



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herta, 2018 ONCA 927

DATE: 20181121

DOCKET: C63316

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin Herta

Appellant

Philip Campbell, for the appellant

Sarah Egan, for the respondent

Heard: September 21, 2018

On appeal from the conviction entered by Justice Lloyd C.
    Dean of the Ontario Court of Justice on November 16, 2016.

Fairburn J.A.:


I.

OVERVIEW

[1]

This is an appeal from conviction for various drug related offences and breach
    of recognizance. The trial proceeded largely on the basis of a pre-trial motion
    challenging the admissibility of evidence seized during the execution of a
    search warrant at the appellants home. After the s. 8
Canadian Charter of
    Rights and Freedoms
motion was dismissed, an agreed statement of facts was
    filed and convictions were entered. The appellant received an 18-month
    sentence.

[2]

This appeal focuses on whether the trial judge erred in dismissing the
    s. 8 motion and, if so, whether the evidence seized from the appellants home should
    be excluded under s. 24(2) of the
Charter
. The appellant claims that the
    trial judge erred in the following ways:

(a)     failing to properly assess the reliability of the confidential
    informant (CI) information contained in the information to obtain (ITO)

(b)     failing to properly consider the reasonably
    available inferences arising from the ITO and

(c)     failing
    to consider the effect of misleading information in the ITO that the target of
    the search lived at the location searched.

[3]

The viability of the search warrant in this case turns entirely on the
    strength of the CI information. For the reasons that follow, I find that the trial
    judge erred in concluding that the redacted ITO contained sufficient grounds to
    support the search warrant, and that a s. 8 breach resulted. I would exclude
    the evidence under s. 24(2).
[1]


II.

BACKGROUND INFORMATION

[4]

On December 1, 2015, a search warrant issued and was executed at the
    appellants home at 1670 Clover Avenue, Windsor.

[5]

The appellant attacked the facial validity of the search warrant,
    alleging that the ITO contained insufficient grounds to support its issuance.
    The ITO was redacted for information that could serve to identify the CI. (I
    will have more to say about those redactions shortly.) There was no request to
    cross-examine the affiant at trial and no effort by either party to amplify the
    record. Accordingly, the redacted ITO contains the only grounds in support of
    the search warrant.

[6]

In summarizing those grounds, I start with the central observation that the
    appellant was not the subject of the search warrant executed at his home. Indeed,
    there is nothing to suggest that the appellant was even known to the police
    before the search warrant was executed. Nor is there anything to suggest that,
    at the time of the search, the police knew who lived at or owned the
    appellants home.

[7]

The search arose strictly from the fact that a man by the name of Derek
    Callahan was seen arriving at that location. Callahan was wanted for robbery.
    He was alleged to have placed the victim in a headlock, stealing his earphones
    and gold chain. There is no indication that a weapon was used during the
    commission of the robbery. A warrant was issued for Callahans arrest.

[8]

A few weeks before the search, but while the arrest warrant for Callahan
    remained outstanding, a CI provided the affiant with information about
    Callahan. He or she gave the affiant Callahans cell number and said that Callahan:

(a)     was wanted for robbery

(b)     had a desire to avoid the police and was staying at
    different places in order to do so

(c)     would not stop for the police if he was in a car

(d)     was driving two different vehicles (one of which
    was a green Pontiac G6) owned by Callahans girlfriend and

(e)     was
    staying in a specific geographical area.

[9]

As the trial judge correctly noted, most of that information was
    confirmed through the use of police records, surveillance and a tracking
    warrant.

[10]

The
    CI provided additional information on the day before the search warrant issued.
    The CI said that within the previous 24 hours he or she had seen Callahan in
    the east end of Windsor. The CI told the affiant three things that are critical
    to the grounds for the search warrant:

(a)     he or she saw Callahan carrying a gun

(b)     Callahan had the gun for protection because he
    was in a dispute  and

(c)     the
    CI knew that Callahan would not be anywhere without the gun.

