



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Booth, 2019 ONCA 970

DATE: 20191211

DOCKET: C65499

Hourigan, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Booth

Appellant

Brian Snell, for the appellant

Jerry Brienza, for the respondent

Heard: September 18, 2019

On appeal from the conviction entered on November 13,
    2015 and the sentence imposed on November 13, 2015 by Justice Dale Parayeski of
    the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1]

On March 7, 2012, two masked men robbed the Pura Vida Salon at gunpoint.
    During the robbery, one of the robbers shot co-owner Muamar Alqebali in the
    abdomen. The bullet lodged in his hip. His wife, co-owner Mona Zallum, was struck
    in the face by the other robber. A female employee, Sandy Moniz-Camara, was
    forced to the floor and bound with zip-ties. Money and goods were taken.

[2]

Based on a partial licence plate obtained by Ms. Zallum when the robbers
    fled, Adam Booth was identified as a suspect. Two search warrants were obtained,
    the first to search his home (the residential search) and the second to
    search home security videos that were seized during the first search (the
    digital video recorder search).

[3]

These searches were conducted, and Mr. Booth and Adrian Rouleau were ultimately
    charged.

[4]

The charges against the two men were severed during the jury trial. Mr. Booths
    trial continued but Mr. Rouleaus trial was adjourned. The only contested issue
    at Mr. Booths trial was his identity as the taller of the two robbers, the man
    who had possessed and fired the firearm.

[5]

On May 28, 2015, Mr. Booth was convicted by the jury of nine offences
    arising from the robbery, including: use of a restricted and prohibited weapon
    in committing robbery, robbery simpliciter, use of an imitation firearm while
    committing robbery, possession of a loaded restricted or prohibited firearm
    without authorization, possession of a loaded restricted or prohibited firearm
    without a license, wounding with a firearm, aggravated assault, unlawful
    confinement, and assault. On November 13, 2015, he was sentenced to a global
    sentence of 12 years in prison, minus time served.

[6]

Mr. Booth now appeals his conviction and sentence. In his conviction
    appeal, he contends that his conviction was unreasonable. He also argues that:
    the trial judge erred in finding that there were reasonable and probable
    grounds to issue the residential search warrant and the digital video recorder
    search warrant; the trial judge failed to exclude the evidence obtained; the
    trial judge erred in admitting Y-STR DNA evidence that the Crown relied upon to
    support the identity of Mr. Rouleau, who was no longer being tried with Mr.
    Booth; and the trial judge did not fairly answer a jury question.

[7]

It is unnecessary to address most of these grounds of appeal because the
    appeal judge erred in upholding the validity of the residence search and the
    digital video recorder search. Both searches were conducted without reasonable
    and probable grounds, contrary to s. 8 of the
Charter
, and the
    evidence obtained  crucial digital video recording evidence  should have been
    excluded. Without that evidence, the convictions against Mr. Booth cannot
    stand.

[8]

I would therefore allow the appeal, set aside his convictions, and substitute
    a verdict of acquittal.

MATERIAL FACTS

A.

THE ROBBERY

[9]

On March 7, 2012, two men entered the Pura Vida Salon at closing time,
    around 9:00 p.m., carrying what were obviously imitation handguns. There were
    three people inside at the time, co-owners Mr. Alqebali and Ms. Zallum, and their
    employee, Ms. Moniz-Camara. Much of what transpired was captured by security
    cameras.

[10]

Both men wore dark hoodies, gloves, and had their faces covered with
    bandanas. The shorter robber was wearing a white t-shirt over his hoodie. At no
    time during the material events were their faces exposed.

[11]

As a result, the occupants of the Pura Vida Salon could provide few
    details about the robbers. All the witnesses could confirm was that the men
    were white and estimated to be in their 20s or 30s, and that the taller robber
    had brown eyes and medium brown hair. Varying descriptions of the height of the
    men were offered, which will be recounted below.

[12]

The security videotape offered further descriptive information. It
    furnished detail about the clothing the men wore and showed the shorter robber carrying
    a dark duffle bag.

[13]

The robbers ordered Mr. Alqebali, Ms. Zallum, and Ms. Moniz-Camara to
    the ground. Ms. Moniz-Camara complied and was bound with zip ties. Mr. Alqebali
    refused to comply. The taller robber pulled a real gun from his waist band and
    shot Mr. Alqebali in the abdomen. Ms. Zallum struggled with the shorter robber
    and was struck in the face. During the struggle, she tore away a small piece of
    a plastic glove that the shorter robber was wearing.

[14]

The robbers took cash from Mr. Alqebali as he lay on the floor, injured.
    They also took a diamond bracelet, two expensive watches, the cash register,
    and two gym bags belonging to Ms. Moniz-Camara.

[15]

Ms. Zallum managed to call 9-1-1 and left the phone off the hook. Much
    of what was being said inside the salon was recorded. The men were clearly
    expecting to find other money in addition to the money found on the male
    co-owner and in the cash register. No other money was found, and the robbers
    fled.

B.

THE GETAWAY VEHICLE AND MR. BOOTH

[16]

Ms. Zallum followed the men outside. She told the 9-1-1 operator that
    they were in a silver or light blue car. She was not certain of the exact colour
    but said it was that kind. She made observations of the licence plate that
    she attempted to communicate to the 9-1-1 operator. Her words were recorded but
    one of the letters she pronounced when attempting to report the licence number
    was unclear. The operator believed Ms. Zallum said, I think the plate was B-
M
-P-2, B-
M
-P-T-0-2
    something like that  I didnt get a clear look.

[17]

Ms. Zallum also described the getaway vehicles taillights, saying, the
    lights on the back of their vehicle, the red light  its all the way red
    across the, the back. She later drew a diagram of the lights in her written
    police statement.

[18]

A male witness, Milos Dmitrovic, was parked across the street from the
    Pura Vida Salon near a Shoppers Drug Mart. He told police that he saw two to
    three men in a shiny silver/grey Dodge, maybe a Charger 4-door parked in the
    parking lot across from the Pura Vida Salon. One of the men appeared to be
    wearing a red shirt. He said he saw the same car later at the business but he
    did not see them drive over. He saw them leaving, the vehicle drove southbound
    and then turned around and drove northbound at a high rate of speed as if it
    was running away from something.

[19]

After the robbery, Ms. Zallum gave a police statement, which was written
    out by a police officer. In that statement, she described the vehicle as a light
    blue or silver colour. It was clean, newer. She also described the taillights
    as being all across the trunk and then curved down the sides, and there were a
    bunch of little lights.

[20]

Ms. Zallums written police statement recorded, I tried to get a bit of
    the plate. I ran back to 9-1-1 and repeated it right away, BNPT02. I remember a
    B, N, maybe a P and a T. It ended like 002 I think. The N in the partial
    license plate number B
N
PT02 had been written over twice, and
    Ms. Zallum had placed her initials above the change. During cross-examination,
    Ms. Zallum agreed that it was possible that the officer had originally written
    down M and she corrected it to N.

