R. v. Russell

R. v. Russell Court Supreme Court Date 2010-08-31 Citation 2010 NSSC 323 Docket 323732, CRBwt 324240 Judge/Registrar/Adjudicator MacAdam, A. David (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Russell - 2010 NSSC 323 - 2010-08-31 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: R. v. Russell, 2010 NSSC 323 Date: 20100831 Docket: CRBwt 324240 and 323732 Registry: Bridgewater Between: Her Majesty the Queen in the Right of Canada Appellant v. William Oswald Russell Respondent And Between: Her Majesty the Queen in the Right of Nova Scotia Appellant v. William Oswald Russell Respondent D E C I S I O N Judge: The Honourable Justice A. David MacAdam Heard: July 7, 2010 in Bridgewater, Nova Scotia Written Decision: August 31, 2010 Counsel: Mark Covan and Mark Donohue for the Appellant, Her Majesty the Queen in the Right of Canada Paul B. Scovil for the Appellant, Her Majesty the Queen in the Right of Nova Scotia Alan Ferrier, Q.C. for the Respondent By the Court: INTRODUCTION [1] The appellants, the Federal and Provincial Crowns, appeal from the decision of a Provincial Court Judge acquitting the respondent on charges under s. 39(1)(a) and (b) of the Revenue Act, S.N.S. 1995-96, c. 17, and under the Excise Act, 2001, S.C. 2002, c. 22. Specifically, they appeal from the Trial Judge’s decision to quash two search warrants on the basis of insufficient grounds, and to exclude the evidence obtained in executing the warrants. BACKGROUND [2] The Trial Judge’s decision can be found at 2010 NSPC 2. According to the Trial Judge, R.C.M.P. officers served two search warrants on the accused on August 27, 2008. Although it is not mentioned in the Trial Judge’s decision, it appears that the warrants were issued pursuant to s. 487.1 of the Criminal Code in relation to an investigation of the accused for illegal possession of cigarettes and tobacco. On August 23, 2008, Cst. Paul McCallion of the R.C.M.P. set out in an Information to Obtain, (ITO), his belief that there was an illegal tobacco market being conducted from the stall operated by the accused at a flea market in Mahone Bay. Based on this ITO, a Justice of the Peace granted a search warrant. Cst. McCallion swore another ITO the next day. [3] The first warrant authorized a search of the accused’s vehicle and of a flea market stall he was operating in Mahone Bay. The search of the vehicle yielded six cartons of cigarettes, containing 200 cigarettes in total, which were not stamped in accordance with the federal Excise Act or the Nova Scotia Revenue Act. The second warrant, issued by a different Justice of the Peace, authorized the search of the accused’s residential property in Barss Corner. A search of the garage yielded 231 cartons containing 46,200 cigarettes, also not stamped. [4] The accused sought exclusion of the seized cigarettes from the evidence at trial on the basis that the searches violated section 8 of the Charter of Rights and Freedoms and should be excluded pursuant to s. 24(2). The accused took the position that the ITO’s sworn to obtain the search warrants did not provide reasonable grounds for the two searches. The Trial Judge followed the analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, which required consideration of three factors: the seriousness of the offending conduct, the impact of the breach on Charter interests and society’s interest in determining the case on the merits. He also cited R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34. [5] In considering the seriousness of the conduct of the officer seeking the search warrant, the Trial Judge held that there was “no suggestion that the informant set about to flagrantly trample the accused’s right,” but that the informant “presented the justices with information that was ... incapable of supporting an inference or conclusion that there were reasonable grounds for the searches.” In the first ITO, the Trial Judge stated, “the informant presented little more than the word of a source of unproven reliability” who “had a criminal record, freely associated with criminals and was motivated to provide the information for financial gain. The information was not particularly detailed and the only confirmation was of generally available information.” As to the second ITO, the grounds offered to the Justice of the Peace “were essentially the same although this time the informant was described as being of proven reliability. The Justice of the Peace, however, was never told how such reliability was proven, although from the facts argued at the hearing it is obvious that it was as a result of the first successful search.” In the result, the Trial Judge concluded, the informant’s conduct did not demonstrate bad faith, but could “be described as negligent in that he presented grounds that were incapable of meeting the standard for authorization of reasonable grounds.” [6] In considering the impact of the breach on Charter interests, the Trial Judge said: [13] This second consideration calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. As the Supreme Court of Canada noted in Grant (supra) the impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact, the greater the risk that the admission of the evidence would send a signal to the public that Charter Rights are of little value. The Supreme Court commented on the rights that may be impacted by an unreasonable search contrary to s. 8. Those interests could be described as interests in privacy and human dignity. An unreasonable search that intrudes on areas where there is a higher expectation of privacy or that demeans the person’s dignity is more serious than one that does not. [14] There is a reduced, but yet significant expectation of privacy with regard to the contents of one’s vehicle while there is an extremely high expectation of privacy with regard to a person’s home property. I find the impact of the breaches here to be significantly intrusive with regard to the motor vehicle and profoundly intrusive with regard to