



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Szilagyi, 2018 ONCA 695

DATE:
20180824

DOCKET:
C62546

Feldman and Benotto JJ.A. and Sachs J. (
ad
hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

George Szilagyi

Appellant

Andrew Menchynski, for the
appellant

Rick Visca, for the
respondent

Heard: March 28, 2018

On appeal
from the convictions entered by Justice Lynne Leitch of the Superior Court of
Justice, sitting without a jury, on May 30, 2016.

Feldman J.A.:

[1]

The appellant was charged with a number of drug-related offences after
police executed a search warrant for his residence for the purpose of finding
an unlicensed firearm and ammunition. There was neither a firearm nor ammunition,
but the police found and seized illegal drugs, cash, and a cellphone in the
residence.

[2]

While the search of the home was proceeding, the police arrested the
appellant outside his residence for possession of a firearm and ammunition, and
conducted a search incident to arrest which yielded only another cellphone. They
obtained a warrant to search both phones. A police expert was prepared to
testify that some of the text messages related to drug trafficking.

[3]

The appellant applied for an order that the seized evidence was obtained
in breach of his ss. 8 and 9 rights under the
Canadian Charter of Rights
and Freedoms
and sought to exclude the evidence under s. 24(2) of the
Charter
.

[4]

The trial judge found that both the search of the residence and the
arrest and search of the appellant were unlawful and contrary to ss. 8 and 9 of
the
Charter
. First, she agreed with the appellants submission that the
information to obtain (ITO) did not contain reliable evidence that could form
the basis for issuing a warrant to search the appellants residence. Second,
she found that the arrest and search incident to arrest were both unlawful, as
there were no reasonable and probable grounds to believe the appellant was
carrying the gun, and no valid reason to execute the search incident to arrest.

[5]

However, the trial judge declined to exclude the evidence obtained from
the search of the residence under s. 24(2). Applying the factors set out in
R.
v. Grant
,
2009 SCC 32, [2009] 2
S.C.R. 353,
she concluded that the police acted in good faith in
obtaining and executing the search warrant. Therefore, the breaches were less
serious, favouring admission of the evidence. She acknowledged that the impact
on the appellants strong liberty and privacy interests was serious, favouring
exclusion. Last, the breaches resulted in evidence that, if excluded, would end
the Crowns case, thereby favouring admission. She found that the balance of
the three factors favoured admitting the evidence seized from the residence.

[6]

In a subsequent motion, the appellant challenged the warrant to search
the two cellphones the police seized and the admission of the text messages
obtained from them. The trial judge determined that the text messages could be
admitted under s. 24(2), largely for the reasons articulated in her previous
ruling.

[7]

After the trial judge dismissed his application and motion to have the evidence
relating to the charges excluded, the appellant did not contest the charges and
was convicted of two counts of possession of Schedule I substances (cocaine and
oxycodone) for the purpose of trafficking and one count of possession of a
Schedule III substance (MDMA) for the purpose of trafficking, contrary to s.
5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19.

[8]

The appellant appeals on the basis that the trial judge made two errors
in not excluding the evidence under s. 24(2). First, he submits that the trial
judge erred by mischaracterizing the police conduct as being in good faith
and treating it as mitigating to the extent that it favoured admission of the
evidence. Second, the appellant submits that the trial judge failed to consider
a number of significant aggravating factors when determining the seriousness
of the states conduct. He submits that on a proper s. 24(2) analysis, the
evidence ought to be excluded.

[9]

I agree that it was an error for the trial judge to find that the police
acted in good faith in obtaining the search warrant and arresting the appellant.
In my view, on a proper balancing of the
Grant
factors, the evidence
should be excluded under s. 24(2) of the Charter. I would therefore allow the
appeal.

Background Facts

[10]

On November 29, 2011, the police obtained a telewarrant to search the
appellants residence in London, Ontario for an unlicensed firearm and
ammunition. A justice of the peace authorized the warrant to search the
appellants residence based on an ITO submitted by the police. The grounds set
out in the ITO for the warrant were founded almost entirely on tips provided by
two confidential informants (CIs).

