



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Bennett, 2017 ONCA 780

DATE: 20171013

DOCKET: C58794

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Larkland Bennett

Appellant

Diana M. Lumba and Carlos F. Rippell, for the appellant

John Patton, for the respondent

Heard: March 23, 2017

On appeal from the conviction entered by Justice John R.
    Sproat of the Superior Court of Justice, sitting with a jury, on February 14,
    2014.

Huscroft J.A.:

OVERVIEW

[1]

The police executed a search of Larkland Bennetts apartment
    pursuant to a telewarrant issued on April 15, 2011, looking for drugs. No drugs
    were found, but a loaded firearm and ammunition were found in the pocket of a
    white fur coat in the closet. The handgun  its serial number defaced  had one
    bullet in the chamber and six in the clip.

[2]

Bennett brought a pre-trial application challenging the validity
    of the warrant, alleging a breach of s. 8 of the
Canadian Charter of Rights
    and Freedoms

and seeking to exclude the firearm under s. 24(2). He
    also alleged breaches of his s. 8 and s. 9
Charter
rights flowing out
    of a second search, this search incident to his arrest, and sought to have evidence
    found during that second search excluded.

[3]

The trial judge found that the information to obtain the warrant (the
    ITO) was, on its face, insufficient to support the warrant and that s. 8 had
    been breached. However, he refused to exclude the evidence under s. 24(2). The
    trial judge also found that the search incident to arrest violated Bennetts s.
    8 and s. 9
Charter
rights. Evidence obtained pursuant to that search 
    including keys to his apartment, cell phone, and a CD case  was excluded from
    his trial.

[4]

Bennett testified at trial and denied knowledge of the firearm
    and ammunition. He maintained a recording studio in his apartment and other rap
    artists visited on a regular basis. There was evidence that Bennetts
    ex-girlfriend and sister had keys to the apartment, and that his sister
    sometimes used the apartment with her ex-boyfriend. There was also evidence that
    the white fur coat in which the firearm was found had been worn by the appellant
    as a prop and for promotional appearances.

[5]

Bennett was found guilty by a jury of possession of a loaded,
    restricted firearm and sentenced to 30 months imprisonment. He appeals from
    conviction, contending that the trial judge erred by (i) denying the bulk of
    his request for disclosure of information related to the issuance of the
    warrant; (ii) denying leave to cross-examine the affiant on the ITO; and (iii) refusing
    to exclude the firearm pursuant to s. 24(2) despite the breach of s. 8 of the
Charter
.

[6]

I would dismiss the appeal for the reasons that follow.

THE SECTION 8 APPLICATION

(1)

Background: the ITO

[7]

The search warrant was obtained on the basis of an ITO sworn by
    Constable Ian Hazell of the Peel Regional Police Major Drugs and Vice Bureau.
    The ITO alleged that the appellant was dealing crack cocaine from his residence
    at 265 North Service Road #504 in Mississauga. The affiants belief was based
    on information provided by a confidential informant (CI). Constable Hazell
    was the CIs handler as well as the affiant.

[8]

Paragraph 8 of the ITO set out the CIs past performance. It described
    the CI as a proven and reliable informant who had never provided false or faulty
    information, and stated that the CI had provided information to the affiant on
    several occasions resulting in numerous search warrants being executed and the
    seizure of [redacted] quantities of crack cocaine. The ITO stated that the CI knew
    that he or she would receive no consideration if the information provided was
    not proven to be true.

[9]

The appellant received a redacted version of the ITO prior to
    trial. Extensive redactions were made in order protect the identity of the CI.

(2)     The
Garofoli
step six application

[10]

The Crown conceded that the redacted version of the ITO did not
    disclose sufficient information to make out the reasonable and probable grounds
    required to justify the issuance of the warrant and invoked the step six
    procedure from

R. v. Garofoli
, [1990] 2 S.C.R. 1421. The step
    six procedure allows the trial judge to support the issuance of the warrant
    based on the unredacted ITO, despite the accuseds inability to access it, so
    long as a summary of the redacted portions of the ITO is provided and the
    accused is sufficiently aware of the nature of the redacted material to
    challenge it in argument or by evidence:
R. v. Crevier
,
2015
    ONCA 619, 339 O.A.C. 120, at paras. 2, 23-25.