the search of the residential property. [7] As to the third factor – society’s interest in seeing the case determined on the merits – the Trial Judge said: [15] The issue under this heading is whether the truth‑seeking function of the trial process would be better served by the admission of the evidence or by exclusion. The court has to consider both the negative impact of the admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. [16] When considering this, the reliability of the evidence is an important factor. The admission of unreliable evidence does not serve the public interest in uncovering the truth nor does it serve the public interest in ensuring fair trials. Of course, excluding highly reliable evidence may reflect negatively on the system of justice when the remedy “effectively guts the prosecution”. [17] Section 24(2) operates independently of the seriousness of the offence although it is a valid consideration that the Supreme Court suggests could “cut both ways”. Failure to prosecute serious offences due to excluded evidence may have an immediate impact on how people view the system, but the focus is the long term. The Charter rights of those accused of the most serious crimes must be respected if the rights are to have any meaning. [18] With respect to physical evidence, such as the cigarettes in this case, the Supreme Court in Grant noted at para. 115: “Reliability issues with physical evidence will not generally be related to the Charter breach. Therefore this consideration tends to weigh in favour of admission” [8] The cigarettes in this case are physical evidence and reliable just as the 35 kilograms of cocaine was in Harrison, supra, where the majority ruled that, in the totality of the circumstances, the cocaine should be excluded. [9] The Trial Judge concluded that the evidence should be excluded: [19] At the end of the day it is a qualitative balancing exercise as the Supreme Court noted in Harrison at para. 36: “The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long‑term repute of the administration of justice that must be assessed” [20] Having examined this case in that context I have concluded that the applicant has established on balance that the seized cigarettes in each instance should be excluded from evidence. In each instance there was the negligent presentation of insufficient grounds to a judicial officer who, in turn, failed to identify the insufficiency of the grounds presented. In the first instance the accused’s vehicle was searched and in the second instance, where the grounds were arguably closer to the reasonable grounds standard, it was the accused’s house property that was searched. [21] In conducting the 24(2) analysis I find that the court should also consider the justice system’s own failure to adhere to the requirement of reasonable grounds before issuing warrants. It is a systemic failure that would diminish the long term repute of our justice system if I were to admit the evidence. In all the circumstances I have concluded that the seized cigarettes should be excluded from evidence. GROUNDS OF APPEAL [10] The appellants submit that the Trial Judge erred in finding that the respondent’s rights under s. 8 of the Charter of Rights and Freedoms was violated and that the Trial Judge erred in law in excluding evidence pursuant to s. 24(2) of the Charter. The Provincial Crown adds that the Trial Judge erred in quashing the search warrants. The appellants seek an order setting aside the acquittal and entering a conviction or, in the alternative, ordering a new trial. ONUS AND STANDARD OF REVIEW [11] The Supreme Court of Canada has stated that “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure”: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at 168. In R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, Sopinka J. said, for the majority, at para. 56: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non‑disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [12] Fish, J. said, for the majority, in R. v. Morelli, 2010 SCC 8, at para. 40: In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65 (CanLII), 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [13] The Federal Crown notes that the Ontario Court of Appeal elaborated on the “some evidence” threshold in R. v. Church of Scientology of Toronto (1987), 31 C.C.C. (3d) 449, 1987 Carswell Ont 1401 (application for leave to appeal dismissed, [1987] S.C.C.A. No. 257). In that case, the court said, at para. 90: We would add by way of explanation that by the use of the phrase “evidence upon which a justice could be satisfied” it is meant that there is some evidence sufficient as a matter of law to provide reasonable ground to believe that there is in a building, receptacle or place anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against the Code. Obviously if there is not such evidence to provide a basis for such a belief it cannot be said that in those circumstances the justice should be satisfied. There will, however, be cases where such evidence does exist and the justice could be satisfied but where he or she is not satisfied and does not exercise his or her discretion in favour of issuing a search warrant. In these circumstances, the reviewing judge must not say that the justice should have been satisfied and should have issued the warrant. Similarly, if the justice in such circumstances says that he or she is satisfied and issues the warrant, the reviewing judge must not say that the justice should not have been so satisfied. [14] The Nova Scotia Court of Appeal provided the following review of the principles applicable to a reviewing court in R. v. Creelman, 2007 NSCA 51, 2007 CarswellNS 186, at paras. 8-9: 8 In R. v. Shiers, [2003] N.S.J. No. 453 (N.S. C.A.), this court outlined the appropriate standard of review for an appellate court when considering a trial judge's ruling on the validity of a search warrant. The standard set out in R. v. Shiers was recently adopted, in R. v. Durling, [2006] N.S.J. No. 453, 2006 NSCA 124: ... 