[11]

The ITO described CI #1 as an unproven confidential informant, who was
motivated by civic duty and immersed heavily in the drug subculture. The
informant was currently providing information in relation to several drug
investigations, which had been corroborated by other means but not acted upon.
The ITO did not disclose whether CI #1 had a criminal record, and only stated
that Source #1 has not been convicted of mislead police or perjury.

[12]

Officer Adam Steele, the affiant of the ITO, later testified at the
appellants trial that at the time the ITO was drafted, it was his systematic
practice not to blanketly disclose to an issuing justice all the information
pertaining to a CIs police record. He also testified that the problematic
nature of this practice has since been brought to his attention, and although
he no longer applies for search warrants, if he were to do so now, he would
attach the informants criminal record. Officer Steele confirmed that he
conducted inquiries into the informant, including his police record, and not
all of that information was included in the ITO.

[13]

The ITO described CI #2 as someone who was not involved in the drug subculture
and who had provided information out of civic duty.

[14]

CI #1 provided the majority of the information; CI #2 provided very
little. The information from CI #2 was referenced only in one paragraph of the
ITO entitled Background to the Investigation, and that information was
redacted.

[15]

CI #1 provided information that the appellant was actively dealing
cocaine and MDMA and was in possession of a quantity of drugs. CI #1 was able
to identify the appellant from a dated mug shot and described the appellant as
approximately six feet tall with a muscular build. CI #1 also indicated that
the appellant possessed a .22 caliber rifle that was 1.5 feet in length, made
of wood, with a sawed-off barrel and stock. CI #1 believed that the appellant
was not interested in selling the gun.

[16]

The ITO did not reveal how CI #1 knew this information, and the police made
limited attempts to corroborate it. They reviewed lease documents to verify
that the appellant lived at the address provided by CI #1.The police confirmed
that neither the appellant nor the others who lived at the target address had a
license to possess firearms.

[17]

Despite conducting surveillance on the appellant, the police did not
observe him carry or conceal anything that appeared to be a firearm, nor did
the police otherwise observe the appellant doing anything illegal or
suspicious.

[18]

Additionally, Officer Steele swore that the police opted to obtain a
warrant for nighttime and extended entry because the appellant was unlikely to
be carrying the firearm on his person outside his home:

At the time of this writing it is the intention of the London
Police Service to execute this warrant once the subject of the warrant, George
Szilagyi, has departed the residence.
Police have no information that
Szilagyi carries this firearm in the community and thus if arrested outside his
residence, he will likely not have the firearm on his person
. Once removed
from the residence this will provide police with the safest possible time of
execution as Szilagyi will already be in custody when Police enter to search
for the firearm. Police are currently conducting surveillance of Szilagyi and
intend on arresting him once he departs the residence, and the granting of the
night time entry and extended period will allow for that should he depart
during those hours. [Emphasis added.]

[19]

Although CI #1 had also asserted that the appellant was trafficking in
illegal drugs, the police did not apply for a warrant for the purpose of
finding drugs. Officer Steele testified that he did not apply for a search warrant
for this purpose because the information that he was provided in relation to
the drugs was not as detailed as the information that he was provided in
relation to the firearm. Accordingly, the ITO did not provide any information
regarding how CI #1 knew the appellant was trafficking drugs or whether the
source had observed the appellant possessing or trafficking drugs, including in
his home.

[20]

On December 1, 2011, two days after obtaining the telewarrant, the
police observed the appellant leaving his residence. They followed him to a bus
stop and arrested him for possession of a firearm. The appellant was handcuffed
and searched incident to arrest. The police found a cellphone on his person, as
well as a small plastic baggie containing a reddish substance, a wallet, a
debt-list, and a set of keys.

[21]

As the appellant was being arrested, police executed the warrant to
search his home. In the living room, the police found cash and a second cellphone.
One of the appellants housemates was also there. Inside a bedroom, the police
located a passport in the appellants name, as well as 287 grams of MDMA, 27
grams of cocaine, 103 80-milligram tablets of oxycodone, 1 gram of marijuana,
Canadian currency totalling $2,310, two digital scales, and a box of plastic
bags.

Trial Judges Reasons

[22]

The appellant applied for an order excluding all the evidence found in
his home and on his person on the basis that the police violated his ss. 8 and
9
Charter
rights by searching his home, and by detaining and arresting
him. Specifically, he alleged that: the ITO that formed the basis for the
warrant to search his residence was insufficient, violating s. 8; the police
did not have reasonable and probable grounds to detain and subsequently arrest
him, violating ss. 8 and 9; and, as a result of these breaches, the evidence
seized from his person and residence should be excluded under s. 24(2).