[11]

The judicial summary worked out by the Crown and the trial judge provided
    extensive information, including that the CI had purchased crack cocaine from
    the accused, had been to his building, and had called his cell phone. The CI
    knew the details of the car the appellant drove as well as his license plate,
    which police investigation confirmed. The affiants investigation also
    confirmed, among other things, the appellants previous record for drug
    offences; that he lived at 265 North Service Road #504 in Mississauga; and that
    he had been identified by both the CI and the property manager of the
    appellants apartment by a mug shot.

[12]

The appellant was provided with a copy of the redacted ITO and
    judicial summary. No objection was taken to the sufficiency of the summary. The
    trial judge ruled that the summary was sufficient for the purpose of informing
    the defence of the nature of the redacted material and to allow a challenge to
    the ITO in argument or by evidence.

(3)     The disclosure application

[13]

Beyond the information provided, the appellant sought disclosure
    of the CI handlers notes concerning his meetings with the CI as well as the CI
    file  that is, the police file detailing the performance of the CI in prior
    cases. He argued that disclosure of this information was required in order to
    assess the truthfulness of the affiants assertions about the CIs past
    performance and to ensure that the CI was not a phantom. Defence counsel
    conceded that the vast majority of the file would likely be redacted to protect
    informer privilege, but insisted that it would at least be valuable for the
    court to look at the file and verify its existence.


i.

The initial disclosure order

[14]

The Crown argued that the defence was trying to make a sub-facial
    attack on the ITO without any basis for doing so, characterizing the disclosure
    request as a fishing expedition. Defence counsel was seeking an order that
    the Crown could not fulfill, given the imperative of protecting CI anonymity,
    in the hope that the Crown would choose not to proceed rather than risk
    disclosure. The Crown argued that disclosure of the CI notes and CI files ran
    counter to the purpose of
Garofoli
.

[15]

Defence counsel offered to abandon the disclosure application if
    the Crown undertook that the court could not consider any portions of the
    affidavit dealing with the CIs past performance and reliability. In
    particular, he stated:

If [the Crown] undertook or said that the court cannot consider
    any portions of the affidavit, the, the  that talk about the track record, I
    would abandon my application, because then it wouldnt be relevant.

[16]

Defence counsel acknowledged that he did not have anything
    particular to suggest that the CI handler was incredible or unreliable, but
    said that quality control was needed to ensure that this was not a case of a
    bad apple. He repeated that he was prepared to make arguments on the validity
    of the warrant immediately without disclosure if the Crown was willing to
    abandon reliance on the CIs past performance:

[I]f [the Crown] was prepared to say that she does not want to
    rely in any way shape or form on the [CIs] past performance, Im prepared to make
    arguments on the warrant immediately. But if my friend wants to rely on the
    past performance, then in my submission there has to be some disclosure.

[17]

The trial judge ordered the requested disclosure. This was a
    bottom line ruling, without reasons given at the time. The trial judge stated
    simply that the defence was entitled to disclosure of the CI handlers notes
    and CI file, redacted as necessary to protect informer privilege, in
    accordance with
Stinchcombe
principles.


ii.

The modified disclosure order

[18]

The trial judges disclosure order prompted the Crown to reconsider
    its position. The following day, Crown counsel advised the trial judge that the
    Crown would not be relying on the portion of the ITO that concerned the
    reliability of the CI, and invited the court to excise the relevant passage.
    She stated:

[A]fter careful review and consultation with Senior Crowns, at
    this time, it's the Crown's position that I will do what my friend suggested
    yesterday. Basically, the Crown is not going to be relying on the reliability
    portion of the unedited ITO. So, essentially, then excising paragraph eight and
    the Crown would be making submissions that the tip is compelling and
    corroborated enough that the warrant would still stand. And I understand that
    based on my friends submissions yesterday that certainly if the Crown was
    abandoning that portion then there would no longer be a basis in relevance for
    the disclosure that has been ordered.

[19]

Despite the Crowns concession, defence counsel maintained that
    the contents of the ITO were fabricated or exaggerated  that the CI was a
    phantom and/or the past performance of the CI did not exist  and that this was
    relevant to the application of s. 24(2) of the
Charter
. Defence counsel
    submitted that the Crowns concession was relevant to the request for
    disclosure of the complete CI file but not to the request for the file concerning
    this specific investigation:

[E]ven if its an anonymous tipster in my submission, I should
    still receive the notes from this particular investigation because you would
    get that even if it was a Crime Stoppers tip, you would get that edited even
    for an unknown person for the specific tip. So, in my submission, my friends
    concession goes to the full informant file, but not the one in relation to this
    specific investigation because that would be disclosed even with my friends
    concession. So as long as it's crystal clear that's my position with respect to
    a
Charter
breach. As I said, it would lose its relevancy but for the bad faith aspect.

