ONTARIO COURT OF JUSTICE

DATE: 2021 02 08

COURT FILE No.: 19 15001705 19 15001704

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DUVAL SMITH

Before: Justice Newton-Smith

Heard on: January 29, February 24-26, Oct.26-27, November 4, 2020

Reasons for Judgment released on: February 8, 2021

Counsel: D. MacDonald, counsel for the Crown R. Rusonik, counsel for the accused Duval Smith

RULING ON CHARTER APPLICATION

NEWTON-SMITH J.:

I. OVERVIEW

1On March 5, 2019 CDSA search warrants were authorised to search a dwelling and two vehicles associated with the Applicant, Mr. Smith. Following the execution of the warrants Mr. Smith was charged with various offences. His trial proceeded before me with respect to three counts: possession of a loaded 45 calibre handgun, breach of a firearms prohibition order and possession of cocaine for the purpose of trafficking.

2Mr. Smith challenges the validity of the search warrants and seeks to exclude the evidence seized pursuant to s.24(2) of the Charter on the basis that his s. 8 rights have been violated.

II. THE “STEP SIX” APPLICATION

3All three warrants relied on a single Information to Obtain (“ITO”) sworn by Detective Constable Duran. The ITO relied upon information from three confidential sources (“CS1, CS2 and CS3”). As a result, portions of the ITO were redacted. The Crown conceded that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant and sought resort to the six-step procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421.

4In accordance with that procedure the defence was provided with a redacted version of the ITO and a draft judicial summary of the redactions prepared by the Crown. Submissions were made with respect to the necessity for the redactions and the adequacy of the judicial summary. Disclosure issues were also raised by the defence. Where addressing the issues required discussion of redacted confidential source information the Crown and I entered into in camera ex parte proceedings. Materials exchanged during these proceedings, including the unredacted ITO, were sealed and made part of the court record.

5During the course of the ex parte proceedings I questioned the need for several of the redactions. In many instances the Crown agreed to unredact the portion in question. Where the Crown was able to justify the redaction as necessary to protect informant privilege I accepted the submission and the redactions remained. Similarly, I made suggestions with respect to areas in which greater detail could be provided in the judicial summary, most of which were accepted by the Crown.

6Where it is necessary for me to refer to the redacted portions in these reasons in order to fully explain my conclusions, I have referenced them in the form of endnotes. A copy of these reasons with all of the endnotes redacted will be provided to the Applicant and the public. An unredacted version will be sealed and placed in the court file so that it will be available to any reviewing court. An unredacted version will also be provided to Crown counsel.

III. THE EVIDENTIARY RECORD

A. The ITO

(i) Overview of the ITO

7The ITO contains four appendixes.

8Appendix A sets out the evidence to be searched for: cocaine and other related paraphernalia including electronic devices.

9Appendix B sets out the offence believed to have been committed: possession of cocaine for the purpose of trafficking.

10Appendix C sets out the affiant’s grounds for belief. Those grounds for belief are based upon the confidential source information, surveillance of Mr. Smith and information derived from database checks of Mr. Smith, including his criminal record, justice system and police interactions. There is also reference in the Overview to a previous search warrant that was authorised for the same address a year earlier.

11Appendix D, which is largely redacted, contains the confidential source information and information relating to the sources.

(ii) Appendix C

12In the Overview the affiant sets out the places to be searched: 233 Beecroft Road, unit #905, a 2009 Nissan Maxima CEKE 352 and a 2015 Jaguar CHFX 983.

13The affiant then states:

6. Information has been received from three separate confidential sources that a male identified as Duval SMITH (hereinafter referred to as SMITH) is involved in the sale of cocaine, in the City of Toronto.

7. Surveillance of SMITH was conducted during this investigation. He has observed leaving 233 Beecroft Road in a grey 2015 Jaguar with Ontario licence CHFX 983. A 2009 black Nissan Maxima with Ontario licence number CEKE 352 registered to Duval SMITH has been observed being operated by him on two separate dates.

8. A Controlled Drugs and Substances Act search warrant was previously authorised for 233 Beacroft Road, unit #905, North York on February 6th, 2018 by Justice of the Peace FORFAR. As a result of that investigation a quantity of cocaine and Canadian currency was seized from Duval SMITH.

The Database Checks Information

14The information with respect to Mr. Smith’s criminal record and involvement in previous investigations is contained in paragraphs 18-21 of Appendix C under the heading Database Checks.

15Paragraph 18 begins by stating that, “SMITH is not before the courts, he is currently on Probation and on two lifetime firearms prohibitions”. All of the CPIC information with respect to Duval Smith is then reproduced over the next seven pages. It includes information related to firearms prohibitions, and information that Smith is a “high risk violent offender subject to the national high risk flagging system strongly consider opposing release”.

16Following the detailed CPIC history, the affiant states that, “SMITH has a criminal record dating back to November 9th, 1998”. Mr. Smith’s three page criminal record is then reproduced followed by four pages of charges which were withdrawn or stayed.

17Next the affiant provides MTO information with respect to Duval SMITH including information listing 233 Beecroft Road, unit 905 as his address and information relating to a black 2009 Nissan Maxima CEKE 352 registered in his name.

18Paragraph 19 begins by stating that, “SMITH has 82 separate entries in the Toronto Police Unified Search dating back to the year 1996”. The affiant explains that this can include any contact with the police as a witness, victim or person being investigated. He then lists all of the offences with which Mr. Smith has been charged since 1996, some related to the offences for which the warrant is being sought and some not.