[23]

The appellant further submitted that by hiding the criminal record of CI
#1 and stating that this informant had no convictions for perjury or lying to
the police, the police drafted an intentionally confusing ITO, which gave the
misleading impression that the CI was credible and had no criminal convictions.
Similar wording in another ITO had led to the exclusion of evidence in
R.
v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742.

[24]

Dealing first with the limited disclosure of CI #1s criminal record,
the trial judge disagreed that it was a problematic element of the ITO because
Officer Steele had acted in good faith in swearing the ITO and had changed his
practice of not fully disclosing a CIs criminal record after learning that it
was problematic. Additionally, the ITO in this case was more detailed than that
provided in
Rocha
, because this ITO stated the informants motivation
for providing information to the police.

[25]

Nevertheless, the trial judge agreed with the appellant that the ITO did
not contain reliable evidence that could form the basis for issuing a warrant
to search the appellants residence. She found that there was no information as
to when and where and how the informant came to the conclusion that George was
in possession of the rifle. Additionally, she noted that there was no
disclosure of the underlying circumstances for the informants conclusion, nor
of the source or means of knowledge to provide reasonable grounds for
believing that the appellant had committed an offense relating to the
possession of an unlicensed firearm.

[26]

The trial judge characterized CI #1 as an untested and unproven
informant, whose record for crimes of dishonesty and other offenses was
unknown. Therefore, the fact that this CI had provided reliable information
previously did not enhance his/her credibility and reliability. Nor was CI #1s
tip corroborated by police surveillance.

[27]

The trial judge also concluded that, as there was not enough evidence in
the ITO to create reasonable and probable grounds, the appellants arrest was
unconstitutional. Similarly, the search incident to arrest was
unconstitutional, as there was no evidence that the search was necessary for officer
safety issues or because of exigent circumstances. Further, the trial judge
found that the police believed that the appellant was not carrying the alleged
firearm on his person at the time of the arrest and therefore had no valid reason
to execute the search incident to arrest.

[28]

The trial judge then turned to the issue of whether the
unconstitutionally obtained evidence should be excluded under s. 24(2), and
concluded that a balancing of the three
factors from
Grant
favoured
admission of the evidence.

[29]

Focusing first on the seriousness of the police conduct, the trial judge
concluded that the police were mindful of the appellants privacy interests as
they had sought warrants to search the appellants residence and the two seized
cellphones, and conducted a minimally invasive search incident to arrest.

[30]

Regarding the contents of the ITO, she found that, unlike the ITO
at issue in the Supreme Court of Canadas decision in
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, this ITO did not contain any
misleading passages or false statements that contravened the duty to make
full and frank disclosure of all material information. Instead, she was
satisfied that Officer Steele acted in good faith in accordance with a practice
that had not yet been negatively commented upon  as it eventually was in
Rocha
. She again gave credit to Officer Steele for changing his practice
after learning of its problematic nature.

[31]

Although the trial judge acknowledged that the
ITO in the present case was like the one in
Rocha

because it contained an oddly worded statement that did not fully
disclose the CIs criminal record,
the ITO at issue in
Rocha

was deficient for
two other reasons: it contained several additional paragraphs that were
misleading and it was unsworn. She noted that these other issues contributed to
the conclusion in
Rocha

that the manner in which the ITO was
drafted situated the police conduct toward the serious end of the spectrum, and
that the circumstances here are much different from those before the court in
Rocha
.

[32]

The trial judge then analogized the
circumstances before her to those in
R. v. Learning
, 2010 ONSC 3816, 258 C.C.C. (3d) 68, and
concluded that the first
Grant
factor
favoured admission:

I reach a similar conclusion [as Code J. did in
R. v.
Learning
]. I agree with the Crowns submission that the impugned state
conduct falls on the lower end of the continuum. I am satisfied that the
officers all acted in good faith. They had detailed information from a human
source and they obtained a warrant to search the Target Residence before
conducting the search. They obtained a warrant before the cellphone was
searched. They acted in good faith notwithstanding my conclusion respecting the
sufficiency of the ITO.

