[1] Claiming a breach of his rights under s. 8 of the Charter of Rights and Freedoms, Mr. Reyat applies under s. 24(2) of the Charter to exclude evidence obtained as a result of searches conducted by the R.C.M.P. on November 6, 1985.

BACKGROUND

[2] On November 6, 1985, members of the R.C.M.P. executed a number of search warrants as part of their investigation into the circumstances surrounding the downing of Air India Flight 182 off the coast of Ireland and the explosion of a bomb at the airport in Narita, Japan, on June 23, 1985.  Included as places to be searched were Mr. Reyat’s residence in Duncan, British Columbia, an unlicensed recreational trailer located on his Duncan property, and two motor vehicles registered in his name.

[3] The warrants were issued pursuant to a single Information to Obtain a Search Warrant (the "information to obtain") sworn by Cpl. Rockwell on November 4, 1985.  The first 19 of 56 paragraphs relate primarily to the alleged placement of the bombs on the two aircraft.  The remainder of the document outlines evidence suggesting the complicity of Mr. Reyat and others in the alleged offences.  The information to obtain is attached as an appendix to this judgment.

[4] The R.C.M.P. seized a number of items as a result of the searches which, according to the Crown, tends to support its theory regarding Mr. Reyat’s involvement in the alleged offences.  These include receipts for electrical components consistent with those used in the explosive device that detonated at Narita, relays, dynamite, a partially full can of gunpowder, a can of Liquid Fire, and a VCR box with an unusual green bookbinding tape and clear tape consistent with tape fragments found at Narita.

ISSUES

[5] Mr. Reyat attacks the validity of the warrants on these grounds:

(1)      The search warrants, authorizing searches "at any time", were invalid for their failure to stipulate a time or date for execution;

(2)      There was no credibly based probability that the items to be searched for would be located at the locations to be searched;

(3)      The informant failed to make full, fair and frank disclosure of known material facts;

(4)      The informant deliberately misled the Justice of the Peace with respect to information received from C.S.I.S.; and

(5)      The neutrality and impartiality of the Justice of the Peace was compromised by a prior meeting with the informant and Sgt. Miller during which the adequacy of the proposed grounds for a warrant to search Mr. Reyat’s Sikh temple were discussed.

The Relevant Legal Principles

[6] The standard for review of a search warrant was set out by the Supreme Court of Canada in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.).  Writing for the Court, Sopinka J. stated the following at p. 188:

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.

[7] In R. v. Araujo (2000), 149 C.C.C. (3d) 449 (S.C.C.), the Supreme Court of Canada reiterated the importance of undertaking a contextual analysis in the review of search warrants.  Writing for the Court, Lebel J. stated at p. 473:

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.  Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [emphasis in original]

[See also: R. v. Morris (1998), 134 C.C.C. (3d) 539 (N.S.C.A.)]

Issue 1 –- Search Authorized "At Any Time"

[8] The search warrants issued by the Justice of the Peace on November 4, 1985 were not limited by date or time.  Rather, they authorized the R.C.M.P. to search the noted locations "at any time".  Sgt. Miller, who had drafted the warrants, testified that he had regularly used this language while at the R.C.M.P. commercial crime unit so as to give the R.C.M.P. latitude in accommodating changing circumstances when executing multiple search warrants.

[9] The searches were ultimately conducted on November 6, 1985, two days after the warrants were issued.

Position of Mr. Reyat

[10] Mr. Reyat submits that the search warrants, authorizing searches "at any time", were invalid for their failure to stipulate a time or date for execution.  A justice of the peace, he argues, has no jurisdiction to issue a warrant that leaves the timing of its execution solely within the discretion of the police.  Mr. Reyat also refers to s. 444 of the Criminal Code, R.S.C. 1970, c. C-34, then in force, which provided that search warrants "shall be executed by day, unless the justice, by the warrant, authorized execution of it by night."  In this regard, he submits that the broad scope of the warrants improperly permitted the execution of searches at night, the necessity for which was entirely unsupported by the information to obtain.

Position of the Crown

[11] On the basis of the British Columbia Court of Appeal’s decision in R. v. Coull and Dawe (1986), 33 C.C.C. (3d) 186, the Crown concedes that the failure to limit the execution of the search warrants to a specified period of time was not reasonable in the circumstances.  In Coull, McLachlin J.A. (as she then was), writing for the Court, held that to meet the requirements of s. 8 of the Charter, the time period over which a search warrant extends must be reasonable.  What is reasonable will depend on the circumstances of each particular case.  McLachlin J.A. found that the information before the Justice of the Peace was sufficient to give him jurisdiction to issue a warrant for an eight day period.

[12] The Crown concedes that the Justice of the Peace did not have an evidentiary basis upon which, acting judicially, he could have concluded that he was justified in granting the R.C.M.P. jurisdiction to search Mr. Reyat’s premises "at any time".

Analysis

[13] As conceded by the Crown, I find the search warrants were invalid and the resultant searches constituted a violation of Mr. Reyat’s rights under s. 8 of the Charter.  Accordingly, an analysis must be conducted under s. 24(2) of the Charter to determine whether the evidence should be excluded.

[14] Despite this finding, I will go on to consider whether each of Mr. Reyat’s other challenges to the warrants constitutes a violation of his s. 8 rights as that will be relevant in determining the scope of the breach and in weighing the factors to be considered under s. 24(2).