[21]

That evening, the police searched the series of license plates between
    BMPT 020 to BMPT 029 for possible matches for the getaway vehicle. No search
    was done for BNPT series numbers, nor 200 series numbers. The limited search
    conducted by the police uncovered the vehicle plated BMPT 020, a charcoal grey
    Dodge Charger that had been rented by Mr. Leslie Booth, Mr. Booths father. The
    rental agreement described the vehicle as black. The agreement also indicated
    that Mr. Booth was an authorized driver. This led the police to suspect Mr.
    Booth, who had a criminal record. He was known to live at 172 Park Row North,
    the address shown on the rental agreement. His home was placed under police surveillance
    by the early morning hours of March 8, 2012.

C.

THE SURVEILLANCE

[22]

At approximately 2:30 a.m., Robin Cove, a tall man known to the police,
    was recognized by a surveillance officer leaving Mr. Booths residence with a
    shorter white male, approximately 56 to 58. The shorter man was wearing a
    black baseball cap and a black jacket. Mr. Cove was carrying a black garbage
    bag, and the shorter man was carrying a black duffle bag. The two men entered
    Mr. Coves nearby residence and were seen to exit again without the bags.
    Shortly after, they met with Mr. Booth and a female.

[23]

At approximately 3:25 a.m., three people  Mr. Booth, the shorter man just
    described, and a female  were seen to exit a taxicab and enter Mr. Booths
    residence. Fifteen minutes later, the trio re-entered the same taxicab and went
    to a McDonalds drive-through and obtained food before returning to Mr. Booths
    residence, where Mr. Booth and the female exited.

[24]

The taxicab left with the shorter man. The shorter man ultimately exited
    the taxicab, walking to a residence on Normanhurst Avenue in the City of Hamilton.
    Police later conducted a computer search of the addresses on Normanhurst Avenue
    for persons of interest. Mr. Adrian Rouleau, who has a criminal record, was
    identified as living on Normanhurst Avenue.

[25]

Later that day, the police obtained photographs from the security camera
    in the taxicab that had transported Mr. Booth and the others to the McDonalds
    restaurant. The photographs depicted a man, believed to be Mr. Rouleau, wearing
    a watch. Det. Cst. Philip Hedgcock showed Mr. Alqebali the photo and asked him,
    Do you recognize this watch? Mr. Alqebali responded, No not this one.

[26]

During that same interview, Mr. Alqebali told Det. Cst. Hedgcock that
    suspect number one was tall, a little bit shorter than you, 63.

D.

THE RESIDENCE SEARCH WARRANT

[27]

The police prepared a search warrant application to search Mr. Booths
    residence.

[28]

In the Information to Obtain affidavit (ITO) prepared in support of the
    application to search the residence, the affiant officer described the robbery
    in brief, including that the suspect with the gun had shot Mr. Alqebali,
    removed the cash from his pocket, and took both of his watches.

(1)

THE ITO AND THE GETAWAY VEHICLE

[29]

The affiant officer then described observations made by Ms. Zallum
    relating to the getaway vehicle, swearing that:

ZALLUM followed the suspects out
    of the store into the parking lot and observed the suspects getting into a newer
    looking vehicle she described as silver or light blue in colour. ZALLUM
    observed the licence plate and tried to memorize it. ZALLUM provided the
    partial licence number BMPT02 to Hamilton Police dispatch. ZALLUM also described
    the tail lights of the vehicle as running across the entire back of the trunk
    and down at the end of each side like in an arc. She described the lights as a series
    of small lights. ZALLUM observed the vehicle drive south on Kilbourne. While
    speaking with Hamilton Police Dispatch, ZALLUM observed the same suspect vehicle
    driving north on Kilbourne, and then east on Highway #8, then north on Worsley.

[30]

Later, when describing the 9-1-1 call recorded during the robbery, the
    affiant officer said:

When the victim Mona ZALLUM
    returns to the phone after following the suspects out of the salon she provides
    the partial licence plate of BMPT02 to Hamilton Police Dispatch. Mona ZALLUM
    also provided a description of the suspects and the vehicle that she saw them
    leaving in.

[31]

The affiant officer also
    provided information relating to Mr. Dmitrovics observations of a vehicle driving
    away at a high rate of speed. The affiant officer swore:

[The witness] stated that he saw a
    shiny silver, or grey 4 door, Dodge Charger in the parking lot with 2 or 3
    white males in it. He stated that he later saw the same vehicle over at the
    Pura Vida Salon and watched the vehicle initially drive southbound and then
    turn around and drive northbound past the McDonalds at a high rate of speed as
    if it was running away from something.

[32]

The affiant officer recounted how the police began running variations
    of the licence plate provided by ZALLUM and learned that a vehicle bearing
    licence plate BMPT 020, a 2012 Grey 4 door, Dodge Charger, had been rented by
    Leslie BOOTH of 172 Park Row Ave. N. from Enterprise Rent-a-Car.

[33]

The affiant officer also relayed how Mr. Leslie Booth returned the 2012
    Grey Dodge Charger to Enterprise Rent-a-Car the day after the robbery.

(2)

THE ITO AND THE ROBBERS DESCRIBED

[34]

The ITO contained grainy black and white images, shot from the ceiling,
    showing the two robbers in the Pura Vida Salon.

[35]

The affiant officer also recounted the descriptions of the robbers
    provided by the occupants of the Pura Vida Salon.

[36]

He recounted that Ms. Zallum described both robbers as white males, around
    20-25 years old. She described suspect number one as having medium brown hair,
    wearing a medium grey hoodie, and a bandana covering his face. She said
    suspect number two was wearing a dark coloured hoody and rubber gloves
    similar to dish washing gloves.

[37]

The affiant officer said that the Pura Vida Salon employee, Ms.
    Moniz-Camara, described suspect number one as a white male, the taller of the
    two suspects, tall and thin build, wearing a bandana over his face, and a black
    hoody. She described suspect number two as a white male, taller than me, Im
    54, slim build, wearing black hoody, camouflage bandana covering his face.

[38]

The affiant officer reported that when he interviewed Mr. Alqebali, Mr.
    Alqebali described suspect number one as tall, a little bit shorter than the
    affiant officer, who is 64. He said that the other male was short, about
    58.

[39]

In support of the warrant application, the affiant officer examined the
    video surveillance of the robbery. He recorded his own observations:

I observed Suspect #1 to be a tall
    male, medium build wearing a black hooded sweatshirt, blue jeans tucked into
    the back of his socks, white Nike running shoes, black gloves. I observed
    Suspect #2 to be a white male, obviously shorter than suspect #1, medium build,
    wearing a black hooded sweatshirt with a white t-shirt overtop, a balaclava,
    black pants, dark coloured shoes, and light coloured gloves.

(3)

THE ITO AND MR. BOOTH AND MR. ROULEAU

[40]

The affiant officer reported that on February 16, 2012, a Hamilton
    Detective Constable spoke with Mr. Booth with respect to an unrelated
    investigation and recalled that, at the time, Mr. Booth was wearing Nike high
    top shoes and that he had his jeans tucked into the back of his socks. This
    officer viewed the surveillance video of the robbery and said he recognized
    the shoes the suspect was wearing in the video as the same shoes that Adam BOOTH
    was wearing on February 16, 2012.