[33]

Turning to the second
Grant

factor, the impact of the
breaches on the rights of the appellant, the trial judge observed that this
factor favoured exclusion of the evidence. This conclusion was based on the
Crowns concession that the interests engaged  the appellants liberty and
privacy  were both strong interests.

[34]

Finally, in relation to the third
Grant

factor,
societys interest in the adjudication of the case on its merits, the trial
judge observed that excluding the evidence of the drugs and cash would bring
the Crowns case to an end.

[35]

On balance, the trial judge concluded that the evidence should be
admitted because excluding the evidence would have a greater negative impact
on the repute of the administration of justice than admitting the evidence.

[36]

In a subsequent motion, the appellant challenged the warrant to search
the two cellphones the police seized following the search of his residence and
the search of his person incident to arrest, and the admission of the text
messages obtained from them. The Crown conceded that the warrant to search the
cellphones was invalid once the unconstitutionally obtained evidence was
excised from the ITO.

[37]

The trial judge found that the warrant to search the cellphones was
invalid because the ITO relied on to obtain the search warrant for the
appellants residence was insufficient to create reasonable and probable
grounds for his arrest.

[38]

However, after applying the three factors from
Grant
, the trial
judge determined that the text messages should be admitted under s. 24(2). She concluded
that, for the reasons articulated in her previous ruling, the
Charter
-infringing
state conduct was not serious. She found that the unconstitutionally obtained
evidence was not obtained through police misconduct: the police had not
disregarded the appellants rights in obtaining or executing the warrant to
search his residence or in arresting him and searching him incident to arrest.
She again highlighted her finding that the police had acted in good faith. And
although the breach of the appellants right to informational privacy was
serious, the extracted text messages were reliable real evidence, which weighed
in favour of admission.

[39]

On May 30, 2016, after failing to have the evidence at issue excluded, the
appellant did not further contest the Crowns case against him, and convictions
were entered.

Issues

[40]

The appellant raises the following issues on appeal:

1)

The appellant submits
that in her consideration of the first branch of the
Grant
analysis to
determine admissibility under s. 24(2) of the
Charter
, the seriousness
of the police conduct giving rise to the breach, the trial judge made two
errors in principle:

(a) The trial judge erred
when she found that the police acted in good faith and that this favoured
admission of the evidence; and

(b) The
trial judge erred by failing to consider three significant aggravating
factors when determining the seriousness of the states conduct in breaching
the appellants ss. 8 and 9 rights.

2)

The appellant submits that
as a result of these two errors, the trial judge came to an unreasonable
determination in applying
Grant
, and that conducting the
Grant

analysis anew leads to the conclusion that the evidence must be excluded.

Analysis

Standard of Review

[41]

The trial judges decision on whether to exclude evidence under s. 24(2)
of the
Charter
is a discretionary decision to be accorded significant
deference on appeal. However, appellate intervention is warranted where the
trial judge erred in law in her application of the legal test or principles,
failed to consider relevant factors or circumstances that could affect whether
admitting the evidence would bring the administration of justice into
disrepute, or made an unreasonable determination:
R. v. McGuffie
, 2016
ONCA 365, 131 O.R. (3d) 643, at para.
64;
Grant
, at paras. 86, 127;
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para.
44;
R.
v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82;
R. v.
Jones
, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 79;
R. v.
Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72. In such a case, the
appellate court is entitled to conduct a fresh analysis of the
Grant
factors:
Jones
, at para. 79.

1)

Error in Considering the Seriousness of the Breach

(a) Good Faith

[42]

In
Grant
, the Supreme Court identified the three factors that a
trial judge is to examine and weigh in deciding whether to admit evidence that
was obtained by police conduct that breached the appellants
Charter
rights: 1) the seriousness of the
Charter
-infringing state conduct
that breached the appellants
Charter
right; 2) the impact of the
breach on the
Charter
-protected interests of the appellant; and 3)
societys interest in an adjudication of the charge on its merits.

[43]

In this case, the ss. 8 and 9
Charter
breaches were based on
the trial judges finding that the warrant the police obtained to search the
appellants home was founded on information that did not meet the test in
R.
v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168: the information was not
compelling, the source was not credible, and the police did not corroborate the
information from the source.

