SUPREME COURT OF Nova Scotia
Citation: Dorey v. R, 2020 NSSC 410
Date: 20200226
Docket: CRPH No. 490523
Registry: Port Hawkesbury
Between:
Ann Marie Dorey
Applicant
v.
Her Majesty the Queen
Respondent
| Judge: |
The Honourable Justice Patrick J. Murray |
| Heard: |
January 3, 2020, in Port Hawkesbury, Nova Scotia |
| Oral Decision: |
February 26, 2020 |
| Counsel: |
Kevin Burke for the Applicant, Ann Marie Dorey Wayne J. MacMillan for the Crown |
By the Court:
Introduction
[1] This is my decision with respect to an application by the Applicant, Ann Marie Dorey, pursuant to section 8 of the Canadian Charter of Rights and Freedoms. Ms. Dorey seeks to challenge the validity of a search warrant issued on August 17, 2018. She alleges there were no proper grounds for the officer’s belief, and alleges that the search was unreasonable, in breach of her Charter-protected rights.
[2] The search was conducted at a residence at 2757 High Rd., Arichat, Richmond County (the premises), on September 12, 2018. The residence was an apartment which the police determined was occupied by Ms. Dorey and Yvette Landry. Certain items were seized, including a significant amount of cash, cellphones, and a container of white powder, later identified as approximately 30 grams of cocaine.
[3] Because the search and seizure was authorized by a search warrant, it is presumptively reasonable. The onus is on Ms. Dorey to rebut the presumption by establishing the search was unreasonable on a balance of probabilities.
[4] The Crown entered the information to obtain (ITO), prepared by Cst. Darren Legere, and the warrant itself as exhibits at the Charter hearing. In the ITO, Cst. Legere indicated that the offence was being committed at the premises. He relied on two confidential human sources who associated freely with persons involved in criminal activity, and an anonymous source. While the search and seizure led to charges against Ms. Dorey, none resulted against Ms. Landry.
[5] In the event the Court finds there was a breach, the Applicant also bears the burden of convincing the Court, on a balance of probabilities, that excluding the evidence from the proceedings against her under s. 24(2) of the Charter is the appropriate remedy: R. v. Collins, [1987] 1 SCR 265, at para. 30.
[6] In this decision Ann Marie Dorey is referred to as Ann Thibeau and A.T.
The positions of the parties
[7] A search warrant is only valid if there are reasonable grounds to believe an offence has been committed, and that evidence will be found at the place of the search. The Applicant argues that the ITO provided little supporting information that evidence would be found at the place of the search, apart from the informant’s belief. She points out that none of the sources said she was selling cocaine from the premises, which they identified as her residence. Source “A” reported that she was selling “blow” in Arichat, and that she sold the best blow in town. Source “C” reported that Ann Thibeau lived on High Street, Arichat, in the top unit of a light-coloured two-unit apartment building, which was the third building after Co-op.
[8] The Applicant submits that while Source “A” is not a first-time source, the information provided to the constable was double hearsay and of little reliability. The information lacks specificity and reasonable grounds would not exist based on this information alone. In respect of Source “B”, the Applicant says there is no proven track record as a source, having been designated as a source one month previously, and the information provided lacked detail and consisted of conclusory statements.
[9] The anonymous source did not speak to Cst Legere but to another officer, Cst. Tom Kelloway. The source identified the location of the residence of Ann Thibeau, who the source said lived with Ms. Landry, and “hangs out with Ron Sampson”, whom the police identified as having two convictions for possession. The Applicant says the anonymous source provided no evidence of criminal activity, and provided an address for Ms. Dorey which was different from that shown in police records.
[10] According to the Applicant, no underlying circumstances were set forth in the ITO providing the authorizing judge with reasonable grounds for believing what the informant had alleged. While the information might be sufficient to arouse suspicion, the Applicant says, it did not provide a sufficient basis to find that reasonable and probable grounds for a search existed. As such, the Applicant says the warrant should be quashed.
[11] The Crown points out that the ITO indicates that Cst. Legere had known Source “A”, as a source, since August 2015. Source “A” did not have a criminal record and was not currently charged with Criminal Code offences. Source “A” did not have any occurrences related to public mischief or perjury. Source “A” had provided information resulting in the seizure of controlled drugs and substances on 15 occasions. Further, Cst. Legere spoke with Source “A” on the day the warrant was issued.
[12] Source “B” informed Cst. Smith that he/she knew the Applicant, and knew that the Applicant lived in, and sold cocaine in, Arichat, Richmond County.
