Indexed as:
R. v. Eagle
Between
Her Majesty the Queen, and
Ryan Eagle
[1996] O.J. No. 2867
Ontario Court of Justice (General Division)
Toronto, Ontario
Trafford J.
Heard: March 12, 1996.
Judgment: April 9, 1996.
(37 pp.)
Civil rights -- Property -- Search warrants -- Validity of.
This was an application for an order excluding evidence obtained during the course of a search on the basis of section 8 of the Canadian Charter of Rights and Freedoms. The investigating officer obtained a warrant to search Eagle's residence on the strength of an information indicating that a reliable informant had disclosed to the police that there was drug trafficking activity there. The officer throughout had failed to follow police department procedures with respect to informants. In particular, he had failed to fill out the required forms and take proper notes which would have provided independent documentation of the informant's reliability. Crucial information, such as the informant's drug use or criminal record was withheld from the justice who issued the warrant.
HELD: The application was allowed. Matters such as these were in the nature of a review showing deference to the decision by the justice who thought there were reasonable and probable grounds to issue the warrant. However, where an amplified record demonstrated recklessness or fraudulent intent with respect to material facts sworn to in obtaining the warrant, then normally applications to exclude evidence will succeed. In addition, disclosure obligations could not be evaded by a failure to take adequate notes. There was no basis in law for the issuance of the warrant. The investigating officer displayed a reckless disregard for the truth when he swore to the information.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 8, 24. Criminal Code, ss. 86, 90.
Narcotic Control Act, R.S.C. 1985, c. N-1, ss. 3, 12.
Counsel:
M. Williams for the Crown.
D. Usher for the accused.
1 TRAFFORD J.:-- On October 11th, 1994, Detective Constable Brammall and six other members of the Metropolitan Toronto Police Services attended at 2737 Kipling Avenue, Apartment 1207 and executed a search warrant obtained earlier that day under Section 12 of The Narcotic Control Act, R.S.C. 1985, c. N-1, as amended. An operable 12 gauge sawed-off shotgun, shells suitable for use in it and approximately 3 grams of cocaine were seized from the apartment. Consequently the accused, who was a resident of the apartment, was arrested and charged with offences contrary to Section 90, (possession of a prohibited weapon) and Section 86, (careless storage of a shotgun and shells) of The Code and Section 3 of The Narcotic Control Act, (Possession of a Narcotic). At the outset of this trial the defence applied under Section 24 of The Charter for an order excluding these items obtained from the evidence to be tendered in this trial, on the basis of a denial or infringement of the rights of the accused guaranteed by Section 8 of The Charter. This is the ruling of the court on the application.
2 In a related and preliminary application the court exercised its discretion and permitted the cross-examination of the officer who swore to the truthfulness of the information used to obtain the warrant. Detective Constable Brammall was the officer. In doing so, reliance was placed on R. v. Garofoli, (1990) 60 C.C.C. (3d) 161 at 198 (S.C.C.) where it is said:
"Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony to discredit the existence of one of the preconditions to the authorization, as for example, the existence of reasonable and probable grounds. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases where it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is, essentially, a ruling on the admissibility of evidence."
See also Regina v. LaChance, (1990) 60 C.C.C. (3d) 449 at 458-459 (S.C.C.). Relying upon the evidence at the preliminary hearing, an order was granted to allow for cross-examination relating to the existence of the confidential informant and, assuming such an existence, the reliability of the person. Moreover, this order was particularized to permit questions relating to the existence of a criminal record of the confidential informant and the failure of Detective Constable Brammall to disclose to the issue justice, amongst other things, the criminal record of the confidential informant, the use of narcotics by him or her, the payment of money to the confidential informant and any other circumstances tending to prove intentional or reckless disregard for the truth in the preparation and swearing to the truth of the information. The evidence elicited during this cross-examination, in turn, was used by the defence in the present application.