9 The issue here is not whether the Court of Appeal believes that the Information was sufficient. The issue is whether the reviewing judge applied the appropriate standard of review to the issuing judge's determination that the Information was sufficient. 10 Whether the reviewing court applied the appropriate standard of review to the decision of the lower tribunal is an issue of law which is reviewable by this Court under the principles stated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 8‑9 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. 18; 2003 SCC 19, at para. 43‑44. 9 In Durling, supra MacDonald, C.J.N.S. considered the reviewing judge's role when considering the issuing judge's decision to authorize a search warrant. He stated at para. 15 that: What then was the judge's role when reviewing the JP's decision to issue a search warrant? Simply put, he was to consider not whether he would have issued the warrant but instead whether the warrant could have been issued based on the relevant information provided. and noted at para. 17 that: In what circumstances could a warrant be justified? The prescribed test is an objective one. The issuing JP would have to have reasonable and probable grounds that an offence had been committed and that the search would uncover material evidence. In other words, a credibly‑based probability must replace suspicion.... [Emphasis in Durling.] [15] As to the sufficiency of the grounds offered for conducting a search, the Court of Appeal said in Creelman, supra, at paras. 16-17: 16 The leading authority on this issue is R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) ["Debot (S.C.C.)"]. At p. 215, Wilson, J. stated the following concerning the sufficiency of grounds in an Information to Obtain a Search Warrant: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [Emphasis in Creelman.] 17 As emphasized by Debot (S.C.C.), no single factor will be decisive. Rather, it is always the totality of the circumstances which will determine whether the standard of reasonableness has been met. [16] The Court went on to cite Durling, supra, with respect to the circumstances in which a warrant will be justified. Noting that MacDonald, CJNS had described the test as an objective one, requiring credibly-based probability to replace suspicion, the Court in Creelman, supra, cited the following passages from Durling: 19 This reference to the issuing judge having a “credibly‑based probability” has been the subject of much judicial discussion over the years. In R. v. Morris (W.R.) [1998] N.S.J. No. 492 (C.A.); 173 N.S.R. (2d) 1, 527 A.P.R. 1 Cromwell, J.A., of this court provided the following guidance: 30 Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this “credibly based probability”: (i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at 365). (ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the ‘specificity and legal precision expected of pleadings at the trial stage.’ (Sanchez, supra at 364) (iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 115 N.S.R. (2d) 426 (C.A.); aff'd [1993] 3 S.C.R. 647. (iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1456‑1457: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (a) the degree of detail of the “tip”; (b) the informer's source of knowledge; (c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provided evidence of reliability of the information. 31 The fundamental point is that these specific propositions define the basic justification for the search: the existence of “credibly‑based” probability that an offence has been committed and that there is evidence of it to be found in the place of search. [17] Finally, at paras. 19-20 of Creelman, the Court considered the treatment of information provided by informers: 19 As to whether information provided by an informer meets the reasonable grounds standard so as to justify a search warrant, and the extent to which corroboration is required, the comments of Wilson, J. in Debot (S.C.C.) at p. 218 are instructive: . . . it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where few details are provided and the risk of innocent coincidence is greater. 20 Also helpful is the test for assessing a confidential informer's information as articulated by Martin, J.A. in R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.) ["Debot (Ont. C.A.)"] at p. 218‑219, as follows: . . . I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search . . . Highly relevant ... are whether the informer's “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. ARGUMENT [18] The Federal Crown argues that the Trial Judge erred in holding the search warrants should not have issued, in that, in doing so, he substituted his own view for that of the issuing Justices of the Peace. In the case of each warrant, the Federal Crown says the Trial Judge stated the correct test but erred in application by substituting his own views of the sufficiency of the grounds stated in the ITO for those of the issuing Justice of the Peace. Further, it is submitted, the Trial Judge erred in law in assessing whether the grounds set out in the ITOs constituted reasonable grounds, and in concluding that the evidence should be excluded pursuant to s. 24(2) of the Charter. While the Federal Crown is more detailed in outlining the grounds of appeal than is the Provincial Crown, the essential issues are substantially the same: whether the Trial Judge erred in finding that there were insufficient grounds upon which to issue a search warrant, and whether he erred in excluding the evidence pursuant to s. 24(2) of the Charter. [19] The Federal Crown maintains that the Trial Judge correctly stated the test as whether the Justice of the Peace “could have granted the authorization,” but he then failed to show sufficient deference, and substituted his own view, concluding that “the circumstances set out in the [ITO] are not sufficient, in my view, to establish the reasonable grounds necessary