential informants relating to the presence of weapons at the Residence.

I have reached this conclusion because ofthe judge’s statement that “[r]egarding the authorization to search for firearms, the quality of the informers’ tips must be assessed todetermine whether Constable Mesenchuk’s belief they would be found in the residence was objectively reasonable” (at para 28). [33] In connection with whether the information provided by the confidential informants justified the search of the Residence forfirearms, one of the informants had said nothing about Mr. Charles possessing firearms. The judge concluded that the informationprovided in the

summary of information relating to the other three informants could not have reasonably been found by the authorizingjustice to have satisfied the reasonable grounds standard on the factors outlined in Debot. [34] In argument, the Crown repeatedly said that it agreed with the judge’s legal reasoning, but then offered a different way inwhich she might have looked at the evidence. I am unconvinced by the Crown’s argument, if indeed it raises a legal error at all.

I will giveone example to explain why I find this line of attack against the Voir Dire Decision to be unconvincing. [35] One reason the judge gave for finding the tips provided by the confidential informants not to be compelling was that theylacked detail and were stated in what amounted to boilerplate language. For instance, the ITO prepared by Cst. Mesenchuk recorded thateach of the three informants had advised that “Justin Charles has multiple firearms at his house”.

After commenting on the lack ofparticularity in the descriptions of the statements attributed to the three informants, the judge continued with her analysis by emphasizingthe fact that the

summary provided in the ITO as to what each informant had to say was identical and was obviously paraphrased. Fromthis she identified several dangers, which she explained as follows: [44] The practice of paraphrasing an informant’s tip poses several dangers. First, an Affiant may cherry-pick information, omittingrelevant information that does not support the officer’s belief, or that contradicts what another informant says. Second, when theyparaphrase, they may choose more corroborative language than the tip perhaps deserves.

Third, the Affiant may interpret what theinformant says to conform with what others have said, when the meaning might be ambiguous. For example, when the informant says “acloset full of heaters,” the Affiant decides they really mean “multiple firearms.” But the informant may not mean that. It is up to theissuing justice to decide whether any inconsistencies are too great to constitute corroboration, or whether they are relatively minor.

Andfinally, at its worst, the practice may mislead the justice by disguising serious inconsistencies between the informants that may diminishthe value of the evidence offered to support the search warrant. The vaguer the statement, the easier it is to find corroboration. Specificinformation is more credible and more compelling, but more difficult to corroborate. [45] While informant tips may corroborate each other inter se, as has been found in other cases, on this ITO as drafted, I find the degreeof detail so low as to be the likely product of gossip or rumour.

Although paragraph 6 includes the assertion that the informants areindependent of each other, testimony established only that the police have systems in place to ensure the informants are all differentpeople. It is not asserted that they do not know each other. Given the small pool of likely informants, it is quite likely they do know eachother. While the ITO need not rule out the mere possibility of gossip or rumour, it should contain enough detail to negate an apparentlikelihood of such. Here, these tips are too vague to alleviate the concern. The fact there were three of them is not enough in this case.

Thatis the thing about gossip and rumours; they get around. (Emphasis in original) [36] Paragraph 44 of the Voir Dire Decision begins with the observation that the “practice of paraphrasing an informant’s tip posesseveral dangers”. I see no error in this. The judge’s comments parallel LeBel J.’s caution in the context of discussing boilerplate languageagainst “the temptation of misleading the authorizing judge, either by the language used or strategic omissions” (Araujo at para 47; seealso R v Hosie (1996), (ON CA), 107 CCC (3d) 385 (Ont CA) at 398–399).

Although LeBel J. led into this direction byemphasizing that “there is no need” for the affidavit to be “lengthy”, he added that, ideally, “an affidavit should be not only full and frankbut also clear and concise” (at para 46, emphasis in original). To that effect, in Morelli, Fish J. stressed that concision is “achieved byomitting irrelevant or insignificant details, but not by material non-disclosure”, in part due to the risk of inviting an inference thatotherwise may not have been available (at para 58).