[11]

There
    is nothing in the redacted ITO that explains the nature of the dispute or why
    the CI believed that Callahan would not be without the gun. The covering page of
    the ITO makes specific reference to the gun as a 303 rifle. The trial judge found
    that the CI must have provided the police with that information.

[12]

A
    tracking warrant was obtained for Callahans cell phone on the same day that
    the CI provided the gun information. That phone was tracked the following
    morning to a neighbourhood in Windsor. There is nothing in the redacted ITO to
    suggest that Callahan had any connection to that neighbourhood or that it was
    even located in the same general area of Windsor as where the CI had seen
    Callahan the day before.

[13]

The
    affiant started looking for Callahans car in the general residential
    neighbourhood to which his phone had been tracked. Although Callahans car was
    not in the driveway of 1670 Clover Avenue when the affiant first drove by that
    location, Callahans Pontiac G6 was there when the affiant drove by a second
    time at around 6:13 a.m. It was clear that Callahan had just arrived. The
    affiant saw him walking toward the front door of the residence.

[14]

The
    affiant then prepared an ITO for a warrant to search 1670 Clover Avenue. As of
    8:55 a.m., Callahans car was still in the driveway and as of 10:00 a.m., when the
    application for the warrant was made, Callahans phone was still registering in
    that same residential neighbourhood. The warrant issued at 10:20 a.m., authorizing
    the search for a firearm and ammunition at [t]he residence of Derek Callahan 
    at 1670 Clover Avenue, Windsor, Ontario.

[15]

The
    circumstances surrounding the search arise from an agreed statement of facts. Ultimately,
    the Emergency Services Unit had to enter the residence and everyone was removed
    without incident. A K-9 unit was sent in to clear the home, after which officers
    went in to take pictures of the appellants home. The K-9 unit then entered
    again to assist in locating evidence. The actual search is described in the
    agreed upon facts as follows:

At 12:50 pm, the police K-9 unit entered the residence again
    and upon completion of another search, advised officers  of specific places to
    search based on indications from [the dog]. The subsequent search by  officers
    led to the plain view discovery of suspected illicit substances and drug
    paraphernalia and a more intrusive search based in part on indications by [the
    dog], led to the discovery of further suspected illicit substances secreted
    throughout the residence including inside floor vents. No weapons were found.


III.

ANALYSIS

(a)
Overview

[16]

It
    is important to remain focused on what is in issue in this appeal. The police
    were well positioned to arrest Callahan for robbery. Indeed, given that there was
    an outstanding warrant for Callahans arrest and Callahan was believed to be
    present in 1670 Clover Avenue, the police could have applied for a s. 529
Criminal
    Code
warrant to enter that location in order to effect the arrest:
R.
    v. Feeney
,

[1997] 2 S.C.R. 13;
R. v. Adams
(2001), 157
    C.C.C. (3d) 220 (Ont. C.A.), at para. 6. If that
Feeney
warrant had
    issued, Callahan would have been arrestable inside of the appellants home and liable
    to a search incident to arrest.

[17]

Instead
    of pursuing a
Feeney
warrant, though, the police obtained an authorization
    to search the entire residence for the firearm that the CI said he or she had
    seen Callahan carrying the day before. The warrant to search was granted
    without any knowledge of who owned the house, who lived there or whether Callahan
    had any association with that location. In other words, there was nothing about
    the house that connected it to a gun. It was the CIs connection of Callahan to
    a gun and then Callahans arrival at that location that led to the extensive
    search of the appellants entire house for the gun that was never found.

[18]

Accordingly,
    the real question on this appeal is the following: could the CI information
    support the search for the gun at any location that Callahan went?

[19]

In
    analysing that question, I will start by briefly discussing the inherent
    limitations arising from situations where the standard of review is applied to
    redacted ITOs. I will then address whether there were errors in how the CI
    information was approached on review. In particular, I will focus on the trial
    judges application of the
R. v. Debot
, [1989] 2 S.C.R. 1140

criteria
    and the potential impact of the affiants suggestion that Callahan was of 1670
    Clover Avenue. Because I conclude that the appellants s. 8 rights were
    breached, I will complete my legal analysis with an application of the relevant
    considerations under s. 24(2) of the
Charter.