for the issuance of a warrant....” Instead, the Federal Crown submits, the Trial Judge should have focussed on whether the information in the ITO met the threshold of “some evidence” that is sufficient to establish reasonable grounds. THE FIRST ITO [20] The respondent says the first ITO “provided little more than the word of a source of ‘unproven reliability,” that the information the source provided was “limited in detail,” and that the corroborating information was “observable to the general public.” Further, Source “A” had a criminal record and associated with criminals. On this basis, the respondent says the Trial Judge “was correct in determining that the information in the first ITO did not amount to sufficient reasonable grounds for the search.” [21] With respect to the first ITO, the Federal Crown says, the information provided by “Source A” was detailed, specific and compelling. The source was said to have personal knowledge “unless otherwise stated.” Cst. McCallion indicated that the source advised him, inter alia, that the respondent was “still selling illegal cigarettes” after having been charged previously, that he had cigarettes stored in a buried refrigerator behind his garage and that the source had bought “a few bags of cigarettes” that were a “bit damp” from being buried. This information was drawn from meetings with the source on May 13, June 4, June 29 and August 21, 2008. According to the Federal Crown, the Trial Judge ignored “the clear attestation that Source ‘A’ spoke from personal knowledge ... and, without an evidentiary foundation, stated that the only reasonable inference was that the information in paragraph 7(b) was based on hearsay.” Paragraph 7(b) recounted information received at the May 13 meeting, particularly, the buried refrigerator and the purchasing of “damp” cigarettes by the source. According to the Federal Crown, it was no more than conjecture to find that the information was based on hearsay. Even if the information about the buried refrigerator was based on hearsay, the source also claimed to have bought cigarettes directly, and to have seen the respondent selling cigarettes at the flea market. [22] The Federal Crown adds that Cst. McCallion was able to confirm certain details provided by Source “A,” including the respondent’s address and his presence at the flea market. Further, the Crown notes that Cst. McCallion cited the fact that the respondent was “presently charged” and awaiting trial (at the time the ITO was sworn) with offences under, inter alia, s. 32 of the Excise Act and s. 39(1) of the Revenue Act. The Crown notes the comment in R. v. Tharmarajah, 2009 ONCJ 370, 2009 Carswell Ont 4701 (Ont. C.J.), that “[w]hile outstanding charges do not carry the same weight as a criminal conviction, the fact that some authorities had concluded they had grounds to charge this man with credit card and fraud charges could support the tipster's assertions of involvement in such offences” (para. 13). Later, however, Justice Stone comments: While there is a presumption of innocence with respect to outstanding charges, and while an informant could learn of outstanding charges in several ways, the presence of outstanding credit card charges could have a small legitimate role to play. [23] Clearly, Justice Stone would only place little, albeit some, weight on knowledge of existing outstanding charges. His earlier statement, referenced by the Federal Crown, must be considered in light of his later qualification that it would only “have a small legitimate role to play.” The Crown also refers to corroboration of the respondent’s ownership of a blue Dodge truck. This fact, however, was not included among the information received from Source “A.” [24] In respect to the issuance of the two search warrants, the Provincial Court Judge held: Based on the totality of the information that I’ve reviewed, in my view, the information fails to sufficiently address those issues of reliability and even considering the fact that the reliability of the informant can be assessed through the var...various indicia that I’ve reviewed, the totality of the circumstances contained, or the circumstances set out in the Information to Obtain are not sufficient, in my view, to establish the reasonable grounds necessary for the issuance of a warrant and on this review, I have concluded that the...since those grounds did not exist contained in the Information to Obtain, I am satisfied that it is proven beyond...on a balance of probabilities, that there has been a s. 8 breach of the Charter. [25] In coming to this conclusion, the Provincial Court Judge reviewed the contents of the first ITO, and stated that, “... it is noteworthy that there is no reference by the informant specifically stated as to where Mr. Russell lived.” However, under “History and Chronology of Investigation” the Constable stated: Constable Paul McCALLION received Source information that William Oswald RUSSELL is selling illegal tobacco products in the form of cigarettes from his residence, 222 Barss Corner Road, Barss Corner, Lunenburg County, Province of Nova Scotia and at his Vendor Site at the Mahone Bay Flea Market at 543 Main Street, Mahone Bay, Lunenburg County, Province of Nova Scotia. [26] The Provincial Court Judge then states: ...Although I suppose one can, if giving liberal interpretation or liberal affect to the fact that this document was not drafted by a trained lawyer and not holding him to the same exacting standard, perhaps his reference..., that he received source information that he’s selling from his residence, is an indication Source A told the officer that he was selling. That he lived at that particular residence, although not specifically stated. [27] As noted earlier, in R. v. Morris (W.R.) supra, Justice Cromwell, citing R. v. Sanchey, supra, observed that: The Information to Obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage”. [28] From the ITO, it appears that apart from his own investigation Constable McCallion