[13] In addition, Cst. Kelloway spoke to an anonymous source on September 12, 2018, who related the following information: the Applicant lives on the High Road in Arichat in the top unit of a two-unit apartment building; the building is the third building after the Co-op on the same side; the building is light-colored; there is a shed on the property which the Applicant uses; the Applicant lives with Yvette Landry; the Applicant hangs out with Ron Sampson; and the Applicant drives a blue Hyundai Kona vehicle.
[14] The Crown says the ITO was heavily based upon confidential sources that were reliable, and that it contained information as to the type of drug the Applicant sold, the price at which the drugs were being sold, the Applicant’s supplier, and the Applicant’s residence.
Standard of Review
[15] The validity of a search warrant depends on whether reasonable grounds exist for the officer’s belief that an offence has been committed and that the search will afford evidence with respect to that offence. There is no dispute as to the proper test, namely, whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued. The reviewing judge does not conduct a rehearing, and 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 the justice to have issued the warrant. As the Supreme Court of Canada said in Hunter et al. v. Southam Inc., [1984] 2 SCR 145, at 167, “[t]he state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”
[16] The Court must consider the totality of the circumstances in determining whether the ITO discloses a substantial basis for the existence of the affiant’s belief. The affiant’s belief does not have to be based on personal knowledge. Hearsay statements of an informant can provide reasonable grounds to justify a search. The reliability of the information, however, must be apparent, and conclusionary statements alone do not provide sufficient grounds. The circumstances on which the conclusion is based must be provided (see R. v. Debot, [1989] 2 SCR 1140). In R. v. Garofoli, [1990] 2 SCR 1421, the majority accepted the following propositions, at 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, provide evidence of reliability of the information.
[17] The ITO in support of the warrant in question is based heavily on source information. Accordingly as set out in Debot, the Court should consider whether the source information is compelling, whether it is credible, and whether it has been corroborated. These steps are not considered individual hurdles to be crossed. It is commonly stated, that weakness is one area maybe compensated by strength in another.
Discussion
[18] In discussing the information in the ITO, the Applicant submitted in her brief:
The affiant had a conversation with Source A on the day the warrant was issued. Source A observed nothing. The information given to the affiant came from Source A speaking to a third party. The reliability of this person is unknown.
The information is double hearsay and lack specifics. The indicia of reliability of Source A has no relevance since Source A received the information from a third party.
Source B had been a source for one month and had met with the police “on no less than three (3) occasions”. Source B is a drug user and is motivated by financial reward. The reliability of Source B may well be impacted by his need to satisfy his drug habit. The information provided by Source B in essence is Source B knows Ann Thibeau and that she lives and sells coke in Arichat.
While Cst. Smith states his belief that Source B is “truthful and reliable”, he does not identify Source B as a proven reliable source. The ITO provides few objective indicia that Source B is reliable. Source B is known to use drugs. While Source B has provided information “consistent” with other source information, it is unclear how many times this occurred during the Source’s one month tenure as a source. The ITO makes it clear that the past information has not led to the execution of CDSA warrants. There has been no corroboration of Source B’s information through police investigation, or physical surveillance.
The information provided by the anonymous Source is of unknown reliability. The information makes no mention of Ann Thibeau being involved in any criminal activity. The information details that:
- Ann Thibeau is also known as Ann Dorey;
- She lives on High Road, Arichat in the top unit of a two-unit apartment building;
- The building is the third building after the Co-op on the same side and light colored;
- She lives with Yvette Landry and hangs out with Ron Sampson;
- There is a shed on the property which she uses;
- Ann Thibeau drives a blue Hyundai Kona vehicle.
This anonymous person confirmed that Ann Thibeau lives in Arichat and lives on High Road with Yvette Landry. Nothing else.
The anonymous Source information is not compelling, lacks specifics and is of a non-incriminating nature.
[19] Ms. Dorey’s counsel has provided caselaw in support of her position. In R. v. Lewis (1998), 38 O.R. (3d) 540, 1998 CarswellOnt 361, the Ontario Court of Appeal stated, in respect of an untested reliable informant, standing alone:
19 … Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.
[20] The Applicant says corroboration is called for, as most of the information related to criminal activity comes from Source “A”, whose reliability is objectively unknown and unproven. In the ITO, Cst. Legere states he had been told by a reliable informer that he/she had been speaking to a person to whom Ms. Dorey told (directly), that she received a shipment.
[21] In R. v. Hosie (1996), 107 C.C.C. (3d) 385, [1996] O.J. No. 2175 (Ont. C.A.), the court discussed a situation where the credibility of the informant cannot adequately be assessed because few, if any, details were provided. The Applicant argues that this applies to Source “A”. The Court in Hosie cited Debot for the principle that a “[s]ince in this case the credibility of the informants cannot be assessed and few details were supplied, a relatively higher level of verification was required. The validity of the warrant thus depends upon the sufficiency of the police investigation to corroborate the informer's tip…” (para. 15).