3 Before summarizing the evidence and making my findings of fact on this application, it is important to note the jurisdiction of the court in this matter. It is not to determine the application as if it was the original one seeking the issuance of the warrant. Rather, it is more in the nature of a review showing substantial deference to the views by the issuing justice. The jurisdiction of this court was defined by Sopinka J., in Regina v. Garofoli supra, at page 188 as follows:
"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."
While this application is not in the nature of a de novo hearing based on the record presented to the issuing justice as amplified by the facts before this court in these proceedings, there may be cases where the application of this principle is difficult. But where the amplified record establishes fraudulent conduct or a reckless disregard for the truth in the obtaining of the warrant, no such difficulty exists. Similarly, an innocent or negligent misstatement of immaterial facts may be resolved with ease. It is the characterization by this court of the omission to disclose facts as material or otherwise and as innocent, negligent, reckless, intentional or deliberate that will determine the result of applications like this one. To the extent the omissions are innocent and immaterial, the applicant will likely fail. To the extent the omissions are material and reckless, intentional or deliberate, the applicant will likely succeed.
4 Compare Regina v. Monte et al., [1993] O.J. No. 4174 (Ont. C.J., McRae, J., released February 25th, 1993) and Regina v. Lee and Low, [1991] B.C.J. No. 1072, B.C.S.C., Released May 8th, 1991, and contrast Regina v. Sismey (1990), 55 C.C.C. (3d) 281 at 284-285, (B.C.S.A.)
5 Let me begin with a brief reference to the record as it was before the issuing justice. The information placed before him included Appendix "B" as the grounds for believing cocaine was present in the apartment. It proceeded as follows:
"On Tuesday, October 11th, 1994, Detective Constable Mike Brammall, Badge No. 1803 of No. 23 Division, Plainclothes Unit, received a call from a confidential reliable informant who advised him of certain drug related information. This confidential, reliable informant had supplied drug related information in the past, resulting in numerous persons being charged with related offences. On this date the informant advised he had been to an address he knows as 2737 Kipling Avenue, Apartment 1207, Etobicoke, Ontario, within the past four hours and met with a male he knows as Mark and asked to purchase from Mark a small quantity of crack cocaine. The informant advised Mark went further into the apartment and returned a short time later and gave the informant the crack cocaine for a quantity of money that the informant gave Mark. The informant further advised he has attended this address on numerous occasions in the past and met with Mark without prior arrangements. On each of the occasions he asked for and received a quantity of crack cocaine from Mark. Surveillance was conduced on this date over the course of a 15 minute period on two separate occasions. Males attended the door of Apartment 1207, went inside the apartment for a short period of time and then left the area via the elevator. There is no relevant police information for this address. For the reasons mentioned above, we pray that a Narcotic Control Act, search warrant be granted to search the dwelling in the apartment located at 2737 Kipling Avenue, Apartment 1207, in the City of Etobicoke, Ontario, for the said narcotic."
No questions of Detective Constable Brammall were asked by the justice and the record was not otherwise amplified by him. Consequently, the warrant was issued authorizing the search of the apartment by Detective Constable Brammall, and the search for and seizure of cocaine. Presumably the other items were seized pursuant to the plain view doctrine; see Regina v. Longtin, (1983), 5 C.C.C. (3d) 12 Ont. C.A. and Coolidge v. New Hampshire, 403 U.S. 443 (1971) or Section 102 or Section 489 of The Code. No dispute exists as to the legality of those incidental seizures.
6 Based on the cross-examination of Detective Constable Brammall this record must be amplified through additional findings by this court. Without summarizing all of the evidence elicited from him, suffice it to say, by way of introduction to this segment of the judgment, that it had a direct and fundamental bearing upon this court's assessment of his competence, diligence and integrity as a police officer.