(b)       The Standard of Review and Implications of
    Proceeding on a Redacted ITO

[20]

The
    question for a reviewing court is not whether the court would have issued the
    warrant or authorization, but whether it was open to the issuing justice to
    have done so. In a case like this, involving a s. 487 warrant, the question is
    whether there are reasonable grounds to believe  constitutionally defined as
    credibly-based probability  that there is evidence respecting the commission
    of an offence in the location to be searched:
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145
,
    at pp. 167-8. Credibly-based probability exceeds suspicion, but falls short of
    a balance of probabilities:
R. v. Sadikov
,

2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[21]

In
    reviewing the ITO for sufficiency, the trial judge was required to take a
    common-sense and holistic approach. The ultimate question was whether the
    issuing justice could have found that the content of the ITO in its redacted
    form, and the reasonable inferences that could be taken from it, gave rise to a
    credibly-based probability that Callahan had taken a gun into 1670 Clover
    Avenue:
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452;
R. v.
    Araujo,
2000 SCC 65, [2000] 2 S.C.R. 65, at para. 51;
Sadikov
,
at para. 37. The answer to that
    question was squarely rooted in the strength of the CI information.

[22]

The
    trial Crown was duty bound to protect the CIs identity. Accordingly, the Crown
    was obliged to redact anything that might have served to identify the CI. There
    is no dispute in this case over the extent of the redactions made.

[23]

Garofoli
sets out a six-step process for reviewing redacted wiretap affidavits, but
    those steps apply with equal force to search warrants. Where redactions have
    been made to the grounds for belief, step five of this process allows the Crown
    to attempt to support the search warrant on the basis of the material as
    redacted. If successful, the authorization or search warrant will be confirmed.
    Where the redactions are so broad that the remaining information cannot support
    the search warrant, then step six allows the Crown to request the reviewing
    judge to consider so much of the excised material as is necessary to support
    the authorization:
Garofoli,
at pp. 1460-1461.

[24]

As
    the defence cannot see the redacted information, to the extent possible, a
    judicial summary (typically first drafted by the Crown) will be provided to the
    accused so that he or she can be made aware of the nature of the excised
    material:
Garofoli
,
at p. 1461;
R. v. Rocha,
2012 ONCA 707, 292 C.C.C. (3d) 325, at paras.
    55-57;
R. v. Crevier,
2015 ONCA 619, 330 C.C.C. (3d) 305, at paras.
    41-47, 83, 97.

[25]

Undoubtedly,
    invoking step six can be both complex and time-consuming. Efficiency and
    economy demand that careful thought be given in each case to whether it is
    necessary to proceed on that basis. Where CI information is peripheral or
    superfluous to the grounds for belief, it will often be unnecessary to resort
    to step six. Where, though, the CI information is central to the grounds for
    belief, step six may have to be invoked in order to answer whether the warrant
    could have issued.

[26]

This
    may well have been one of those cases. Not only was the CI information central to
    the grounds for belief, but the redactions were heavy. In particular, I note
    that the contents of an appendix to the ITO were entirely redacted. That
    appendix was said by the affiant to contain information allowing the issuing
    justice to make an informed decision on the reliability of the [CI] information
    provided.

[27]

Given
    that the trial Crown chose to go no further than step five, the trial judge was
    placed at a distinct disadvantage. He was called upon in a CI dependent case to
    determine, on the basis of a reduced record, whether the search warrant could
    have issued.

(c)     Section
    8 Analysis: Did the Redacted ITO Contain Sufficient Grounds to Support the
    Search Warrant for the Appellants Home?

[28]

The
    trial judge was alive to the fact that the search warrant in this case rose or
    fell on the strength of the CI information. In considering that issue, he
    correctly turned his attention to the three
Debot
criteria: whether
    the CI was credible, and whether the CI information was corroborated and compelling.