[20]

The trial judge invited him to narrow his disclosure request.

[Y]esterday, I think, you indicated, you know, a lot of what
    you were requesting would not be an issue but for the Crown wanting to rely  
    but for the Crown arguments on reliability. So, presumably, your request has
    narrowed so what specifically are you now asking for?

[21]

Defence counsel returned to the argument that he had made
    earlier: the CI did not exist and disclosure was required to allow him to support
    his argument.

[22]

The trial judge found that the Crowns concession rendered much
    of the requested disclosure irrelevant. However, he concluded that defence
    counsel was entitled to production of three pages of the CI handlers notes,
    fully redacted except for a date in April 2011  the timeframe in which the
    Crown said the CI provided the information  and reference to the appellants
    address, in order to address the defence concern that the CI was a phantom.

(4)     The application to cross-examine the affiant

[23]

Defence counsel also sought leave to cross-examine the affiant
    concerning several matters, including:

·

his use of the telewarrant procedure rather than attending at the
    courthouse to obtain the warrant;

·

his omission of information concerning whether the CI had a criminal
    record;

·

his omissions concerning the appellants criminal record;

·

his omission concerning the association of the appellants car
    with another address; and

·

his failure to conduct surveillance to corroborate the CIs tip.

[24]

The trial judge dismissed the application to cross-examine the
    affiant, reasoning that none of the areas in which cross-examination was
    proposed had a reasonable likelihood of undermining the validity of the
    warrant.

(5)     The trial judges ruling on the ITO

[25]

The trial judge considered whether, on the basis of the
    unredacted ITO, the warrant could have been granted. This involved an
    assessment of whether: (i) the information in the ITO was compelling, (ii) the
    CI was credible and reliable, and (iii) the information in the ITO was corroborated:
R. v. DeBot
,
[1989] 2 S.C.R. 1140, at p. 1168.

[26]

The trial judge found that, although the CIs tip was quite
    compelling, as a result of the Crowns concession that paragraph 8 of the ITO should
    be excised the ITO contained no information that the CI was credible or
    reliable. The Crown therefore failed to satisfy the second criterion from
DeBot
.
    Moreover, the corroboration of the ITO was limited to commonplace details that
    almost anyone could be aware of, such as the appellants residence, type of car,
    and license plate.

The trial judge concluded that the ITO was facially invalid
     insufficient, on its face, to support issuance of the warrant:
Crevier
,
    at para. 73. Consequently, the search was warrantless and the appellants right
    against unreasonable search and seizure under s. 8 of the
Charter
was violated.

Exclusion of evidence under s. 24(2)

[27]

The trial judge refused to exclude the evidence under s. 24(2) of
    the
Charter
, relying on this courts decision in
R. v. Blake
,
    2010 ONCA 1, 257 O.A.C. 346. He found that although the breach of s. 8 was
    serious because it involved the search of the appellants home, the police
    acted in good faith and the evidence obtained in breach of the right was
    reliable and crucial to the case.

DISCUSSION

(1)     Did the trial judge err in denying the disclosure request?

[28]

The appellant argues that the trial judge denied him meaningful
    disclosure by rescinding the original disclosure ruling requiring disclosure of
    both the CI handlers notes and CI file. The appellant asserts that the Crowns
    decision to excise the reliability portion of the ITO did not render the
    disclosure sought irrelevant; it remained relevant to the appellants
    sub-facial attack on the warrant and to the bad faith inquiry under s. 24(2).
    The disclosure ultimately provided  three pages of the CI handlers notes,
    fully redacted except for a date in April 2011 and a reference to the
    appellants address  was meaningless in the circumstances and undermined both the
    appellants motion for leave to cross-examine the affiant and his application
    to exclude the evidence under s. 24(2).

[29]

I would not give effect to this submission. As I will explain,
    although the trial judge erred in making his initial disclosure order, his
    error changed the nature of the challenge to the ITO in a manner that
    ultimately enured to the benefit of the appellant.

[30]

The principles governing disclosure are well established and
    there is no need to review them here: see
R. v. Stinchcombe
, [1991] 3
    S.C.R. 326, at pp. 332-336, 338-346,
R. v. McNeil
, 2009 SCC 3, [2009]
    1 S.C.R. 66, at paras. 17-25.