references only one source, Source “A”. Also, with respect to the first search warrant, the location was the Vendor Site at the Mahone Bay flea market and a blue dodge pick up owned by Mr. Russell, or by Mr. Russell and Julie Ann Russell. It did not involve his residence. [29] In his reasons, in respect to the request to search the blue Dodge pick up, the Provincial Court Judge stated: He also says that he sold at the flea market and he kept in....kept the cigarettes in blue plastic storage containers there and that the source had witnessed the individual selling at the flea market personally. There is no reference by the informant to the presence of a vehicle. No reference by the informant to a vehicle being used to transport cigarettes, but there are the personal observations of the officer that at the flea market and at the home of the accused, there was parked a blue Dodge pickup truck, that the confirmed was registered to William Russell and Julie Anne Russell. [30] In the ITO, the Constable says he checked and determined the ownership of the blue Dodge pick up and, during his investigation, observed it at both the Vendor Site at the Mahone Bay flea market and his residence. [31] The Federal Crown suggests that corroboration of the “criminal” aspect of source information is not necessary and references the Trial Judge’s suggestion that “to some extent ... the corroboration should relate to the ... illegal activity, right? ... But without some information being provided to the ... JP that relates to the illegal activity rather than the things that can be easily checked on, isn’t there a problem? Especially in a situation where there’s unproven reliability from a source.” [32] Counsel then refers to Goodine v. R., 2006 NBCA 109, stating the New Brunswick Court of Appeal rejected such reasoning. At para. 2, Chief Justice Drapeau, in the judgment of the Court, stated: [2] Once unpacked the case on appeal boils down to the following narrow question, one of first impression in this Court: must the allegation of criminal activity by an untested anonymous tipster always be corroborated through other independent investigative means before the police can lawfully act upon that allegation and proceed to arrest its target? In my view, an affirmation answer is not ordained, as a matter of law. There are cases where a trial judge could reasonably conclude that, on the totality of the circumstances, the arresting officers had the requisite grounds to act as they did even though the “criminal” aspect of the tip had not been corroborated in the manner suggested above. Such corroboration is certainly not required by law in cases where, like the present one, there is no suggestion of any improper motive on the tipster’s part and the corroborated “neutral” data are such that a reasonable and dispassionate observer would conclude the tipster is both closely acquainted with the target and, to some extent, privy to the criminal activity being reported. The case against a finding of unlawfulness is the more compelling where, as here, that observer would be at a loss to point to any justification - other than farfetched speculative possibilities - for the conclusion that the tipster’s allegation of criminal conduct is unreliable. [33] To similar effect, in R. v. Caissey, 2007 ABCA 380, the majority of the Alberta Court of Appeal, at para. 23, observed: [23] The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of a crime itself being committed does not have to be confirmed: Koppang at para. 8. I agree with the comments of Doherty J.A. in R. v. Lewis (1998), 38 O.R. (3d) 540, 107 O.A.C. 46 at para. 22: In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds. [34] This view was endorsed by the Supreme Court of Canada on appeal at 2008 SCC 65 at para. 2, where McLachlin C.J.C. said: The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority. [35] The Federal Crown, in his written submissions, stated: The Trial Judge erred in discounting or diluting the information provided by Source “A” on the basis that the “criminal aspect” of his/her information was not corroborated.... [36] In fact, the statement attributed to the Trial Judge occurred in the course of a discussion with the Crown counsel, not in his reasons or decision. [37] In respect to the first application and regarding corroboration, the Trial Judge stated: What was confirmed of the informant’s information? Well, it was confirmed through the personal observations of the police officer that indeed Mr. Russell was a vendor at the Mahone Bay flea market. It was confirmed that he was awaiting trial on Excise Act matters which perhaps informs the justice with regard to a statement, that he never stopped selling illegal cigarettes even after being caught. And it is noteworthy that there is no reference by the informant specifically stated as to where Mr. Russell lived. Although I suppose one can, if giving liberal interpretation or liberal affect to the fact that this document was not drafted by a trained lawyer and not holding him to the same exacting standard, perhaps his reference in paragraph 7, that he received source information that he’s selling from his residence, in an indication that Source A told the officer that he was selling. That he lived at that particular residence, although not specifically stated. [38] In respect to the decision regarding the second search warrant, there is no reference to corroboration. The observation by the Trial Judge during the course of discussion with Crown counsel is not repeated in his reasons. As such, I am not prepared to conclude it played a role in his decision. [39] However, permeating his decisions, and particularly in respect to the second ITO, is his comments as to what is not contained in the ITO’s. Some of the references, in respect to the first ITO are set out in the passages from his decision previously referenced. THE SECOND ITO [40] The Federal Crown submits that the same considerations respecting corroboration and “the