[41]

Two photos of Mr. Booth, one seated, and one taken from behind from the
    neck down, were included in the ITO. Those photos, taken on March 9, 2012, when
    Mr. Booth attended the police station, featured him wearing white running shoes
    with his pants tucked into the back of his socks. They show him to be a young
    white male but disclose nothing about his height.

[42]

The affiant officer provided information linking Mr. Booth to Mr.
    Rouleau. Specifically, he reported the movements of Mr. Cove, Mr. Booth, the
    female, and the shorter man believed to be Mr. Rouleau in the early morning
    hours of March 8, 2012, as described above. A photo presumably from the taxicab
    security camera, showing a side angle of the upper face of a young man wearing
    a ball cap, is included in the ITO. The affiant officer offered the opinion,
    based on a comparison of photos from the taxicab and Mr. Rouleaus mug shot,
    that the shorter male in the taxicab with Mr. Booth was likely Mr. Rouleau. He
    also reported that Mr. Rouleau had a criminal record.

(4)

THE ITO AND THE WATCHES

[43]

The affiant officer reported that in the security photos from the
    taxicab, Mr. Booth and the man believed to be Mr. Rouleau were wearing watches.
    They appeared to be admiring the one worn by the man alleged to be Mr. Rouleau.
    He emphasized, This was of particular interest due to the fact that two high
    end watches were taken from the victim Muamar ALQEBALI after he was shot. The
    affiant provided a photograph of one of the stolen watches or of the same model
    as one of the stolen watches.

[44]

Four pages later in the ITO, after reporting Mr. Alqebalis description
    of the robbers, the affiant officer said, While speaking with ALQEBALI I
    showed him a photo of the watch that ROULEAU was wearing (See Fig 5). ALQEBALI
    could not identify the watch as his.

(5)

THE ITO AND THE EVIDENCE SOUGHT IN THE RESIDENTIAL SEARCH

[45]

The affiant officer swore his belief that key pieces of evidence would
    be present inside the residence at 172 Park Row North, including: the handgun
    used in the robbery, clothing worn by Mr. Booth, the items taken, and the gym bags
    and contents belonging to the Pura Vida Salon employee. The search warrant was
    issued, but none of these items were discovered.

[46]

However, the officers executing the residential search warrant seized a digital
    video recorder containing a hard drive capable of storing images. It was part
    of an operable security system and was expected to capture images of the front
    of 172 Park Row North.

E.

THE DIGITAL VIDEO RECORDER SEARCH WARRANT

[47]

On March 15, 2012, a second search warrant, the digital video recorder warrant,
    was sought to search the footage it recorded. In the ITO prepared to obtain the
    digital video recorder warrant, the affiant officer related that the digital video
    recorder was seized during the March 14, 2012 execution of a search warrant at
    172 Park Row North. The ITO did not recount any of the grounds relied upon to
    obtain the first warrant, nor did it disclose that the March 14, 2012 search
    yielded no evidence. The affiant officer swore his belief that images on the
    video system would show robbery suspects Mr. Booth and Mr. Rouleau together on
    March 7, 2012, the day of the robbery, and that those images could depict the getaway
    vehicle, and accurate detail of the clothing worn by the men before and after
    the robbery. No basis for that belief is identified.

[48]

The search warrant for the digital video recorder was issued on March 15,
    2012 and executed. Images recorded from the days surrounding the robbery were
    recovered. Those videotaped images were ultimately relied upon at Mr. Booths
    trial. Certified video analyst, Michael Plaxton, testified for the Crown. An
    expert report and supplementary expert report he prepared were admitted into
    evidence. His testimony featured similarities between the robbers and two of
    the men linked to 172 Park Row North, who the Crown contended were Mr. Booth
    and Mr. Rouleau. Although Mr. Plaxton did not identify anything distinctive
    that would permit him to offer the opinion that these men were the robbers, he
    identified a network of similarities that, along with after-the-fact conduct
    evidence relating to Mr. Booth, ultimately formed the heart of the prosecution.

ISSUES RELATING TO THE WARRANTS

[49]

Mr. Booth raises two issues relating to the warrants:

A.   Did
    the trial judge err in finding that there were reasonable and probable grounds
    to issue the search warrants?

B.   If
    so, did the trial judge err in not excluding the digital video recorder tapes
    from evidence?

A.

DID THE
    TRIAL JUDGE ERR IN FINDING THAT THERE WERE REASONABLE AND PROBABLE GROUNDS TO
    ISSUE THE SEARCH WARRANTS?

(1)

Overview

[50]

The trial judge erred in finding that the residence and digital video
    recorder warrants were properly issued, and in rejecting Mr. Booths s. 8
Charter
challenges.

[51]

With respect to the residential search warrant, the trial judge did not
    recognize the extent to which the affiant officer had failed to make full and
    frank disclosure in the ITO as the law requires. Had he done so, and had he
    remedied the deficiencies properly, the only decision he could have come to is
    that the ITO could not enable an issuing justice to properly find that there
    were reasonable and probable grounds for issuing the warrant.

[52]

There was also material non-disclosure relating to the ITO for the
    digital video recorder that the trial judge improperly dismissed. However, this
    non-disclosure and this error by the trial judge do not matter because there is
    a more profound problem. On its face, the ITO for the digital video recorder
    warrant failed to disclose any grounds for the search of the digital video
    recorder. The trial judge erred by not addressing this.

[53]

Both warrants were therefore issued without reasonable and probable
    grounds. The trial judge should have found that the searches conducted pursuant
    to those warrants contravened s. 8 of the
Charter
.

(2)

The Relevant Law

[54]

Obviously, it is imperative that issuing judges or justices have an
    accurate understanding of the material, known facts available to the affiant
    officer. If the ITO contains erroneous, incomplete, or dishonest information
    relating to known information, an issuing judge or justice could be misled, and
    provide an authorization that should not have been provided. To ensure
    accuracy, anyone seeking an
ex parte
authorization, such as a search
    warrant, is required to make full and frank disclosure of material facts:
R.
    v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. This is because
    an
ex parte
warrant application is not adversarial. As a corollary of
    the privilege of being the only party permitted to present evidence in an
ex
    parte
application, a search warrant affiant bears the burden of presenting
    the facts accurately and fairly, from the perspectives of both sides.

[55]

Therefore, a search warrant ITO should never try to trick its readers,
    or offer misleadingly incomplete recitations of known facts, and the affiant officer
    must not pick and choose among the relevant facts in order to achieve a
    desired outcome:
Araujo
, at para. 47;
R. v. Morelli
, 2010 SCC
    8, [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite
    inferences that would not be drawn or a conclusion that would not be reached if
    the omitted facts were disclosed:
Morelli
, at para. 58.