Moreover, paraphrasing raises the risk of incorrectly communicating the informant’sinformation: see, for example, R v Omarbach, 2022 ONCJ 267 at para 149; and R v S.S., 2022 ONCJ 646 at para 246. It may also risk theintroduction of a reinterpretation of information found in the affidavit, which may impact the ability of the issuing justice to independentlyevaluate the information: see, for example, R v Shaporov, [2021] OJ No 6772 (QL) (Ct

J) at paras 94 and 156. [37] I accept the need for the handlers of confidential informants to protect the identity of their sources: see R v Crevier, 2015ONCA 619 at para 68, 330 CCC (3d) 305. However, in this case, I see no error in the conclusions drawn by the judge about the

remarkably general and uniform way that the information was offered to support the issuance of the warrant. [38] The Crown also asserts that the judge erred because she “did not ascribe any weight to [Mr. Charles’s] criminal history”. I canaccept that a failure to consider a relevant factor can amount to an error of law. Here, however, the judge determined Mr. Charles’scriminal record in conjunction with other evidence to be of insufficient probative value to justify the grant of the warrant.

In this regard,the judge accepted that the “criminal record of a suspect can often provide corroboration although ‘the cogency of the criminal recorddepends on its similarity to the criminal activity alleged by the tipster and the age of the record’” (at para 23, quoting Protz at para 57,which in turn quoted R v MacDonald, 2012 ONCA 244 at para 23, 290 OAC 21). Later in her reasons, she referred to Mr. Charles’scriminal record, including his convictions for firearms offences. She specifically mentioned that he “had been shot about three monthsearlier, and police say he also had a firearm in that incident”.

She then accepted that these “facts are evidence of propensity, which isallowable in a warrant application, but insufficient to lend credence to the informer’s tips, the true basis for issuing the search warrant”.Ultimately, she concluded that these “facts do not raise the totality of the circumstances to the level of credibly-based probability requiredfor issuing a search warrant” (at para 47).

It was after making these comments that the judge offered the previously quoted statementsthat, although according to Debot “strengths in one area may overcome weaknesses in another, but weaknesses in all three areas do little toestablish the proper grounds” here, the “tips, taken individually or together, are too vague to allow the justice to properly assess theevidence” (at para 48). [39] In substance, the Crown’s suggestion that we should find error in the Voir Dire Decision amounts to an invitation to ignore thestandard of review that applies when we review a decision like this one.

In Bissky, Jackson J.A. explained the approach that this Court isto take in an appeal of this nature, as follows: [15] While the Supreme Court has not spoken definitively on the issue, the weight of the authority, including the reference and result in[R v Campbell, 2011 SCC 32, [2011] 2 SCR 549], supports a deferential standard of review, as expressed by the Ontario Court of Appealin Grant.

Absent an error of law or a misapprehension of the evidence or the failure to consider relevant evidence, deference is owed to thefindings of the trial judge made in assessing the record and with respect to the disposition of the s. 8 Charter application. [40] Furthermore, even if we were to apply a correctness standard, I see no error in the judge’s analysis.

Applying that standard, wewould ask first whether the reviewing judge identified the correct standard of review and then whether she applied that standard correctly.In this case, the Crown concedes that the judge identified the correct standard in her review of the grant of the authority to issue thewarrant. For the reasons I have given, I am also satisfied that, subject to two matters that I will mention in a moment, she applied thatstandard correctly. The one error, or possibly two legal errors, I see in her analysis had no impact on her reasons. 5.

The judge’s legal errors had no impact on her conclusion that Mr. Charles’s Charter rights wereviolated [41] Although the Crown did not make this argument, I note that paragraph 44 of the Voir Dire Decision can be read in a way thatsuggests that the judge erred in one part of her Debot analysis. That paragraph ends with the statement that “[s]pecific information is morecredible and more compelling, but more difficult to corroborate”.

This statement merits some clarification. [42] Where the police have relied on an informant whose credibility is unestablished or cannot be proven to the court, “the qualityand quantity of the information provided by the informant and its corroboration by the police will have to be such as to compensate for thecourt’s inability to assess the credibility of the source of that information” (R v Pavlik, 2019 SKCA 107 at para 27, 380 CCC (3d) 417).However, the fact that an informant has provided detailed information does not mean that they are more credible.

If the Voir DireDecision is to be interpreted as suggesting otherwise, it is in error but is one that has no impact in the context of this case.

