(a) Although the CI and affiant had been in an informant/handler relationship, redactions made it impossible to know the duration of that relationship: "less than [redacted] years".
(b) Although the ITO suggests that the CI had provided information leading to the execution of warrants in the past and parties named by the CI being "arrested", redactions made it impossible to know the number of occasions that had occurred.
(c) Although the affiant suggested that the CI had "provided information which led to" something in the past, that something had been redacted.
(d) Although the CI may have had a criminal record, if he or she had one, it was to be "outlined in an appendix to the ITO", yet the entire appendix was redacted.
(e) Although the affiant acknowledged that the CI had a motive to provide information, whatever served as that "motivation" was redacted. How great the CI's incentive to provide information remains entirely elusive." (Para 32)
"The trial judge noted that there was no need for every detail provided by a CI to be confirmed. Without referring to anything in specific, the trial judge concluded that the CI information had been “corroborated by police investigation” prior to the search and that there was “sufficient corroborative evidence to warrant the belief that Callahan was in possession of a firearm at the Clover residence or in his vehicle.”" (Para 35)
"I do not agree with the trial judge’s statement that there was “sufficient corroborative evidence to warrant the belief that Callahan was in possession of a firearm at the Clover residence”. Other than Callahan’s criminal record, which included two undated convictions for assault with a weapon and possession of a firearm, the confirmatory information had nothing to do with Callahan and guns. The corroborative facts related to information that many people would know, such as Callahan’s telephone number, the type of car he was driving and where he was hanging out. In the context of this case, those facts demonstrated that the CI knew or knew of Callahan. Although the CI’s confirmed knowledge of Callahan was one step toward reliability, in the circumstances of this case, particularly given the deficit in the credibility criteria, a larger step would have been beneficial." (Para 40)
"The most significant concern lies with whether the CI information was compelling. As noted by Martin J.A. in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219, and later adopted by Wilson J. on appeal, “[h]ighly relevant to whether information supplied by an informer constitutes reasonable grounds” are considerations involving whether “the informer’s ‘tip’ contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of CI information: Debot, at p. 1168-9; Rocha, at para. 26." (Para 42)
"I agree that the CI information about the dispute and Callahan not being anywhere without his gun is somewhat conclusory in nature. There is no basis upon which to assess the veracity of those claims because, as Martin J.A. put it in Debot, no "details" were provided and the CI did not disclose his or her "source or means of knowledge". Was the information about the dispute mere gossip, or did Callahan tell the CI that he was in a dispute? Did someone else tell the CI that fact? Was the information about Callahan carrying the purported gun at all times gossip or conjecture on the part of the CI? Although the details supporting those claims may have been in the appendix to the ITO, the contents of the appendix were redacted. Thus, while I would not discount the claims about the dispute and Callahan carrying a gun altogether, I would not characterize them as "compelling"." (Para 47)
"In this case, although the CI said that he saw Callahan with a firearm, the CI did not connect the firearm to 1670 Clover Avenue. The redacted ITO does not enlighten the reader as to where the CI saw the gun, e.g. in a house, a car, a place of business, a park or any other location. The redacted ITO merely says that Callahan and the gun were seen in the east end of Windsor. The redacted ITO does not even address whether the appellant's home rests in that part of Windsor." (Para 49)
" Accordingly, the only information that could support the reasonable grounds to believe that Callahan took a rifle into 1670 Clover Avenue rested on the CI’s statement that Callahan was in a dispute and would not go anywhere without the gun. If those statements were compelling enough to give rise to a credibly-based probability that Callahan took a rifle into the location searched, then they would be compelling enough for a search warrant for any location that Callahan attended. This would have turned Callahan into walking, ready-made grounds for belief. That is a sweeping proposition, particularly in light of the weak and conclusory nature of those statements in the ITO, the minimal information about credibility and the weak nature of the corroboration." (Para 51)