Issue 2 –- No Credibly Based Probability

Position of Mr. Reyat

[15] Mr. Reyat submits that the informant, Cpl. Rockwell, did not possess the requisite belief that the named items would be found at the named locations.  In a continuation report dated September 24, 1985, Cpl. Rockwell stated that it would be "counterproductive" to undertake searches of Mr. Reyat’s property at that time since, in part, "the lapse of time since the events makes the chance of location of evidence very minimal".  Mr. Reyat further submits that Cpl. Rockwell’s testimony on this voir dire demonstrates that he believed there was, at best, a possibility of locating the items to be searched for, short of the probability standard necessary for the issuance of a warrant.

Position of the Crown

[16] The Crown responds that Cpl. Rockwell should be believed when he testified that by the time he swore the information to obtain, he had reviewed all the evidence, altered his view and believed he had the requisite reasonable and probable grounds.  When viewed in context, his acceptance of suggestions in cross-examination that he believed there was a "possibility" of locating the items is simply a matter of semantics and the result of the manner in which questions were put to him, not inconsistent with a belief in a probability standard.

Analysis

[17] For the issuance of a warrant, it must be established that there is a "credibly based probability" that an offence has been committed and that the evidence to be searched for will be found at the location to be searched.  [See R. v. Morris, supra at pp. 549-550; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 at p. 365 (Ont. G.D.)]

[18] On its face, the language used in the information to obtain meets this standard.  Cpl. Rockwell swore that he had reasonable and probable grounds to believe that the items sought "are" in the places named.

[19] While Mr. Reyat takes issue with the use of the word "may" in paragraph 43 of the information to obtain as it relates to evidence to be located in the temple, I am of the view that this paragraph is restricted to Cpl. Rockwell’s belief regarding one particular piece of evidence which is subsumed in his overall belief that the items sought will be found in the various locations to be searched.  Accordingly, there is nothing on the face of the information to obtain which supports Mr. Reyat’s assertion that Cpl. Rockwell did not have the requisite belief in relation to the searches.

[20] Mr. Reyat’s primary attack is on Cpl. Rockwell’s subjective belief at the time he swore the information to obtain.  Cpl. Rockwell testified that his opinion had changed between the time he drafted the September report expressing concern over the "lapse of time" and the swearing of the information to obtain.  Cpl. Rockwell pointed to the massive scope of the investigation and the fact that many people were drawing in information from many different areas.  He testified that it was only after reading a draft of the information to obtain that he obtained an overview of the entire investigation as a whole.

[21] I found Cpl. Rockwell’s evidence on this issue to be entirely credible.  There is no dispute that the investigation into these incidents was massive and far reaching.  Evidence was being gathered in a number of countries by many different police officers and agencies.  It is only at the time that this evidence was synthesized into the information to obtain that Cpl. Rockwell’s subjective beliefs regarding the "credibly based probability" of finding evidence in the locations to be searched can properly be considered.  The nexus between Mr. Reyat and the offences being investigated was apparent and tended to minimize his earlier concerns regarding the lapse of time.  His earlier reservation had not been any lack of connection between Mr. Reyat and the alleged offences or the probability of finding relevant evidence at locations named in the search warrant, but a concern that, with the passage of time, Mr. Reyat may have anticipated such a search and removed these items.

[22] Cpl. Rockwell’s adoption of the word "possibility" in the question put to him in cross-examination is not inconsistent with his statement in the information to obtain.  Put to him as it was, he was bound to agree with the suggestion, regardless of whether he viewed it as a "probability" and not merely a "possibility".  I accept that he possessed the requisite belief sworn to in the information to obtain.

Issue 3 -– Full, Fair and Frank Disclosure

[23] Mr. Reyat submits that the information to obtain failed to make full, fair and frank disclosure of known material evidence to the Justice of the Peace.  Rather, it presented a partial and selective version of that evidence, creating a false and misleading impression of Mr. Reyat’s involvement in the alleged offences.  Mr. Reyat invites either full amplification of the misleading averments or, should the Court conclude there was a deliberate failure to provide full disclosure, excision of the impugned paragraphs from the information to obtain.

[24] Mr. Reyat identifies five areas of concern in this regard.  Of particular importance are the averments respecting the June 4 incident and the purchase of the Sanyo tuner.

a. The June 4 Incident

[25] Paragraphs 23 and 24 of the information to obtain deal with what has become known as the June 4 "test blast" incident, a significant link between Mr. Reyat and the alleged offences.  These paragraphs read as follows:

23. That I am informed by a source of known reliability, whose identity for security reasons I do not wish to reveal at this time, and verily believe it to be true, that Hardev Singh PARMAR (Known as Talvinder Singh PARMAR) and his son, Jaswinder Singh PARMAR, were driven from the PARMAR residence of 1302 Howard Avenue, Burnaby, B.C. to the British Columbia Ferries Terminal at Horseshoe Bay by Surjan Singh GILL.  The two PARMARS took the 3:00 p.m. ferry as foot passengers to Nanaimo, where they were met and driven directly to the residence of Inderjit Singh REYAT at 3193 Kimberly Drive, Duncan, B.C.  Arrival time at the REYAT residence was approximately 5:30 p.m.  The two PARMARS and Inderjit Singh REYAT went from the residence, in REYAT’s Mercury vehicle, to Auto Marine Electric Limited.  The vehicle, carrying all three, then proceeded out of town to a dead-end road and parked.  A few minutes later a loud report was heard.  Shortly after the loud report, all three returned to REYAT’s residence, arriving at approximately 7:30 p.m.  A short while later, REYAT’s Mercury left with the two PARMARS and proceeded to the ferry terminal in Nanaimo.  Hardev Singh PARMAR boarded the 9:00 p.m. ferry alone as a foot passenger.  Arriving at Horseshoe Bay, Mr. PARMA was met by Surjan Singh GILL and driven to PARMAR’s residence.