(i)

Whether the CI was credible

[29]

I
    agree with the trial judges expressed concern over the CIs credibility. He specifically
    noted that it was not at the highest end of strength. In particular, the
    trial judge considered the fact that if the CI had a criminal record, it had
    been redacted. So too had the information about any motivation that the CI may
    have had to provide information to the police. Despite his reservations, the
    trial judge found that there was enough information to satisfy him that the CI
    was sufficiently credible.

[30]

The
    appellant submits that the trial judge erred by failing to grapple with the
    fact that two of the typical criteria for considering a CIs credibility, his or
    her criminal record and the motivation offered in return for information, were
    not available for consideration. He contends that the absence of that
    information placed the CI in a deep credibility hole, from which it was
    difficult to emerge.

[31]

The
    respondent maintains that despite the redactions, there remained some limited,
    non-specific information supporting the CIs credibility. For instance, there
    remained information about the fact that the CI and affiant had been in a prior
    informant/handler relationship, that the CI had provided information in the
    past and that the information had led to the execution of warrants resulting in
    arrests and the seizure of drugs named in those warrants.

[32]

Although
    the respondent is correct to note that the ITO contained at least some information
    from which credibility could be assessed, that information was scant. As
    mentioned, I agree with the trial judges articulation of concern over the
    CIs credibility, but would add the following to his list of concerns:

(a)    Although the CI and affiant had been in an informant/handler
    relationship, redactions made it impossible to know the duration of that
    relationship: less than [redacted] years.

(b)    Although the ITO suggests that the CI had provided
    information leading to the execution of warrants in the past and parties named
    by the CI being arrested, redactions made it impossible to know the number of
    occasions that had occurred.

(c)    Although the affiant suggested that the CI had
    provided information which led to something in the past, that something had
    been redacted.

(d)    Although the CI may have had a criminal record, if
    he or she had one, it was to be outlined in an appendix to the ITO, yet the
    entire appendix was redacted.

(e)    Although the affiant acknowledged that the CI had
    a motive to provide information, whatever served as that motivation was
    redacted. How great the CIs incentive to provide information remains entirely
    elusive.

[33]

The
    redactions make it difficult to meaningfully assess the CIs credibility. Based
    upon the very limited information available in the redacted ITO, the
    credibility criteria does not advance the
Debot
analysis far. This was
    not about whether the CI was sufficiently credible, but whether there were
    objective facts supporting the CIs credibility, such that it enhanced the
    confidence that could be placed in the CIs information. The redacted ITO was
    lacking in that regard.

[34]

Even
    so, it is the totality of circumstances that informs the strength of the CI
    information. Accordingly, weakness in one of the
Debot
criteria can be
    compensated for by strengths in the other areas. I will now consider those
    areas.

(ii)

Whether the CI information was corroborated

[35]

The
    trial judge noted that there was no need for every detail provided by a CI to
    be confirmed. Without referring to anything in specific, the trial judge concluded
    that the CI information had been corroborated by police investigation prior
    to the search and that there was sufficient corroborative evidence to warrant
    the belief that Callahan was in possession of a firearm at the Clover residence
    or in his vehicle.

[36]

The
    appellant does not dispute that there was some evidence corroborating the CIs
    information. This included information about Callahans car, where he was
    hanging out, his phone number, and that he was wanted for robbery and would not
    stop for the police. The appellant emphasizes, though, that the confirmed
    information could have been known to anyone who knew Callahan.

[37]

The
    respondent counters with the argument that the confirmed facts were not banal
    and would have only been known by close associates to Callahan. Moreover, the
    respondent emphasizes that there is no need to confirm each detail in a CIs
    tip or the information about criminality.