[44]

Three conclusions flowed from this finding: 1) [T]here was not reliable
evidence that might reasonably be believed on the basis of which the warrant
could have issued to search the Target Residence. 2) There was not enough
evidence in the ITO to create reasonable and probable grounds to arrest the
appellant. 3) The search of the appellant incident to arrest was neither necessary
for officer safety nor for the discovery of offence-related evidence.

[45]

The effect of these findings was that the police searched the
appellants home based on an invalid warrant, they arrested the appellant
without reasonable and probable grounds, and they searched the appellant
incident to arrest without a basis in law.

[46]

In reaching the conclusion that the ITO did not pass muster as the basis
for a search warrant nor give reasonable and probable grounds for the appellants
arrest and search incident to arrest, the trial judge noted a number of
deficiencies in the information from the confidential informant that the police
included in the ITO.

[47]

First, although the confidential informant gave a detailed description
of the gun that was supposed to belong to the appellant and to be found in his
home, there was no information about how the informant knew about the gun, who
it belonged to, or where it was. The trial judge equated this deficiency to that
noted by Rosenberg J.A. in
R. v. Rocha
: because the ITO in that case did
not contain information about the informers source of knowledge regarding the
drugs and their location in the house, there was nothing in the information to
compel a belief that the drugs would be in the house when the search was
conducted.

[48]

This was a serious and significant deficiency in the ITO. The trial judge
paraphrased Martin J.A. in
R. v. Debot

(1986), 30 C.C.C. (3d)
207 (Ont. C.A.), affd [1989] 2 S.C.R. 1140, in finding:

[H]ere there was no disclosure of the underlying circumstances
for the informants conclusion and the source or means of knowledge to allow
the justice of the peace to satisfy himself that there were reasonable grounds
for believing what was alleged.

[49]

On the issue of the informants credibility and reliability, the trial
judge rejected the Crowns submission that CI #1 should be viewed as credible
because he/she was motivated by civic duty, had no prior convictions for perjury
or mislead police, and had provided information in other cases that was
corroborated through other means.

[50]

The trial judge focused instead on the fact that the informant was
untested and unproven, that his/her record for all crimes of dishonesty and
other offences relevant to credibility (not limited to perjury and mislead
police) was unknown, and concluded that the informants credibility and
reliability were not enhanced by having previously provided reliable
information. Further, no surveillance confirmed his/her information. The only
confirmation the police obtained was that the appellant was one of three people
who were parties to a lease for the target residence, and they observed him
leave the building where the leased apartment was located.

[51]

The trial judge referred to a statement by the Supreme Court in
Debot

(SCC), at pp. 1170 and 1171, that the quality of the information and
corroborative evidence may have to be such as to compensate for the inability
to assess the credibility of the source.

[52]

To summarize, the police prepared and submitted an ITO that contained
serious and significant deficiencies with insufficient indicia of the credibility
and reliability of the main confidential informant, and failed to seek any
meaningful corroboration of the informants tip.

[53]

Nevertheless, the trial judge found that the police acted in good faith,
as in
R. v. Learning
. She relied on several factors: 1) The police
sought and obtained a warrant. 2) Since there were no misleading statements in
the ITO, as there were in
R. v. Morelli
, the police did not contravene
the obligation to make full and frank disclosure. 3) The search predated this
courts decision in
Rocha
, where an ITO with similar problems, notably
the failure to include an informants full criminal record, was found to be
conduct at the serious end of the spectrum. 4) The affiant officer had since
changed his practice of omitting informants full criminal records.

[54]

In
Rocha
, Rosenberg J.A. confirmed at para. 28 that applying
for and obtaining a search warrant from an independent judicial officer is the
antithesis of willful disregard of Charter rights.  However, where the ITO
that formed the basis for the issuance of the warrant is found to be
insufficient to support it, the proper approach to determine the seriousness of
the
Charter
breach is to first consider whether the ITO was misleading.
If it was, the seriousness will depend on whether the use of false or
misleading information was intentional or inadvertent.

[55]

In this case, the trial judge concluded that the police officer was
acting in good faith. A conclusion as to good faith cannot be grounded on a
lack of bad faith. The trial judge was incorrect to equate a lack of bad faith
on the officers part to good faith conduct.