[56]

What, then, is the frame of material information that should be included
    to make full and frank disclosure? To answer that question, consider what is
    required to issue a reasonable and probable grounds search warrant. For such
    a search warrant to issue, the grounds for the warrant must be adjudged not
    only to be probable, but reasonable to rely upon. The ITO affidavit has to
    disclose what Dickson J. described in
Hunter et al. v. Southam Inc.
as
    a credibly-based probability [that] replaces suspicion: [1984] 2 S.C.R 145,
    at p. 167; see also
R. v. Floyd
, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at
    para. 9. As a result, the frame of material information required to achieve
    full and frank disclosure includes all material information that: (a) could undercut
    the probability that the alleged offence has been committed; (b) could undercut
    the probability that there is evidence to be found at the place of the search; and
    (c) that challenges the reliability and credibility of the information the
    affiant officer relies upon to establish grounds for the warrant.

[57]

Where full and frank disclosure has not been made, a reviewing court
    will correct the warrant ITO to achieve full and frank disclosure, and then determine
    based on that corrected ITO whether the warrant could properly have issued if
    full and frank disclosure had been made. What is involved is an analysis [of
    the corrected ITO] to determine whether there remains sufficient reliable
    information upon which the search authority could be grounded:
R. v.
    Paryniuk
, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.

[58]

Sometimes erroneous information in an ITO will be corrected by simply removing
    it. Information that should not have been included in the warrant will always
    be excised in this way:
Morelli
, at para. 45.

[59]

Erroneous information that would have been appropriate for inclusion in
    the ITO if presented accurately will sometimes be corrected by amplification so
    that it can be considered during the sufficiency review. Amplification entails
    adding information that should have been disclosed in order to give an accurate
    picture or replacing mistakenly inaccurate information with accurate
    information. When material information that would hinder a finding of
    reasonable and probable grounds has been improperly omitted, the ITO must be
    amplified to include it. However, amplification relating to information that
    could advance the warrant application is permissible only if the error in not
    making full and frank disclosure is: (1) a minor, technical error; and (2) made
    in good faith:
Araujo
, at para. 59;
Morelli
, at para. 41.

[60]

Whether the omission satisfies the first of these two amplification
    prerequisites  the minor technical error requirement  depends on the significance
    and nature of the error.

[61]

Errors that have been corrected by amplification include: mistakenly
    attributing observations to the wrong observer (
Araujo
, at para. 61;
R.
    v. Lewis,
2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates
    and typographical errors (
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C.
    (3d) 305, at para. 75;
Lewis
, at para. 15); and erroneous but
    unimportant errors in the description of the source of information (
R. v.
    Plant
, [1993] 3 S.C.R. 281, at pp. 298-299;
R. v. Lall
, 2019 ONCA
    317, 432 C.R.R. (2d) 195, at para. 39;
R. v. Van Diep
, 2015 BCCA 264, 373
    B.C.A.C. 230, at para. 5.)

[62]

In contrast, amplification was not available for errors that are too
    significant to qualify as minor, technical errors, including: the failure to
    identify properly the target unit in a plaza (
R. v. Ting
, 2016 ONCA 57,
    333 C.C.C. (3d) 516, at para. 71); the failure to include information
    supporting the expertise of a police officer (
Morelli
, at para. 74); and
    the failure to provide evidence supporting the provenance and reliability of a
    document of disputed authenticity (
R. v. Voong
, 2013 BCCA 527, 304
    C.C.C. (3d) 546, at para. 52.)

[63]

Where the erroneous information cannot be corrected because the error is
    not a minor, technical one, it is obvious that it must be excised in its
    entirety. This is because the uncorrected, erroneous information simply cannot
    be permitted to remain in the ITO, thereby providing an inaccurate boost to the
    case for reasonable and probable grounds.

[64]

The same is true where an officer has not acted in good faith when failing
    to make full and frank disclosure  the second amplification prerequisite. Given
    that amplification is confined to good faith error correction, it follows
    that by acting in bad faith, an affiant officer squanders the opportunity to
    have intentionally misleading information considered in its corrected form by
    the reviewing judge. The misleading information cannot remain.

[65]

In some cases, bad faith on the part of an affiant officer can have an
    even more profound effect. Where an affiant officers failure to make full and
    frank disclosure is egregious enough to [subvert] the pre-authorization
    process through deliberate non-disclosure, bad faith, deliberate deception,
    fraudulent misrepresentation or the like, a court has the residual
    discretion to set aside the search warrant, even if there would have been
    reasonable and probable grounds, had there been full and frank presentation of
    the information:
Paryniuk
, at para. 69.

[66]

To emphasize, amplification is to be used to correct minor, technical
    errors caused by a good faith failure to make full and frank disclosure. It is
    not an opportunity during the search warrant review for the Crown to retroactively
    add information that it could have included in support of the warrant but
    failed to do so:
Morelli
, at para. 42. To permit this would turn the
    authorization process into a sham:
Araujo
, at para. 59.

(3)

The Residential Warrant ITO

(a)

Full and Frank Disclosure and the Residential Warrant ITO

[67]

Full and frank disclosure did not occur in this case. Mr. Booth raised
    six areas of concern in his
Charter
application, but I will describe
    only the problems relied upon by defence counsel that matter, beginning with
    the warrant to search Mr. Booths residence.

[68]

First, the information included in the warrant relating to the watch
    worn by the man believed to be Mr. Rouleau was presented in a way that could
    mislead the issuing justice.

[69]

The residential warrant ITO actively invited the inference that the photos
    from the taxicab were incriminating, as they depicted Mr. Booth and the man
    believed to be Mr. Rouleau admiring a watch after the robbery. The affiant
    officer swore, after reciting this event, This was of particular interest due
    to the fact that two high end watches were taken from the victim Muamar
    ALQEBALI after he was shot.

[70]

Yet this event was not of particular interest. It was immaterial because,
    by the time the ITO affidavit was sworn, Mr. Alqebali had made clear that the
    watch Mr. Booth was admiring in the taxicab could not fairly be linked to the
    robbery. When asked whether he recognized the watch, Mr. Alqebali said, No not
    this one.

[71]

The Crowns position before the reviewing judge during the s. 8
Charter
    voir dire
was that the ITO disclosed this omitted fact four pages later.
    This is not sufficient to comply with the obligation to make full and frank
    disclosure, for several reasons:


i.

First, the watch information, even if clarified, remained irrelevant and
    prejudicial. Absent evidence tying the watch to the robbery, it should not have
    been included and there could be no legitimate purpose for including a large
    photograph of the watch in the ITO.


ii.

Second, the information disclosed four pages later could itself mislead
    the issuing justice into thinking that the watch could be Mr. Alqebalis. It
    reported that ALQEBALI could not identify the watch as his. Yet, a fair
    reading of Mr. Alqebalis comment, No not this one, when asked if he
    recognized the watch, was that he was making it known that the watch did not
    belong to him.


iii.