[38]

I
    agree with the respondents legal observations. There is no rule that says that
    the information relating to criminality itself has to be confirmed. Indeed, it
    is often impossible for the police to obtain such confirmatory information
    about the very criminality of what the CI has witnessed or knows:
R. v.
    Lewis
(1998), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 22. See also:
R.
    v. Caissey,
2008 SCC 65,
[2008]
    3 S.C.R. 451, aff'g 2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25;
Debot,
at
p. 1172;
R. v. Green,
2015 ONCA 579, 22 C.R. (7th) 60, at paras. 27-29. As noted in
Rocha,
at
    para. 22, the police do not have to confirm a tip to the extent of having
    observed commission of the offence as that level of confirmation is rarely
    possible.

[39]

Despite
    that fact, the purpose of considering the
Debot
criteria is to determine
    the overall reliability of what the CI has said. Given the weakness in the
    credibility assessment in this case, there was a heightened need for good
    corroboration.

[40]

I
    do not agree with the trial judges statement that there was sufficient
    corroborative evidence to warrant the belief that Callahan was in possession of
    a firearm at the Clover residence. Other than Callahans criminal record, which
    included two undated convictions for assault with a weapon and possession of a firearm,
    the confirmatory information had nothing to do with Callahan and guns. The
    corroborative facts related to information that many people would know, such as
    Callahans telephone number, the type of car he was driving and where he was
    hanging out. In the context of this case, those facts demonstrated that the CI
    knew or knew of Callahan. Although the CIs confirmed knowledge of Callahan was
    one step toward reliability, in the circumstances of this case, particularly
    given the deficit in the credibility criteria, a larger step would have been
    beneficial.

[41]

This
    meant that in assessing the totality of the circumstances, the third
Debot
criteria,
    whether the information was compelling, had some heavy lifting to do.

(iii)

Whether the CI information was compelling

[42]

The
    most significant concern lies with whether the CI information was compelling.
    As noted by Martin J.A. in
R. v. Debot
(1986), 30 C.C.C. (3d) 207
    (Ont. C.A.),

at p. 219, and later adopted by Wilson J. on appeal,
    [h]ighly relevant to whether information supplied by an informer constitutes
    reasonable grounds are considerations involving whether the informers tip
    contains sufficient detail to ensure it is based on more than mere rumour or
    gossip and whether the informer discloses his or her source or means of
    knowledge. Bald conclusory statements cannot support the veracity of CI
    information:
Debot,
at p. 1168-9;
Rocha
, at para. 26.

[43]

The
    trial judge found that the CI information did not take the form of bald
    conclusory statements or mere rumour or gossip and was sufficiently specific
    to warrant police attention. He pointed to two factors in support of that
    proposition: (a) the CI said that he had seen the gun within the previous 24
    hours; and (b) the first page of the ITO made reference to a specific type of
    gun (a 303 rifle), making it more likely that the CI had actually seen a gun.

[44]

Although
    the trial judge was clearly alive to the need to consider whether the CI
    information was compelling, respectfully, I disagree with how that
    consideration was resolved. The trial judge focussed only on whether the
    information about the CI seeing Callahan with a gun the day before the search was
    compelling. Even if it was compelling, that information did not resolve the
    real question for resolution  whether the issuing justice could find that there
    was a credibly-based probability that Callahan took the purported 303 rifle
    into 1670 Clover Avenue the next day. The CI information supporting that
    proposition comes largely from the suggestion that Callahan was in a dispute
    and would not be anywhere without the gun.

[45]

The
    appellant argues that the CI information about Callahan being in a dispute and
    carrying the gun with him at all times was conclusory in nature. He maintains
    that we should ignore that information.

[46]

The
    respondent submits that the information about the dispute and Callahan carrying
    the gun was not conclusory. Even if it was conclusory, though, the respondent
    relies upon
R. v. Delchev,
2011 ONSC 1994, for the proposition that
    the CIs personal observation of Callahan with a gun the day before the search
    made the information sufficiently compelling that the issuing justice could
    satisfy herself that Callahan would take the gun into 1670 Clover Avenue the
    next day.

