



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rocha, 2012 ONCA 707

DATE: 20121024

DOCKET: C53745

OConnor A.C.J.O., Rosenberg and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Rocha

Respondent

Nicholas E. Devlin and Aaron Shachter, for the appellant

P. Andras Schreck, for the respondent

Heard: June 22, 2012

On appeal from the acquittal entered on May 13, 2011 by Justice Beth A. Allen of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

The Crown appeals from the
    respondents acquittal on drug and weapons charges following a ruling by Allen
    J. ordering the exclusion of evidence seized following execution of search
    warrants at the respondents home. Search warrants were executed on October 1,
    2008 at a restaurant operated by the respondent and his brother and at the
    residence where the respondent lived with his brother and his parents, the
    owners of the restaurant. The search of the restaurant led to the seizure of a
    small amount of cocaine. The search at the residence resulted in a much more
    substantial seizure of prohibited weapons, cash, cocaine, Oxycodone pills and a
    shotgun.

[2]

The trial judge held that
    informations to obtain the warrants (the ITOs) were insufficient and that
    accordingly the respondents right to protection against unreasonable search
    and seizure as guaranteed by s. 8 of the
Canadian Charter of Rights and
    Freedoms
was violated. She held that admission of the evidence found at
    the residence would bring the administration of justice into disrepute and
    accordingly the evidence must be excluded pursuant to s. 24(2) of the
Charter.
She would have admitted the evidence in relation to the search of the
    restaurant. Following the trial judges ruling, the Crown elected to offer no
    further evidence and the respondent was acquitted of all charges. The Crown
    appeals only against the acquittal on the charges in relation to the search of
    the respondents residence.

[3]

For the following reasons, I
    would dismiss the appeal. I agree with the trial judge that the ITOs relating
    to the seizures at the respondents residence were insufficient. While I do not
    agree that the ITO for the warrant to search the restaurant was insufficient,
    in my view, the trial judges error in relation to the restaurant ITO did not
    taint her ruling under s. 24(2) in relation to the contraband seized from the
    residence. It is my view that the trial judge erred in her application of the
    s. 24(2) test, especially in the manner in which she characterized the police
    conduct in obtaining the warrants. However, when the test from
R. v. Grant
,
    2009 S.C.C. 32 is properly applied, the evidence should nevertheless be excluded.

THE FACTS

The Informations to Obtain

[4]

The ITOs were identical. The
    grounds set out in the ITOs turned almost exclusively on information provided
    by a confidential informer. The ITOs were edited to protect the identity of the
    informer. The record before the trial judge consisted of the preliminary
    inquiry evidence of the affiant of the ITOs, Detective Constable Zamparo, and
    the sub-affiant, Detective Constable Naidoo. It was D.C. Naidoo who dealt with
    the informer. Detective Reids preliminary inquiry evidence was filed and he
    testified before the trial judge. Detective Reid did some surveillance of the
    house, which was referred to in the ITOs. The Crown elected not to disclose the
    entire unredacted ITOs to the trial judge and thus the respondent was not
    provided with a judicial summary of the redacted material. Accordingly, the
    sufficiency of the ITOs stood or fell on the redacted versions. The information
    provided by the informer, as disclosed in the redacted ITOs, may be summarized
    as follows:

·

Two brothers, the respondent and his brother Robin, were selling
    cocaine from their restaurant, the Os Dragoes Sports Bar and Grill located at 703
    College Street on the 2nd floor.

·

The cocaine was normally kept behind the bar, in the kitchen and
    inside the restaurants walls.

·

The cocaine was packaged in small, white plastic baggies.

·

The customers would use the cocaine in the restaurant washroom.

·

The informer had observed 10 to 15 drug transactions at the
    restaurant.

·

The informer had seen the respondents brother obtain the drug
    from near the espresso machine in the service area.

·

The informer had also seen the respondents brother go to the
    kitchen area to obtain some packages.

·

Most of the cocaine was kept at the brothers home at 64 Crawford
    Street; the informer described the outside of the house.

·

The informer also described the two vehicles that the brothers
    used to transport the drugs.

[5]

The informations to obtain
    also disclosed the independent investigation conducted by the police, the
    results of which may be summarized as follows:

·

The brothers were connected to the restaurant and the vehicles.