7 The credibility of Detective Constable Brammall, the handling of the confidential informant, the recording of the investigations, the compliance or otherwise with the applicable internal rules and regulations of the Metropolitan Toronto Police Service, the preparation of the information used to obtain the warrant and, in general, the respect or otherwise of Detective Constable Brammall for the rule of law, the role and responsibility of the local Crown Attorney and the authority of the court, were all thoroughly canvassed in these proceedings and leave me to amplify the record placed before the issuing justice. I now do so.
8 Approximately one year before the impugned warrant was obtained in March, 1994, a person said by Detective Constable Brammall to be the confidential informant in this case was introduced to him. All members of the Metropolitan Toronto Police Services, including this one, are to be governed by its internal rules and regulations about the handling of police informants. Detective Constable Brammall knew of the existence and the requirement of these rules and moreover, appreciated the purpose of them. They have been established and are in force to provide for a fair and proper handling of confidential informants in recognition of their importance to the effective investigation and prosecution of crime. The need to respect their confidentiality, on the one hand, and, on the other hand, to exercise caution in dealing with them, is apparent to anyone, including Detective Constable Brammall, who reads them. Those rules and regulations place important responsibilities upon the officer handling the informant, the supervising officer, the officer in charge and the unit commander, all as defined in the rules. They provide as follows;
"04-18 Police Informants
Definition
Informant
means a person who, through a confidential relationship with a police officer, furnishes the Force with criminal information and such individual:
expects financial compensation;
expects court consideration;
has a prior criminal history;
associates with known criminals;
* has previously demonstrated reliability by providing information of value.
Note: Unless circumstances dictate otherwise, a young person should not be used as an informant without consulting a parent or guardian.
As a rule of law in Canada, police officers are generally not compelled to disclose the name of an informant when testifying in any legal proceedings. Such privileges may be lost when:
* an informant is a witness and/or takes part in the unlawful activity.
* an informant induces a person to commit a crime that he/she had no intention of committing;
* the court is satisfied that the accused may have been "framed" and the disclosure of the informant's name is necessary to show the accused's innocence.
When a charge is laid in a matter where an informant is involved, the case manager shall notify the prosecuting Crown attorney of such, as soon as practicable. An officer shall exercise caution when communicating with an informant and be aware of the possibility of entrapment or compromise. An officer shall not:
* discuss the official business of the Force with an informant;
* discuss personal business with any member in the presence of an informant;
* introduce an informant to the family of any member;
* accept, directly or indirectly, a gift from an informant;
* permit an informant to pay for any goods or services received by a member;
* permit an informant to conduct illegal activities.
Police Officer
When a confidential relationship is established with an informant shall
* check with the Central Informant File at Detective Services
* check with other available sources to determine the previous history of the informant
* designate an alternate officer to deal with the informant in the originating officer's absence
* take all necessary precautions when meeting with an informant.
Note: When a meeting is arranged with an informant of the opposite sex, an additional officer must also attend.
Prior to meeting with an informant shall
* advise the appropriate supervisory officer, or the officer in charge of the Duty Desk, of the
date and time of the meeting
location of the meeting
nature of the meeting
* enter the above information, as well as the name and badge number of the supervisory officer notified, in the memorandum book.
Note: In the event of an impromptu or unscheduled meeting with an informant, a supervisory officer shall be advised of the meeting as soon as possible after it has taken place.
After each meeting with an informant shall
* advise the respective supervisory officer accordingly
* complete an informant Report (MTP 207) and, if applicable, an investigator's Expense form (MTP 623)
When deciding that the confidential relationship with an informant should be terminated, shall notify the unit commander in writing.
Supervisory Officer
When notified by a police officer of an intended meeting with an informant shall
* enter in memorandum book the following information
officer's name, rank and badge number
particulars of the informant
particulars of the meeting
* take the appropriate measures to ensure the safety of the member and the integrity of the Force
* advise the officer in charge of the meeting
Officer in Charge
Upon notification that a police officer has scheduled a meeting with an informant shall
* ensure the officer submits a MTP 207 prior to reporting off duty
* submit the report to the unit commander in a sealed envelope.