[47]

I
    agree that the CI information about the dispute and Callahan not being anywhere
    without his gun is somewhat conclusory in nature. There is no basis upon which
    to assess the veracity of those claims because, as Martin J.A. put it in
Debot
,
    no details were provided and the CI did not disclose his or her source or
    means of knowledge. Was the information about the dispute mere gossip, or did
    Callahan tell the CI that he was in a dispute? Did someone else tell the CI
    that fact? Was the information about Callahan carrying the purported gun at all
    times gossip or conjecture on the part of the CI? Although the details
    supporting those claims may have been in the appendix to the ITO, the contents
    of the appendix were redacted. Thus, while I would not discount the claims about
    the dispute and Callahan carrying a gun altogether, I would not characterize
    them as compelling.

[48]

Relying
    upon
Delchev,
the respondent emphasizes that the fact that the CI said
    that he saw Callahan with the gun was enough, standing on its own, to pass the compelling
    threshold in
Debot
and justify the search.  I agree with the sentiment
    expressed in
Delchev,
at paras. 73-75, that an inference can be drawn
    that criminals who are illegally in possession of guns may have them for long
    periods of time. I do not read
Delchev
as saying, though, that the
    fact that a CI has seen someone with a gun at some point in the past, means
    that a search warrant can necessarily issue for any place attended by that person
    in the future. To the contrary, the CI in
Delchev
actually saw the
    firearms at the locations that were ultimately searched. That is quite unlike
    this case.

[49]

In
    this case, although the CI said that he saw Callahan with a firearm, the CI did
    not connect the firearm to 1670 Clover Avenue. The redacted ITO does not
    enlighten the reader as to where the CI saw the gun,
e.g.
in a house,
    a car, a place of business, a park or any other location. The redacted ITO
    merely says that Callahan and the gun were seen in the east end of Windsor. The
    redacted ITO does not even address whether the appellants home rests in that
    part of Windsor.

[50]

Furthermore,
    other than the affiant seeing Callahan walk toward the front door of 1670
    Clover Avenue a few hours before the warrant issued, there is nothing in the
    redacted ITO that draws a connection between Callahan and that residence. There
    is no information about who owned, lived at or frequented that home. Nor is
    there any information about whether a firearm had ever been associated with
    that location, or whether the police had ever investigated anyone living there
    or attended at that place in the execution of their duties. Moreover, there is
    no suggestion that the affiant saw anything in Callahans hands as he walked
    toward the residence.

[51]

Accordingly,
    the only information that could support the reasonable grounds to believe that
    Callahan took a rifle into 1670 Clover Avenue rested on the CIs statement that
    Callahan was in a dispute and would not go anywhere without the gun. If those
    statements were compelling enough to give rise to a credibly-based probability
    that Callahan took a rifle into the location searched, then they would be
    compelling enough for a search warrant for any location that Callahan attended.
    This would have turned Callahan into walking, ready-made grounds for belief. That
    is a sweeping proposition, particularly in light of the weak and conclusory
    nature of those statements in the ITO, the minimal information about
    credibility and the weak nature of the corroboration.

(d)

The effect of the potentially misleading
    information about Callahans    residence



[52]

There is a further difficulty in this case. As has been
    discussed, the ITO was silent on the critical point of connecting a gun to the
    location searched. The only information that could have filled that gap was
    erroneous in nature. In particular, the ITO contained a misleading suggestion that
    the involved person was Derek Callahan
of 1670
    Clover Avenue

(emphasis added)
.
The ITOs covering
    page also suggests that the residence was the Dwelling House & Place of
    Derek CALLAHAN. These statements had the potential to leave the issuing
    justice with the impression that Callahan lived at 1670 Clover Avenue.

[53]

The search warrant suggests that the issuing justice may
    well have been misled on that point. I say this because she authorized a search
    of the 
residence of
Derek Callahan (emphasis
    added). Although the respondent acknowledges that 1670 Clover Avenue was not
    Callahans residence, the respondent argues that the wording on the face of
    the warrant is simply the product of standard wording on a standard form. I do
    not agree.