19Paragraph 20 begins by stating that “SMITH has 8 entries on Versadex dating back to June 20, 2015. Versadex lists SMITH as having an address of 233 Beecroft Road, unit 905.” The affiant then summarises 4 of those entries as follows and includes the General occurrence number for each:

• On October 1, 2015 SMITH was involved in a domestic assault … during the investigation the police also seized a quantity of cocaine, marijuana and a loaded glock pistol. As a result SMITH was charged with assault, forcible confinement and numerous firearms and drug offences. These charges were ultimately stayed on November 24, 2016.
• On February 6, 2018 SMITH was charged with possession for the purpose of trafficking cocaine and possession of proceeds of crime. During this investigation, SMITH was observed operating a different motor vehicle not involved in this investigation…A quantity of cocaine and proceeds were located on SMITH at the time of his arrest. A quantity of cutting agent and a digital scale were located inside 233 Beecroft Road, unit #905. These charges were withdrawn on April 17, 2018. This event generated General occurrence number 2018-229952.
• Smith was investigated operating his 2009 Nissan Maxima with Ontario licence number CEKE 352 on April 29, 2018. He was charged for failing to have insurance and failing to be accompanied by a qualified driver.
• SMITH is listed as a person of interest for an aggravated assault on May 15, 2018. [In this bullet point the affiant lists details of the victim’s injuries and the description given of her assailant stating that the “victim claims to not know the name of the suspect” but was able to give a description that included a “scar on cheek from mouth to ear” and that the “occurrence has since been closed as a result of lack of cooperation from the victim”]

20Paragraph 21 summarises information resulting from investigative checks into the Jaguar with licence plate CHFX 983. It includes that the registered owner is a female named Idman Noor Hyder with an address on Dundas Street West “but a separate mailing address of 233 Beecroft Road, unit 905”.

The Surveillance Information

21Paragraphs 22-25 summarise observations made by members of the Gun and Gang Task Force over four days (March 2-5, 2019). The conclusions related to the surveillance evidence are then drawn in the later conclusory paragraphs under the heading GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED.

22Paragraph 22 summarises the observations from March 2nd, 2019 in sub paragraphs a-g. The following are the observations relevant to the conclusion later drawn in paragraph 27:

b. At approximately 10:46 am, the Jaguar was observed leaving 233 Beacroft Road and followed to the area of Sheridan Mall located at 1700 Wilson Avenue. SMITH was confirmed to be the driver of the motor vehicle when he exited the motor vehicle.

c. At approximately 12:51 pm, a white female, ponytail up, wearing a blue hooded sweater, blue jeans and silver earrings was observed entering the rear driver seat of the Jaguar and exiting the vehicle at 12:52 pm and entering the mall.

23Paragraphs 23 a-h summarise the surveillance from March 3rd, 2019. The following are the observations relevant to the conclusion drawn in paragraph 28:

a. Neither vehicle associated to SMITH was observed parked in the underground parking lot of 233 Beecroft Road.

b. The Jaguar was located parked in the parking lot of the Montecassino Hotel at 3710 Chesswood Drive at approximately 8:00 am.

c. At approximately 12:21 pm, SMITH was observed entering the Jaguar’s driver door and drove to the area of 1617 Wilson Avenue where he was observed in what is believed to be a hand to hand exchange with an unknown light skinned brown male before driving away.

d. The Jaguar was then followed to the area of Weston Road and Lawrence Avenue West where an unknown female was picked up on South Station Street at approximately 12:44 pm.

e. The Jaguar was then followed to the area of 139 Milvan Drive, at approximately 1:03 pm, an unknown brown male was observed in an exchange with SMITH through the driver’s window.

24Smith was then followed to the parking lot of a No Frills where he picked up a male passenger. From there he drove to the rear of 55 Beverly Hills Drive. Smith and the female were then seen exiting the Jaguar and getting into a black Nissan Maxima.

25Paragraph 24 summarises the March 4th surveillance:

a. The Jaguar was observed parked in the rear of 55 Beverly Hills Drive, the vehicle was unoccupied

b. SMITH’s Nissan Maxima was observed parked in the overhang portion of the Montecassino Hotel with the engine running at approximately 6:20 am.

c. At approximately 10:30 am, Smith was observed exiting the hotel and into the driver’s seat of the Nissan Maxima. The vehicle was followed to the area of Keele Street and Sheppard Avenue West and misplaced...

26Paragraph 25 summarises the March 5th surveillance, the day on which the ITO was sworn. On that day the Jaguar was seen parked in the visitor’s lot of 233 Beecroft Road and the Nissan Maxima was seen parked in the rear of 55 Beverly Hills Drive.

27Following the surveillance evidence the affiant reproduces some boiler plate information with respect to confidential source information and states that the details are addressed in Appendix D.

28The remaining paragraphs fall under the heading GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED and outline the affiant’s conclusions with respect to his grounds to believe.