compelling nature of the information provided” apply to the second ITO, which was issued after the search of the respondent’s vehicle. The respondent agrees that the second ITO provided generally the same information as the first, except that Source “A” was now identified as being of “proven reliability,” without identifying how this had changed from the first ITO. Given the suggestion that this was due to the success of the first search, the respondent maintains that if the first search violated section 8, then the yield of the second search would constitute “fruit of the poisonous tree.” [41] The respondent also argues that the second ITO provided no information to suggest that he was storing or selling cigarettes at his residence after June 4, 2008, when the source told Cst. McCallion that the respondent was storing cigarettes in his garage. This was not the last meeting between Cst. McCallion and Source “A,” but it is the latest date at which Cst. McCallion cites information relating specifically to storage of cigarettes at the respondent’s home, as opposed to selling them at the flea market. [42] In respect to the second ITO, it repeated the information from the initial ITO, altered only to indicate that Source “A” was then indentified as being of “proven reliability” whereas in the initial ITO, Source “A” was described as being of “unproven reliability.” It also made reference to the arrest of Mr. Russell for being in possession of manufactured tobacco products in the form of cigarettes not stamped in accordance with the Excise Act and that he was known to sell illegal cigarettes from his residence. The second ITO was to search his residence. [43] The Trial Judge appeared to focus on what was not contained in the ITO’s rather than what was included. Counsel for Mr. Russell, in his submissions, also focused on what was not included. In my view, the focus should be otherwise. It should be on the sufficiency of the material included, rather than on what additional material might have been provided. In R. v. Yorke, (1992), 115 N.S.R. (2d) 426 at para. 9, Justice Roscoe, on behalf of the Appeal Division of the Supreme Court of Nova Scotia, observed: There was, in this case, sufficient material presented to the justice to enable him to draw a reasonable inference that the items to be searched for would provide evidence of an offence. Although the officers did have knowledge of additional facts, it was not necessary to provide every detail to the justice. The additional facts would not have affected the issuance of the warrant. [44] Clearly, in respect to these search warrants, there is a minimum of information provided in the two ITO’s in support. However, in my view, it cannot be said that there was not “some evidence sufficient as a matter of law to provide reasonable grounds to believe ‘that the search requested’ would afford evidence with respect to the commission of an offence.” As a result, there was no section 8 violation. I will, however, proceed to address the exclusion of the evidence under s. 24(2), in the alternative. CHARTERS s. 24(2) [45] In a subsequent decision, the Provincial Court Judge held that the evidence found in executing the search warrant should be excluded from the trial. [46] A s. 24(2) analysis is drawn from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, where the majority, at para. 71, said: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long‑term, forward‑looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter‑protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [47] In deciding to exclude the evidence found on the two searches, pursuant to section 24(2) of the Charter, the Provincial Court Judge reviewed the three step process outlined in R. v. Grant, supra. (1) Seriousness of the Charter-Infringing State Conduct (2) Impact on the Charter-Protected Interests of the Accused (3) Society’s Interest in an Adjudication on the Merits 1. Seriousness of the Charter-Infringing State Conduct: [48] In respect to the seriousness of the offending conduct, after stating “there is no suggestion that the informant set about to flagrantly trample the accused’s right,” the Provincial Court Judge stated that the information presented was incapable of supporting an inference or conclusion that there were reasonable grounds for the search. He then summarized some of the information, concluding: In this case there was no bad faith on the informant’s part and before he conducted the searches he obtained the required judicial authorization. His conduct can be described as negligent in that he presented grounds that were incapable of meeting the standard for authorization of reasonable grounds. [49] The Federal Crown submits that any violation of the respondent’s Charter rights by Cst. McCallion’s actions was “not so serious as to have a negative impact on the rule of law and risk bringing the administration of justice into disrepute.” There was no suggestion the constable acted in bad faith. The Crown also disputes the Trial Judge’s finding that Cst. McCallion was negligent in “presenting an ITO that contained grounds that were incapable of meeting the standard for authorization of reasonable grounds.” While he may have “honestly misjudged certain legal thresholds,” the Crown says, his conduct was “reasonable, or at least reasonably explained in the face of legal concepts and thresholds that are at times elusive of certainty.” [50] The respondent submits that the ITOs were “carelessly drafted and misleading in their wording.” For instance, the respondent points to the alleged lack of evidence as to how Source “A”’s reliability was proven between the times the two ITOs were issued. [51] With Crown’s submissions, I agree. Even if the information provided was inadequate, there was no basis to suggest the Constable was negligent. Even if the ITO could have better explained the basis, or source, of some of the information provided, having in mind the comments of Justice Cromwell of the Nova Scotia