[31]

The
Stinchcombe
disclosure duty is broad, but it is not
    absolute. The Crown is not required to disclose information that is clearly
    irrelevant, such that it is not of any use to the defence:
R. v. Davey
,
2012 SCC 75, [2012] 3 S.C.R. 828, at para. 45. Nor is the Crown required to
    disclose information that is protected by informer privilege; indeed, it is
    prohibited from doing so: see
Stinchcombe
, at pp. 336, 339.

[32]

The starting point in determining relevance for purposes of a
Garofoli
review is that
Garofoli
is a pre-trial threshold evidentiary hearing
,
not a trial on the merits:
R. v. Reid
,
2016 ONCA 524, 132
    O.R. (3d) 26, at para. 94. It is concerned with the conduct of the police
    investigation rather than the guilt or innocence of the accused, and the right
    to full answer and defence that informs the
Stinchcombe
disclosure
    duty is limited accordingly.

[33]

The ultimate question for a reviewing judge on a
Garofoli
application is whether, based on the ITO and any other evidence adduced on the
    review, the authorizing justice
could
have issued the warrant:
Reid
at
    para. 73, citing
Garofoli
, at p. 1452; and
R. v. Araujo
, 2000
    SCC 65, [2000] 2 S.C.R. 992, at para. 51. What matters on a subfacial challenge
    is what the affiant knew, or ought to have known, in applying for the warrant 
    the affiants reasonable belief when the affidavit was sworn:
Crevier
at paras 55, 64;
World Bank Group v. Wallace
,
2016 SCC 15,
    [2016] 1 S.C.R. 207, at paras. 119-121. Relevance is determined for this
    limited purpose.

[34]

Applying these principles, in my view the CI handlers notes were
    relevant to the adequacy of the grounds for the affiants belief that the CI
    was reliable. That is, they could reasonably be expected to assist the
    appellant in making his case against issuance of the warrant on the basis that
    the CI was not reliable. The affiant and the CI handler were one and the same,
    and it would be artificial to conclude that the information in the notes he
    made as handler did not inform the ITO that he drafted as affiant. The trial
    judge did not err in requiring the CI handlers notes to be disclosed, subject
    to the requirement to protect informer privilege.

[35]

The situation concerning the CI file is different.

[36]

The affiants belief in the CIs credibility came from his
    personal experience with the CI on prior cases. He stated as follows in paragraph
    8 of the ITO:

Confidential Informant #1 has never provided false or faulty
    information. Confidential Informant #1 has provided information to me in the
    past on several occasions resulting in numerous search warrants being executed
    and the seizures of [redacted] quantities of crack cocaine.

[37]

This made the CIs track record and prior relationship with the
    affiant relevant to the reliability of the CI in this case. Thus, the CI
    handlers notes and documents relating to communication between the affiant and
    the CI about other cases they had worked on should also have been disclosed,
    again, subject to the requirement to protect informer privilege.

[38]

But that was the extent of the disclosure from the CI file that
    was required. The burden was on the accused to establish that the CI file was
    relevant to something at issue in order to obtain additional disclosure from
    the CI file  third party information held by the police. As the Supreme Court
    explained in
World Bank
, at para. 124, requests for the production of
    third party documents are to be treated in the same manner as requests for
    cross-examination:

[W]here an accused
    asserts that third party documents are relevant to a
Garofoli
application, he or she must show a reasonable likelihood that the records
    sought will be of probative value to the issues on the application. The fact
    that the documents may show errors or omissions in the affidavit will not be
    sufficient to undermine the authorization. They must also support an inference
    that the affiant knew or ought to have known of the errors or omissions. If the
    documents sought for production are incapable of supporting such an inference,
    they will be irrelevant on a
Garofoli
application (
Pires
, at
    para. 41).

This approach reflects the nature and limited purpose
    of a
Garofoli
hearing. It also reflects the courts concern with
    ensuring that sweeping disclosure requests do not result in inordinate
    pre-trial delay:
World Bank
,

at para. 130.

[39]

Defence counsels argument that the entire CI file should be
    disclosed was speculative  it was simply a bald challenge to the existence of
    the CI and his or her track record. It was, in short, the very sort of fishing
    expedition that must be discouraged. The CI handlers notes and documents
    relating to communication between the affiant and the CI about other cases they
    had worked on should have been disclosed, subject to informer privilege, but
    there was no basis for ordering disclosure of the entire CI file.

[40]

In summary, the trial judge properly ordered disclosure of the CI
    handlers notes, but erred in ordering production of the entire CI file. What
    follows from this?