Grounds to Believe

29In the concluding paragraphs the affiant states that:

26. Information has been received from three separate confidential sources that Duval SMITH is involved in the sale of cocaine, in the City of Toronto

27. SMITH was observed on Saturday, March 2nd, 2019 in what is believed to be a drug transaction with an unknown female.

28. SMITH was observed on Sunday March 3, 2019 in what was believed to be two separate drug transactions.

30Under the heading Reasons to believe that the evidence sought will be at the search location the affiant states that he believes that, “the information provided by the confidential sources to be both compelling and credible. Some of the information has been corroborated through various sources, investigative checks and surveillance of SMITH.” Following which the affiant summarises the surveillance evidence from March 2nd and 3rd connecting Mr. Smith to the Jaguar, the Nissan and 233 Beecroft Road:

36. Surveillance of SMITH was conducted on March 2nd, 2019. A gray Jaguar operated by SMITH was observed leaving the underground parking lot of 233 Beecroft Road.

    a. SMITH was involved in what is believed to be a drug transaction with an unknown female who entered the rear passenger seat of this vehicle for approximately a minute at the Sheridan Mall, Toronto.

    b. The Jaguar is registered to a female who lists her mailing address on her Driver’s licence as 233 Beecroft Road, unit #95, North York.

37. Surveillance of SMITH was conducted on March 3rd, 2019. He was observed in what is believed to be two separate drug transactions from the 2015 Jaguar.

    a. SMITH was observed entering his black Nissan Maxima and driving away on this date.

38. Surveillance of SMITH was conducted on March 4th, 2019. He was observed entering his Nissan Maxima and driving away from a hotel.

39. SMITH’s Ontario Driver’s lists his address of 233 Beecroft Road, Unit #905, North York.

(iii) Appendix D

31The confidential source information is contained in Appendix D under separate headings for each of the three sources.

Confidential Source #1 Information

32Under the heading Motivation and Caution the affiant states the nature of the consideration sought by the source, and that the source has been told that the consideration will only be provided for information that proves to be accurate.

33Under the sub heading of Track Record of Reliability, and registration/carding the affiant states that:

The CS is a proven source and has provided information in the past that was proven to be reliable and accurate.

The CS is not known to have provided misleading information in the past.

The CS is a registered Confidential Source of the Toronto Police Service.

34Under the heading Information Previously Provided by the CS the affiant states that he was provided with, “the following information in regards to information provided the Confidential Source in previous investigations;” and then gives the type of compensation received, the number of times and that two types of contraband were seized as a result.

35Under the heading Information Provided by the Confidential Source there are 12 heavily redacted sub paragraphs containing information provided by CS1. Included are the following descriptions relating to the crack cocaine dealer:

a. Male black, with a big scar on the left side of his face running from his mouth across his cheek, 6’0”, approximately 20-30 years old, short hair, medium build, wears dark clothing

b. Has a cell number of 437 994 6133

c. a black four door sedan.

36Under the heading Corroboration the affiant states four areas in which the source information has been confirmed:

• The phone number the CS provided 437-994-6133 is the same number that is associated to Duval SMITH in an occurrence where he is listed as a person of interest in aggravated assault.
• The physical description provided by the CS is consistent with SMITH’s description.
• The description of the black sedan is consistent with the black Nissan Maxima registered in SMITH’s name.
• The area where SMITH frequents and deals (Jane Street and Wilson Avenue) as described by the CS has been corroborated through surveillance. Those areas are located in the are of Jane Street and Wilson Avenue or close proximity.

37In the Concluding Overview in relation to CS1 the affiant sets out positive and negative features of the source.

38The Positive features include the length of time that the source has known SMITH, the basis of the source’s knowledge, that some of the information has been corroborated and that the source has provided information in the past which has been proven reliable.

39The Negative features include that the source associates with persons involved in the drug trade and details about the source’s lifestyle.

40Lastly, under Reasons for believing, and/or disbelieving, the confidential source and his/her information the affiant states again that the source has provided credible reliable information in the past, gives the two types of contraband seized and states that none of the information has been proven false, and that the information is compelling.

Confidential Source #2 Information

41Under the heading Motivation and Caution the affiant states the nature of the consideration sought by the source, and that the source has been told that the consideration will only be provided for information that proves to be accurate.

42Under the heading Reliability of the Confidential Source the affiant states “The CS has not been proven as of today’s date.” However, under the subsequent heading Track Record of Reliability, and registration/carding the ITO reads exactly as it did for CS1, stating that:

The CS is a proven source and has provided information in the past that was proven to be reliable and accurate.

The CS is not known to have provided misleading information in the past.

The CS is a registered Confidential Source of the Toronto Police Service.

43Unlike with CS1 and CS3 there is no heading titled Information Previously Provided by the CS.

44Under the heading Information Provided by the Confidential Source there are 10 heavily redacted sub paragraphs containing information provided by the CS. Included is the following descriptive information:

d) Described as m/b, 5’10”, 170 lbs, short black hair, goatee”

e) Telephone number 437 994 6133

j) presented the source with an Intellibook image of Duval Glenroy SMITH (1983.12.22) and the source positively confirmed the image to be [name CS2 knew]

45Under the heading Corroboration, the affiant states that he has corroborated the following:

The CS provided a phone number of 437-994-6133 that is on file in a Toronto Police report and also has been provided by a separate source

The areas the CS describes where SMITH deals are consistent where surveillance of SMITH has been conducted and fall in the area patrolled by Toronto Police [police division]

The CS physical description provided matches the description of SMITH. He has also been positively identified a though a booking photograph from March 2018

46In the Concluding Overview in relation to CS2 the affiant sets out positive and negative features of the source.