Court of Appeal in R. v. Morris (W.R.) supra, there was no evidence of negligence. The failure would simply have been to advance sufficient information to justify issuance of the warrants. That could be characterized as misunderstanding the sufficiency of information required to obtain a search warrant; in these circumstances it is not negligence. [52] In his submissions, after acknowledging there was “no suggestion that the informant blatantly disregarded the accused’s rights” and that “the informant obtained judicial authorization for both searches,” counsel for the respondent continued: ...However, the informant provided the Justice of the Peace with insufficient evidence on both occasions. The ITO’s were carelessly drafted and misleading in their wording. As Honourable Justice H. Burrill stated in his decision in the case at bar (R. v. Russell, 2010 NSPC 2 (CanLII) (Tab 7) at page 10, “in each instance there was the negligent presentation of insufficient grounds to a judicial officer who, in turn, failed to identify the insufficiency of the grounds presented.” [53] Although, as already noted, the Provincial Court Judge found that there had been a negligent presentation of insufficient grounds, he did not state the ITO’s were “misleading in their wording”. Counsel then references R. v. Morelli, 2010 SCC 8 at paras. 58 and 59, and then at paras. 99, 100 and 102: 99. ...The search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed they were acting under lawful authority. The executing officers did not wilfully or even negligently breach the Charter. These considerations favour admission of the evidence... 100. The opposite is true on considering the ITO upon which the warrant was obtained. 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... ... 102. 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. [54] In R. v. Morelli, supra, the misleading passages in the ITO were clearly of concern, in the majority reasons of Justice Fish. The police conduct was found to be unacceptable. At para. 103 he observed: We were bound to accept the trial judge’s finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers. [55] As I have already concluded, although the ITO’s could have provided additional information, there was no basis to find they were negligently prepared. Neither were they misleading, a finding not made by the Provincial Court Judge. [56] The circumstance of “unacceptable police conduct” that existed in R. v. Morelli, supra, is not here present. 2. Impact of the Charter-Protected Interests of the Accused: [57] In respect to the second step, the Impact of the Breach on Charter Interests, the Trial Judge concluded: There is a reduced, but yet significant expectation of privacy with regard to the contents of one’s vehicle while there is an extremely high expectation of privacy with regard to a person’s home property. I find the impact of the breaches here to be significantly intrusive with regard to the motor vehicle and profoundly intrusive with regard to the search of the residential property. [58] As to the second s. 24(2) consideration, the impact of the breach on the respondent’s Charter-protected interests, the Federal Crown concedes that a search of a personal residence without authority is a serious violation, adding, however, that there were no aggravating factors here present. As to the search of his truck, it is submitted that there is a reduced expectation of privacy in a motor vehicle. The respondent agrees that there is a spectrum, with the most serious alleged violation being the search of the home, while the truck would still involve a “significant expectation of privacy” and the market stall being “at the low end of the spectrum....” [59] Like the Trial Judge, I am satisfied that both in regard to one’s vehicle, and to even a greater extent, in regard to one’s residence, there are significant expectations of privacy. Although in respect to the vehicle, there may be a “reduced expectation” as suggested by the Federal Crown, nevertheless as noted by Justice Cory for the majority in R. v. Belnavis, [1997] 3 S.C.R. 341 the driver of a car, driving with the permission of the owner, “had a reasonable expectation of privacy in the vehicle.” The Constable knew Mr. Russell owned the blue Dodge pick up. Mr. Russell was entitled to a “reasonable expectation of privacy.” [60] The second step would weigh in favour of excluding the evidence, if not for the search warrants. 3. Society’s Interest in an Adjudication on the Merits: [61] Finally, in considering society’s interest in seeing the matter adjudicated on its merits, the Federal Crown says the reliability of the evidence is an important consideration. In this case, the evidence – that is, the cigarettes – was “non-bodily physical evidence” that was “highly reliable and essential to the Crown’s case.” Its suppression, it is submitted, would be “contrary to the societal interests in seeking the truth and having criminal allegations adjudicated on their merits.” [62] The respondent submits that it is necessary to balance the factors of the seriousness of the charge, the reliability of the evidence and the importance of the evidence to the Crown’s case. His conclusion is that the evidence is reliable and essential to the Crown’s case, but that to admit the evidence would “undermine the very purpose of obtaining search warrants.” [63] However, as was stated in R. v. Morelli, supra, at para. 107, “exclusion of the evidence obtained in the search would leave the prosecution with essentially no case against the accused. It would thus seriously undermine the truth-seeking function of the trial, a factor that weighs against exclusion (Grant, at paras. 