[56]

In
R. v. Grant
, the Supreme Court discussed the proper approach
to examining police
Charter-
breaching conduct in relation to the s.
24(2) analysis. At para. 75 of
Grant
, the court stated:

Extenuating circumstances, such as the need to prevent the
disappearance of evidence, may attenuate the seriousness of police conduct that
results in a
Charter
breach:
R. v. Silveira
,
[1995] 2 S.C.R. 297,
per
Cory J. Good faith on the part of
the police will also reduce the need for the court to disassociate itself from
the police conduct.
However, ignorance of
Charter
standards
must not be rewarded or encouraged and negligence or wilful blindness cannot be
equated with good faith
:
R. v.

Genest
,
[1989] 1 S.C.R. 59, at p. 87,
per

Dickson C.J.;
R. v.
Kokesch
, [1990] 3 S.C.R. 3, at pp. 32‑33,
per
Sopinka
J.;
R. v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para.
59. Wilful or flagrant disregard of the
Charter
by those
very persons who are charged with upholding the right in question may require
that the court dissociate itself from such conduct. It follows that deliberate
police conduct in violation of established
Charter
standards
tends to support exclusion of the evidence. It should also be kept in mind that
for every
Charter
breach that comes before the courts, many
others may go unidentified and unredressed because they did not turn up
relevant evidence leading to a criminal charge. In recognition of the need for
courts to distance themselves from this behaviour, therefore, evidence that the
Charter
-infringing conduct was part of a pattern of abuse tends to
support exclusion. [Emphasis added.]

[57]

The Supreme Court reaffirmed and clarified these principles in
R. v.
Paterson
,
2017 SCC 15,
[2017] 1 S.C.R. 202. Brown J. stated that for errors to be considered to have
been made in good faith, they must be reasonable. Further, the
Charter
-infringing
conduct in question need not be deliberate, nor result from systemic or
institutional abuse to result in exclusion of evidence that was obtained as a
result of a clear violation of well-established rules:

My colleague Moldaver J. recalls the
trial judges finding that the police were acting in good faith (para. 66;
trial reasons, at para. 79). While [g]ood faith on the part of the police
willreduce the need for the court to disassociate itself from the police
conduct (
Grant
2009, at para.
75), good faith errors must be
reasonable
(
R. v.

Buhay
, 2003
SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that
negligence in meeting
Charter
standards cannot be equated to
good faith (
Grant
2009, at para.
75). Even where the Charter infringement is not deliberate or the
product of systemic or institutional abuse, exclusion has been found to be
warranted for clear violations of well-established rules governing state
conduct (
R. v. Harrison
, 2009 SCC 34,
[2009] 2 S.C.R. 494, at paras. 24-25). [
Paterson
, at para 44.]

[58]

In
Paterson
, Moldaver J. in dissent disagreed with the majority
on whether the law that the police did not follow was well-established. In this
case, the trial judge appeared to view the
Rocha

decision as setting
out a new principle: that full and fair disclosure of all information regarding
an informants credibility and reliability is required in an ITO. Because the
police drafted the ITO before
Rocha
was released, the trial judge
found that they acted in good faith despite their failure to disclose the
informants criminal record.

[59]

This constituted an error of law. Truthful disclosure in an ITO is
axiomatic:
R. v. Araujo
,
2000 SCC 65, [2000] 2 S.C.R. 992, at
para. 46. The police do not get credit for doing what is expected.

[60]

In
Rocha
, Rosenberg J.A. focused on the oddly worded language
used to describe the criminal record of the informant. In this case, the trial
judge identified and properly criticized similar language (regarding no record
for perjury or mislead police). Rosenberg J.A. also focused on the fact that
the officer deliberately used that language to leave the impression that the
informant was honest, again similar to this case. Finally, like Officer Steele
in this case, the officer in
Rocha
had a practice of not disclosing the
informants full criminal record.
[1]


[61]

Although the ITO in
Rocha
featured additional deficiencies (it
was not sworn, for example), the problems with the disclosure regarding the informants
criminal antecedents were the main reason Rosenberg J.A. concluded that the
conduct by the officers fell at the serious end of the continuum for the
purposes of the first branch of the s. 24(2) analysis. The seriousness of
police conduct favoured exclusion of the evidence.