24. That I am informed by Special Constable Tom TOWNSEND of the Royal Canadian Mounted Police, Explosives Disposal Unit, and do verily believe it to be true, that a search was conducted on July 2, 1985, of the area west of Duncan, British Columbia, in which the single loud report was heard, and a blasting cap wire shunt was located along with a paper tape bundle wrapper for blasting cap wires.

Although not specified in paragraph 23, the incident described therein occurred on June 4, 1985.

Position of Mr. Reyat

[26] Mr. Reyat submits that the R.C.M.P. was in possession of the following additional relevant information as of November 4, 1985, the date the information to obtain was sworn:

i. Larry Lowe, the C.S.I.S. agent who heard the loud report, "strongly believed" it was a rifle shot, later describing it as sounding like a shot fired "from some sort of gun";

ii. On June 4, immediately following the departure of Mr. Reyat and the Parmars from that area, Lowe quickly and unsuccessfully searched the area from where the noise appeared to come for a shell casing;

iii. On June 28, Special Constable Townsend and an explosive sniffing dog searched the site for over three hours and found nothing;

iv. Cst. Townsend and another officer searched the site again on July 2 for a full day with "negative results", except for a blasting cap shunt and paper tape bundle wrapper which were found in the area where Mr. Reyat’s car had been parked;

v. Cst. Townsend and two other Explosives Disposal Unit officers returned on July 4 and again searched the site for a full day.  The only item found was a second blasting cap shunt located immediately upon arrival in the area where Mr. Reyat’s car had been parked.  The officers reported that "All logical, accessible areas thoroughly covered" and that no explosion site had been located;

vi. Cst. Townsend had reached the conclusion that if an explosion had occurred in the area, it was not of the magnitude reported.  He also believed it was possible that what had been heard on June 4 was coincidental blasting in the area; and

vii. A report had been received from a Nanaimo R.C.M.P. identification officer that he believed the paper tape bundle wrapper found on July 2 had been exposed to the elements for two weeks.

[27] Mr. Reyat submits that the informant deliberately chose not to include this evidence in the information to obtain because it was inconsistent with the inference sought.  Mr. Reyat points to the testimony of Cpl. Rockwell that paragraphs 23 and 24 were drafted in a fashion to convince the reader that firstly, there was a loud report heard on June 4, 1985 at a site where both Mr. Reyat and Mr. Parmar had been present and secondly, that the loud report was some sort of blasting cap explosion and therefore potentially connected to the offences being investigated.  Such disclosure, Mr. Reyat submits, would have rendered the inference considerably more tenuous.

Position of the Crown

[28] The Crown responds that paragraphs 23 and 24 of the information to obtain contain accurate descriptions of the information the R.C.M.P. had at the time.  Disclosure of the additional information would not have altered or rendered less likely the inference that a minor blast had occurred in the area where Mr. Reyat had been observed.  That the C.S.I.S. agent, Lowe, searched the area for a cartridge and did not find one tends only to confirm that the report was likely not a rifle shot.  It also tends to explain why he did not discover the blasting cap shunt and paper tape bundle wrapper in the area where Mr. Reyat’s car had been parked.

[29] The Crown submits that the failure to mention Constable Townsend’s theories about possible blasting in the area does not impugn paragraphs 23 and 24, particularly given his ultimate conclusion that "the suspects may have caused a small explosion".

[30] Finally, the Crown responds that the identification officer’s two week estimate of the length of time that the paper wrapper had been exposed to the elements, standing alone as it does, is without proper context and without any apparent scientific foundation.

b. Purchase of the Sanyo Tuner

[31] Paragraph 29 is another critical averment implicating Mr. Reyat in the offences alleged.  It reads as follows:

29.   That I am informed by Corporal Ian GRANT, a member of the Royal Canadian Mounted Police, and do verily believe it to be true, that he is in possession of a cash register tape and a sales invoice dated June 5, 1985, at 12:14 p.m. from F.W. Woolworth Limited of Duncan, British Columbia for the purchase of a Sanyo Tuner Model FMT-611K for $129.00 plus $9.03 tax, and written on the invoice in the "Deliver To" area is "REYAT", telephone number 746-4918.  Corporal GRANT checked the Duncan telephone directory and telephone number 746-4918 is listed as being that of I.S. REYAT at 3193 Kimberly Drive.

[32] Paragraphs 25 and 27 of the information to obtain contain evidence that a Sanyo Tuner Model FMT-611K housed the explosive device that detonated at Narita.