I will brieflyexplain. [43] As noted by Caldwell J.A. in Pavlik, the “reviewing court first asks whether the information provided by an informant iscompelling by considering its detail and precision and its source (i.e., how the informant acquired the information) to assess whether theinformation has the character of something more than ‘mere rumour or gossip’ or of ‘bald conclusory statements’”, as existence of detailin information tends to dispel concerns that it is mere rumour or gossip (at para 29, emphasis added, referring to Debot at 1168–69.

Seealso Pavlik at paras 27, 29, 33 and 37; and R v Caissey, 2007 ABCA 380 at para 24, 227 CCC (3d) 322, aff’d 2008 SCC 65, [2008] 3 SCR451). [44] However, this is a different proposition than the idea that the informant is credible. By their nature, rumours are widely known.The mere fact that multiple informants can corroborate that rumour only proves that it is widespread rather than that there might be sometruth to it.

Conversely, as explained by Paciocco J. (as he then was) in R v Floyd, 2012 ONCJ 417, 263 CRR (2d) 122, rather thanestablishing credibility, specific information may simply be an elaborate fabrication absent independent support or indications ofreliability: [51] The fact that information is compelling, however, speaks primarily to the sufficiency inquiry. While impressive detail canreasonably make information appear more credible than a bald assertion, any reasonable issuing justice would have to consider that thereare limits to the extent to which detail verifies credibility – false information can be elaborate.

The primary indicia of credibility aretherefore the reliability of the source and the extent to which the information finds independent support. [45] By way of illustration, in R v Plant, (SCC), [1993] 3 SCR 281 at 297–98, Sopinka J. explained that, despiteproviding many details, the anonymous informant’s credibility depended on corroboration from other sources of this same specificinformation.

It is for these reasons that, in accordance with the Debot framework, “the degree to which a confidential tip is compelling is afunction of its detail” (R v Dawad, 2019 SKCA 125 at para 59, 381 CCC (3d) 557, emphasis added). [46] Although it might therefore be said that the judge conflated matters when she stated that specific information is both morecredible and compelling, a review of the whole of her reasons shows that she understood the overall interplay between specificity andcorroboration as it relates to compensating for an absence of evidence as to the credibility of a source.

On the present facts, she properlyidentified that there was a paucity of evidence that these informants were credible. The fact that each one could independently corroboratesome of the same general information as the others did not provide a reasonable basis to issue the warrant. Accordingly, if the judge

harboured a misapprehension of the law, it is one that had no impact on her conclusions. [47] While I have doubts as to whether the judge erred in the way just discussed, I accept the Crown’s argument that the Voir DireDecision contains one legal error.

However, it is a mistake that has no effect in the circumstances of this case. [48] The judge found that the warrant for the search of the Residence was invalid because none of the tips provided by theconfidential informants mentioned ammunition nor did the officer who swore the ITO profess a belief that ammunition was likely to befound at the Residence or provide an opinion that, where firearms are found, the presence of ammunition is likely.

On this basis, the judgeconcluded that the authorization to search for ammunition was granted without reasonable grounds because “[w]hile an issuing justicemay make reasonable inferences, they may not make evidentiary leaps” (at para 27). [49] In my respectful view, the judge’s reasons for rejecting the existence of reasonable grounds that ammunition would be found inthe Residence were flawed. As stated in Vu, an “informant need not underline the obvious” (at para 16).

Bringing this idea into the facts ofthis case, if there were reasonable grounds to believe that firearms would be present at the Residence, given the purpose for whichfirearms are possessed, there were reasonable grounds to believe that ammunition would be as well.

Therefore, it was not sufficient for thejudge to reject the possibility that ammunition would be found in the Residence simply because the ITO did not mention ammunition andthe officer did not state the belief or offer an opinion that where firearms are found, the presence of ammunition is likely. [50] Nonetheless, the legal error by the judge on this point is of no consequence because she did not err when she found there to beno reasonable grounds to believe that firearms would be present at the Residence.

Given this fact, and the absence of any independentgrounds to believe that ammunition would be present, the judge was correct to conclude that there were no reasonable grounds to order thesearch of the Residence for ammunition. 6. Conclusion regarding a breach of Mr. Charles’s Charter rights [51] For all these reasons, I reject the Crown’s argument that the judge erred in finding that Mr. Charles’s ss. 8 and 9 Charter rightswere violated in this case. B. The evidence was properly excluded under s. 24(2) [52] The Crown argues that, even if Mr.