·

The exterior of the house was consistent with the description
    provided by the informer.

·

On the afternoon of October 1, 2008, police officers saw the
    respondents brother leave the restaurant, go to the house, leave the house
    with an unknown male, return to the restaurant and then briefly leave the
    restaurant to retrieve something from his vehicle.

·

The respondents mother had been charged with possession of
    cocaine for the purpose of trafficking in 2002.

·

The respondents brother was charged with simple possession of
    cocaine in February 2007.

·

A Crime Stoppers tip was received in 2006 to the effect that the
    respondent and his brother were involved in drug dealing and were selling drugs
    out of their restaurant.

[6]

There is some odd wording in
    the ITOs. For example, they describe the informer has having no convictions for
    perjury or public mischief. The ITOs do not set out whether the informer
    otherwise has a criminal record.  They indicate that the informer has
    previously provided information to the police that led to persons being
    arrested/charged and illegal narcotics and stolen property seized. The ITOs
    do not clearly indicate that any persons was convicted as a result of the
    information provided by the informer.

THE TRIAL JUDGES REASONS

[7]

The trial judge dealt first
    with the sufficiency of the information to obtain the warrant to search the
    house. She pointed out that this ITO contained no information about the
    informers source of knowledge of the existence of drugs in the house. She
    considered the evidence relating to the house to be scant; there was no
    information as to when the informant received the information, no information
    placing a time on when the drugs were being stored at the house. In short,
    there was nothing in the information that compels the belief that the drugs
    would be located at the house at the time of the search.

[8]

The ITO did not indicate
    whether the informer had a criminal record for crimes of dishonesty besides
    perjury and public mischief and did not state the informers motivation for
    providing the information to the police.

[9]

Finally, the investigation
    in relation to the house was not sufficient to corroborate the information
    provided by the informant. In particular, it was simply speculation that the
    observations of the respondents brother going and coming from the restaurant
    and house on October 1 had anything to do with drug trafficking.

[10]

Accordingly,
    the ITO in relation to the house was insufficient to satisfy the test set out
    in
R. v. Debot,
[1989] 2 S.C.R. 1140, and the search was unreasonable
    and a violation of s. 8. As to s. 24(2), the trial judge conducted the
    inquiries as mandated by
R. v. Grant
.  As to the first inquiry, the
    seriousness of the
Charter
-infringing conduct, she held, in part, as
    follows:

The police did an intensive search throughout the rooms of the
    house based on very little information. I have no problem finding that the
    police search of the accuseds house was a serious violation of his s. 8
Charter
rights and that there is a need for the court to dissociate itself from that
    conduct.  The conduct cannot be said to be a technical or inadvertent breach as
    it was deliberate in the sense it was planned in advance and obtained through
    the warrant authorization process.

[11]

The
    trial judge referred to the scant information in the ITO and that there were no
    extenuating circumstances since there was no urgency. The police should have
    taken time to conduct a better investigation. The circumstances point away
    from good faith error on the part of the police officers who committed the
    breach.

[12]

As
    to the second inquiry, the impact on the accuseds
Charter
-protected
    interests, the trial judge found that the breach was at the profoundly
    intrusive end of the spectrum because it involved a search of a private
    residence where there is a high expectation of privacy. A violation of the
    accuseds right to be secure in his home would have a serious impact on his
    protected right to privacy which in this case was compounded by the fact the
    police had little information going in [to the house].

[13]

As
    to the third inquiry, the societal interest in a trial on the merits, the trial
    judge found that the contraband and weapons were highly reliable evidence and
    critical evidence that could be conclusive proof of the accuseds knowledge and
    possession. The trial judge also considered the seriousness of the offences but
    noted that the seriousness of the offence was not to be given disproportionate
    weight. In relation to the items found at the house, she held as follows:

Looking at the police conduct in relation to the search of the
    house, I conclude the police misconduct was sufficiently serious and deliberate
    as to outweigh the seriousness of the offence. The invasion of a persons
    private abode based on a negligible amount of information in circumstances that
    were not urgent must certainly be frowned upon and discouraged. The balance in
    relation to the drugs and other items seized at the house against the
    seriousness of the violation I find weighs in favour of exclusion. If the court
    appeared to condone
Charter
violations that represent such a significant
    invasion of protected rights, rather than enhancing the long-term repute of the
    administration of justice, would undermine it.