47The Positive features include that the source is embedded within the same community as Duval SMITH, that some of the information has been corroborated, that the source has provided information in the past which has been proven reliable, and the basis of the source’s knowledge.

48The Negative features include that the source associates with persons involved in the drug trade and details about the source’s lifestyle.

49Lastly, under Reasons for believing, and/or disbelieving, the confidential source and his/her information the affiant states:

The source provided credible reliable information in the past which has led to seizures of controlled substances and currency.

The source

None of the information has been proven false.

The information is compelling.

Confidential Source #3 Information

50Under the heading Motivation and Caution the affiant states the nature of the consideration sought by the source, and that the source has been told that the consideration will only be provided for information that proves to be accurate.

51Under the heading Track Record of Reliability, and registration/carding the affiant states, just as he did for CS1 and CS2, that:

The CS is a proven source and has provided information in the past that was proven to be reliable and accurate.

The CS is not known to have provided misleading information in the past.

The CS is a registered Confidential Source of the Toronto Police Service.

52Under the heading Information Previously Provided by the CS the affiant gives some detail with respect to information provided by the source on a previous occasion.

53Under the heading Information Provided by the Confidential Source there are 10 heavily redacted sub paragraphs containing information provided by the source, “in regards to a male involved in the sale of cocaine”. Included in that information is the following:

• That CS3 has purchased cocaine from the male
• The name by which CS3 knows the male
• The male was driving a dark coloured jaguar with licence plate CHFX 983
• CS3 provided a plate number for a Nissan associated with the male of CEKE 352
• Information about the male’s drug trafficking activity
• An association between the male and the Montecassio Hotel on Chesswood
• That CS3 met the male at Sheridan Mall to buy drugs
• CS3 provided a phone number of 437 994 6133

54Under the heading Corroboration, the affiant states that surveillance of SMITH corroborates that:

Surveillance of SMITH being observed at the Montecassino Hotel corroborates the information that SMITH frequents the hotel.

Surveillance of SMITH corroborates that SMTIH drives both a Nissan Maxima and a Jaguar with the licence numbers on each.

Surveillance of SMITH corroborates that he frequents Sheridan Mall and was observed in what was believed to be a drug transaction in the parking lot of the mall.

The phone number provided by the CS matches the phone number on an occurrence on file and was provided by two other separate sources.

55In the Concluding Overview in relation to CS1 the affiant sets out positive and negative features of the source.

56The Positive features include that the source is embedded within the same community as Duval SMITH, that some of the information has been corroborated, that the source has been proven reliable in the past [some redacted details are provided], and the basis of the source’s knowledge.

57The Negative features include that the source associates with persons involved in the drug trade and details about the source’s lifestyle.

58Lastly, under Reasons for believing, and/or disbelieving, the confidential source and his/her information the affiant states again that the source has provided credible reliable information in the past, that none of the information has been proven false and that the information is compelling.

59Appendix X then concludes with full details regarding whether or not any of the three sources had a criminal history.

B. The “Crown Vetting Note” – The Erroneous History Attributed to CS2

60Appendix D of the redacted ITO contained a “Crown Vetting Note”. The note relates to the following claim regarding CS2:

The CS is a proven source and has provided information in the past that was proven to be reliable and accurate.

61The note states that:

The Affiant confirmed the first sentence under the bold heading is in error and does not apply to CS2

62CS2 had no history whatsoever of providing information to the police. The erroneous attribution of a source history to CS2 that was proven to be reliable and accurate occurs three times in Appendix D.

C. The Cross-Examination of the Affiant

63An Application was brought for leave to cross-examine the affiant. I granted a limited cross-examination in three broadly categorised areas. [1]

(i) The Erroneous Claim With Respect to CS2’s History

64The affiant, Sgt. Duran, testified that he had “clearly made an error” in attributing a history of credible and reliable information to CS2. Sgt. Duran testified that he was not trying to be misleading and that in fact the first thing that he had stated in Appendix X in relation to CS2’s history was that, “The CS has not been proven as of today’s date”.

65Sgt. Duran testified that the error was caught when the warrant was being reviewed for vetting. He could not say who caught it.

66Sgt. Duran testified that the warrant was written in “not necessarily ideal” circumstances and that mistakes get made. He testified that he could not recall there being anything particularly “not ideal” about the circumstances in which he wrote this warrant, but rather that this was generally the case when it came to writing ITOs. He testified that while there is no perfect condition for crafting an ITO, he did not at any point feel that he could not fulfill his role as an affiant due to poor drafting conditions.

(ii) Efforts Made to Explore the Possibility of Collusion

67Of the three confidential sources, two shared a handler. Sgt. Duran testified that he had one conversation with the handler for each source, and that he spoke to the shared handler separately for each source. He did not recall having any further discussions with the handlers.

68When asked if collusion could undermine an informant’s credibility Sgt. Duran testified that he thought it could. However, he testified that in drafting the ITO he wasn’t thinking about collusion and the word never “popped into his head”. Sgt. Duran testified that it didn’t occur to him to ask the handlers if the sources knew each other. Even if he had, he testified, there would be no way to make any determination about collusion without breaching CS privilege. According to Sgt. Duran’s belief any such inquiry would necessarily involve having to reveal the sources names. Sgt. Duran testified that he had no knowledge with respect to whether or not there was any relationship or contact between the sources.