[54]

1670 Clover Avenue was not the residence of Derek Callahan.
    It was the residence of Benjamin Herta. The correct wording could have been
    easily placed on the face of the warrant. This is not just about
    technicalities. If 1670 Clover Avenue had in fact been Callahans residence, it
    might have given rise to the reasonable inference that Callahan would secret
    his rifle at his own place. That inference falls away when the true state of
    facts is known.

[55]

The respondent maintains that when the ITO is considered in
    context, it would have been clear to the issuing justice that Callahan did not
    live at the location searched. I disagree. Although there is mention of the
    fact that the police were looking for where Callahan was staying in the weeks following
    the robbery, and the CI had told the police that Callahan was staying at
    numerous different residences to evade the police, that is not inconsistent
    with Callahans residence being at 1670 Clover Avenue. The reference in the
    ITO to that home as Callahans residence left the potential erroneous impression
    that, at least as of the day of the search, the police had satisfied themselves
    that it was actually Callahans home.

[56]

The respondent also argues that there is no error because
    there only needs to be an adequate description of the place to be searched on
    the face of a warrant:
R. v. Ting,
2016 ONCA 57, at paras. 47-48. The
    address on the warrant was correct and everything else was superfluous. I agree
    with that general legal proposition, but it does not address the argument
    raised.

[57]

The
    question is not whether there was an adequate description of the place to be searched.
    The question is whether the issuing justice might have been misled into
    thinking that Callahan lived there. She may have been and may have drawn the wrong
    inference that Callahan would keep his firearm at his own residence.  That
    error may have contributed to the search warrant issuing in circumstances where
    it could not.

(e)

Conclusion Regarding Section 8 Analysis

[58]

Properly considered, the CI information was of insufficient
    strength to support the search warrant for the appellants residence. As the
    trial judge observed, the CIs credibility was of concern. Although some information
    was corroborated, it did not compensate for the void left by the credibility
    assessment. The CIs tip was not compelling in relation to whether a firearm 
    a 303 rifle  would be found in 1670 Clover Avenue. The totality of
    circumstances could not support the search warrant. I conclude that the
    appellants s. 8 rights were breached.

[59]

This leads me to consider the question of admissibility.

(f)
Application of Section 24(2) of the Charter

[60]

Given
    his conclusion on s. 8, the trial judge did not conduct a s. 24(2) analysis.
    The parties agree that, if a s. 8 breach is found, the record from trial is
    sufficient to permit this court to do one. I agree.

[61]

The
    first prong of
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para.
    74, requires consideration of the seriousness of the
Charter
-infringing
conduct.

[62]

On
    one hand, there is nothing in this case that suggests intentional police
    misconduct. The police appear to have had
bona fide
concerns about
    public safety. They had been having difficulty locating Callahan for some time
    and, accordingly, obtained a tracking warrant. They cannot be criticized for
    taking active, judicially authorized steps to locate him.

[63]

Once
    located, they applied for and received a warrant to search the residence that Callahan
    had been seen walking toward. The fact that the redacted ITO fell short on
    reasonable grounds for belief does not suggest intentional wrongdoing. Rather,
    it demonstrates that either the application was premature (and the justice of
    the peace failed to identify that fact) or that the Crown miscalculated the
    strength of the redacted ITO. Either way, falling short of reasonable grounds
    does not, in and of itself, suggest any intentional police wrongdoing.

[64]

At
    the same time, this case involves some sloppy work, specifically around the
    language that mistakenly suggested that Callahan lived at 1670 Clover Avenue.
    Although I find that there was no intention to mislead the issuing justice, it
    could have had that effect:
R. v. Morelli
, 2010 SCC 8,

[2010] 1 S.C.R. 253, at paras.
    99-101. At most, the wording was somewhat careless. It is not so serious,
    though, that it rises to the level of something from which the court must
    dissociate itself. There is a human element in what we all do and people can
    make innocent mistakes. Not everything is deserving of a label.