[14]

The
    trial judge reached a somewhat different conclusion in relation to the seizure
    at the restaurant. The deficiencies in the ITO in relation to the restaurant
    were not as serious. Thus, more information was provided about drug dealing at
    the restaurant so that the informers tip in relation to the restaurant might
    appear to be somewhat more compelling than for the house. Nevertheless, the
    trial judge concluded that there was not much in the ITO that would compel a
    reasonable expectation that drugs or drug transactions involving the accused
    would be found at the restaurant at the time the warrant was executed. The
    same problems identified in relation to the house about the credibility of the
    informer and the independent investigation existed in relation to the
    restaurant. The trial judge concluded in relation to the restaurant that the
    failure of the police to establish the reliability of the information from the
    informer and to corroborate it through their investigation, blurred the line
    between trustworthy information and information that could be based in rumour
    or gossip. Accordingly, the respondents s. 8 rights in relation to the
    restaurant were also violated.

[15]

However,
    the trial judge held that the evidence found at the restaurant should not be
    excluded. As to the first inquiry, the violation was substantially less
    intrusive and on the lower end of the spectrum of seriousness. While the search
    of the restaurant was no doubt deliberate and planned and hence not the result
    of technical error or inadvertence ... [it] was also conducted based on a
    greater level of information than is true of the house. There was therefore not
    as great a need for the court to dissociate itself from the violation. As to
    the second inquiry, the search of the restaurant was not profoundly intrusive
    as it was a public place with a limited expectation of privacy. As to the third
    inquiry, the trial judge noted the reliability of the evidence, its importance
    to the Crowns case and the seriousness of the offence. Balancing the three
    inquiries, especially that the violation was on the less serious end of the
    spectrum as was the impact on the respondents privacy, the evidence found at
    the restaurant should not be excluded.

ANALYSIS

The Sufficiency of the ITOs

[16]

The
    test for sufficiency of an ITO that is based on an informers tip is, as the
    trial judge recognized, dependent upon whether the tip is compelling, whether
    the informer is credible and whether the tip has been confirmed by independent
    police investigation:
R. v. Debot
, at 1168. Weaknesses in one area may
    be compensated by strengths in the other two areas.

[17]

The
    trial judge found weaknesses in all three areas in respect of the ITO for the
    restaurant and the one for the house. Thus, considering the totality of
    circumstances, both ITOs were insufficient to support granting search warrants.
    In my view, the trial judge erred in her assessment of the sufficiency of the
    ITO supporting the warrant to search the restaurant.

[18]

Contrary
    to the finding of the trial judge, the information predicting that drugs would
    be found in the restaurant was compelling. The informer had personally observed
    10 to 15 drug transactions in the restaurant. The informer described in detail
    where the drugs were stored, how they were packaged, how the drugs were
    obtained by the respondents brother for clients of the restaurant and where
    the clients used the drugs. The information did not take the form of bald
    conclusory statements or mere rumour or gossip:
R. v. Debot,
at
    1168-69.

[19]

I
    agree with the trial judge, that the information concerning the credibility of
    the informer was weak. I say this primarily because of the awkward wording of
    the ITO. The critical paragraph in the ITO is this:

The SOURCE in this matter is a registered human asset of the
    Toronto Police Service for over two years. The information they provided is of
    such detail, timing and geographic specifics that it goes beyond mere chance
    and/or coincidence. In some cases the information has been corroborated, by
    Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has
    no convictions for Perjury or Public Mischief. The SOURCE previously provided
    information to police that has led to persons arrested/charged in addition to
    the seizure of illegal narcotics and stolen property. The SOURCE acknowledges
    that they will face criminal charges for making false reports to police
    regarding information on past, present and future investigations. The SOURCE
    understands that there [sic] assistance is only eyes and ears and they are
    not to participate in any criminal activity whatsoever as a Confidential
    Source.

[20]

It
    seems that the affiant is attempting to convey the idea that information from
    the informer has led to the finding of contraband but this assertion is
    confused with the assertion that the informers information has merely led to
    the laying of charges. Also the phrase, In some cases the information has been
    corroborated, by Handlers or Investigators forming Reasonable Grounds to
    Believe is confusing. The fact that police officers have formed reasonable
    grounds is not the kind of corroboration required to confirm the reliability of
    a confidential informer. That said, there is some indication of credibility of
    the informer.