Misleading Information about Callahan's Residence
"1670 Clover Avenue was not the “residence of Derek Callahan”. It was the residence of Benjamin Herta. The correct wording could have been easily placed on the face of the warrant. This is not just about technicalities. If 1670 Clover Avenue had in fact been Callahan’s residence, it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place. That inference falls away when the true state of facts is known." (Para 54)
"The respondent maintains that when the ITO is considered in context, it would have been clear to the issuing justice that Callahan did not live at the location searched. I disagree. Although there is mention of the fact that the police were looking for where Callahan was staying in the weeks following the robbery, and the CI had told the police that Callahan was “staying at numerous different residences” to evade the police, that is not inconsistent with Callahan’s “residence” being at 1670 Clover Avenue. The reference in the ITO to that home as Callahan’s “residence” left the potential erroneous impression that, at least as of the day of the search, the police had satisfied themselves that it was actually Callahan’s home." (Para 55)
Conclusion and 24(2)
"Properly considered, the CI information was of insufficient strength to support the search warrant for the appellant's residence. As the trial judge observed, the CI's credibility was of "concern". Although some information was corroborated, it did not compensate for the void left by the credibility assessment. The CI's tip was not compelling in relation to whether a firearm — a 303 rifle — would be found in 1670 Clover Avenue. The totality of circumstances could not support the search warrant. I conclude that the appellant's s. 8 rights were breached." (Para 58)
Seriousness of the Charter Infringing State Conduct
"At the same time, this case involves some sloppy work, specifically around the language that mistakenly suggested that Callahan lived at 1670 Clover Avenue. Although I find that there was no intention to mislead the issuing justice, it could have had that effect: R. v. Morelli, 2010 SCC 8 (CanLII),  1 S.C.R. 253, at paras. 99-101. At most, the wording was somewhat careless. It is not so serious, though, that it rises to the level of something from which the court must dissociate itself. There is a human element in what we all do and people can make innocent mistakes. Not everything is deserving of a label." (Para 64)
"Accordingly, I conclude that the first Grant factor is neutral in the admissibility analysis." (Para 65)
Impact of the Breach on the Charter-protected interests of the accused
"The search was clearly extensive and highly invasive. Indeed, the trial Crown agreed to a set of acts that described the search as "intrusive"." (Para 68)
"First, everyone inside of the home was escorted out by the police." (Para 69)
"After all of the people were out, a sniffer dog was sent in along with the Emergency Services Unit. Then, other officers were sent in to take photos of the appellant's home, after which a sniffer dog was sent in again. The search led to both the plain view discovery of drugs as well as drugs found only with the assistance of a sniffer dog. Indeed, so extensive was the search that some of the illicit substances were found secreted in floor vents. There is simply no denying that it was a very intrusive home search." (Para 70)
"Although I am mindful of the fact that a Feeney warrant could have been obtained, allowing the police to lawfully enter the home to arrest Callahan, the Feeney warrant's ambit would have been confined to arresting Callahan. Significantly, it would not have allowed the extensive search of the appellant's entire home. I conclude that this was a highly invasive search — the breaching of the door, multiple police officers, sniffer dogs, Emergency Services Unit, photographs, searching in floor vents, and all. It had a heavy impact on the appellant's s. 8 Charter-protected interests." (Para 71)
"I conclude that the evidence should be excluded. Although I would place the seriousness of the state conduct at the middle of the spectrum, the impact of the breach on the Charter-protected interests of the appellant clearly outweighs it, existing at the apex of seriousness. Society’s interest in having an adjudication of this case on the merits is important, but so is society’s interest in ensuring that extensive searches of private residences, those involving multiple police officers, photos, dogs and more, are justified. There is no precise equation that can be applied but, in this case, the fact that the appellant’s privacy was seriously invaded for reasons that had nothing to do with him decisively tips the scales in favour of exclusion." (Para 74)
Appeal allowed, evidence excluded, acquittal entered (Para 75)