(iii) The Affiant’s Understanding and Execution of his Constitutional Obligations

69Sgt. Duran testified that he understood that his duties as an affiant in an ex parte application for a search warrant were to be full, fair and frank in drafting the ITO and to keep an investigative file.

Contradictory Information

70Sgt. Duran testified that it was his practice to highlight in an ITO source information which had been corroborated, but not to highlight contradictory information.

71Sgt. Duran explained that it was his practice to put all of the information from the source handler into Appendix D and then highlight anything that was corroborated. He testified that he understood that being full, fair and frank meant including all relevant information including that which was contradictory to the source information. However, Sgt. Duran testified that it was not his practice to highlight the contradictory information. Rather, he simply included all of the relevant information from the investigation, including contradictory information, in the body of the ITO. It was his view that what was not corroborated was “pretty open to see”.

72Sgt. Duran testified that he did not include minor inconsistencies and gave the example of information relating to something like height and weight that could fluctuate. Similarly, if a source confirmed the identity of the target through a booking photo he would not necessarily include in the ITO any inconsistent descriptors given by the source.

The Investigative File

73With respect to the keeping of an investigative file, Sgt. Duran testified that it was his practice to print off hard copies when he conducted checks so that they were ready to be vetted and disclosed as part of the investigative file.

74He was questioned about a property drug report and a search warrant execution document that were not disclosed to the defence until shortly before trial. Sgt. Duran could not explain why those documents were not included in the initial disclosure of the investigative file and offered that perhaps they hadn’t been printed out, or that if they had the print outs had “fallen out of the file”. When asked why his notes had not been included in disclosure of the investigative file he explained that he understood that the investigative file was comprised of checks done and not his notes.

75In cross-examination Sgt. Duran was confronted with two documents that formed part of the investigative file but were not disclosed until after the initial disclosure of the investigative file. There was a narrative report dated May 15, 2018 which supported paragraphs 8 and 20c of the ITO, and an occurrence report dated February 6, 2018. Both of those documents had a printing date of December 21, 2019. Sgt. Duran maintained that he reviewed them in March of 2019 when preparing the ITO. There were several other examples put to Sgt. Duran in cross-examination of print outs of database checks that were printed long after the investigation was complete and the warrant had issued.

76Sgt. Duran explained that through the disclosure process he would have realised that the documents were missing from the investigative file and printed them out at the later date. He testified that when he was preparing the ITO he reviewed the information on a computer screen, and that while even though some of the documents had been printed out later, the content could not have changed from when he conducted the check.

The Previous Warrant

77Sgt. Duran testified that while he included in the ITO the fact that a previous warrant had been issued, he had not reviewed the ITO for that warrant. It was his evidence that he did not think it relevant because it was from a year ago. Sgt. Duran maintained his belief that it was not relevant despite the fact that the previous investigation involved the same investigative team and had the same target and same target address. His explanation was that in this investigation he had three separate sources, had done investigative checks and considered Smith’s “extensive drug history and criminal record” and so to his mind the information on which the previous warrant was based was not relevant.

III. ISSUES AND THE LAW

A. Review of a Judicially Authorised Warrant

78The issuance of a search warrant requires, “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168; R. v. Campbell, [2011] 2 S.C.R. 549, at para. 14. The standard of reasonable and probable grounds means a “credibly based probability”, not proof beyond a reasonable doubt, or even the establishment of a prima facie case: R. v. Morelli, [2010] 1 S.C.R. 253, at para. 127-128; R. v. Debot, [1989] 2 S.C.R. 1140, at p.1166.

79A review of the issuance of a search warrant begins with the presumption that the warrant is valid: R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, at para.30. The burden is on the applicant challenging the warrant to demonstrate that the minimum standard of reasonable and probable grounds has not been met: R. v. Crevier, 2015 ONCA 619, at para.66.

80A warrant may be challenged on the basis that the record before the issuing justice was insufficient for the issuance of the warrant – a facial challenge. Where the challenge asserts that the record itself, the ITO, did not accurately reflect what the affiant knew or ought to have known the challenge is sub-facial. On a sub-facial challenge portions of the ITO that are misleading or inaccurate are excised and the record may be amplified by evidence before the reviewing justice. The validity of the authorization is then determined by the record as excised and amplified on review: World Bank Group v. Wallace, [2016] 1 S.C.R. 207, at paras. 120-121.

81It may also be argued that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable. The focus is on the reasonableness of the affiant’s belief, and not whether the allegations in support of the authorization were ultimately true. R. v. Shivrattan, 2017 ONCA 23, at para. 26, R. v. Phan, 2020 ONCA 298 at paras. 49-51.

82As the reviewing justice, the question that I must determine is whether or not the warrant could have issued, and not whether or not I would have issued the warrant. My decision is based upon the record that was before the issuing justice as amplified and excised by the evidence adduced at this hearing: Garofoli, at p.1452; R. v. Araujo, [2000] 2 S.C.R. 992, at para. 51.

83Even if I find that, after excision and amplification, the warrant could have issued, there remains a residual discretion to set aside a warrant where the conduct of the police has been subversive of the pre-authorization process. This may occur where an officer’s failure to make full and frank disclosure amounts to “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The standard to invoke that discretion is high and must be exercised having regard for the totality of the circumstances: R. v. Paryniuk, 2017 ONCA 87, at para. 69, R. v. Booth, 2019 ONCA 970, [2019] O.J. No.6239 (C.A.), at para. 65, Phan, at paras. 55-56.