Charles’s rights were violated, the judge nonetheless erred in excluding the evidence fromthe resulting searches. The focus of its brief submissions is on the judge’s consideration of the first branch of the Grant analysis, inconnection with which the judge wrote as follows: 1. Seriousness of the breach [54] A search of a private home by agents of the state is one of the most intrusive invasions of privacy allowed in a free and democraticsociety.

In this case, rather than knock and announce, state their purpose, request entry, and show the occupant the search warrant (as isgenerally required), police chose a more violent method of entry. When Constable Mesenchuk was drafting his ITO, he was hoping for a“dynamic entry,” which would involve a battering ram and lethal weapons drawn. He was over-ruled, and police chose instead to assaultthe occupants of the house, whoever they might be, with a non-lethal weapon, pepper spray. Enough pepper spray was deployed that,later, during the search, one constable had to leave several times to get some air.

Police in effect terrorized the neighbourhood by bringingin a military-style armoured vehicle and blasting orders through bullhorns, telling residents to shelter in place. The operation must haveresembled urban warfare. [55] Apparent breaches of the rights of others exacerbates the seriousness of the breach. For example, the police had no grounds toarrest the other occupants of the house, but they did so anyway. Constable Mesenchuk added the Chevrolet Cruze to the search warrantwithout grounds. The registered owner of that vehicle had a reasonable expectation of privacy in the vehicle.

She was not a target of theinvestigation, and the police had no grounds to believe firearms or drugs would be found in the vehicle. The warrant to search that vehiclewas authorized, and the vehicle searched, in violation of her right to be secure from unreasonable search or seizure. The police did notattempt to ascertain who else might be in the residence before deploying pepper spray. These factors expand the scope of the breaches,increasing their severity. [56] Minimum constitutional standards must be met before the state may legally intrude on the privacy of a citizen.

Here, thesestandards were not met, and the level of intrusion was great. This was not a technical breach. To conduct such a violent entry with acomplete disregard for the rights, not only of Mr. Charles, but of all twelve occupants of the house, weighs in favour of excluding theevidence obtained as a result. [53] The Crown attacks this reasoning from several directions. Given the brevity of its submissions on this point, I intend to limit myown comments on the issue. [54] One of the Crown’s submissions relates to standing.

It argues that an accused cannot rely upon the breach of another’s rights asthe foundation of a claim for the exclusion of evidence under s. 24(2) of the Charter: see R v Edwards, (SCC), [1996] 1SCR 128 at 145. I agree with this general proposition. However, the issue of standing is secondary in this case as Mr. Charles establisheda breach of his own Charter rights, which served as the foundation for the exclusionary remedy under s. 24(2). Moreover, at its core, thejudge did not base her s. 24(2) analysis on the fact that others’ rights were violated.

Rather, she considered the manner in which the policehad executed the warrant, including the fact that it involved the breach of others’ rights, in addition to the violation of Mr.

Charles’s rights,to be relevant to seriousness of the Charter breach. [55] I see no legal error in the judge’s decision to account for the overall context in her weighing of the police conduct in this case.To state the obvious, an entry into a residence where the front door is broken down with a battering ram and armed police charge in isconsiderably more serious than a lone police officer opening the front door and stepping inside the premises. In this case, the judge did noterr when she considered the fact that the police showed up to the Residence with an armoured vehicle, surrounded the home, employed

bull horns to announce their presence and ultimately deployed pepper spray, in effect, “smoking everyone out”, including Mr. Charles andothers present at the time (Voir Dire Decision at para 15). [56] The Crown also invites this Court to conclude that, because Mr. Charles’s notice of Charter application did not rely on this factas a Charter violation, it was unfairly left without a forewarning that it should proffer evidence that would explain why the police madethe decisions they did about the enforcement of the first warrant. I find no merit to this submission.

It is premised on the idea that theCrown was caught unaware that the context of the search would be considered by the judge in her analysis. A review of the record doesnot support that conclusion. It is further premised on the notion that the judge based her decision about the exclusion of the evidence upona finding that the manner of entry into the Residence constituted a Charter breach that was separate from the fact that the entry was donewithout lawful authority. However, that is not how the judge reasoned.