[21]

I
    disagree with the trial judge about the independent confirmation of the
    information in the informers tip. The error in the trial judges approach is
    found in this statement:

As I noted earlier, Officer Naidoo conceded at the preliminary
    inquiry that he had not corroborated the information provided in paragraph 19
    about the layout of the restaurant or about drug use and drug transactions at
    the restaurant. Nor is there evidence any other officer corroborated the
    information about drug transactions at the restaurant, although the ITO states
    the restaurant was under surveillance before the warrant was executed.

[22]

The
    police will rarely be able to confirm the tip to the extent of having observed commission
    of the offence and that level of confirmation is not required. In a very short
    judgment in
R. v. Caissey
, [2008] 3 S.C.R. 451. the Supreme Court of
    Canada said the following:

The dissenting judge advanced the view that only corroboration
    of some criminal particular of the offence offered the necessary assurance for
    the issuance of the warrant. This is the question of law that brings the appeal
    before us. On this issue, we agree with the test adopted by the majority.

[23]

In
    the Alberta Court of Appeal, the majority described the independent
    confirmation as: the police independently confirmed a number of details,
    including the identity of the respondent and his residential address, that no
    children lived in the home, the name of his roommate, and the description of
    his vehicle:
R. v. Caissey
, 2007 ABCA 380 at para. 22. In that case,
    the informer claimed to have seen a large quantity of drugs in the appellants
    apartment. Thus, the details confirmed by the police tended to show that the
    informer had actually been in the apartment even though they did not on their
    own show that the appellant was in possession of drugs.

[24]

In
    this case, the police had confirmed the address and layout of the interior of
    the restaurant and the involvement of the respondent and his brother in the
    restaurant. While not as compelling as the independent confirmation in
Caissey
,
    this information could not be disregarded.

[25]

Considering
    the totality of circumstances and particularly the compelling nature of the
    informers tip, the ITO concerning the restaurant was sufficient.

[26]

I
    do, however, agree with the trial judge that the ITO was not sufficient to
    justify granting a warrant to search the respondents home. Unlike the
    restaurant, the information in the informers tip was not compelling. It was a
    mere conclusory statement that drugs were stored at the house. While it was
    apparent that the informer had personally observed drug transactions in the
    restaurant, the source of the informers information about the house is
    completely unknown. Given the weaknesses in the credibility of the informer and
    independent confirmation, the totality of circumstances could not support
    granting the warrant.

Application of s. 24(2) of the
Charter

The seriousness of the Charter-infringing conduct

[27]

The
    key finding by the trial judge on the first
Grant
inquiry was that the
    breach was not technical or inadvertent as it was deliberate in the sense it
    was planned in advance and obtained through the warrant authorization process.
    In my view, this was not the correct approach. The touchstone of analysis of
    this first inquiry is whether admission of the evidence would bring the
    administration of justice into disrepute by sending a message that the courts
    effectively condone state deviation from the rule of law by failing to
    dissociate themselves from the fruits of the unlawful conduct:
R. v. Grant,
at para. 72.  Police conduct that shows a wilful or reckless disregard of
Charter
rights will inevitably have a negative effect on the public confidence in the
    rule of law, and risk bringing the administration of justice into disrepute:
R.
    v. Grant
, at para. 74.

[28]

Applying
    for and obtaining a search warrant from an independent judicial officer is the
    antithesis of wilful disregard of
Charter
rights. The search warrant
    process is an important means of preventing unjustified searches before they
    happen. Unless, the applicant for exclusion of evidence can show that the
    warrant was obtained through use of false or deliberately misleading
    information, or the drafting of the ITO in some way subverted the warrant
    process, the obtaining of the warrant generally, as I explain below, tells in
    favour of admitting the evidence. In this case, the police submitted the fruits
    of their investigation to a justice of the peace who granted the warrants. I
    have held that the warrant was properly granted in relation to the restaurant.
    The warrant should not have been granted in relation to the house, but it must
    be remembered that an independent judicial officer did authorize the search.