(i) The Obligations of an Affiant – Full, Fair and Frank

84The affiant’s obligations to the issuing justice are well established. The facts should be set out, “truthfully, fully and plainly” and the affiant should “never attempt to trick [the] readers”: Araujo, at para 47. And while, “those drafting search warrant applications are not to be held to the standard of pleadings or lawyer created documents”, affiants are obliged to demonstrate a degree of care in drafting commensurate with the order sought. That is to say, commensurate with a court order authorizing intrusion into a reasonable expectation of privacy: R. v. MacDonald, at paras 78-79, R. v. Hosie, [1996] O.J. No. 2175 (C.A.), at para 31. The obligation to be full, fair and frank includes being clear and straightforward in drafting: R. v. Rocha, 2012 ONCA 707 at para 35.

(ii) The Confidential Source Information – The Debot Criteria

85Where, as here, the ITO relies on information from a confidential source a review of the grounds for the issuance of the warrant requires consideration of what is commonly referred to as the Debot Criteria, or the “three Cs”. Was the source information credible, compelling and corroborated? In assessing the extent to which the information provided by the sources meets the Debot criteria, the totality of the circumstances must be considered. No one factor is determinative, weaknesses in one area may be compensated for by strength in other areas: R. v. Rocha, at para.16.

(iii) The Issues Raised by the Applicant

86The Applicant’s attack on the warrant is a sub-facial one. He asserts that the affiant was not full, fair and frank, and that he deliberately, or recklessly, misled the issuing justice. The Applicant does not take the position that this a Paryniuk situation of a subversion of the authorization process, but rather that, as discussed in Shivrattan, the ITO is unreliable as a result of the affiant having misled the issuing justice.

87Inherent in the Applicant’s attack is a claim that the affiant did not take care to, or willfully disregarded the need to, ensure that the information from the sources was compelling, credible and corroborated.

88It is further the position of the Applicant that the surveillance evidence did not reveal any criminality capable of providing grounds for the issuance of a warrant.

89The Applicant categorizes the impugned conduct of the affiant as follows:

1. The Affiant did not Properly Maintain an Investigative File
2. The Affiant did not Take Care to Ensure the Reliability of the Presentation of the Information in his ITO
3. The Affiant did Nothing to Ensure Against Collusion
4. The Affiant did Nothing to Ensure his Claim of Photo Identification was Reliable
5. Police Surveillance did Nothing to Confirm Criminality on the Part of the Applicant
6. The Affiant Revealed Himself to be Dishonest Under Oath thus Undermining the Entire Credibility of the Information he Swore to in his ITO

B. Analysis

(i) The Confidential Source Information

90The affiant’s grounds to believe are heavily dependent on the CS information. The other information contained in the ITO, the database checks and surveillance information, does not itself support an authorisation but rather provides some corroboration for the CS information.

91For the reasons that follow I am satisfied that the information provided contains reasonable and probable grounds to believe that all three of the sources are referring to Duval Smith. I will therefore refer to the subject of the information given as Smith. This however is not indicative of the name(s) used by the sources.

Confidential Source #1

92With respect to the credibility of CS1, the affiant states that the source had provided information in the past that was proven to be reliable and accurate, and that the source was not known to have provided misleading information. While some information is provided with respect to seizures of contraband that followed from the information given, there is no comparison given between the information provided by the source and the result obtained. The details provided with respect to the source’s history are not specific enough to be able to say anything beyond that they lend the source some credibility.

93The source’s motivation for providing information detracts from his/her credibility. I consider the source’s association with persons involved in the drug trade and other personal characteristics to be neutral. On the one hand they detract from his/her credibility, but on the other hand lend credibility to the source’s information.

94The information provided by CS1 outlined in the ITO is detailed and somewhat current. It contains identification information which demonstrates that the source has an acquaintance with Smith that is more than passing.

95With respect to the information pertaining to Smith being a “crack cocaine dealer”, there is enough specificity and detail in the information provided regarding drug dealing activity to make it compelling. The source of most of the information is stated. There is a time frame to the information given and at least one specific date. There is also specificity with respect to location(s) and other details beyond what would be known to anyone simply acquainted with Smith.

96The identification evidence, including a phone number, provided by CS1 was corroborated through the database checks. Additionally, surveillance evidence and database checks confirmed that Smith drove a black 4 door sedan, as described by the source.

97There is no corroboration of the specifics of the information provided by CS1 with respect to Smith being a crack cocaine dealer, other than the surveillance evidence confirming that Smith has been seen in the general area described, and the approximate area of a location described. I would describe CS1’s information as being somewhat corroborated.

98Overall CS1 has some credibility, and provided compelling information that was somewhat corroborated.

Confidential Source #2

99CS2 had no proven history of providing information. Again the motivation for providing information detracts from his/her credibility. Again, I consider the source’s association with persons involved in the drug trade and other personal characteristics to be neutral. There is little reason to put weight on CS2’s credibility.

100The information provided by CS2 outlined in the ITO is reasonably current and included a specific date. The source of most of the information is stated. There is general identification evidence and a phone number. There is specificity with respect to location(s), and specificity and detail in the information provided with respect to drug dealing activity.

101The telephone number provided, and general description given of Smith, were corroborated through database checks.

102The source was shown an Intellibook image of Smith which he confirmed to be the person he was describing. I do not consider the showing of one police photograph to the source to be of much confirmatory value.