Position of Mr. Reyat

[33] Mr. Reyat submits that, while not literally false, paragraph 29 invites the conclusion that he personally attended at the Woolworth store and purchased the tuner.  Investigators knew this was not the case.  Karen Smith, the Woolworth sales clerk who sold the tuner, gave two statements to the police in which she described the purchaser.  Her description of the purchaser and a composite sketch prepared from her description did not match Mr. Reyat’s appearance at the time.  In addition, she attended Auto Marine Electric Limited, Mr. Reyat’s place of employment, and viewed Mr. Reyat.  Not only was she positive that Mr. Reyat was not the purchaser of the Sanyo tuner, but she recalled him purchasing a VCR from her in 1984.  When considered in the context of all the information known to the R.C.M.P., it is submitted, Mr. Reyat’s connection to the tuner was significantly weaker than paragraph 29 alone suggests.

[34] Mr. Reyat argues that the informant was alive to the significance of this additional information but chose not to disclose it.  He points to an October 1985 memo from Cpl. Rockwell regarding a wiretap authorization renewal in which he advised of the need to amend the original affidavit to take into account Ms. Smith’s evidence that Mr. Reyat was not the person who attended the store to purchase the tuner.

Position of the Crown

[35] The Crown concedes that Ms. Smith’s statements were marginally material and should have been disclosed.  However, it submits that the omission of this information was a product of inadvertence, not deliberate non-disclosure.  Sgt. Miller testified that he was unaware of Ms. Smith’s statements at the time he swore the information.  He also had not seen Cpl. Rockwell’s wiretap renewal application.

[36] The Crown submits that, given the massive volume of material being generated by the investigation, it is not unreasonable that some relevant information may have been inadvertently overlooked.  While Cpl. Rockwell was aware of Ms. Smith’s evidence, he saw his role as affiant as ensuring that the information contained in the information to obtain was strictly accurate.

[37] The Crown further submits that the consequence of the failure to disclose this information was minimal.  Mr. Reyat was still indelibly linked to the tuner by the receipt bearing his name and telephone number referred to in paragraph 29.

c. Other Averments (i)   The Robertson Information

[38] Paragraphs 20, 21, 22 and 30 of the information to obtain refer to information obtained from a "confidential informant".  The informant was a civilian, Wayne Robertson.  Mr. Reyat advised Mr. Robertson sometime prior to 1985 that he was able to make a remote control device that could detonate an explosive device.  Mr. Reyat approached Mr. Robertson in May 1985 attempting to purchase a quantity of dynamite.  Mr. Reyat also approached Mr. Robertson a number of times to ask questions about detonation and the use of explosives.  On one occasion, Mr. Robertson gave Mr. Reyat a publication entitled "Blasters' Handbook".

Position of Mr. Reyat

[39] Mr. Reyat submits that the R.C.M.P. was in possession of additional information that should have been disclosed.  Specifically, the exchange between Mr. Reyat and Mr. Robertson about Mr. Reyat’s ability to construct a remote control detonation device occurred in August or September 1983 when both men were working together on a blasting contract.  Mr. Reyat, according to Mr. Robertson, had exhibited a completely normal level of interest in the blasting activities going on at the scene.

[40] Further, Mr. Reyat contacted Mr. Robertson in May 1985 seeking to acquire "a little bit", as opposed to "some quantity", of dynamite as alleged in the information to obtain.

[41] Finally, in August 1985, the R.C.M.P. staged an electronically monitored meeting between Mr. Robertson and Mr. Reyat in an attempt to secure evidence corroborating the assertion that Mr. Reyat had requested dynamite in May of that year.  At this meeting, Mr. Reyat demonstrated no interest in Mr. Robertson’s references to explosives or dynamite.

[42] Mr. Reyat asserts that this evidence was deliberately set out in a manner intended to wrongly characterize him as having exhibited an unusual and longstanding interest in explosives.  Moreover, given that Mr. Robertson was a witness of unproven reliability, the Justice of the Peace should have been informed of the unsuccessful attempt to corroborate his evidence, better enabling him to make his own assessment of the weight to be attached to this evidence.

The Crown’s Position

[43] The Crown argues that the relevance of paragraph 20 lies in the fact that Mr. Reyat had a familiarity with explosive devices sufficient to construct remote control devices prior to the incidents of June 1985, the actual timing of that exchange not being relevant.  Similarly, paragraph 21 is relevant as demonstrating that Mr. Reyat was interested in obtaining dynamite, the amount being of little consequence.    Although Mr. Robertson was a confidential source who had not previously provided information to the police, the investigators had no cause to question his reliability.  He was an ordinary citizen, quite unconnected with any issue relevant to the investigation, providing information with no apparent motive to mislead or deceive.  The fact that the R.C.M.P. was unable to corroborate his evidence after the date of the alleged offence is neutral information not derogating from the value of his information.

(ii)  The Liquid Fire

[44] Paragraphs 26 and 31 of the information to obtain relate that pieces of a can of "Liquid Fire", an ether-based starter fluid, were found during the autopsies following the Narita explosion, and that Auto Marine Electric Limited, Mr. Reyat’s place of employment, stocked and sold that product.  Mr. Reyat argues that the fact that Liquid Fire was available from sources other than Auto Marine Electric should have been disclosed.  The Crown replies that this was a matter of marginal, if any, relevance.