Instead, as the heading to this part of her analysis discloses, thejudge considered the manner of the police entry to be relevant to the seriousness of the breach of Mr. Charles’s rights that she found tohave occurred, which I would reiterate was the entry into the Residence without lawful authority. [57] Finally, I reject the Crown’s argument that somehow, because Mr. Charles had not raised the manner of entry into theResidence as a separate breach of his Charter rights, he had waived his ability to rely on the overall circumstances of the entry as beingrelevant to an assessment of their seriousness.

The only case it refers to in advancing this submission is R v Feeney, 2001 BCCA 113 atparas 52–57, 152 CCC (3d) 390.

However, the passage referred to by the Crown stands for the narrower proposition that a party cannotinsist on the right to call selectively misleading evidence, which was certainly not the case here. [58] I have approached my consideration of the Crown’s arguments without reference to the case law that discusses if and how,apart from matters where the accused’s standing is directly at issue, a court should account for the fact that the rights of people other thanan accused have been violated, when it assesses the seriousness of a Charter breach under s. 24(2).

There are cases that would support anargument that a breach of a third party’s Charter rights may aggravate the seriousness of the breach of the accused’s rights: see, forexample, R v Lauriente, 2010 BCCA 72 at para 27, 251 CCC (3d) 492; R v Mauro, 2017 BCCA 45 at para 27, 379 CRR (2d) 234; and R vRobertson, 2019 BCCA 116 at paras 60–61, 372 CCC (3d) 407. Other decisions have limited this idea to instances where the evidence ofthe breaches of others’ rights “all came before the court in the usual way, that is, at the instance of defendants who had standing to allegethem” (R v Nguyen, 2013 BCSC 950 at para 32.

See also, R v Merritt, 2017 ONSC 2245 at para 23; and R v Wasserman, 2018 MBQB 151at para 19, 418 CRR (2d) 94, aff’d 2020 MBCA 1). It should be noted that in the latter cases, among other distinctions, the accused wasnot present at the time of the search or was otherwise only indirectly implicated by the alleged Charter breaching conduct.

There is alsocase law that seemingly refuses to consider, or assigns little weight to, a potential breach of a third party’s Charter rights where that partywas present during the impugned search but was not an accused party in the proceedings: see R v Flintroy, 2019 BCSC 152; R v Gomboc,2019 ONSC 4627, aff’d 2022 ONCA 885; R v Bahlawan, 2020 ONSC 952, 452 CRR (2d) 262; and Lanthier c R, 2020 QCCS 5164. [59] Here, however, the Crown did not refer to any of these cases, it took no issue with respect to the admissibility of the evidence ofthe overall way the search was conducted, and it argued its position in relation to this issue in only the most general manner.

Finally, ittook no issue under this ground with the fact of the breach of Mr. Charles’s rights, leaving the impact of the breach of others’ rights as asecondary question only. [60] As a Court, we are, therefore, left in much the same position as was the British Columbia Court of Appeal in R v Pawar, 2020BCCA 251, 393 CCC (3d) 408. In that case, Fitch J.A. suggested that the impact of a search on the rights of an innocent third party canbear on the seriousness of the state conduct under s. 24(2).

However, he declined to reach a definitive conclusion on this point because ofthe way in which the case was presented to that Court in argument: [76] The unjustified intrusion into the appellant’s home also had a serious impact on the appellant’s mother and brother who wereremoved from their home late in the evening and not permitted to return until the following morning.

While the point was not argued bycounsel on appeal, except in response to a question from the bench during oral argument, I am inclined to the view that this aggravates theseriousness of the breach and is properly considered at the first stage of the Grant inquiry. [77] The view was forcefully expressed by La Forest J. (dissenting in the result) in [R v Silveira, (SCC), [1995] 2 SCR297].

In that case, a majority of the Ontario Court of Appeal seemed to accept the proposition that the impact of an unlawful warrantlessentry of a private dwelling-house on innocent third-party occupants was not relevant to an assessment of the seriousness of the breach: see[R v Silveira] (1994), (ON CA), 16 O.R. (3d) 786 at 801–802 (C.A.). Justice La Forest disagreed. In his view, onemeasure of the seriousness of the breach is the seriousness of the consequences that flow from it: 47 Nor do I agree with the majority’s view that the violation of the Charter rights of the appellant’s family is irrelevant.

