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POWERS OF SEARCH AND SEIZURE - Search warrants - Reasonable grounds

Friday, May 17, 2019 @ 8:33 AM  

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Appeal by the Crown from the respondent’s acquittal on drug and firearms charges. The trial judge held that police violated the respondent’s s. 8 Charter rights when executing a search warrant respecting the respondent’s car. Police were investigating MD for weapons offences. They utilized a police agent who discussed purchasing cocaine from MD. MD implicated the respondent as his cocaine supplier. The information in the Information to Obtain (ITO) showed that the respondent might have been involved in a drug transaction in December 2015 and that there was a reasonable basis to believe that he delivered drugs to MD in February 2016, despite the obvious concerns that MD might not be a reliable narrator about the source of the drugs he sold. The trial judge found that the ITO did not set out reasonable grounds to believe that evidence would be found in the respondent’s vehicle some 23 days after the day on which MD said he was buying cocaine from the respondent and that there was insufficient evidence of a pattern of drug dealing by the respondent. The trial judge considered that the Charter-infringing police conduct was serious. He found that the police deliberately chose to seek a search warrant based on stale information so as not to tip off MD regarding the firearms investigation. He found that the ITO was misleading because police failed to mention that the 2012 drug charges against the respondent were withdrawn within a month of being laid, although they had the correct information at hand.

HELD: Appeal dismissed. The information in the ITO was insufficient to allow a justice to find a pattern of drug dealing or to support the conclusion that there was sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that evidence, drugs or paraphernalia would be found in the car at the time of the search. The trial judge did not confine his analysis to the probability that drugs, as opposed to other evidence of drug dealing, would be found. There was no basis to disturb his decision that the ITO was insufficient to support the grant of the warrant for the search of the car in February 2016. The trial judge properly considered each of the Grant factors. His conclusion that the seriousness of the Charter-infringing state conduct and its impact on the respondent strongly favoured exclusion was well-founded. The Charter breach was a failure to comply with a mandatory statutory requirement to establish reasonable grounds that evidence would be found in the place sought to be searched. The trial judge’s interpretation of a “dynamic” arrest was entirely within his purview as fact-finder, and there was no basis to interfere with that factual conclusion.

R. v. James, [2019] O.J. No. 1827, Ontario Court of Appeal, G.I. Pardu, I.V.B. Nordheimer and A.L. Harvison Young JJ.A., April 10, 2019. Digest No. TLD-May132019009