[41]

The Crowns decision to concede that paragraph 8 should be
    excised from the ITO appears to have been based on the entirety of the trial
    judges initial disclosure order, rather than simply the requirement that the
    CI file be disclosed. That being so, it is appropriate to treat the Crowns
    concession as unaffected by the trial judges error in requiring disclosure of
    the entire CI file. The Crown did not want any of the material subject to the
    trial judges order to be disclosed and would have conceded that paragraph 8
    should be excised from the ITO in any event.

[42]

Once paragraph 8 was excised from the ITO, the appellants
    concerns about the reliability of the CI were rendered moot. Disclosure was no
    longer relevant to anything at issue. Not only was the appellants disclosure
    request moot, but the excision of paragraph 8 from the ITO led the trial judge
    to conclude that s. 8 was violated. This was all that the appellant could have
    hoped to achieve in challenging the issuance of the warrant.

[43]

For these reasons, I would not give effect to this ground of
    appeal.

(2)

Did the trial judge err in
    refusing leave to cross-examine the affiant?

[44]

The appellant submits that cross-examination should have been
    permitted in the following areas:

(i)

the affiants use of the telewarrant procedure;

(ii)

the affiants omission of whether the CI had a
    criminal record;

(iii)

the affiants omissions concerning the
    appellants criminal record;

(iv)

the affiants omission of the different address
    on the appellants vehicle registration; and

(v)

the affiants failure to conduct surveillance to
    corroborate the CIs tip.

[45]

The appellant submits that there was a
    reasonable likelihood that cross-examination would have assisted in determining
    both the facial and sub-facial validity of the search warrant, as well as the admissibility
    of the evidence under s. 24(2).

[46]

I would reject this ground of appeal.

[47]

The narrow issue on a
Garofoli
application is whether
    there was a basis on which the authorizing judge could have issued the warrant.
    As the Supreme Court explained in
R. v. Pires; R. v. Lising
, 2005 SCC
    66, [2005] 3 S.C.R. 343, at para. 41:

[C]ross-examination that can do no more than show that some of
    the information relied upon by the affiant is false is not likely to be useful
    unless it can also support the inference that the affiant knew or ought to have
    known that it was false.

[48]

The Supreme Court emphasized the narrowness of the test for
    cross-examination in
World Bank
, at para. 132, in which the Court linked
    the test for cross-examination to third party disclosure applications.

[49]

It is well established that cross-examination is a matter for the
    exercise of the trial judges discretion, and the trial judges decision is
    entitled to deference:
R. v. Green
, 2015 ONCA 579, 337 O.A.C. 72, at
    para. 52. There is no right to cross-examine the affiant on an ITO, as the
    appellant asserts. As the Supreme Court explained in
R. v. Pires; R. v.
    Lising
at paras. 33-36, there are two countervailing interests that must be
    considered: the concern over the prolixity of proceedings and the need to
    protect informants. The need to protect the identity of the CI is a central
    concern in deciding whether to permit cross-examination, given the real risk of
    disclosure that attends cross-examination.

[50]

It was the appellants burden to satisfy the trial judge that
    cross-examination would assist in determining whether there was any basis on
    which the warrant could have been issued:
Green
,

at para. 34. He
    failed to do so, and there is no basis to interfere with the trial judges
    decision on appeal.

[51]

Even if the appellant had satisfied the narrow test for
    cross-examination, the trial judges conclusion that s. 8 was violated renders
    the appellants request for leave to cross-examine the affiant moot. All that the
    appellant could have hoped to achieve in cross-examining the affiant  the
    undermining of the ITO  was achieved.

[52]

The appellant argues that he should have been granted leave to
    cross-examine the affiant not only to challenge the warrant, but also in order
    to establish police misconduct, which was relevant to his argument that the evidence
    should have been excluded under s. 24(2).

[53]

However, as Doherty J.A. explained in
Green
, at para. 41, factors
    relevant to the s. 24(2) analysis cannot, on their own, justify cross-examining
    the affiant on a
Garofoli
application:

Expanding the ambit of cross-examination of the affiant to
    encompass issues relevant to s. 24(2) when there is no basis to permit
    cross-examination on the validity of the warrant itself, is in reality an
    attempt to justify cross-examination for one purpose  to establish grounds to
    exclude under s. 24(2)  in the hope that the cross-examination will uncover a
    basis upon which to attack the validity of the warrant, demonstrate a breach of
    s. 8, and thereby make s. 24(2) relevant. This approach seems to put the
    proverbial cart before the horse.