[22] The Applicant says there was no police surveillance of her that would indicate suspicious activity, comings and goings to her residence, or indication of her using the shed, as alleged in the ITO. There was no indication of her travel pattern or contact with, for example, the individual alleged to be the supplier of the shipment. The police attempted corroboration through CPIC, JEIN, and PROS (which indicated that the Applicant did not have a criminal record), as well as a patrol past the premises performed by Cst. Wilson on September 12, 2018.
[23] In response, the Crown states as follows in its brief:
28. For the reliability of the tips, the first factor to consider is the degree of detail of the tips. Source “A” provided the identity of the Applicant by first and last name. Source “A” provided information on the drugs which the Applicant possessed and sold. Cst. Legere learned from Source “A” that the Applicant “sells the best blow in town” and “she just picked up a load of coke”. Source “A” also provided the name of the Applicant’s supplier, Dawson Richards. Cst. Legere supplemented this information with knowledge he had based on his policing experience with the Port Hawkesbury Street Crime Unit that Dawson Richards was a major supplier of cocaine in Cape Breton.
32. The second factor to consider when assessing the reliability of the information is the Informants’ source of knowledge. Cst. Legere states that the information provided by Source “A” and Source “B” was first-hand observations and conversations with persons involved.
[24] In these circumstances, the statements by Source “A” and “B”, that they freely associate with persons involved in criminal activity in paragraphs 9 and 10 respectively, may provide a sufficient basis for the informant’s source of knowledge. The Crown relies on R. v. Gray, 2013 NSPC 85, where Derrick, Prov. Ct. J. (as she then was) stated:
[27] Contrary to the Defence submissions there is a clear indication in the ITO that each of the sources obtained his/her information as a result of direct knowledge. The ITO recited the following in relation to Source “A”, with the same passage repeated for Source “B”:
Source “A” associates freely with persons involved in criminal activity and has personal knowledge of the information obtained herein based on conversations and observations of persons involved unless otherwise stated;
[28] I have already made some references to the corroboration made of the information provided by the confidential sources. I note as well that each source corroborates the other. The two confidential sources provided almost identical information to police.
[25] In addition, Judge Derrick stated that the law does not require corroboration of the criminal activity itself, referring to R. v. Goodine, 2006 NBCA 109, where the court said:
[2] … 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.
[26] In Gray, the court also noted that “[t]he fact that Mr. Gray was known by the police to have been involved in the drug trade previously enhances the compelling nature of the information received from the confidential sources on November 7 and 8, 2012” (para. 26).
[27] In Gray, the central submission was that the confidential sources were recycling stale information about the Defendant. Here, the central submission of the Defence is that there is little or no underlying information to support the information being provided given that nothing is known about the person relied upon by Source “A”.
Decision
[28] Direct knowledge can come from a source who associates with persons known to be involved with criminal activity. Further, the criminal activity need not be corroborated. In Gray, the court cited Goodine, where the New Brunswick Court of Appeal stated that “[s]uch corroboration is … 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.”
[29] I have previously stated that the reliability of the information must be apparent and assessed in light of the totality of the circumstances. Here, the ITO pertained to a private residence shared by the Applicant with another person. There is no suggestion that that person was involved in drug activity. The Applicant or target has no criminal record.
[30] The suggestion was there was a shed on the property and that it was being used by Ms. Thibeau. There was no corroboration by police that it was in fact, being used.
[31] There was an issue with the various addresses for the Accused contained in the ITO. The anonymous source provided information in this regard, stating that A.T. lived with Yvette Landry on High Road, Arichat, in the top unit of a two unit apartment building. Paragraph 14.2 therefore confirms para. 12.4 of the information provided by Source “A”. While there was some confirmation of the High Rd. location, the Applicant was not observed at this address prior to the date of the search. Yvette Landry’s vehicle was confirmed. The vehicle registered to AT was described by the anonymous source, while the police checks on JEIN, CPIC and PROS confirmed a vehicle registered to Yvette Landry.
[32] The police did confirm that a sign containing the civic number 2757 was posted on a marker at the end of the driveway. Paragraph 18.1 confirms the information in para. 14.4 that the building was light in color and near the Co-op. Paragraph 18.3 confirms the statement in para. 14.7 that there is a shed or baby barn on the property.
[33] It must be remembered it is the sufficiency of the information contained in the ITO that is the focus, as opposed to that which is not contained in it.