103There is no corroboration of the specifics of the information given relating to drug dealing activity, other than that Smith was seen through surveillance in the general area described and the approximate area of a location(s) described. One aspect of the specific information given is consistent with information derived from the database checks. I would describe CS2’s information as having a limited degree of corroboration.

104Overall CS2 has little credibility, although the information provided is compelling and has a degree of corroboration.

Confidential Source #3

105With respect to the credibility of CS3, the affiant states that the source had provided information in the past that was proven to be reliable and accurate, and that the source was not known to have provided misleading information. There is some detail given with respect to the nature of a result obtained by the police based on information previously provided by this source. What is not provided is any comparison between the information provided by the source and the result obtained.

106As with the other two sources, the motivation for providing information detracts from the source’s credibility. There is a further aspect to the source’s circumstances which detracts from his/her credibility. Again, I consider the source’s association with persons involved in the drug trade and other personal characteristics to be neutral.

107The information provided by this source with respect to drug dealing activity is detailed, specific and first hand. The date on which the source provided information to the handler is given. However, there are no dates or time frames provided for the information with one exception. The source provided a time frame with respect to a piece of information regarding drug trafficking activity that is general in nature.

108Much of the information provided by CS3 with respect to locations and vehicles was corroborated through surveillance evidence and database checks.

109CS3 provided information that he/she met Smith at Sheridan Mall to buy drugs from him. This information had no date or time frame. Surveillance evidence did corroborate that on March 2, 2019 Smith met briefly with a woman in his car in the parking lot of the Sheridan Mall. The affiant provided his belief that this was meeting was a drug transaction.

110Overall CS3 has some credibility and provided information that is compelling and corroborated to some degree.

(ii) The Photo Identification

111One of the issues raised by the Applicant is that, “the affiant did nothing to ensure his claim of photo identification was reliable”.

112The ITO sets out that CS2 was shown an Intellibook image of Smith, which is later described as a “booking photograph from March 2018”. It is clear from the ITO that the source was not presented with a photo line up but rather was simply shown a single photograph. The limited value of this form of identification speaks for itself.

113There is enough in the way of identification evidence from each source, without consideration of CS2’s confirmation of the booking photograph, to establish reasonable and probable grounds to believe that each source is referring to the Applicant.

(iii) The Surveillance Evidence and Confirmation of Criminality

114The Applicant asserts that the surveillance evidence did not corroborate the CS information, and in particular that the conclusion that three drug transactions were observed through surveillance was not available to the affiant.

115The surveillance evidence upon which the affiant based his belief that Smith engaged in three separate drug transaction is as follows:

On March 2, 2019 Smith in the Jaguar parked at Sheridan Mall. A woman got into the rear passenger seat and then left again after a minute.

On March 3, 2019 Smith was observed driving the Jaguar to, “the area of 1617 Wilson Avenue where he was observed in what is believed to be a hand to hand exchange with an unknown light skinned brown male before driving away.”

Approximately 40 minutes later Smith was observed driving the Jaguar, “to the area of 139 Milvan Drive, at approximately 1:03 pm, an unknown brown male was observed in an exchange with SMITH through the driver’s window”.

116While few details are given, especially with respect to the two “exchanges” on March 3, what is being described are three very brief encounters that Smith had with three different people while in the Jaguar. One of those encounters was in the Sheridan Mall parking lot. There was information from CS3 that the source had purchased drugs from Smith at the Sheridan Mall.

117It was open to the affiant, based on his experience as an officer, and the information from the sources, in particular the information from CS3 that the source had purchased drugs from Smith at the Sheridan Mall, to come to the belief that the March 2 observation could have been a drug transaction.

118With respect to the March 3 “transactions”, the affiant is entitled to rely on the observations of fellow officers, absent some tangible reason to question the veracity or reliability of the officer. It was reported to the affiant that Smith had been seen engaged in two brief exchanges, one of which was described as a “hand to hand” exchange. Both “exchanges” occurred while Smith was in the Jaguar, and were with two different individuals. While it is certainly possible that there could be any number of innocent explanations for those “exchanges”, it was open to the affiant, based on his experience as an officer, and the source information, to come to the belief that these two exchanges were drug transactions.

119I agree with the Applicant that the surveillance evidence alone could not provide a basis to believe that what was being observed were drug transactions. However, when the surveillance evidence is considered along with the information from the three sources that conclusion becomes an available possibility. Rather than saying that the surveillance evidence provides reasonable and probable grounds to believe that Smith was engaged in drug transactions, I would say that the surveillance evidence provides some corroboration for the information from the sources that Smith drove the Jaguar, was a drug dealer and sold drugs at the Sheridan Mall.

(iv) Collusion and the Cumulative Impact of the Source Information

120The Applicant raises the issue of collusion and asserts that the affiant’s failure to address any issues relating to the possibility of collusion is a cause for concern.

121The affiant testified that he did not turn his mind to the possibility of collusion. It was his evidence that even if he had, there would be no way to explore the issue without compromising the sources. I do not accept this answer. Two of the sources had the same handler. There would be nothing to prevent the affiant from asking the handler if there was any reason to believe that the sources knew each other. I can imagine several scenarios where the handler may have been able to shed light on this issue without compromising the sources. For example, had the sources ever been arrested together or did they associate with the same people?

122I consider the affiant’s complete failure to even turn his mind to this issue to be a shortcoming and a reason to question the thoughtfulness of his approach.