Unit Commander
7. If assigned to a unit where informants are used shall
* maintain an "Informant File" in a secure location to ensure confidentiality of informant information
* ensure a copy of the MTP 207 and MTP 623 is forwarded to the Unit Commander, Detective Services
* review each file annually to determine whether
the services of an informant should be continued
* assess the value of each informant and either approve or deny the continued use of the informant
* destroy an informant file if it is inactive for two (2) years, after consultation with the submitting police officer
* notify the Unit Commander, Detective Services, when an informant file is to be terminated."
These rules were not complied with in this case - compliance was, at best, sporadic. No number was assigned to this confidential informant. Forms to be completed upon the payment of money to the informant were not signed by him or her in any instance where they were filled out. Notebooks of supervising officers did not include the required entries for meetings with the informant. The informant file is incomplete. With the absence of these forms and notes there is no independent documentation of the history about the dealings with this informant. The safeguards required by the Metropolitan Toronto Police Services were deliberately and intentionally undermined by the practises of Detective Constable Brammall. He knowingly created a situation where any review by the prosecutorial authorities or the court of the existence of this informant or the history of the dealings with him was fundamentally and exclusively dependent upon his word and credibility. Moreover, the assessment of his credibility was further undermined by the note-taking practises he used in this case. They, too, were sporadic and incomplete. No informant number was recorded in them. Informant reports were not properly completed and filed. Information he believed may assist the defence was not recorded. Those instances when the information disclosed to him by this person was found to be unreliable were not recorded. There were approximately 16 to 26 of them. The notes were prepared to protect the confidentiality of the informant against any disclosure initiatives by the local Crown Attorney or as may be ordered by this court. Detective Constable Brammall testified, and I find as a fact, he knew of the obligations of the Crown to disclose all information in its possession unless it was clearly irrelevant or privileged as a matter of law, and the related jurisdiction of the court to review any such decision by the Crown and, if appropriate, order disclosure of the information.
9 Leaving aside these critical factors, there are other aspects of the investigation that must be commented upon and otherwise be an integral part of the application of the record. The number of the prior contacts is not clear as they were not properly documented at times proximate to them. While there were 11 direct contacts with him or her, nine leading to search warrants, arrests and/or the laying of charges, there were also 16 to 26 other contacts that were not productive in the opinion of Detective Constable Brammall. They included telephone calls or instances where there was not enough information to act upon or it was otherwise determined to be unreliable. None of this information, either the reliable incriminating information or the unreliable incriminating information, was disclosed to the issuing justice. Nor was he advised of the failure of Detective Constable Brammall to ask questions of the informant to clarify and amplify the non-disclosure by him. Patent ambiguities and deficiencies were left intact. For example, no attempt was made to document the extent to which the informant used narcotics. Similarly, no attempt was made to determine the motive of the informant or the description of the suspect or his apartment in this case. Yet Detective Constable Brammall knew the informant was potentially a drug dealer who was providing himself or herself with an immunity against investigation of and prosecution for such activities. None of this information, or the failure to investigate the circumstances of the information and the information provided by him or her with due diligence, was disclosed to the issuing justice.
10 Let me further observe the informant was paid for information found to be useful by the Metropolitan Toronto Police Services. Approximately $1,800.00 was paid to him over the course of the year prior to October, 1994. Forms to be completed upon such payments were not completed for any such payments. None of those that were filled out were signed by the informant, as required by the internal rules of the Metropolitan Toronto Police Services. The relationship with the informant was such that there were no adverse consequences for the disclosure of false or unreliable information, except that no compensation would be paid for it. While Detective Constable Brammall testified he only acted upon information from this informant if it was corroborated this practise is best assessed by what happened in this case. Constable Oxley conducted surveillance on the apartment for approximately 15 minutes and saw two persons come and go from it. They were not stopped, no attempt was made to identify them, no observations of dealings in narcotics was made by him. This information was interpreted by Detective Constable Brammall as confirmatory of the informant in the context of there being no prior indications of the presence of the Metropolitan Toronto Police Services at the apartment. No occurrence reports on file related to this apartment. The arrangement to pay the informant and the details of the information said to be corroborative of the information given by the informant were not disclosed to the issuing justice.