[29]

I
    should not be taken as holding that whenever a search warrant has been granted,
    the first
Grant
inquiry favours admission of the evidence. But the
    approach is not, as held by the trial judge, to hold in favour of exclusion
    because obtaining a search warrant is a deliberate process. 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. Fish J. made this point in
R. v. Morelli
, [2010] 1 S.C.R.
    253, at paras. 99-103:

First, the
Charter
-infringing state conduct in this
    case was the search of the accused's home and the seizure of his personal computer,
    his wife's laptop computer, several videotapes, and other items. The search and
    seizure were unwarranted, but not warrantless: they were conducted pursuant to
    a search warrant by officers who believed they were acting under lawful
    authority.
The executing officers did not wilfully or even negligently
    breach the Charter. These considerations favour admission of the evidence. To
    that extent, the search and seizure cannot be characterized as particularly
    egregious.

The opposite is true on considering the ITO upon which the
    warrant was obtained. The officer who prepared the ITO was neither reasonably
    diligent nor mindful of his duty to make full and frank disclosure. At best,
    the ITO was improvidently and carelessly drafted.
Not only did the ITO
    fail to specify the correct offence (accessing rather than possession of child pornography); it
was also drafted in a misleading way
, resulting in
    the issuance of a warrant on insufficient grounds.
While the trial judge
    found no deliberate attempt to mislead, no attesting officer, acting
    reasonably, could have failed to appreciate that repeated references to
    "'Lolita Porn' on the screen" and to the deletion of "all the
    child porn off the computer" would cause most readers -- and, more
    particularly, the issuing justice -- to believe there was evidence that child
    pornography was actually viewed on-screen by the witness Hounjet.

Similarly, the officer should have known -- if he in fact did
    not -- that the immediate juxtaposition of these misleading statements and the
    incomplete description of the "web-cam pointing towards toys" would
    be unjustifiably inflammatory.

The repute of the administration of justice is jeopardized by
    judicial indifference to unacceptable police conduct. Police officers seeking
    search warrants are bound to act with diligence and integrity, taking care to
    discharge the special duties of candour and full disclosure that attach in
ex
    parte
proceedings. In discharging those duties responsibly,
they must
    guard against making statements that are likely to mislead the justice of the
    peace.
They must refrain from concealing or omitting relevant facts. And
they
    must take care not to otherwise exaggerate the information
upon which they
    rely to establish reasonable and probable grounds for issuance of a search
    warrant.

We are bound to accept the trial judge's finding that there was
    no deliberate misconduct on the part of the officer who swore the Information.
    The repute of the administration of justice would nonetheless be significantly
    eroded, particularly in the long term, if such unacceptable police conduct were
    permitted to form the basis for so intrusive an invasion of privacy as the
    search of our homes and the seizure and scrutiny of our personal computers.
    [Emphasis added.]

[30]

Given
    the trial judges erroneous approach to the seriousness of the violation
    inquiry, it falls to this court to properly apply the
Grant
inquiries,
    bearing in mind the trial judges findings of fact and those other aspects of
    her analysis that are not tainted by any legal errors. As to the trial judges
    error in finding that the ITO in relation to the restaurant was insufficient,
    she dealt with the admissibility of the evidence from the house and the
    restaurant separately. I am not convinced that the trial judges erroneous
    conclusion on the sufficiency of the restaurant ITO tainted her factual
    findings in relation to the house.

[31]

I
    begin then with correctly situating the police conduct in this case on the
    continuum as explained in
Morelli
and by Doherty J.A. in
R. v.
    Blake,


at paras. 24-5:

The trial judge found that the police acted in "good
    faith" in their attempt to acquire legal authorization for the search. I
    accept that finding. The police were clearly aware of the need to obtain a
    warrant and proceeded accordingly. They cannot be said to have acted
    negligently or in ignorance of any of the applicable
Charter
requirements. A finding of "good faith" obviously reduces the need
    for the court to disassociate itself from the state conduct that resulted in
    the
Charter
infringement, and supports the admissibility of the
    challenged evidence.

Not only do I agree with the trial judge's finding of good
    faith on the part of the investigators, I can see no possible criticism of the
    police conduct on this trial record. Throughout the process that culminated in
    the seizure of the evidence, they acted exactly as they were obligated to under
    the law. They were required to obtain a warrant before entering the residence.
    They did so. They were required to make full disclosure to the justice of the
    peace. There is no suggestion that they did not do so. The police, and later
    the Crown, were legally obligated to protect the identity of the confidential
    informants by removing all material from the information that could identify
    the informants before making that material available to the defence. They did
    that. Given the manner in which the s. 8 claim was litigated, the police acted
    not only in good faith, but as required by the law. The police conduct in this
    case does not fit anywhere on the misconduct continuum described in
Grant,
at para. 74.