Moreover, the manner of presenting the information that was disclosed
    was unfair. The comment highlighting the importance of the watches is isolated
    from the qualifying information, which appears four pages later tagged onto the
    end of a paragraph about Mr. Alqebalis descriptions of the robbers. The
Morelli
majority, at para. 56, raised a similar concern about ordering information
    in an ITO in a way that could mislead the issuing justice. In that case, the
    description of a webcam trained at a childs play area was juxtaposed
    immediately alongside descriptions of suspicious child pornography hyperlinks.
    This painted a more villainous picture than what would have emerged had the
    affiant officer disclosed all the material information. The fact that the
    affiant officer disclosed later in the ITO that the webcam was plugged into a
    VCR and not the computer did not remove the problem.

[72]

The trial judge, when reviewing the search warrant, agreed with Mr.
    Booth that full and frank disclosure had not been made relating to the watches.
    He therefore appropriately excised any references from his assessment.

[73]

Second, full and frank disclosure was not made in the residential
    warrant ITO with respect to the reliability of Ms. Zallums license plate evidence,
    which was used to link the getaway vehicle to the Booth rental vehicle.

[74]

Most significantly, the ITO did not disclose the difficulties Ms. Zallum
    had in securing and reporting an accurate licence plate number. When speaking
    to the 9-1-1 dispatcher, Ms. Zallum initially reported four digits, then six, qualifying
    the licence plate she offered by saying something like that. She then said,
    I didnt get a clear look. The 9-1-1 dispatcher believed that Ms. Zallum said
    B-M-P-2, then B-M-P-T-0-2.

[75]

Subsequently, Ms. Zallums provided a written statement with the partial
    plate number B
N
PT02, with the N drawn over twice and
    initialled by her, indicating that she had made a change to that letter. In the
    end, her signed statement said in material part, I tried to get a bit of the
    plate. I ran back to 911 and repeated it right away, BNPT02. I remember a B,
    N, maybe a P and a T. It ended like 002. I think.

[76]

Yet the ITO gave no hint that she was insecure about the licence number
    she identified, or that she believed she saw a plate that included an N
    rather than an M as the second letter. Instead it suggests that she made an
    accurate observation and dependably reported only one partial licence number,
    BMPT02:

ZALLUM observed the licence plate
    and tried to memorize it. ZALLUM provided the partial licence plate number
    BMPT02 to the Hamilton Police.

Later, the ITO says:

When the victim Mona ZALLUM
    returns to the phone after following the suspects out of the salon she provides
    the partial licence plate of BMPT02 to Hamilton Police Dispatch.

[77]

Third, there is the colour of the rental vehicle. Ms. Zallum said the
    getaway vehicle was silver or light blue, it was that kind in both her call
    to 9-1-1 and in her written statement. Yet, the rental vehicle that the ITO
    presents as the likely getaway vehicle was known by the police to be charcoal
    grey. The police also had access to the rental agreement, which describes the
    vehicle as black. Neither of these dark shades accorded with Ms. Zallums
    observation that the getaway vehicle was silver or light blue. Further, the
    ITO described the rental vehicle only as grey instead of 
charcoal
grey.

[78]

Fourth, the ITO did not disclose that Mr. Dmitrovic believed that one of
    the males observed with the suspicious Dodge vehicle was wearing a red shirt, which
    was a point of distinction from the clothing worn by the robbers.

[79]

Fifth, the ITO also asserted that Mr. Dmitrovic saw a Dodge Charger when
    Mr. Dmitrovic in fact said, I saw a shiny silver or gray Dodge,
maybe a Charger
 (emphasis added).

[80]

The trial judge found that full and frank disclosure had nonetheless been
    made relating to the observations of the getaway vehicle. He reasoned that it
    would have been plain to an issuing justice that the licence plate Ms. Zallum
    obtained was inaccurate or incomplete. He reasoned that this would have been
    apparent from the fact that the ITO discloses that no vehicle was found bearing
    the licence number BMPT 02. He also considered the red shirt omission to be
    unimportant, as was Mr. Dmitrovics qualified description of the model of the vehicle.

[81]

With respect, I disagree. The trial judge misapprehended the
    significance of the omissions from the ITO. The omitted evidence relating to
    Ms. Zallums observations showed much more than that the licence number
    reported was inaccurate because it was an incomplete or partial number. That
    omitted evidence raised real questions about the accuracy and reliability of
    the incomplete licence plate number as a whole.

[82]

The omitted evidence relating to the charcoal grey colour of the rental vehicle,
    and Mr. Dmitrovics uncertainty about the model of the vehicle were also material
    in assessing the probability that the getaway vehicle and the rental vehicle
    were one and the same. This information should have been disclosed.

(b)

Preparing the Residential Warrant ITO for Review: Excision and
    Amplification

[83]

There are therefore five areas where an issuing justice could be misled,
    as the result of the affiant officers failure to make full and frank
    disclosure. Specifically, those areas relate to: (1) the watches; (2) Ms.
    Zallums observations of the licence plate of the getaway vehicle; (3) the
    failure to report that the rental vehicle was charcoal grey; (4) Mr.
    Dmitrovics observation of the red shirt; and (5) Mr. Dmitrovics uncertainty
    about the model of the getaway vehicle.

[84]

Notwithstanding the extent of the failure to make full and frank
    disclosure in the residential warrant ITO, there is no need to consider the
    discretion to set aside the warrant because of a dishonest subversion of the
    warrant process. The trial judge found that the affiant officer acted in good
    faith, as opposed to bad faith.

[85]

Although it may well be appropriate for me to revisit the good faith
    finding given that the trial judge did not appreciate the extent of the affiant
    officers failure to make full and frank disclosure when he made this
    determination, I will not do so. The trial judge was aware of the omitted
    information. His mistake was in misjudging its materiality. Moreover, he had
    the considerable advantage of watching the affiant officer testify. I am
    therefore prepared to accept the trial judges finding and proceed for the
    purposes of evaluating the warrant review on the assumption that the affiant
    officers full and frank disclosure errors were made in good faith.

[86]

Since it would not be proper in the face of this good faith finding to
    remedy the ITO deficiencies by setting aside the warrant, the issue is how the
    five areas I have identified should be corrected before the sufficiency review
    is undertaken.

[87]

First, I would excise all information pertaining to the watches, as the
    trial judge did. That information should not have been included in the
    residential warrant ITO because it was irrelevant in the absence of a link
    between the watch worn by the man believed to be Mr. Rouleau and the robbery.

[88]

Second, I would excise all the information in the ITO relating to Ms.
    Zallums observations of the getaway vehicles licence plate. Amplification
    would not be proper because the failure to disclose the qualifying information
    relating to the license plate did not arise from minor, technical errors. The
    omission of this material went to the heart of the circumstantial case the
    affiant officer was relying upon, such that its omission cannot fairly be
    considered minor.