11 Lastly, findings must be made about the criminal record of the informant. It is a substantial one that was known by Detective Constable Brammall at the material times. It included 12 prior convictions for crimes of dishonesty, such as theft and public mischief; five prior convictions for offences against the administration of justice, such as attempting to obstruct justice and failure to appear in court; and a significant number of other instances where other such charges were withdrawn. None of this information was disclosed in the information leading to the warrant, despite the knowledge by Detective Constable Brammall that the reliability of the confidential informant was an important matter to be considered by the justice. This information was prepared in accordance with his practises in obtaining such warrants. According to him the criminal records of confidential informants are not included in informations sworn by other members of the drug squad who seek the issuance of search warrants under Section 12 of The Narcotic Control Act.
12 In conclusion, Detective Constable Brammall failed to comply with the applicable internal rules of the Metropolitan Toronto Police Services relating to the handling of informants, failed to investigate the information disclosed by the confidential informant with due diligence, failed to properly record the course of the investigation and failed to disclose to the issuing justice a constellation of material facts, including the payments to the informant, the criminal record of the informant and the other investigative shortcomings, such as the failure to comply with the internal rules designed to ensure a fair and otherwise reliable treatment of informants.
13 Having amplified the record, let me next summarize the legal principles applicable to and otherwise impinging upon Detective Constable Brammall in this case. The justice to whom the information was presented for the purposes of obtaining a search warrant under Section 12 of The Narcotic Control Act was an independent and neutral arbiter. His role and responsibility was to determine judicially whether or not, based upon the sworn evidence presented to him, there were reasonable and probable grounds to believe there was evidence of a crime in the apartment. This task is of fundamental importance to the notion of the rights conferred by Section 8 of The Charter and cannot be delegated to anyone else. Reasonable and probable grounds exist as a matter of law when considering all of the circumstances of the case, there is a credibly based probability of the presence of such evidence at the apartment. For an amplification of these principles see Hunter v. Southam Inc., (1985), 14 C.C.C. (3d) 97 (S.C.C.); Chartier v. The Attorney General of Quebec, (1979) 9 C.R. (3d) 97 (S.C.C.); Regina v. Storrey, (1990), 53 C.C.C. (3d) 316 (S.C.C.); Regina v. Garofoli, (1990), 60 C.C.C. (3d) 161 (S.C.C.); Regina v. Debot, (1989), 52 C.C.C. (3d) 193 (S.C.C.). Moreover, in ex parte applications, such as this one under Section 12 of The Narcotic Control Act, there is a duty on the applicant to make full, frank and truthful disclosure to the issuing justice. See Re Church of Scientology and The Queen, No. 6, (1987) 31 C.C.C. (3d) 449 at 528, (Ont. C.A.) and Regina v. Monte et al, supra at page 11. Needless to say there is an obligation of a peace officer to conduct an investigation leading to such an application for a search warrant with competence, due diligence and integrity. Given that the fruits of the investigation are not the property of the Crown to be used to secure a conviction, but rather are the property of the public to be used to ensure justice is done, there is an obligation on the police to preserve evidence and information that is otherwise to be the subject of disclosure by the Crown. See Stinchcombe v. Regina, (1991), 68 C.C.C. (3d) 1 and Regina v. Mattingly, (1994), 29 C.R. (4th) 105 at 107-108 (General Division). For a complete discussion of the ethical and legal obligations of the police, see "The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Decisions", prepared by The Honourable Arthur Martin. At page 26 of that report the following comments are made.