(iii) Evidence Concerning Mr. Parmar

[45] Paragraph 34 of the information to obtain relates information with respect to Mr. Parmar’s background, principally that he was wanted in India on a number of serious criminal charges and had been residing in Canada to avoid extradition to India.  Mr. Reyat asserts that the information to obtain should have disclosed that Mr. Parmar had come to Canada as a landed immigrant, was a Canadian citizen and had been the subject of an unsuccessful extradition request by the Indian Government in Germany.  He argues that without these additional facts, paragraph 34 is highly prejudicial in suggesting there was good reason to believe that Mr. Parmar was capable of engaging in violent political acts.

[46] The Crown replies that this additional information is not sufficiently material to be included in the information to obtain.

Analysis –- Full, Fair and Frank Disclosure

[47] The informant is obligated to make full, fair and frank disclosure of material facts: R. v. Araujo, supra at pp. 469-470; R. v. Morris, supra at p. 551.

(a)   The June 4 Incident

[48] The paragraphs in the information to obtain concerning the June 4 incident are factually accurate and do not contain any erroneous information.  They provide a connection between Mr. Reyat and the items and locations named in the warrant.  While not misleading, the strength of that connection would have been more accurately represented had the results of the unsuccessful searches on June 4 and June 28 been included in the information to obtain.  I am of the view that this information was sufficiently material that it should have been included in the information to obtain.

[49] On the evidence before me, I find that the failure to include this information was not intended to mislead the Justice of the Peace.

[50] The intended inference, while somewhat weakened with this additional evidence, is nonetheless amply warranted even when the additional facts are included.

[51] I find that the failure to include the additional information about the June 4 incident was relatively minor and inconsequential in all of the circumstances of this case.

[52] As well, the use of the term "loud report" in paragraph 23 without the inclusion of the opinions of Mr. Lowe, and Cst. Townsend was not misleading.  Theories as to the cause of the "loud report" were purely speculative and would not have had any effect on the Justice of the Peace considering the information to obtain.

[53] Similarly, non-disclosure of the identification officer’s opinion regarding the two-week exposure of the paper bundle wrapper, standing alone as it does, is not of sufficient significance to have required disclosure.  It may have been otherwise if the police had been in possession of expert evidence that the paper bundle wrapper could not or likely would not have been present at the site on June 4, thus eliminating any connection between Mr. Reyat’s attendance at the site and the items found there.  The information in the possession of the police was not of that nature and, as such, not of sufficient materiality in the circumstances.

(b)   The Purchase of the Sanyo Tuner

[54] As with the paragraphs in relation to the June 4 incident, paragraph 29 of the information to obtain is factually accurate in every respect and reveals a strong connection between Mr. Reyat and the purchase of a Sanyo tuner.

[55] As conceded by the Crown, the fact Ms. Smith had stated that Mr. Reyat was not present in the store at the time of the purchase should have been included in the information to obtain.  The failure to do so, however, appears to have been through inadvertence and not the result of any deliberate non-disclosure on the part of the police.

[56] I found both Sgt. Miller and Cpl. Rockwell credible regarding the fact that the failure to include this information was an oversight in the drafting of the information to obtain.  In a police investigation of these unprecedented proportions, I accept that certain pieces of information may be overlooked in the information to obtain.  Concluding otherwise would be to impose an unreasonable standard of perfection.  The fact that Cpl. Rockwell had suggested to his superiors that this additional information be included in the application to extend a wiretap authorization only serves to bolster his credibility on this issue.  I accept that he was cognizant of and endeavoured to comply with his duties and obligations to make full, fair and frank disclosure.

[57] I also accept the Crown submission that the effect of inclusion of this additional information would have been slight.  While this information tends to lessen the connection between Mr. Reyat and the purchase of the tuner, there remains a significant and compelling link in the evidence as a result of the presence of Mr. Reyat’s name and telephone number on the receipt.

(c)   Other Averments

[58] I also accept the Crown’s submission that there was no material non-disclosure regarding the Robertson information.  The failure to corroborate Mr. Robertson’s statements through electronic monitoring of a meeting between him and Mr. Reyat did not derogate in any way from the evidence included in paragraphs 20 to 23 of the information to obtain.  While it is understandable why the police took the investigative steps they did, the fact that those steps did not bear fruit is neither surprising nor sufficiently material to require disclosure in the information to obtain.

[59] Similarly, the failure to reveal the actual date when Mr. Reyat approached Mr. Robertson and the fact that Mr. Robertson reported that he only asked for "a little bit" of dynamite are inconsequential.  The relevance of these paragraphs is in the fact that Mr. Reyat had expressed an interest in obtaining dynamite and had a familiarity with explosive devices prior to the date of the alleged offences.

[60] Additional information concerning Mr. Parmar’s legal status in Canada and the result of his extradition proceedings in Germany is not sufficiently material as to require disclosure in the information to obtain.  The material fact is that Mr. Parmar was wanted in India on murder charges.  There was nothing in the paragraph to suggest that Mr. Parmar was in Canada illegally.

[61] Finally, the fact that Liquid Fire was readily available in commercial outlets was not a material fact which required disclosure in the information to obtain.  Paragraph 31 is factually accurate and not misleading.

Conclusion Regarding Full, Fair and Frank Disclosure

[62] I find that the only additional information which ought to have been included in the information to obtain were the results of the unsuccessful searches in relation to the June 4 incident and Ms. Smith’s evidence that Mr. Reyat was not one of the two persons attending the store during the purchase of the tuner.