79-83)”. [64] In his written submissions, counsel for the respondent, states: As noted in Grant, supra..., at paragraph 79: ...the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. And further at paragraph 80: The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (S.C.C.), [1971] S.C.R. 272) is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence. In R. v. Morelli, supra ..., starting at paragraph 108 the Court stated: In balancing these considerations, we are required by Grant to bear in mind the long term repute and prospective repute of the administration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected right of the accused. In my view, the repute of the administration of justice will be significantly undetermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private “place” in the home on the basis of misleading, inaccurate and incomplete Informations upon which a search warrant was issued. And further at paragraph 111: The public must have confidence that invasions of privacy as justified, in advance, by a genuine showing of probably cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term. The Court must consider the seriousness of the charge, the reliability of the evidence and the importance of the evidence to the Crown’s case. [65] Counsel for the respondent references the “balancing” that is mandated by s. 24(2) in determining whether evidence, obtained on a Charter breach, should be excluded. Counsel notes R. v. Harrison, 2009 SCC, 34 at para. 36: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [66] Counsel then refers to the suggested negligence of the drafting officer and of the two Justices of the Peace who authorized the warrants, stating that “judicial indifference to negligent practices should not be tolerated”. Also noted by counsel is the “high expectation of privacy” in one’s residence as well as the lesser, but nevertheless significant, expectation of privacy in one’s vehicle. Acknowledging that the evidence obtained was “essential to the Crown’s case,” he agrees this is a factor typically weighing in favour of admission. Referencing the previously noted statement in R. v. Morelli, supra, at para. 108, he states: To simply admit the evidence in a case like this would undermine the very purpose of obtaining search warrants. If the Justice of the Peace does not demand sufficient reasonable and probable grounds before issuing a warrant, what is the point in obtaining a warrant in the first place? As stated in R. v. Tucker, 1993 CanLII 4492 (N.S.S.C.), 126 N.S.R. (2d) 298...: The Justice of the Peace stands as a guard between the interests of the state and those of the individual. [67] In his concluding submissions, the Federal Crown, citing R. v. Grant, supra,,at para. 127 submits: The long-term repute of the administration of justice would be damaged by excluding the impugned evidence in this case. Taken together, R. v. Grant and R. v. Harrison, ... stand for the proposition that reliable evidence that is necessary to support a conviction will not be excluded under s. 24(2) where, as here, there is no evidence that the police deliberately, willfully or flagrantly violated the appellants’ Charter rights and where the impact on the appellants’ Charter protected interests was diminished. [68] In the majority reasons, the Chief Justice and Justice Charron, at paras. 127 and 128 had concluded: The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable. The s. 24(2) judge must remain sensitive to the concern that a more flexible rule may encourage police to improperly obtain statements that they know will be inadmissible, in order to find derivative evidence which they believe may be admissible. The judge should refuse to admit evidence where there is reason to believe the police deliberately abused their power to obtain a statement which might lead them to such evidence. Where derivative evidence is obtained by way of a deliberate or flagrant Charter breach, its admission would bring the administration of justice into further disrepute and the evidence should be excluded. [69] If the ITO’s did not satisfy the threshold for the authorization of search warrants then, on reviewing and balancing the three factors outlined in R. v. Grant, supra, as further clarified and expanded on by the Supreme Court, this would not be a circumstance where the evidence found on the searches should be excluded. Any infringement would have been in good faith and the evidence found would be reliable. There was no evidence of deliberate and egregious police conduct, nor evidence the police deliberately abused their power. [70] Counsel for the respondent suggests that the Provincial Court Judge committed no error of law and the quality of his decision is supported by the current case law, in submitting deference ought to be shown in his decision to exclude the evidence under s. 24(2) of the Charter. In this regard, he references R. v. Buhay, 2003 S.C.C. 30, commencing at para. 47: The findings of the trial judge are based on an appreciation of the testimony of witnesses will therefore be shown considerable deference. In s. 24(2) findings, this will be especially true with respect to the assessment of the seriousness of the breach, which depends on factors generally established through testimony, such as good faith and the existence of a situation of necessity or urgency (Law, supra, at paras. 38-41). As I explain in greater detail below, it is my view that the trial judge’s conclusions were neither unreasonable nor based upon an error or a misapprehension of the applicable law. They are therefore entitled to deference from this Court. Even though my own appreciation of the s. 24(2) factors may have been different than that of the trial judge, I can find no basis to overrule his findings on this regard. [71] In this instance, there were no witnesses as the hearing before the Provincial Court Judge was by oral argument on the sufficiency of the two ITO’s. None of the factors suggesting deference, as referenced in R. Buhay, supra, are therefore present. [72] Even if there was a breach of s. 8, the Federal Crown submits that the seized tobacco should not have been excluded from evidence pursuant to s. 24(2) of the Charter. With this submission, I agree. [73] Appeal allowed. ________________________ MacAdam, J.