[32]

Giving
    full weight to the fact that the police made use of the warrant procedure so
    that the conduct, as in
R. v. Morelli
, cannot be described as
    egregious, there are problems with the wording of the ITOs that are so
    significant as to situate the conduct here toward the serious end of the
    continuum.

[33]

First,
    is the failure to disclose the criminal record of the informer.  The entire
    record was not placed before the justice of the peace; rather there was the
    oddly worded statement that the informer did not have a record for perjury and
    public mischief.  This paragraph was drafted by D.C. Naidoo and was obviously
    intended to leave the impression of honesty on the part of the informer. But,
    perjury and public mischief are not the only types of offences that would
    fairly bear on the honesty and hence credibility of a confidential informer.
    The preliminary inquiry evidence of D.C. Naidoo shows that this was a
    deliberate decision. It was also a decision rooted in a systemic practice on
    the part of D.C. Naidoo, at least where he was the sub-affiant. As the
    respondent points out, D.C. Naidoo gave conflicting and inconsistent
    explanations for why the record was not placed before the justice of the peace.
    But, the officer made it clear that it was his practice not to disclose the
    informers full criminal record to the justice of the peace.

[34]

More
    troubling is the wording of paragraphs 19 and 20 of the ITOs:

At [redacted] Detective Constable NAIDOO advised me of the
    following:

a.

There are
    two males who are selling powder cocaine from their bar.

b.

The bar is
    located at 703 College Street on the 2nd floor.

c.

The bar
    (Os Dragoes Sports Bar and Grill) is located on the south-west corner of
    Montrose Ave. and College St. above the Pizza restaurant.

d.

The front
    door is the first door to the west of the Pizza restaurant and has a set of
    yellow stairs which lead directly to the bar.

e.

The back
    door of the bar is located at the top a fire  escape, which is located at the
    rear of the building.

f.

[redacted]

g.

Robin and Jason
    allow their customers to do lines of cocaine in the bathroom of the bar.

h.

Robin and
    Jason will also deliver drugs to their customers.

i.

Robin
    and Jason operate the following vehicles when delivering drugs to the
    customers: AERR990  a older dark coloured Mercedes, AZYH679  a silver Nissan
    and AVAR782  a grey truck/van.

j.

Robin
    and Jason live with there parents at 64 Crawford Street.

k.

The
    residence is located north of Queen Street and is on the west side of Crawford
    Street.

l.

The
    residence is surrounded by a blue metal fence.

m.

[redacted]

At [redacted] Detective Constable NAIDOO had already
    corroborated the information from the confidential source.

[35]

These
    paragraphs are misleading. Perhaps they are a product of D.C. Zamparos
    inexperience. But the fact remains that they would leave the impression that
    D.C. Naidoo had independently confirmed the information from the informer. 
    That was not the case, as pointed out by the trial judge in her reasons at
    paras. 43-5 and 58. I accept her findings on this aspect of the ITO. I agree
    with her that while the statement was not intentionally misleading such an
    unclear statement should [not] be put before a court with the responsibility of
    determining the reliability of the information when a clearer statement could have
    easily been drafted. This was a serious matter because, having the potential
    to mislead the justice of the peace, effectively deprives the judicial officer
    of the ability to independently assess the sufficiency of the ITO.

[36]

Third,
    as the trial judge pointed out, D.C. Zamparo never swore to the basis of his
    belief on reasonable and probable grounds that drugs would be found at the
    house; only that they would be found at the restaurant. No doubt this is a
    product of carelessness on the part of the officer and the unfortunate decision
    to use identical ITOs for the warrants for the restaurant and the house. But,
    this error is also symptomatic of the lack of care that is demonstrated by the
    wording of important parts of the ITOs.

[37]

In
    my view, the ITO in this case in relation to the house is of such a quality as
    to put this case towards the serious end of the continuum in considering the
    first
Grant
inquiry. It suffers from similar problems identified by
    Fish J. in
R. v. Morelli
.