"The police, Crown counsel, and defence counsel are integral parts of the criminal justice system, even though they perform different functions. In discharging their respective functions, it is the duty of each to act responsibly and with integrity. Responsibility and integrity are fundamental to the discharge of the duties of the police. Crown counsel, and defence counsel alike, and any failure in this respect undermines public confidence in the administration of criminal justice.
The need for all participants in the early stages of the criminal justice process to act with uncompromising integrity cannot be overstated. Integrity on the part of all is a crucial assumption that underlies virtually all of the Committee's recommendations and discussions. Integrity is, of course, the highest professional duty of counsel, as an officer of the Court. Likewise, it is the essence of a police officer's oath of office. As one member of the Court of Appeal observed to the Committee, without integrity no system of justice, no matter how ingeniously designed and lavishly funded, can function. This is particular true of the early stages of the criminal justice process."
14 At page 29 of the Report, these comments are made.
"Integrity is not the cornerstone of the administration of adversarial justice simply because of the importance of the decisions to be made by counsel and the Crown. Integrity is likewise fundamentally important because of the complement it fosters, namely, reliability. No decision taken in the context of an adversarial criminal proceeding is without consequences for other participants in the process.
For example, charging decisions by the prosecution affect plea positions taken by the accused, disclosure decisions affect the preparation of the defence, and resolution decisions affect the necessity for attendance at trial of witnesses and investigating officers. Because parties who stand in adversarial relationships to each other will be greatly affected by each other's decisions in discharging their own duties, there is an inherent necessity that those decisions be reliable. Simply put, if Crown counsel, defence counsel, and police officers cannot rely upon each other with respect to the information they convey to each other about the case at hand, none of these three parties can properly do his or her own job, and the administration of justice as we presently understand it becomes unworkable."
15 Continuing at page 150 the following comments are made:
The Committee recommends that the Attorney General request that the Solicitor General issue a statement to all police officers emphasizing the importance of taking careful, accurate, and contemporaneous notes during their investigations. The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes.
The Committee recommends that, upon request, copies of relevant original notes should be disclosed, subject to editing or non-disclosure where the public interest requires it, including, where necessary, to protect confidential informants, the existence of ongoing investigations, and the integrity of police investigative techniques. The Committee has received much information on the issue of proper note-taking by criminal investigators. The importance of proper note-taking, or otherwise recording the course of an investigation, can scarcely be overstated. A proper record of the investigation as it unfolds facilitates the development of a theory of the case by the investigator in charge, which permits subsequent investigative steps to be taken with greater certainty and effect. Another essential reason for carefully recording the course of a criminal investigation lies in the fact that the case must subsequently be presented in court, and meticulously analyzed by both the prosecution and the defence to ascertain whether it meets the legal standards that must be met before a conviction can result. Information must be recorded precisely enough to permit the presentation of that which is admissible as evidence in court, often many months after it is assembled, clearly and comprehensively. Even the strongest case on the facts may well founder in court if the information uncovered during an investigation has not been accurately recorded. Thus, the duty to make careful notes pertaining to an investigation is an important part of the investigator's broader duty to ensure that those who commit crimes are held accountable for them."
16 At page 152 these comments are made.
"The Committee wishes to emphasize that the fact that notes are now subject to disclosure does not and cannot alter the importance of careful note-taking. Both the Committees recommendations on disclosure and the Stinchcombe decision provide sufficient scope for withholding or delaying the disclosure of notes where the information contained therein is irrelevant, or where certain public interests are engaged. These are important exceptions to disclosure that accommodate, to the greatest extent possible, the concerns of victims, other persons whose safety and security may be in danger, and police investigations. Reference should be made to the discussions of these exceptions that follow. However, short of these exceptions to disclosure, the Supreme Court has mandated that nothing relevant that is discovered during the course of the investigation is to be withheld. This important principle of fairness cannot be undermined by putting less in a notebook than would properly be entered were it not subject to disclosure.
