Court refuses to exclude evidence gathered in execution of search warrant covering applicant's home

Issue is whether search warrant and applicant's arrest should have been authorized

Court refuses to exclude evidence gathered in execution of search warrant covering applicant's home

High privacy interests attach to the residence of someone charged with drug and firearm offences, but there is a strong societal interest to address the trafficking of dangerous controlled substances and the illegal, dangerous presence of firearms, a court said.

In R. v. Smith, 2021 ONSC 6609, a confidential informant told police that the applicant was storing fentanyl, allegedly being trafficked by another person, in his basement residence at a specific address. The police, following an investigation, acquired a search warrant for the residence, its outbuildings and a detached garage.

The police were authorized to obtain a search warrant (ITO) sworn by a Royal Canadian Mounted Police constable to search for fentanyl and other specified items. The police, during their search, found quantities of fentanyl, hydromorphone and oxycodone, as well as cellular phones and a gun.

The applicant was arrested in his basement residence and charged with four counts of possession of controlled substances for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act and five counts of firearm offences under ss. 86(1), 88(1), 92(1), 92(2) and 95(1) of the Criminal Code.

In this case, the applicant, alleging that the ITO was deficient, sought an order to exclude all evidence gathered in the execution of the search warrant pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Ontario Superior Court of Justice ruled that, while the ITO lacked precision and included overstatements in its conclusory or summary paragraphs, the documents, when considered as a whole and upon misleading statements, disclosed reasonable and probable grounds to believe that a drug trafficking offence had been committed and the evidence would be found in the basement unit.

The court said that a constable swore the information with years of experience in drug investigations. The confidential informant’s report and the crime stoppers’ tips were corroborated, compelling, and credible to implicate the house at the specified address of the alleged drug trafficking activity.

While the principle providing a high expectation of privacy in residence demands clearly stating the reasonable and probable grounds for proposing to search every unit of a multi-dwelling building, there is no investigative necessity prerequisite to issuing a warrant for the search of a house the court noted.

The court addressed whether the evidence should be excluded in the interest of the administration of justice under s. 24(2) of the Charter, which would entail a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32, which are the following: the seriousness of the Charter-infringing state conduct, the severity of the breach on the Charter-protected interests and whether admitting the evidence would undermine public confidence in the administration of justice.

The court found that while the second factor, which emphasizes the applicant’s privacy interest in his home, favoured exclusion of the evidence, the first and third factors favoured inclusion. Accordingly, the court determined, on balance, that the evidence should be admitted even if there was a s. 8 Charter breach and a consequent s. 9 breach.

The court held that, while high privacy interests attached to the applicant’s home, there were demonstrable efforts to show reasonable and probable grounds for searching the basement and that even if such grounds fell short, they would only do so minimally. On the other hand, the court concluded that there was a strong societal interest to tackle the trafficking of dangerous controlled substances and the illegal and dangerous presence of firearms.

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