[62]

Nor was
Rocha
a case of first impression. Because the law was
not unclear when it was decided, the police conduct was deliberate and serious,
causing the court to set aside the trial judges analysis and ultimately, to
exclude the evidence.

[63]

I also note that the trial judge in this case gave credit to the officer
in the form of enhancing his good faith for now changing his practice. I make
two observations about this approach.

[64]

First, this amounts to an after-the-fact acknowledgment of wrongdoing by
the officer, when the law on the requirement of full disclosure was clear
before
Rocha
. As Benotto J.A. observed in
R. v. Strauss
, 2017
ONCA 628, 353 C.C.C. (3d) 304, at para. 50, to use after-the-fact
acknowledgement as a basis for minimizing the seriousness of the breach and
admitting the impugned evidence would render the
Charter
s protection
meaningless.

[65]

Second, I believe the trial judge overstated the officers evidence on this
issue. When asked if it was still his practice not to disclose an informants
full criminal record, he stated that he was currently not in the business of
writing search warrants, but that he had had conversations with Crown
attorneys indicating that his practice had been an issue with prior search
warrants. If he were now to write a search warrant, he would attach the
informants record to an ITO.

[66]

The trial judge also erred by equating the circumstances in this case
with those in
R. v. Learning
. The issue in that case was whether the
police officer had reasonable and probable grounds to arrest the accused for
possession of a gun, based on information from a confidential informant. The
ITO containing the grounds for the search warrant and the arrest of the accused
had to be significantly redacted on the
voir dire
in order to protect
the identity of the confidential informant. Because of this redaction, the court
found that the remaining information was not sufficiently detailed to give the
officer reasonable and probable grounds to arrest the accused and therefore his
arrest and detention violated s. 9 of the
Charter
.

[67]

However, Code J. was able to review and summarize the unredacted ITO. He
found that the officer had abundant reasonable and probable grounds, had scrupulously
set out the information in the ITO, and had also included any circumstances
that might undermine the grounds. Therefore, for the purposes of the first
Grant
factor in the s. 24(2) analysis, Code J. found no police misconduct at all in
preparing the ITO and in arresting the accused; the
Charter
violation
arose only as a matter of law from the Crowns inability to disclose enough of
the information in the ITO to demonstrate at the trial the reasonable and
probable grounds that did exist.

[68]

There is no similarity between the
Learning
case and this one.
The trial judges findings that the information given by CI #1 was insufficient
and that the police officers disclosure of that information was incomplete
were based on the essentially unredacted ITO. There is no basis on which to
equate the good faith conduct of the police officer who prepared the ITO and
authorized the arrest in
Learning
to the conduct of the police officer
in this case.

[69]

Finally, the Crown now submits that the ITO was not misleading because
by disclosing that the informant was involved in the drug trade, the issuing
justice would have known that he/she had criminal involvement that could
undermine his/her credibility.

[70]

I would reject this submission. It was not referred to by the trial
judge nor should it have been. The purpose and effect of disclosing an
informants police involvement is to give the issuing justice a full picture of
the credibility and reliability of the informant, particularly when the entire
warrant is based on that persons information. It is not to say one thing but
expect the justice to infer another.

[71]

To conclude on this point, in my view, the trial judge erred in law by
treating the officers negligent investigation of the informants tip and
negligent preparation of the ITO as demonstrating good faith, mitigating the
seriousness of the police conduct.

(b) Failure to Consider Three
Aggravating Factors

[72]

The appellant submits that the trial judge also erred in principle by
failing to consider three material aggravating factors in assessing the
seriousness of the state conduct:

1) When the trial judge came
to the s. 24(2) analysis, she effectively recast her findings that the
informants information was conclusory, that it lacked any basis for his/her
knowledge about the appellant, and that the only detail included was the
description of the gun. Instead, she described the information provided by the
informant as detailed information that the police relied on in good faith.

2) The trial judge failed to
consider the seriousness of the search incident to arrest. The police did not
have reasonable and probable grounds to arrest based on the ITO; they did not
believe the appellant was carrying his firearm when they arrested him, yet they
searched him on the basis of ensuring officer safety and finding evidence
relating to the search warrant; and they seized his cell phone, from which they
obtained access to his private digital information.