[34] The Crown submits Source “A” is clearly reliable with a proven past record. Source “A” has been known to the Affiant, Cst. Legere, for three years, having provided information where controlled drugs and substances were seized on 15 occasions and having been paid financial rewards on 13 occasions. Source “A” did not speak directly with A.T., but spoke with someone who did, who informed him that A.T. had just “picked up a load of coke”. The Crown says the source of knowledge is apparent and the law is clear that hearsay information can contribute to the reliability of a tip from a confidential informant.
[35] Further, the Crown says the supplier’s name, Dawson Richards, is known to police from their experience. In addition, Source “B” corroborates the information of criminal activity received by Source “A”. Source “B” corroborates the criminal aspect of the information received by Source “A”, that AT sells “coke” in Arichat.
[36] Source “C”, although anonymous, confirmed details of the residence in question, which was also confirmed by police surveillance revealing the property at 2757 High Street. The Crown in its brief submits that, in totality, the information contained in the ITO is sufficiently reliable to sustain the warrant. Although Source “A’s” information came from another person, Source “A”, like Source “B”, associates freely with persons involved with criminal activity, and the Justice issuing the warrant was entitled to draw reasonable inferences in reaching the conclusion that reasonable grounds to sustain the warrant existed in totality.
[37] The Applicant states the information is not reliable and is insufficient to sustain the warrant. The ITO contains a lot of detail, but on closer scrutiny, the information is not as sufficient or reliable as may appear on the face of the warrant, the Applicant says. When stripped to its essentials, she says, the ITO reveals that Source “A” saw nothing and merely heard from a third party that there had been a shipment, and nothing is known of that the third party. She submits that Source “B” is unproven, and made only conclusionary statements regarding the Applicant’s alleged activities. Further, the Applicant says, the third anonymous source said nothing about criminal activity, and focused on the so-called neutral or commonplace information pertaining mainly to the location of the subject property and its address. There is however, evidence of other residences of both Ann Thibeau and Ann Dorey, which emanate from the police checks on JEIN, CPIC and PROS. These revealed residences at 136 Bosdet Point Road, West Arichat, and 125 Bosdet Point Road, West Arichat.
[38] While the Court cannot focus on certain facts in isolation, the hearsay statement of an informant’s own source (double hearsay) cannot be ignored and must be considered by the reviewing Court in assessing whether there were reasonable grounds upon which the warrant could have been issued. While hearsay statements can contribute to justification for a warrant, they may not in all circumstances provide a sufficient basis for reasonable and probable grounds. For example, in Gray the Court observed that the informant’s associations provided direct evidence but in that situation the ITO stated not only that Source “A” associated freely with persons involved in criminal activity, but “had personal knowledge of the information obtained therein based on conversations and observations of persons involved unless otherwise stated”.
[39] This is one example of the concerns here. Another is the lack of a substantive basis for reliance on Source “B” and the anonymous source, given the lack of experience, underlying information, and the unknown nature of the informants as a whole, except for Source “A”, of which I have already set out my concerns.
[40] In totality, I agree with the Applicant, that stripped to its essentials the ITO does not provide a sufficient basis, upon which the justice could have objectively determined that reasonable grounds existed. In the result, I am satisfied the Applicant has discharged the burden upon her to rebut the presumption of reasonableness with respect to the warrant.
Conclusion
[41] I find therefore on a balance of probabilities, there has been a breach of the Applicant’s right to be protected from unreasonable search and seizure pursuant to s. 8 of the Charter. The issue of whether the evidence should be excluded pursuant to s. 24(2) remains to be determined.
Section 24(2)
[42] Having found a violation of Section 8 of the Charter, the onus us on the Applicant to prove that admission of the evidence would bring the administration of justice into disrepute.
[43] The Crown respectfully submits that admission of the evidence obtained as a result of the breach would not bring the administration of justice into disrepute.
[44] The Applicant accepts that she bears this onus, stating it is on a balance of probabilities.
[45] The leading case of R v. Grant, 2009 SCC 32, set out three considerations in determining the ultimate question of whether admission of the evidence will bring the administration of justice into disrepute. These considerations are:
(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.
[46] The Applicant submits it is not the immediate effect of excluding the evidence which must be weighed, but rather the long term repute of the administration of justice, based on an objective inquiry.
[47] In Grant, the court stated the focus of section 24(2) is to ensure that evidence obtained through a breach does not do further damage. The goal is neither to punish the police or compensate the accused. The determination should be made having regard to the totality of the circumstances.