[65]

Accordingly,
    I conclude that the first
Grant
factor is neutral in the admissibility
    analysis.

[66]

The
    second prong of
Grant
examines the impact of the breach on the
Charter
-protected
    interests of the accused. It can range from something fleeting and technical
    to profoundly intrusive:
Grant,
at paras. 76, 78. Unlike the first
    prong, I find that this factor points strongly toward exclusion.

[67]

This
    was the appellants home, a place over which he held a strong expectation of
    privacy. People sometimes invite others into their homes. They should be able
    to expect that, as interested as law enforcement may be in those invitees, unless
    there are sufficient grounds to believe that an invitee has brought something
    into their residence that is evidence respecting the commission of an offence,
    the police will stay at bay. We have a situation here where the appellant
    appears to have been minding his own business, free from state scrutiny, when
    all of a sudden he allowed someone into his home and that someone acted like a
    beacon for the police.

[68]

The
    search was clearly extensive and highly invasive. Indeed, the trial Crown
    agreed to a set of facts that described the search as intrusive.

[69]

First,
    everyone inside of the home was escorted out by the police.

[70]

After
    all of the people were out, a sniffer dog was sent in along with the Emergency
    Services Unit. Then, other officers were sent in to take photos of the appellants
    home, after which a sniffer dog was sent in again. The search led to both the
    plain view discovery of drugs as well as drugs found only with the assistance
    of a sniffer dog. Indeed, so extensive was the search that some of the illicit
    substances were found secreted in floor vents. There is simply no denying that
    it was a very intrusive home search.

[71]

Although
    I am mindful of the fact that a
Feeney
warrant could have been
    obtained, allowing the police to lawfully enter the home to arrest Callahan,
    the
Feeney
warrants ambit would have been confined to arresting
    Callahan. Significantly, it would not have allowed the extensive search of the appellants
    entire home. I conclude that this was a highly invasive search  the breaching
    of the door, multiple police officers, sniffer dogs, Emergency Services Unit,
    photographs, searching in floor vents, and all. It had a heavy impact on the
    appellants s. 8
Charter
-
protected
    interests.

[72]

In
    considering the third prong of
Grant,
societys interest in an
    adjudication on the merits, it must be remembered that the exclusion of
    relevant and reliable evidence can undermine the truth-seeking function of the
    justice system, thus bringing the administration of justice into disrepute:
Grant,
at para. 81. The exclusion of the evidence in this case will undoubtedly
    gut the prosecution and lead to acquittals on drug offences that resulted in an
    18-month sentence. The evidence involves various drugs, including a gram of fentanyl,
    2.1 grams of crystal methamphetamine, 3.4 grams of crack cocaine, marihuana and
    codeine pills. The third prong points toward inclusion.

[73]

The
    balancing of the various s. 24(2) factors requires a qualitative assessment,
    one that is ill-suited to mathematical precision:
Grant,
at para. 140.
    Where does the balance in this case lie?

[74]

I
    conclude that the evidence should be excluded. Although I would place the
    seriousness of the state conduct at the middle of the spectrum, the impact of
    the breach on the
Charter-
protected interests of the appellant clearly
    outweighs it, existing at the apex of seriousness. Societys interest in having
    an adjudication of this case on the merits is important, but so is societys
    interest in ensuring that extensive searches of private residences, those
    involving multiple police officers, photos, dogs and more, are justified. There
    is no precise equation that can be applied but, in this case, the fact that the
    appellants privacy was seriously invaded for reasons that had nothing to do
    with him decisively tips the scales in favour of exclusion.


IV.

Conclusion

[75]

The
    appeal is allowed, the evidence is excluded and acquittals are entered on all
    counts.

Released: SP Nov 21 2018

Fairburn
    J.A.
I agree. S.E. Pepall J.A.
I agree. P. Lauwers J.A.





[1]

Given the ss. 8 and 24(2) conclusions, there is no need to
    consider the appellants final ground of appeal pertaining to the sufficiency
    of reasons.