The impact of the breach on Charter-protected interests of
    the accused

[38]

I
    agree with the trial judge that the impact of the breach on the
Charter-
protected
    interests of the respondent favoured exclusion of evidence. This was a serious
    intrusion into a place where there is a high expectation of privacy. See
R.
    v. Grant,
at para. 78.

Societys interest in adjudication of the case on its
    merits

[39]

In
    considering the third line of inquiry, the principal factor is the reliability
    of the evidence. As the majority said in
R. v. Grant,
at para. 81: exclusion
    of relevant and reliable evidence may undermine the truth-seeking function of
    the justice system and render the trial unfair from the public perspective,
    thus bringing the administration of justice into disrepute. The court will
    also consider the importance of the evidence:
R. v. Grant,
at para.
    83. The trial judge properly recognized that the importance of the evidence,
    especially as regards the contraband found at the house, favoured admission of
    the evidence.

[40]

It
    remains then to balance the three inquiries in accordance with the test laid
    down in
R. v. Grant
and
R. v. Harrison,
2009 S.C.C. 34. In
    particular see para. 36 of
Harrison
:

The balancing exercise mandated by s. 24(2) is a qualitative
    one, not capable of mathematical precision. It is not simply a question of
    whether the majority of the relevant factors favour exclusion in a particular
    case. The evidence on each line of inquiry must be weighed in the balance, to
    determine whether, having regard to all the circumstances, admission of the evidence
    would bring the administration of justice into disrepute. Dissociation of the
    justice system from police misconduct does not always trump the truth-seeking
    interests of the criminal justice system. Nor is the converse true. In all
    cases, it is the long-term repute of the administration of justice that must be
    assessed.

[41]

In
    my view, both the seriousness of the violation and impact on the
Charter
-protected
    interests favour exclusion. As to the latter, this was a serious intrusion into
    a domain that carries a very high expectation of privacy. As to the former, the
    apparent good faith of the police in resorting to the warrant process is
    undermined by the misleading and careless wording of the ITO.

[42]

In
R. v. Blake
, the court found that the evidence should be admitted,
    although because of the editing of the ITO there was not sufficient information
    to sustain the granting the warrant. In doing so, the court noted the following
    at para. 33:

Absent any claim of police misconduct or negligence in the
    obtaining of the initial search warrant, and absent any attempt to go behind
    the redacted information, it would be inappropriate to proceed on any basis
    other than that the police conducted themselves in accordance with the
    applicable legal rules. If there were a taint of impropriety, or even
    inattention to constitutional standards, to be found in the police conduct,
    that might well be enough to tip the scales in favour of exclusion, given the
    very deleterious effect on the accused's legitimate privacy interests. I can see
    none. The evidence is admissible under the approach to s. 24(2) set out in
Grant.

[43]

This
    case is different. There was at least negligence in the obtaining of the search
    warrant. Counsel for the respondent did attempt to go behind the redacted
    information by cross-examining both the affiant and sub-affiant. The Crown was
    unable to provide a summary of the unedited ITO that could serve as a judicial
    summary. While there was no impropriety or bad faith, there was a sufficient
    inattention to constitutional standards to tip the scales in favour of
    exclusion given the deleterious effect on the respondents privacy interests.
    Notwithstanding the significant public interest in a trial on the merits, I
    would uphold the trial judges decision to exclude the evidence, despite her
    error in approach to the first
Grant
inquiry.

DISPOSITION

[44]

Accordingly,
    I would dismiss the appeal.

M.
    Rosenberg J.A.
Juriansz J.A. (concurring):
[45]

I
    agree with the reasons of Rosenberg J.A. deciding that the warrant to search
    the respondents restaurant was properly issued, but there was insufficient
    information in the Information to Obtain (ITO) to support the warrant to
    search the respondent's home. The defect in the ITO is that it fails to
    indicate the basis for the confidential informants allegation that drugs would
    be found at the respondents home.

[46]

However,
    I wish to expand on an observation Rosenberg J.A. made about a feature of this
    case. He points out early in his reasons that the version of the ITO considered
    by the trial judge, and in the record before this court, was redacted by the
    Crown to protect the identity of the confidential informant. Rosenberg J.A.
    points out that the Crown did not propose that a judicial summary of the
    redacted information be provided to the defence.