[54]

The trial judge considered the appellants concerns about the ITO
    to be relatively trivial or peripheral and found that the police acted in
    good faith. He found there was no evidence of police impropriety  no basis on
    which to impugn the conduct of the affiant in seeking the warrant, and as a
    result no basis to permit cross-examination. In these circumstances, there is
    nothing more than speculation that cross-examination would have mattered on a
    s. 24(2) argument. The trial judge did not err in refusing the appellant leave
    to cross-examine the affiant.

(3)

Did the trial judge err by failing to exclude the firearm under s. 24(2)
    of the
Charter
?

[55]

The appellant submits that the trial judge erred in admitting the
    evidence under s. 24(2) in three different ways. First, the trial judge
    misapprehended the appellants position, wrongly finding that he did not seek
    disclosure for purposes of establishing that the police acted in bad faith by
    fabricating and/or exaggerating the contents of the affidavit. Second, the
    trial judge erred in finding that the search was not intrusive and extensive.
    Third, the trial judge erred in considering the search incident to arrest
    separately from the search of the appellants residence, where he had a much
    higher expectation of privacy.

[56]

This submission must be rejected.

[57]

The exclusion of evidence is governed by s. 24(2) of the
Charter
,
    which directs that evidence obtained in a manner that infringes a right
    guaranteed by the

Charter
,
    shall be excluded if it is established that, having regard to all the
    circumstances, the admission of it in the proceedings would bring the administration
    of justice into disrepute.

[58]

The law governing the exclusion of evidence was set out by the
    Supreme Court in
R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353, at para.
    71. The court is required to consider:


(1)

the
    seriousness of the
Charter
-infringing state conduct;


(2)

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


(3)

societys
    interest in the adjudication of the case on its merits.

[59]

The
Grant
test was recently elaborated on by this court in
R. v. Ansari
, 2015 ONCA 575, 337 O.A.C. 207, at paras. 66-72 and
R.
    v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 60-64. The key
    point for present purposes is that the decision of the trial judge is entitled
    to deference on appeal. There is no basis for this court to intervene unless
    the trial judge made an error in principle, a palpable and overriding factual
    error, or an unreasonable determination.

[60]

The trial judge reviewed the requirements in
Grant
, as applied
    by this courts decision in
Blake
. In brief reasons, he found on the
    first branch of the test that there was no evidence of police impropriety and
    that the police acted in good faith in applying for the warrant. On the second
    branch, the trial judge found that the breach of the appellants rights was
    very serious, given that his home was searched. On the third branch, the trial
    judge found, as in
Blake
, that the exclusion of reliable evidence in
    these circumstances would have a negative impact on the administration of
    justice.

[61]

The trial judge does appear to have misstated the appellants
    position on the first branch of the test. He appears to have assumed that the
    defence did not attempt to establish police misconduct because it would have
    caused the Crown to change its position and argue its defence of reliability in
    the ITO, rather than abandoning it. But this error is of no consequence. The
    trial judge found no evidence of police impropriety, and found, specifically,
    that the police acted in good faith in obtaining the warrant. Accordingly, the
    first branch of the test pointed towards admission of the evidence.

[62]

On the second branch of the
Grant
test, there was no
    evidence as to the nature of the search conducted by the police  no evidence
    that it was in any way abusive. In any event, there can be no complaint that the
    trial judge did not take the s. 8 breach seriously. The trial judge properly characterized
    the breach of the s. 8 right as very serious, because it involved a search of
    the appellants residence. This branch of the test pointed towards exclusion.

[63]

On the third branch of
Grant
test, the trial judge considered
    that societys interests in an adjudication on the merits was undercut when
    relevant and important evidence is excluded, although he recognized that the
    seriousness of the charge cuts both ways. The third branch of the test pointed
    towards admission of the evidence.

[64]

The trial judges discretionary decision not to exclude the
    evidence is entitled to deference. I see no basis for this court to interfere
    with it. The police were found to have acted in good faith in obtaining the
    warrant. There was no evidence of impropriety. The evidence  a handgun in a
    coat worn by the appellant, found in the closet of his apartment  was both
    reliable and crucial, and I agree that its exclusion would have brought the
    administration of justice into disrepute.

CONCLUSION

[65]

I would dismiss the appeal.

Released: October 13, 2017 (D.D.)

Grant Huscroft J.A.

I agree. Doherty J.A.

I agree. B.W. Miller J.A.