The taking of less than comprehensive notes does more than improperly undermine an accused's constitutional rights. As noted above, one of the values of careful note-taking lies in the important contributions that the practice can make to investigating criminal offences effectively, and in ensuring that those who have committed crimes are properly convicted. Therefore, inadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution. In short, inadequate note-taking does a disservice to both an accused and the community, who is entitled to expect that innocent people will be acquitted and guilty people properly convicted."
17 Lastly at pages 264 to 265, the following comments are made:
The Committee recommends that the Solicitor General coordinate with federal authorities and that both issue such directives as are necessary requiring all police forces operating within the province of Ontario to be aware of and comply with the Attorney General's Directive on Disclosure in their relations with Crown prosecutors. These directives should also make clear that the police and other investigators
are bound to exercise reasonable skill and diligence in discovering all relevant information, even though such information may be favourable to the accused;
are under a duty to report to the officer in charge or to Crown counsel all relevant information of which they are aware, including information favourable to an accused, in order that Crown counsel may discharge the duty to make full disclosure; and that
a failure to disclose all relevant information as required is a disciplinary offence. The present recommendation is made in recognition of the relationship of independence that exists between Crown counsel and the police. As discussed above, Crown counsel cannot issue binding directions to the police. Police officers exercise an important measure of independence in investigating alleged offences and laying charges. However, police officers are accountable to the internal chain of police command. In addition, police forces, whether federal or provincial, are accountable to the public through the relevant Solicitor General."
18 Recognizing the limitations on the jurisdiction of the court in an allegation of this nature, I am, nevertheless, satisfied there was no basis in law for the issuance of the warrant. In my opinion, Detective Constable Brammall displayed a reckless disregard for the truth when he swore to the information as a truthful one. In drawing that conclusion, I am mindful of the principles of Re Church of Scientology and The Queen (No. 6), supra, at page 528 where it says:
"In our opinion, for the informants mis-statements and omissions to constitute a reckless disregard for the truth, there must be a flagrant lack of concern for the truth or accuracy of statements made which approaches fraudulent behaviour. The lack of concern must be of an unconscionable nature which approaches but yet is not deliberate mis-statement or omission. It does not include mere error of judgment or ordinary negligence or carelessness. The informant's obligation is to make full, fair and frank disclosure of his or her knowledge of the material facts."
19 The material facts not disclosed in the information included the criminal record of the informant, the history of payments to the informant, the failure of Detective Constable Brammall and other officers more senior to him to comply with the applicable internal rules of the Metropolitan Toronto Police Services, the instances of the confidential informant disclosing unreliable information to Detective Constable Brammall, the failure of the investigation by Constable Oxley and the failure of Detective Constable Brammall to diligently and competently enquire as to the motivations of the confidential informant. All of those omissions were intentional ones committed by an officer who deliberately failed to properly record the investigations as they occurred. To fail to record information tending to exculpate a suspect is a dereliction of duty of real significance. It may lead to an improper assessment of the case by a local Crown Attorney or in a worst case scenario, a miscarriage of justice at trial. To proceed as Detective Constable Brammall did in making his notes for the purpose of being able to frustrate the making of disclosure by the Crown or an order by this court requiring disclosure, is a gross departure from the standard of care evident in the internal rules and regulations of the Metropolitan Toronto Police Services and its traditions. To proceed as he did is to deny the rule of law. To proceed as he did is to undermine the integrity of the administration of justice. To proceed as he did is contrary to the oath of office he took when he became a member of the Metropolitan Toronto Police Services. The level of competence, diligence and integrity required of police officers under our common-law tradition and The Charter were in no way evident in this investigation. Tragically, this is not a case of incompetence, inadvertent error or momentary lapse of judgment. Rather it is a case of intentional and deliberate disregard for the principles of law that are of fundamental importance in a free and democratic society. No right thinking citizen, fully apprised of the circumstances of this case and acting reasonably, would tolerate investigative misconduct of this magnitude.
20 Accordingly, the items seized upon the execution of the warrant are inadmissible in this trial.
qp/s/lmm/mjb