3) The trial judge failed to
consider the use of unclear language in the ITO, which aggravated the s. 8
breach by having the effect of possibly misleading the issuing justice about
the informants credibility, and thereby undermining the administration of
justice.

[73]

Although the appellant identifies these three issues as separate errors
by the trial judge amounting to aggravating factors, in my view, issues 1)
and 3) form part of the matrix of factors that undermine the trial judges
finding of good faith that I have discussed above.

[74]

I agree that the trial judge appeared to reassess her view of the
deficiencies in the presentation of the informants tip when she came to the s.
24(2) analysis. I also agree that the unclear language describing the
informants criminal record, similar to that in
Rocha
, had the
potential to mislead the issuing justice regarding the informants credibility
and reliability, and thereby undermine the administration of justice:
R. v.
Hosie

(1996), 107 C.C.C. (3d) 385 (Ont. C.A.), at p. 400.

[75]

Since, as discussed below, I find that this court is entitled to reweigh
the
Grant

factors, issue 2) is more appropriately addressed
when considering the second
Grant
factor in the s. 24(2) analysis.

2) Analysis of the s. 24(2)
Factors

[76]

Based on the trial judges error in principle in treating the police
conduct as good faith conduct that favoured admission of the evidence under the
first
Grant
factor, this court is entitled to conduct a fresh
analysis.

[77]

Dealing with the first
Grant
factor, the police conduct falls
at the more serious end of the spectrum, favouring exclusion of the evidence.
Although the police applied for and obtained a warrant, the ITO was seriously
deficient: it did not provide the type of information from the informant that
Debot

(SCC)

and
Araujo
require, it used misleading language
regarding the informants criminal record, and the police failed to corroborate
any information beyond the fact that the accused signed a lease for the target
residence and none of the three lessees had a firearms license.  Although the
Rocha
decision post-dated the polices application to obtain a search warrant for the
appellants home, the law relied on in
Rocha
to ground a similar
analysis and exclude the impugned evidence in that case was not new. It was an
error by the trial judge to mitigate the seriousness of the police conduct by
characterizing it as good faith, even if the police did not have the specific intent
to mislead.

[78]

All parties agreed that the second
Grant
factor, the impact of
the
Charter
-infringing conduct on the accused, favoured exclusion of
the evidence because of the significant effect that arresting the appellant,
searching his person, and searching his home had on his liberty and privacy
interests. However, the trial judge did not give sufficient weight to the
seriousness of the impact in assessing this second factor.

[79]

A useful comparison can be made with the approach taken by Code J. in
Learning
.
 There, the first
Grant
factor favoured admission of the evidence. Because
the informant in that case had provided detailed information that gave the
officer reasonable and probable grounds to arrest, there was no bad faith on
the part of the police officer in obtaining the warrant or arresting the
accused. However, Code J. explained that the officers good faith did not
mitigate the significant impact of the arrest and search on the accuseds
Charter
rights. He stated at para. 118:

[T]he second line of inquiry militates strongly in favour of
excluding the evidence as the accused was completely deprived of his core
liberty interest on the basis of a mere conclusory tip.

[80]

In my view, the second factor strongly favours exclusion of the
evidence.

[81]

While the third factor favours admission, at least of the drugs and cash,
this court has now recognized that [i]f the first and second inquiries make a
strong case for exclusion, the third inquiry will seldom, if ever, tip the
balance in favour of admissibility: see e.g.
R. c. Côté
, 2011 SCC
46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89;
R. v. Morelli
,
2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112:
McGuffie
,
at para. 63.

Conclusion

[82]

While the evidence that was seized is real evidence that is reliable, a
proper balancing of the
Grant

factors requires exclusion of the
evidence in order to uphold the repute of the administration of justice.



[83]

I would allow the appeal, set aside the conviction and enter an
acquittal.



Released: August 24, 2018 K.F.



K. Feldman J.A.

M.L. Benotto J.A.

H. Sachs J.









[1]

The Crown submits that the record is not clear as to whether
the informant did in fact have a more extensive criminal record. I agree that
the officer did not state that explicitly. He stated that the informant had a
police record that was not fully disclosed in the ITO. However, it is
reasonable to infer, as the trial judge did, that the officer would have said
the informant had no criminal record had that been the case, rather than saying
no record for mislead police or perjury.