[89]

Had full and frank disclosure been made regarding the license plate
    number, the ITO would have reported that although Ms. Zallum did not get a
    clear look when she followed the robbers as they fled in the getaway vehicle,
    she tried to get a bit of the plate. It would have disclosed that she
    believed the partial plate that she observed was BNPT02, but she thought it
    may have ended in 002, and that she gave several variations of the possible
    licence plate numbering and sequencing following the robbery. Although it would
    have been appropriate for the affiant officer to record in the ITO the 9-1-1
    operators opinion that Ms. Zallum said the licence plate was B-M-P-2 or
    B-M-P-T-0-2 something like that, full and frank disclosure would have also
    required the affiant officer to mention that Ms. Zallum signed a written
    statement later that day, which recorded the first part of the licence number
    as B
N
PT.

[90]

Given what should have been included, offering an ITO that only discloses
    that Ms. Zallum observed the licence plate, tried to memorize it, and provided
    the partial licence number BMPT02 is not a minor, technical error.

[91]

Third, I would amplify the residential warrant ITO to correct the
    remaining errors, namely, (3) the failure to report that the rental vehicle was
    charcoal grey, (4) Mr. Dmitrovics observation of the red shirt; and (5) Mr.
    Dmitrovics uncertainty about the model of the getaway vehicle. Unlike the incomplete
    and erroneous information relating to Ms. Zallums observation of the getaway vehicles
    licence plate, these errors can be characterized as minor. The errors are
    material, but not central. They represent a failure to include information that
    should, in fairness, have been put before the issuing justice for
    consideration. Given the trial judges good faith finding, amplification is
    appropriate.

[92]

For the sake of completeness, I will address one other amplification
    question relating to information presented by the affiant officer during re-examination
    by Crown counsel. During that re-examination, the Crown asked the affiant officer
    about information he could have included in the residential search warrant ITO
    but did not. The affiant officer responded with Mr. Booths height; age;
    lengthy criminal history; the fact that he was named as an authorized driver of
    the rental vehicle; that the rental vehicle had dotted lights around the tail
    consistent with the drawing Ms. Zallum prepared; and that only one other Dodge
    Charger was found in the licence plate series that was searched.

[93]

It is not evident that the trial judge considered this information in
    evaluating whether there were reasonable and probable grounds. It would have
    been an error had he done so, since the warrant review is of the ITO, and it
    would not have been proper for the trial judge to have included this
    information by way of amplification. Retroactively adding this information to
    bolster the ITO would make the prior authorization process a sham. It would not
    be error correction  the function of amplification  but improper after-the-fact
    enhancement.

[94]

Having said this, it was not improper for the Crown to question the affiant
    officer about the omission of information helpful to the Crown. This
    information may be relevant to the good faith of the officer, suggesting that
    the affiant officer was generally inattentive or careless in drafting the ITO,
    rather than malicious.

[95]

Since it is not evident that the trial judge considered this information
    during his warrant review, I will say no more about it.

[96]

In summary, before reviewing the residential warrant, the trial judge
    should have excised from the ITO not only the references to the watch, but also
    Ms. Zallums references to the licence plate. He should have amplified the
    remaining information with the charcoal grey colour of the rental vehicle, the red
    shirt observation by Mr. Dmitrovic, and corrected the inaccurate suggestion
    that Mr. Dmitrovic saw a Charger model vehicle.

[97]

With these corrections made, and bearing in mind that the additional
    information secured by the Crown during the re-examination of the affiant
    officer is to be ignored, does the residential warrant ITO disclose reasonable
    and probable grounds?

(c)

Reasonable and Probable Grounds and the Residential Warrant ITO

[98]

The lynchpin of the residential warrant ITO was the purported link
    between the getaway vehicle and the vehicle rented by Mr. Leslie Booth. This is
    because the description of the robbers was hampered by their disguises and
    generic clothing. According to the ITO, all that could be determined was an
    estimate of race, height, and age for each man, their non-distinctive clothing,
    and the medium brown hair colour of the taller robber.

[99]

Significantly, the residential warrant ITO failed to offer a physical
    description of Mr. Booth for comparison to the robbers. While his general age
    could be gleaned from the photos included of him in the ITO, his height could
    not.

[100]

The
    sum total of useful comparative information available in the ITO to physically link
    Mr. Booth to the taller suspect was that: (1) he wore Nike high top running
    shoes with Velcro fasteners and the taller robber appeared to be wearing similar
    shoes; (2) Mr. Booth has been observed tucking his pants into the back of his socks,
    like the robber did; and (3) in the hours after the robbery, he was seen with Mr.
    Rouleau, a shorter man approximately the size of the other robber. Mr. Rouleau also
    wore non-distinctive clothing similar to the other robber and may be the person
    seen at the residence with a duffle bag, not unlike the duffle bag that one of
    the robbers carried.

[101]

The modest link
    between Mr. Booth and the taller robber suggested by this evidence does no more
    than raise a suspicion that Mr. Booth could have been the taller robber. However,
    after excising Ms. Zallums description of the license plate of the getaway
    vehicle, the residential warrant ITO does not rise above speculation and falls far
    short of reasonable and probable grounds. After the required excision, no issuing
    justice could reasonably have issued the residential search warrant.

[102]

Indeed,
    even if amplification relating to Ms. Zallums observations of the licence
    plate of the getaway vehicle had been appropriate instead of excising all those
    references, the residential warrant ITO would not have furnished reasonable and
    probable grounds.

[103]

Under this
    approach, an amplified ITO would have reflected: the insecure observation made
    by Ms. Zallum of the range of possible licence plates for the silver or light
    blue getaway vehicle; that this range of possible plates could have included
    the licence plate number on the Booth rental vehicle; the detail added by Mr.
    Dmitrovic that the vehicle that appeared to be running away from something was
    a Dodge, maybe a Charger; and that he saw a man wearing a red shirt near this vehicle.
    The getaway vehicle description was anything but secure, and the colour of the
    getaway vehicle identified by these witnesses was not a comfortable match for
    the charcoal grey colour of the rental vehicle.

[104]

There
    is yet a further weakness. The investigating officers conducted only a
    selective licence plate search for suspect vehicles. Specifically, they
    searched only the series of plates from BMPT 020 to BMPT 029. No effort was
    made to search BNPT series plates or 200 series plates, which were equally
    suggested by Ms. Zallums observations of the getaway vehicle. When Mr. Booth
    was identified as a suspect during the search of license plates within the
    series BMPT 020 to BMPT 029, the search simply stopped.

[105]

The
    residential warrant ITO does disclose that the Hamilton police service
began
running variations of the licence plate (emphasis
    added). There is, therefore, no suggestion made in the ITO that a complete
    search was conducted, but full and frank disclosure should have included more
    precise information about the limited search that was done.

[106]

I
    have not addressed this as a full and frank disclosure issue because it was not
    raised by Mr. Booth as a material non-disclosure. The immediate point is simply
    that the ITO relied not only on weak vehicle identification evidence, but on an
    incomplete licence plate search, further undercutting any serious pretence to
    reasonable and probable grounds.

[107]

Even
    combining this vehicle information with the generic and incomplete information
    describing the robbers and Mr. Booth, the search warrant could not reasonably
    have issued since the ITO would fall decisively short of showing a credibly-based
    probability that evidence of the crime would be found at 172 Park Row North.