It may, I suppose,be argued that, in strictness, only the appellant’s privacy rights are directly raised, though I would have thought one’s privacy interestextended to one’s family. More generally, the broader impact of the Charter breach cannot be ignored.

It is relevant to the seriousconsequences of the breach and points to the fact that the danger from breaches of Charter rights extends beyond the particular individual.The Charter guarantees exist for the protection of all of us. [Emphasis added.] [78] The issue was not addressed by the majority of the Supreme Court of Canada in Silveira and we were not taken to any other casein which the issue was considered.

As the disposition I propose does not turn on this point and we did not have the benefit of theconsidered positions of counsel, I would prefer to leave further consideration of the issue to another day. (Emphasis in original) Given the general way this issue was presented by the Crown, I similarly decline to consider further in the context of this appeal theadditional question about the judge’s reliance on the breach of others’ rights in her evaluation of whether to exclude the evidence in thiscase. [61] Having rejected the allegations of legal error that the Crown did make, I am left to decide this part of its appeal with referenceto the deferential standard of review that otherwise applies to a challenge to a trial judge’s s. 24(2) determination.

In this regard, in R v

Mahamud, 2020 SKCA 21, Kalmakoff J.A. summarized the applicable standard of review as follows: [2] The standard of review in relation to a trial judge’s s. 24(2) determination is deferential. As the Supreme Court of Canada stated inR v Côté, 2011 SCC 46 at para 44, [2011] 3 SCR 215 [Côté], “Where a trial judge has considered the proper factors and has not made anyunreasonable finding, his or her determination is owed considerable deference on appellate review” (references omitted).

If the trial judgehas overlooked or disregarded relevant factors, made an error in principle, or made a clearly unreasonable finding, the appellate court mayintervene and conduct its own s. 24(2) analysis: R v Arnault, 2019 SKCA 109 at para 79 [Arnault]; R v Cole, 2012 SCC 53 at para 82,[2012] 3 SCR 34. [62] Here, based on the case as it was presented to us, I see no such error in the judge’s s. 24(2) analysis. At its core, the presence ofstate actors in a private residence represents a serious violation of privacy: R v Silveira, (SCC), [1995] 2 SCR 297 at 367–68.

The force of that entry supports the seriousness of the breach: see, for example, R v Feeney, (SCC), [1997] 2 SCR 13at 67. Of course, “[e]xtenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousnessof police conduct that results in a Charter breach” (Grant at para 75).

I also accept that, at a high level, other circumstances surrounding asearch may serve to minimize what may otherwise present as a serious breach, such as the officers’ good faith and statutory authority toundertake the search methods exercised in the matter: Gerard Kennedy, Charter of Rights in Litigation: Direction from The Supreme Courtof Canada, loose-leaf (Rel 2023-5), (Toronto: Thomson Reuters, 2019) (WL) at §47:30.

Indeed, it has been held that the seriousness of adynamic takedown may be relatively low where it was the result of an appropriate planning process and in response to a real apprehensionof risk to the public: see, for example, R v Baptiste, 2020 QCCQ 971 at paras 451–458, 455 CRR (2d) 232.

Moreover, even where thewarrant is found to be invalid, the mere fact that the police obtained it is relevant to establishing good faith: Chipman J.A. dissenting in R vRichard (1995), 1995 NSCA 147 , 99 CCC (3d) 441 (NSCA) at 476, rev’d (SCC), [1996] 1 SCR 896.However, ultimately, as stated by Romilly J., “[e]ntry into a home without a warrant or with an invalid warrant constitutes a seriousviolation of the Charter. … Even though circumstances of urgency or necessity, where they exist, may sometimes mitigate the seriousnessof a breach, they in no way give the police license to use unconstitutional means to obtain evidence” (R v Maton, 2005 BCSC 330 at paras56–57, 133 CRR (2d) 72). [63] For all these reasons, I am unconvinced that the judge erred in her conclusion that the admission of the evidence obtainedbecause of the breach of Mr.

Charles’s Charter rights would bring the administration of justice into disrepute. Accordingly, this branch ofthe Crown’s appeal must be dismissed. V. CONCLUSION [64] For the reasons I have given, I would dismiss the Crown’s appeal. “Leurer C.J.S.” Leurer C.J.S.I concur. “McCreary J.A.” McCreary J.A.I concur. “Drennan J.A.” Drennan J.A.