[63] After considering the entirety of the information to obtain in conjunction with this additional evidence, I find that the failure of the informant to include this evidence in the information to obtain is not fatal to the validity of the warrant.  Even had the Justice of the Peace been informed of this evidence tending to weaken the inferences sought, the Justice of the Peace, acting judicially, could and would have issued the warrant.  In addition to these two incidents, there was a significant and compelling body of evidence in the information to obtain linking Mr. Reyat to the alleged offences and the items sought at the locations named.  Thus, had Mr. Reyat’s challenge to the warrant been based solely on the failure to make full, fair and frank disclosure, I would have concluded that the warrants were valid and that the seizure of items during the resultant searches did not violate Mr. Reyat’s rights under s. 8 of the Charter.

Issue 4 –- Was The Justice of the Peace Deliberately Misled?

[64] Paragraphs 46, 48, 49 and 53 of the information to obtain attribute information to "a source of known reliability" whose identity was not revealed for "security reasons".  The source was C.S.I.S. electronic surveillance.  The R.C.M.P. had been given access to C.S.I.S. information to further its investigation on the condition that it not be used for the purpose of obtaining search warrants.

[65] In light of the importance of some of this information in establishing sufficient grounds for a search warrant, C.S.I.S eventually agreed to provide the R.C.M.P. with certain information provided C.S.I.S. was not disclosed as the source.  Draft versions of the paragraphs containing C.S.I.S. information were sent to Ottawa for clearance before the information to obtain was finalized.

Position of Mr. Reyat

[66] Relying on R. v. Donaldson (1990), 58 C.C.C. (3d) 294 (B.C.C.A.) and R. v. Innocente, [1992] N.S.J. No. 235 (N.S.C.A.), Mr. Reyat submits that, regardless of their motivation in obscuring C.S.I.S. wiretap as the source of the information, it was unacceptable for the R.C.M.P. to deliberately deceive the Justice of the Peace with respect to both the source and nature of the information.

[67] In Donaldson, the British Columbia Court of Appeal held that the trial judge had not made an error of law in finding that the police had practiced a deception on the justice of the peace in describing information obtained through R.C.M.P. electronic surveillance as coming from a "reliable, confidential source".  Similarly, the Nova Scotia Court of Appeal concluded in Innocente that the police had improperly misled the justice of the peace in masking police electronic surveillance as its source through the use of the phrase "a confidential and reliable source, of known reliability in the past".  That the police had sought only to protect an ongoing investigation did not justify this conduct.

Position of the Crown

[68] The Crown responds simply that the informant did not mislead the Justice of the Peace.  Unlike Donaldson, where the judge had concluded that "a reliable, confidential source" was deceptive because it suggested a human, rather than electronic, source, there was no such misleading here.  The information to obtain specifically distinguished between confidential, non-official sources (identified as "a confidential informant, whose identity for security reasons I do not wish to reveal at this time") on the one hand, and information received from C.S.I.S. (a "source of known reliability, whose identity for security reasons I do not wish to reveal") on the other.  The R.C.M.P.’s sole concern was to withhold the source, not the nature, of its information.

Analysis

[69] While the evidence here is similar to that in Donaldson and Innocente, I find that the Justice of the Peace in this case was neither misled nor deceived.  Instead, there was an overt concealment of a source, an indication of whether or not the source was a person and an indication of why the source was confidential.

[70] The informant revealed R.C.M.P. wiretaps when that was a source of information.  The evidence is that revealing non-R.C.M.P. wiretaps as a source may have led to the forbidden link to C.S.I.S.  Had the Justice of the Peace held the view that the warrant could not issue without further identifying the source, he was free to so find.

[71] If found to be wrong in this conclusion, I would not have characterized the drafting technique employed in the unique circumstances of this case as a "deliberate deception".  That phrase connotes a sense of fraud and dishonesty.  I accept that the informant was at the mercy of C.S.I.S. in crafting the information to obtain.  C.S.I.S. was a new organization in 1985.  The interrelationship between the R.C.M.P. and C.S.I.S. was undefined and the source of some confusion in relation to the Air India investigation.  While I cannot assess the reasonableness of the insistence by C.S.I.S. that its involvement not be disclosed, the informant was left with little choice but to accept that condition.  The alternative was not to use any of the evidence gathered by C.S.I.S., which would have substantially affected the likelihood of obtaining the search warrants sought.  Faced with that dilemma, they proceeded in this reasonable fashion.  The use of language obscuring the involvement of C.S.I.S. was, like many other elements in this case, unprecedented, unique, and unlikely to re-occur.

[72] In the circumstances of this case, should this be labelled as "misleading" or "deceptive" despite my finding otherwise, I would have found that the concealment of the identity of C.S.I.S. and the existence of electronic surveillance conducted by C.S.I.S. did not invalidate the warrant or result in a breach of Mr. Reyat’s s. 8 rights.  In Araujo, supra, at p. 473, the Court adopted the following passage from the Nova Scotia Court of Appeal’s decision in R. v. Morris, supra:

The cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.  While not leading to automatic vitiation of the warrant, there remains a need to protect the prior authorization process.  The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventative function it serves.

