Ontario Criminal

Charter of Rights

Incursion on accused’s right to privacy in home outweighed reliability of seized evidence

Application by accused male and accused female to exclude all evidence obtained as result of male’s arrest and execution of search warrant at his home. Police officer obtained telewarrant to search male’s home after confidential informant told him that male possessed firearm and was involved in sale of marijuana. When male was arrested drugs and cash were found in his possession, as were keys for his home. Police entered home late at night by means of no-knock dynamic entry and female and two children were found in home. Police found loaded firearm in which safety was in off position, bulletproof vest, ammunition, drugs, digital scale, firearms cleaning kit and identification documentation. Accused were charged with various firearm and drug offences that arose from their alleged possession of prohibited firearm and ammunition, and for possession of marijuana for purpose of trafficking. Basis of application was that accused claimed that their rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Information to Obtain (“ITO”) that was disclosed to accused was heavily redacted to protect identity of confidential informant. Crown conceded that edited ITO did not disclose reasonable grounds to arrest male or to issue warrant. Court previously decided that male lacked standing to challenge search of his home. Crown also conceded that arrest, detention and search of male violated his ss. 8 and 9 rights. He further conceded that search of home violated female’s s. 8 rights. Crown made these concessions based on failure of redacted ITO to reveal currency or source of informant’s information that male possessed marijuana or firearm. Application allowed in part. Male’s application was dismissed and female’s application was allowed. Despite considerable negative impact on male’s rights, state conduct, which was not at serious end of continuum, and high societal interest in having matter adjudicated on merits led to conclusion that evidence should be admitted against male. Regarding female, if evidence was excluded prosecution against her would fail. However, profound incursion on her right to privacy in her home outweighed reliability of seized evidence and its importance to Crown’s case. Admission of evidence against female would negatively affect long-term reputation of administration of justice and it would bring it into disrepute. Evidence against female from search of home was therefore excluded.

R. v. Ivy (Jul. 4, 2013, Ont. S.C.J., K. Corrick J., File No. CR12500008520000) 108 W.C.B. (2d) 324.

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