[108]

The
    trial judge erred in finding that there were reasonable and probable grounds
    for the residential search warrant.

(4)

The Digital Video Recorder Warrant ITO

(a)

Full and Frank Disclosure and the Digital Video Recorder Warrant ITO

[109]

The
    ITO affidavit sworn in support of the digital video recorder warrant did not
    disclose that the search conducted at the residence the day before failed to
    produce any of the things listed to be searched for, including guns, stolen
    items, or clothing related to the robbery.

[110]

The
    trial judge concluded that this did not amount to a failure to make material
    disclosure. I disagree. I will explain below that the digital video recorder
    warrant failed entirely to include any grounds for believing that there would
    be evidence relating to the robbery found at the residence, as it did not
    reprise or incorporate by reference the pertinent information from the
    residence warrant. Even had it done so, the case for reasonable and probable grounds
    was thin, at best. It would certainly be material in evaluating the sufficiency
    of that circumstantial case to consider the additional fact that a search of
    the residence the day before yielded nothing linking the residence to the
    robbery. This would bear directly on the probability that the video recordings
    might furnish evidence linked to the robbery.

(b)

Preparing the Digital Video Recorder Warrant ITO for Review: Excision
    and Amplification

[111]

The digital
    video recorder ITO was incomplete because it failed to include important
    information that would weaken the claim to reasonable and probable grounds.
    Fairness would require that the digital video recorder ITO be amplified by
    adding this information. As I am about to explain, however, this remedy is
    moot, as the ITO does not provide reasonable and probable grounds, in any
    event.

(c)

Reasonable and Probable Grounds and the Digital Video Recorder Warrant ITO

[112]

The
    trial judge recognized that in the digital video recorder ITO, the grounds to
    believe the things to be seized  will provide evidence of the offence are perfunctory.
    With respect, such grounds were not simply perfunctory. They were non-existent.
    All the digital video recorder warrant ITO contained were bald statements that
    the residence at 172 Park Row North had been searched under warrant on March
    14, 2012, and a working video surveillance system that recorded activity in the
    front of the house, including the porch and the front door entrance, had been
    observed and seized. The ITO did not recount any specific information purporting
    to link the offence to 172 Park Row North, nor was the residential warrant ITO
    filed in support of the digital video recorder warrant. Mr. Booth raised the
    lack of reasonable and probable grounds for the digital video recorder warrant,
    but this fatal shortcoming was not dealt with by the trial judge. It should
    have been.
As affirmed by this court, Each
    information
and subsequent
warrant
should be viewed as a whole
Each

case
must
stand
upon its
own facts
:
R. v. Church of
    Scientology of Toronto
(1987), 31 C.C.C.
    (3d) 449 (Ont. C.A.), at p. 256.


[113]

Even
    if the residential warrant ITO had been appended to the digital video recorder
    warrant ITO in an effort to provide reasonable and probable grounds linking the
    place to be searched to the crime, reasonable and probable grounds would still
    be lacking for the reasons identified above. This is particularly so if the
    improperly omitted fact had been added that no evidence tying Mr. Booth to the
    robbery was found during the residential search the day before.

[114]

The
    trial judge erred in finding that the digital video recorder warrant was
    properly issued.

B.

DID THE
    TRIAL JUDGE ERR IN NOT EXCLUDING THE DIGITAL VIDEO RECORER TAPES FROM EVIDENCE?

[115]

The
    only evidence discovered during the two searches was the video recording of the
    front of the house on the days surrounding the robbery. This evidence was
    presented at trial. In his
Charter
ruling, the trial judge had
    considered whether this evidence would have been excluded under s. 24(2) had
    the alleged
Charter
violations occurred. He ruled that even had those
    violations occurred, the evidence was nonetheless admissible. In doing so, the
    trial judge considered each of the three criteria from
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353 for determining whether the admission of evidence
    would bring the administration of justice into disrepute.

[116]

The
    trial judge did not find that the alleged breaches would have been serious, had
    they occurred. He said that any such breaches would not be egregious, but [a]t
    their highest they were unintentional.

[117]

He judged
    that the impact of the breaches on the
Charter
protected rights of Mr.
    Booth through the search of his home and the video recorder to be relatively
    serious.

[118]

And
    he found societys interest in adjudication on the merits to be high. He accepted
    the trial Crowns submission that its case is utterly dependent upon the video
    device recording, and that the charges were serious.

[119]

He
    therefore concluded, On balance, the 24(2) factors would militate for
    inclusion rather than exclusion.

[120]

Of
    course, the trial judges decision about the effect of admission or exclusion
    on the administration of justice does not warrant deference, given that he
    failed to identify the breaches that occurred. Nor, in this case, does his evaluation
    of the components of s. 24(2) warrant deference.

[121]

First,
    his finding that the s. 8 breaches would not be egregious and at their highest
    were unintentional does not reflect a complete evaluation of the seriousness of
    the
Charter
violation. The required inquiry is more nuanced, requiring
    a closer examination of where the violation falls on a fault line. It is true
    that when it comes to evaluating whether a failure to make full and frank
    disclosure violates the
Charter
, the law employs a simple, binary
    good faith or bad faith analysis relating to whether amplification will be
    available or whether the residual discretion to set aside a warrant is
    triggered. However, the law of s. 24(2) is different. To properly judge the
    seriousness of the violation, police conduct must be placed on this fault
    line or spectrum between good faith and bad faith:
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at paras. 41, 45;
Grant
, at
    para. 75. Wilful blindness, negligence, and ignorance of
Charter
standards
    can all underpin a finding that a breach is serious:
Kitaitchik
, at
    para. 41;
Grant
, at para. 75.

[122]

In
    cases such as this, where a search warrant has been obtained, the proper starting
    point is recognition that an attempt to obtain a search warrant is ordinarily
    the antithesis of wilful disregard for
Charter
rights:
R. v. Rocha
,
    2012 ONCA 707, 112 O.R. (3d) 742, at para. 28;
Morelli
, at para. 99.
    However, that does not end the inquiry. The ITO must be considered. As Doherty
    J.A. said in
Rocha
, at para. 29:

The approach  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.

[123]

In
R. v. Herta
,
    2018 ONCA 927, 143 O.R. (3d) 721, where innocent errors occurred because of
    sloppy work, the case fell in the middle of the good faith to bad faith
    spectrum: at paras. 64, 74. In
Rocha
, there was no bad faith, but
    there was blameworthy inattention to constitutional standards: at para. 43.
    Similarly, in
Morelli
, the breach was serious notwithstanding that a
    warrant had been obtained by officers believing they were acting under lawful
    authority. Fish J. remarked for the majority, at paras. 100, 102:

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.



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. [Emphasis in original.]