Therefore, if I am wrong in my characterization of the concealment of the source, I would have found that this is one of those cases, rare as they may be, where a fraudulent error does not invalidate the warrant.

Issue 5 -– Impartiality of the Justice of the Peace

[73] Cpl. Rockwell and Sgt. Miller attended before a Justice of the Peace at the Provincial Courthouse at 222 Main Street on November 4, 1985, to swear the information to obtain and secure the search warrants.

[74] However, both officers had met informally with the same Justice of the Peace one week prior on October 28.  The purpose of this meeting had been to outline the R.C.M.P.’s case against Mr. Reyat so that they could know in advance whether they had sufficient grounds to secure a warrant to search the Duncan Sikh Temple with which Mr. Reyat was associated.  The officers testified that it was unusual to request a search warrant for a place of worship, and they sought to ensure they had sufficient grounds before proceeding.  The Justice of the Peace indicated that he was of the view that sufficient grounds existed for such a search.

Position of Mr. Reyat

[75] Mr. Reyat submits that the neutrality and impartiality required of the Justice of the Peace was compromised by the meeting of October 28.  Having discussed the application with the officers and offered a provisional opinion, the Justice of the Peace had no jurisdiction to entertain the application on November 4.  In the circumstances, a reasonable observer would conclude that the Justice of the Peace placed himself in the position, at a minimum, of appearing to be "an agent or arm of the police".  The issuance of a warrant in circumstances where the justice of the peace is, or appears to be, partial, constitutes a serious breach of the prior authorization process.

Position of the Crown

[76] The Crown submits that there is no evidence to support the allegation that the Justice of the Peace was anything but completely neutral and impartial.  The officers did not meet with him in a deliberate attempt to introduce bias or partiality into the process.  Rather, their motive in meeting with the Justice of Peace to ensure they had adequate grounds to search a place of worship was entirely legitimate.  However, the Crown concedes that the October 28 meeting may have created an appearance of bias.

Analysis

[77] The importance of impartiality and neutrality on the part of the justice of the peace authorizing a search impeding upon someone’s reasonable expectation of privacy is well established in the Canada.  In Hunter v. Southam (1984), 14 C.C.C. (3d) 97 (S.C.C.), Dickson J. (as he then was) stated at p. 110:

The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the State and the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the State are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.

...

While it may be wise, in view of the sensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, I agree with Prowse J.A. that this is not a necessary pre-condition for safeguarding the right enshrined in s. 8. The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.

[See also R. v. Baylis (1988), 43 C.C.C. (3d) 514 at pp. 530-531(Sask. C.A.)]

[78] Mr. Reyat’s submissions focused primarily upon whether the circumstances surrounding the issuance of the warrants in this case created an appearance that the Justice of the Peace was acting impartially or as an adjunct of the police.  There is no evidence to suggest that the Justice of the Peace was, in fact, acting in a biased manner or as an agent or arm of the police.  That, however, does not end the matter.

[79] Here, the police clearly recognized that the search of a Sikh temple they were considering was a sensitive matter not to be taken lightly.  The evidence of the officers was that they were concerned about the effect of requesting a warrant for a place of worship and thus took steps to seek advice as to whether they had sufficient grounds.  What is unfortunate is that they sought such advice from a justice of the peace.

[80] I find that the prior attendance of the police at the same Justice of the Peace who issued the search warrants resulted in the creation of an appearance that the Justice of the Peace was acting partially as an adjunct of the police.  The overriding importance of impartiality in the prior authorization process as articulated by the Supreme Court of Canada in Hunter v. Southam, is such that even the appearance that a Justice of the Peace may not have been neutral or impartial cannot be condoned.  Accordingly, the creation of an appearance of impartiality invalidates the warrant and constitutes a breach of Mr. Reyat’s rights under s. 8 of the Charter.

Application of Section 24(2) of the Charter

[81] Section 24(2) of the Charter provides that evidence obtained in a manner that violates Mr. Reyat’s rights under s. 8 of the Charter "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".

[82] The Supreme Court of Canada established a three-pronged test for admissibility in R. v. Collins (1987), 33 C.C.C. (3d) 1.  The factors to be considered on such an inquiry are as follows:

(1) whether the admission of the evidence obtained by the breach would render the trial unfair;

(2) the seriousness of the breach; and

(3) the effect of excluding the evidence on the reputation of the administration of justice.

[See also: R. v. Fliss (2002), 161 C.C.C. (3d) 225 at p. 247 (S.C.C.)]

Position of the Parties

Position of Mr. Reyat

[83] Mr. Reyat properly concedes that the exclusion of the evidence seized pursuant to the searches on November 6, 1985 cannot be justified on the basis of trial fairness.  The items seized were real as opposed to self-incriminatory evidence and such evidence will rarely operate to render a trial unfair.

[84] Mr. Reyat submits that the focal point of the inquiry under s. 24(2) should be on the seriousness of the Charter breaches. He submits that the R.C.M.P. committed multiple breaches of his s. 8 rights and did so as a result of cynically and deliberately exploiting the ex parte nature of the search warrant application process.  Specifically:

i.    the R.C.M.P. failed to disclose material evidence because it was inconsistent with the theory of the investigators;

ii.   the R.C.M.P. deliberately deceived the Justice of the Peace in obscuring the source of certain evidence because it was expedient to do so;

iii.  Cpl. Rockwell swore the information to obtain despite knowing that aspects were incomplete, misleading or untrue; and

iv.   the R.C.M.P. compromised the neutrality and impartiality of the Justice of the Peace hearing the ex parte application.