[47]

There
    are several redactions in the ITO. One redaction is located where one would
    expect to see set out the basis of the informant's allegation that the drugs
    sold at the respondents restaurant were kept in his home.

[48]

This
    case is not unique. It is not at all uncommon that the question of whether the
    warrant should have been issued is decided on the basis of a redacted ITO.
    Deciding whether the warrant should have been issued on the basis of a redacted
    ITO has several disadvantages.

[49]

Reviewing
    a judicial decision without the complete record that was before the decision
    maker seems inimical to the appellate process. That the court reviews an
    issuing justice's decision to authorize a search without looking at all the
    information before the justice may make the process of review appear somewhat
    artificial to the ordinary citizen. The ordinary citizen might think there are
    two standards for assessing a search warrant: one for deciding whether a search
    warrant should be issued, and another for deciding, after the fact, whether the
    search warrant should have been issued.

[50]

The
    process unfairly reflects on the work of the issuing justice and the police.
    The police may include sufficient credible and reliable information in the ITO
    and the issuing justice may authorize the warrant on the basis of that
    information, only to have the reviewing court decide, on the basis of an
    incomplete ITO, the warrant should not have been issued. Without the redactions
    for context, the reviewing court may even find some of the statements made by
    the drafting police officer in the ITO to be groundless or even misleading.

[51]

There
    is reason to believe that, in many cases, the information excised from the ITO
    may well be the most pertinent.  An informant who can be easily identified by
    the accused is more likely to be able to provide detailed and reliable
    information about the accuseds activities.

[52]

Finally,
    there is a great waste of resources. The work of the police in gathering
    information to support a search, drafting a compelling ITO and then executing
    the search is wasted when the warrant is set aside on the basis of a redacted
    ITO. In some cases, a preliminary inquiry or even a jury trial may have taken
    place before the warrant is set aside on the basis of a redacted ITO.

[53]

On
    the other hand, allowing a reviewing court to make a decision to uphold a
    warrant on the basis of information not made available to the accused in a
    criminal proceeding is an anathema to the principles governing the criminal
    justice process. Hence this is a dilemma.

[54]

Code
    J., in thoughtful reasons in
R. v. Learning
,

2010 ONSC 3816, 258
    C.C.C. (3d) 68, at para. 107, remarked that it is unfortunate that the
    procedure in step six in
Garofoli
, [1990] 2 S.C.R. 1421,

is
    the only legal mechanism available to resolve the dilemma created by the
    competing demands of the Crowns obligation to provide reasonable and probable
    grounds for a search and its obligation to protect the identity of confidential
    informants. Yet, he observed, the mechanism is simply not being tried or tested.

[55]

The
    procedure based on step six in
Garofoli
permits the Crown to 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 is sufficiently aware of the nature of the
    excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461.

[56]

It
    is difficult to understand why the Crown does not request the court to employ
    step six of
Garofoli
more frequently. There may be many cases in
    which the Crown considers the redacted information to be inconsequential, but
    there must be cases in which the information is significant. In such cases, there
can be no advantage to the Crown in defending
    the issuance of a warrant on less than all the information that supports it. It
    may be that the Crown believes that any summary of the redacted information
    whatsoever will risk betraying the confidential informant's identity. Judges
    too may be
reluctant to prepare judicial summaries of the excised
    material lest they unwittingly betray the identity of the informant.

[57]

Perhaps
    because of such concerns, the Supreme Court of Canada crafted the last element
    of the step six procedure. Where the Crown is dissatisfied with the judicial
    summary the judge proposes to provide to the accused, it can decline to rely on
    the excised information to support the search warrant.

[58]

The
    Crown in this case did not request the trial judge to consider the excised
    information. And this court has found there was insufficient information in the
    ITO to support the issuance of the warrant to search the respondent's home,
    without considering all the information upon which the warrant was issued in
    the first place.

[59]

I
    have added these concurring reasons to highlight the dilemma raised in such
    cases and to encourage attention being paid to it in future cases. I appreciate
    there may be practical questions about the procedure to be followed in applying
    step 6 of
Garofoli
and about the content of the judicial summary.
    However, only resort to the procedure will lead to the development of
    jurisprudence to resolve those questions.

Released: DOC October 24, 2012               R. G.
    Juriansz J.A.

I
    agree D. OConnor A.C.J.O.