[48] Section 24 of the Charter reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
1. Seriousness of the Charter Infringing Conduct
[49] The Court must assess the seriousness of the state or police conduct. This includes whether by admission the Court would be condoning state deviation from the rule of law. Is it a situation where the Court should disassociate itself from the fruits of the unlawful conduct? The gravity of the police conduct, and whether good faith exists are valid considerations.
[50] The Crown submits the officers who searched the Applicant’s residence were acting in good faith. Further, it submits the ITO was not drafted to mislead, stating Cst. Legere believed the information to be sufficient to justify the warrant. The conduct cannot be characterised says the Crown, as other than at the low end.
[51] The Applicant says the conduct here was egregious, with both Ms. Dorey and Ms. Landry being arrested outside their home, with searches being authorized to include vehicles.
[52] This search was of Ms. Dorey’s home, and is the type of unauthorized conduct the Court will want to distance themselves from. I concur with the Crown there was no bad faith and that the ITO was drafted by Cst. Legere with no intention to mislead.
[53] Still this was a search of a residence. While a breach may not have been intended, this was a private residence that Ms. Dorey shared with another person. Ms. Dorey had no criminal record. I agree with the Applicant, that more diligence in terms of the investigation might have been exercised. Surveillance was minimal. The police should have known the source information on the shipment for example was of the weaker variety.
[54] This was a serious breach of Ms. Dorey’s charter rights, notwithstanding the lack of deliberate police conduct.
2. Impact of the Breach on the Charter Protected Interests
[55] The Crown acknowledges that a search of a residence is at the more serious end of the spectrum as a residence attaches a higher expectation of privacy. There is no suggestion however, that the search impacted the Accused’s human dignity. Unlike a strip search or a computer search, the Crown says the search of the Applicant’s residence and vehicle were “moderately intrusive”.
[56] In its brief the Applicant states quite simply:
The search in this case seriously undermined Ms. Dorey’s right to be free from unreasonable search and seizure. The search which took place was of Ms. Dorey’s home, typically a place where individuals have the greatest expectation of privacy.
[57] The more serious the breach, the greater the risk that an admission of the evidence may bring the administration of justice into disrepute by signalling to the public that undermining the Accused’s charter rights is of little consequence.
[58] The warrant in this case permitted the police to search as follows:
In the residence, receptacle, property, outbuildings, place and vehicles located on the property of Ann Marie THIBEAU born, 1962/07/06, situated at 2757 High Road, Arichat, Richmond County in the Province of Nova Scotia.
[59] The line of inquiry, like the first, militates in favour of excluding the evidence.
3. Society’s Interest in Adjudication on its Merits
[60] It is clearly acknowledged by the Applicant that the evidence seized is real evidence and if excluded would, in effect, cause the Crown’s case to collapse.
[61] This impacts both society’s interest in seeing accused’s persons tried on the merits of the case and being dealt with according to law. It also concerns the public or society’s collective interest in finding the truth.
[62] The Crown submits the evidence here includes a significant quantity of cocaine and cash, and if excluded the Crown would not be able to support the charges under s. 5(2) of the CDSA.
[63] It is clear the reliability of the evidence was not undermined by the Charter. The Defence says this does not mean that reliable evidence is admissible regardless of how it was obtained.
[64] This line of inquiry asks whether the criminal trial process and truth seeking function are better served by admission or exclusion of the evidence.
[65] Ms. Dorey accepts that the charges are serious, but reminds the Court that the justice system must be beyond reproach and this includes situations when the stakes are particularly high.
[66] Ms. Dorey in her submission asks that this factor not overwhelm or overtake the inquiry on the ultimate question. (R v. Paterson, 2017 S.C.C. 15)
[67] I find there is little question that society’s interest in adjudication favours admission of the evidence, when one considers especially the importance of the evidence to the Crown’s case.
Balancing these Factors
[68] I have found that the information provided in the ITO was insufficient to justify the warrant to search Ms. Dorey’s residence. As shown, the warrant extended to vehicles on the property and any outbuildings. It was broad in scope.
[69] The Applicant states that the prosecution has had significant consequences for Ms. Dorey. She says, section 8 of the Charter should not amount to an “empty promise” to be protected from unreasonable search and seizure.
[70] In this case, I find the breach of Ms. Dorey’s rights and the impact on her to be serious.
[71] In my view, admitting that evidence, would seriously affect the repute of the administration of justice. I say this recognizing the police have a difficult task, in terms of law enforcement.
[72] On balance, I find that more reliable source information was warranted in terms of the broad authority the police were seeking in this search of a private residence, vehicles, and buildings. Apart from the police checks, additional corroboration and surveillance was limited.
[73] I find the evidence should be excluded pursuant to s. 24(2) of the Charter.
Murray, J.