[85] The officers knew, or should have known, that such conduct was improper and inappropriate, and they cannot, therefore, claim to have acted in good faith.  The R.C.M.P. were not motivated by urgency or the need to preserve evidence.  Instead, they proceeded on a suspicion that Mr. Reyat was involved with the offences and a belief in the possibility of locating probative evidence.  While accepting that the offences charged are serious and that the evidence is important to the Crown’s case, Mr. Reyat submits that given the R.C.M.P.’s cavalier disregard for the significance of the prior authorization process and its constitutional importance, admission of the impugned evidence would bring the administration of justice into disrepute.

Position of the Crown

[86] The Crown submits that even if the R.C.M.P.’s conduct is found to have resulted in multiple breaches of s. 8, such breaches were either technical, inadvertent or committed entirely in good faith.  Weighing the relatively minor nature of the breaches against the magnitude of the charges at issue and the importance of the impugned evidence to the Crown’s case, there can be no doubt that the exclusion of the impugned evidence would bring the administration of justice into disrepute.

[87] The unnecessarily broad scope of time for execution of the warrants constitutes a purely technical breach of s. 8.  The Crown argues that an important consideration in assessing the seriousness of this breach is the fact that notwithstanding the excessive latitude authorized by the warrant, the R.C.M.P. acted reasonably in executing it within two days.  It is also significant, it submits, that the impropriety of warrants unlimited by time was not the subject of judicial comment until after 1985.  The Law Reform Commission of Canada’s Report on Search and Seizure released in 1984, for example, indicates that issuance of such warrants was a known practice at the time.

[88] Given the mammoth scope of the R.C.M.P.’s investigation, the officers necessarily had to be selective in determining what to include in the information to obtain.  Much of the additional information that Mr. Reyat argues should have been included -– for example, that regarding the June 4 incident, Mr. Robertson, Mr. Parmar and Liquid Fire -– was of only marginal relevance.  While Ms. Smith’s evidence should have been included, its omission was the product of inadvertence, not a deliberate attempt to mislead.

[89] The Crown submits that in the event the Court finds that the R.C.M.P. deliberately misled the Justice of the Peace with respect to the identity of C.S.I.S. as a source, regard should be had to R. v. Araujo, supra.  Given the Supreme Court of Canada’s view in that judgment that fraud will not vitiate a warrant in all cases, the R.C.M.P.’s decision to obscure C.S.I.S.’s identity made in good faith in the unique circumstances of this case most certainly should not mandate exclusion of the evidence under s. 24(2).

[90] The Crown similarly submits that good faith is relevant in weighing any breach of s. 8 that may have been occasioned by the officers’ October 28 meeting with the Justice of the Peace.  The officers were well-intentioned, though perhaps imprudent, in seeking to allay their concerns about searching a place of worship.

ANALYSIS

[91] I have concluded that the breaches of Mr. Reyat’s rights in relation to the impugned searches were limited to the lack of a time period for execution in the warrants and the existence of an appearance that the issuing justice of the peace may not have been neutral or impartial.

[92] I accept the Crown’s submission that absence of a time period limiting the execution of the warrants amounted to little more than a technical violation of Mr. Reyat’s rights.  The general practice in place in British Columbia at the time was such that time limitations were often not included in search warrants.  Furthermore, the police executed the warrants in a timely and reasonable manner, supporting the conclusion that they did not act in a manner that was in any way exploitive of the search warrant application process.  Nothing in the evidence suggests that the police acted in an improper manner or were operating with anything other than good faith in relation to this issue.

[93] Similarly, I am satisfied that the police were acting in good faith at all material times in relation to their dealings with the Justice of the Peace.  The prior attendance before the Justice of the Peace was well-motivated and conducted with good intentions.  As noted above, it is only the unfortunate decision to seek guidance in relation to the temple warrant from the same Justice of the Peace who eventually issued the warrant that resulted in a breach of Mr. Reyat’s rights.  There is no evidence of any actual bias on the part of the Justice of the Peace and there were sufficient grounds upon which this or any other justice of the peace could and would reasonably have relied upon in issuing the search warrants.

[94] I find that the violations of Mr. Reyat’s rights under s. 8 of the Charter were not of a serious nature.  When weighed against these most serious of alleged offences and the significance of the impugned evidence to the Crown’s case, I conclude that its admission under s. 24(2) will not bring the administration of justice into disrepute.

Conclusion

[95] The search warrants relied upon by the R.C.M.P. in this case were invalid and Mr. Reyat’s rights under s. 8 of the Charter violated for the following reasons:

(i)   the lack of a reasonable limit with respect to the timing of the execution of the warrants; and

(ii)  the existence of an appearance that the Justice of the Peace may have been acting partially or as an adjunct of the police.

[96] The violations of Mr. Reyat’s Charter rights, I find, were not of a serious nature.  When weighed against these most serious of alleged offences and the significance of the impugned evidence to the Crown’s case, I conclude that its admission under s. 24(2) of the Charter will not bring the administration of justice into disrepute.

“I.B. Josephson, J.”
The Honourable Mr. Justice I.B. Josephson