[124]

In this case, the
    affiant officer fell far short of that standard. Although I accept the trial
    judges assessment that the affiant officer did not intentionally violate the
Charter
,

he was clearly negligent. He testified that he was aware of his obligation
    to make full and frank disclosure, but he was patently inattentive to that
    obligation. It is not unfair to characterize the ITO as an exercise in
    advocacy, rather than disclosure. Information about the watch worn by the man
    that appeared to be Mr. Rouleau was unfairly spun as having significance, when
    it was immaterial. And the ITO reported the most incriminating version of Ms.
    Zallums licence plate observation as more certain that it was, notwithstanding
    that the affiant officer was well aware that Ms. Zallum was insecure about her
    observations, and actually believed the licence number to be different than the
    one recorded in the ITO. At the very least, the information relating to the shade
    of the Booth rental vehicle was presented carelessly, suppressing a possible
    disparity between the getaway vehicle and the rental vehicle. Moreover, Mr.
    Dmitrovics red shirt observation was omitted, while his confidence in the
    identification of the model of the vehicle was exaggerated. Consistent with
    this pattern, the digital video recorder warrant ITO represented a probability
    that material evidence would be found in the footage without disclosing that no
    evidence had been found linking the residence to the robbery during the
    residential search. There is no possible conclusion other than that the affiant
    officers failure to make full and frank disclosure, while not intentionally in
    violation of the
Charter
, approaches the more serious end of the spectrum.

[125]

The
    trial judge also understated the seriousness of the impact of the breach on the
    constitutionally protected interests at stake. He called the search of [Mr.
    Booths] home and of a video recording device of what transpired at that home
relatively serious
 (emphasis added). I agree with
    respect to the video recording. That recording was of activity that occurred in
    the front porch area of the house, visible from the road, significantly
    mitigating any privacy interest in the images shown. However, the digital video
    recorder was seized during a full-scale search of Mr. Booths residence. In
Morelli
,
    at para. 104, the majority made clear that a search of a home is not simply a relatively
    serious breach as the trial judge described, but a serious breach of s. 8
    rights. The trial judges s. 24(2) decision fails to give this central and
    important consideration adequate recognition.

[126]

The
    trial judge was correct in his assessment of societys interest in the
    adjudication of this case on its merits, and the impact that exclusion would
    have on this interest. I agree with the trial judges conclusion that the
    exclusion of the digital video recorder evidence would gut the Crowns case, a
    point I will return to below. Although there were reliability issues arising
    from the poor quality of the videotape, which impaired an ability to make
    confident conclusions about clothing details, the cost to society of excluding
    crucial evidence in the prosecution of serious offences, such as those faced by
    Mr. Booth, should not be underestimated.

[127]

The inquiry,
    however, is not solely or even mainly about the impact that excluding the
    evidence would have on Mr. Booths prosecution. In balancing the
Grant
factors,
    reviewing courts must bear in mind the impact of exclusion or admission on the
    long-term interests of the administration of justice:
Morelli
, at
    para. 108. The long-term interests of the administration of justice would be
    significantly undermined if courts condoned the degree of inattention to the
    critically important obligation to make full and frank disclosure that occurred
    here. This is particularly so where the outcome is the search of a dwelling
    house without reasonable and probable grounds, which occurs as a result of the
    misleading presentation of material information in a sworn ITO. This was a
    serious abuse of the privilege of an
ex parte
court application.

[128]

The
    trial judge therefore erred by not excluding the digital video recorder
    evidence.

THE REMEDY

[129]

Although
    the usual outcome where a trial judge has erred by not excluding
    unconstitutionally obtained evidence is to order a new trial, an acquittal is
    required in this case. The trial judges finding, which accorded with the
    Crowns submission during the s. 24(2)
voir dire
, is that the case is
    utterly dependent upon the digital video recording. This finding is correct. Without
    the excluded evidence, the Crown case is gutted, and it is not in the interests
    of justice to order a new trial.

[130]

The
    Crowns case was circumstantial. At the trial, the robbery victims offered no
    significant new information beyond what is described above. Ms. Zallum could
    not recall whether the getaway vehicle was silver or blue, she was only certain
    that it was light coloured. Mr. Dmitrovics evidence also weakened,
    testifying that he did not know the model of the getaway vehicle and he confirmed
    that it was a lighter colour. He could not remember seeing the Dodge in the
    strip plaza where Pura Vida salon was located.

[131]

Ultimately,
    the Crowns case that Mr. Booth was the taller robber depended upon three
    additional sources of information, which were not available at the time the
    warrants were obtained.

[132]

First,
    the Crown presented the results of DNA testing on the torn glove fingertip.
    Conventional DNA results, with their probabilities of a coincidental match in
    the millions if not trillions, could not be obtained. However, Y-STR DNA
    results were produced, showing that Mr. Rouleau shared the familial male DNA
    profile found on the glove fingertip. So, too, would one out of every 29 Caucasian
    males. The Crown theory was that the stronger the link between Mr. Rouleau and
    the robbery, the stronger its case against Mr. Booth, as they were together
    before and after the robbery. The Crown argued that the Y-STR DNA evidence
    strengthened the circumstantial case that Mr. Booth was one of the robbers.

[133]

Second,
    the Crown relied upon Mr. Leslie Booths testimony to argue that Mr. Booths after-the-fact
    conduct was indicative of his guilt. Specifically, Mr. Booth returned the
    rental vehicle to Mr. Leslie Booth on the evening of the robbery, instead of
    the next day as expected. He also engaged in a conversation with Mr. Leslie
    Booth that the Crown argued was a refusal by Mr. Booth to tell his father why
    the police were interested in the vehicle.

[134]

Third,
    there were the digital video recordings of the front porch area of 172 Park Row
    North, showing the movement and dress of the males exiting and entering the
    residence before and after the robbery, coupled with the related testimony of certified
    video analyst, Mr. Plaxton.

[135]

Of
    the additional evidence presented at trial, the DNA evidence contributed little
    in proving that Mr. Rouleau was one of the robbers, let alone Mr. Booth.
    Indeed, the inference that Mr. Booth was one of the robbers based on Mr. Rouleaus
    status as a robber depended, in part, on the video evidence required to put the
    men together before and after the robbery. With that video evidence excluded,
    evidence linking Mr. Rouleau to the robbery loses much of its force as
    incriminating evidence against Mr. Booth.

[136]

Second,
    the after-the-fact conduct evidence was equivocal and far from decisive.

[137]

Ultimately,
    the success of the Crowns case depended upon persuading a jury that Mr. Booth
    was enmeshed in an incriminating web of facts that could not be attributed to
    coincidence. That supposed web of incriminating facts was based upon
    similarities between the getaway vehicle and the Booth rental vehicle, and similarities
    between the clothing and physiology of the robbers and Mr. Booth and the
    shorter man believed to be Mr. Rouleau, as observed in the digital video
    recorder evidence. With the exclusion of the digital video recorder evidence, the
    incriminating web of facts theory is undercut. No reasonable jury could convict
    based on what remains.

CONCLUSION

[138]

I
    would therefore allow Mr. Booths appeal, set aside all of the convictions, and
    order verdicts of acquittal.

Released: DB DEC 11, 2019

David M. Paciocco. J.A.
I agree. C.W. Hourigan J.A.
I agree. David Brown J.A.