123However, there is nothing in the information provided by the sources would have alerted the affiant to the possibility of collusion. To varying degrees the sources all provided detailed and specific information. Few of the specifics, other than those going to identify Smith, are the same. All of the sources gave their information to their handler on a different date. There are similarities in the information provided, but some of the details regarding those similar aspects differ. There is nothing in the nature of the information provided by the sources that suggests collusion.

124While none of the source information is consistently strong with respect to all of the Debot criteria, some reliance can be placed on the information of each. Considered cumulatively, the fact of three sources who appear to be unrelated giving different information about Smith’s drug dealing activity makes the information as a whole more compelling.

(v) The Issues Raised and the Affiant’s Credibility and Reliability

125Most of the issues raised by the Applicant come down to an assertion that the affiant was not credible or reliable. The Applicant asserts that the affiant was not interested in presenting a full, fair and frank picture and rather included only information which would further his grounds. As evidence of this, the Applicant points to what he describes as the affiant’s failure to maintain a proper investigative file.

126If maintaining a proper investigative file means printing out the results of all database checks at the time of the check, then it is clear that the affiant did not maintain a proper investigative file. There is evidence that some of his investigative checks were printed out long after the fact.

127When confronted with this fact the affiant suggested that it was possible that the printouts had “fallen out of the file” and so had to be re-printed later. He then offered that he may have forgotten to print them out at the time, or been too busy. I find the latter answer to be more credible and responsive. The “must have fallen out” answer demonstrates an unwillingness on the affiant’s part to own up to his mistakes and to admit that he does not always follow his own stated best practices.

128The Applicant further submits that the affiant cannot be trusted to have included all contradictory information in the ITO, and that his failure to keep a proper investigative file demonstrates his willingness to be dishonest.

129In order to provide an evidentiary basis for this suggestion the Applicant points to evidence which the affiant had given in another proceeding. I allowed cross-examination with respect to the affiant’s understanding of his constitutional obligations generally and a very limited cross-examination with respect to any answers in this regard that he had given in another on-going proceeding, R. v. Jayron Matthews, that contradicted his evidence at this proceeding.

130The Applicant takes the position that in the Matthews trial, the affiant had testified that he did not include in his ITOs information which contradicted the source information. As far as I am prepared to consider the evidence given at the Matthews proceeding, which is to say only if it directly contradicts evidence given at this proceeding, I am not prepared to find that that is what Sgt. Duran said in that proceeding.

131Under oath in this proceeding, Sgt. Duran testified that it is his practice to include all of the information, corroborative or contradictory, in the ITO. Where there is evidence which corroborates the source information he lists it as such. However, where there is evidence which contradicts he includes it but does not highlight or list it as such.

132I agree with the Applicant that this is not the most full, fair and frank manner in which to approach the drafting of an ITO. Any contradictory evidence should be presented in the same manner as the corroborative evidence. If the corroborative evidence is presented side by side with the source information and highlighted, so should the contradictory evidence. Otherwise, the justice, who is similarly under time constraints, may be misled into thinking that there is no contradictory evidence. The justice should be able to assume that all of the information has been presented in a full, fair and frank manner, which is also to say simple and straightforward. The justice ought not to be required to treat the ITO like a jig saw puzzle to be read back and forth and pieced together.

133That being said, the Applicant has not pointed to, and nor can I find, any evidence in the ITO or elsewhere that substantively contradicts the source information.

134The Applicant further points to the fact that the investigative file was disclosed to the defence in what the Applicant describes as a “piecemeal fashion”. After the apparently complete investigative file was disclosed to the defence in January of 2020 two further documents, a “property report – drug”, and a “search warrant executed” were disclosed. Following this the affiant’s investigative notes were disclosed.

135This leads the Applicant to suggest that the affiant did not keep proper concurrent notes for the investigative file and may well have created them after the fact. The affiant testified that he only put the results of the database checks in the investigative file, and that he did not consider his notes and the source handler notes to be part of an investigative file.

136Again, other than the fact that the notes were not initially disclosed to the defence by the Crown, there is no basis in the evidence before me to conclude that the affiant fabricated notes after the fact. There is no basis in the evidence to conclude that the timing of the disclosure was related to the timing of the creation of the notes.

(vi) The Presentation of Information in the ITO and the Previous Warrant

137The Applicant asserts that the affiant did not take care to ensure the reliability of the presentation of information in his ITO. The Applicant also asserts that the manner in which the CPIC and Versadex checks were presented in the ITO was unfairly designed to prejudice the reader.

138There is evidence before me that a search warrant was previously issued for the same address, 233 Beacroft Road, unit #905 on February 6, 2018. On the day of the execution of that warrant, Smith was arrested and drugs and cash were found on his person. He was charged with possession for the purpose of trafficking and possession of proceeds of crime. On April 17, 2018 those charges were withdrawn.

139I agree that the manner in which the affiant presented the information with respect to this previous warrant was not full, fair and frank. I also agree that the affiant ought not to have included the CPIC printout of all of the Applicant’s withdrawn or stayed charges.

140On page 1 of Appendix C in the Overview the affiant sets out that:

8. A Controlled Drugs and Substances Act search warrant was previously authorised for 233 Beacroft Road, unit #905, North York on February 6th, 2018 by Justice of the Peace FORFAR. As a result of that investigation a quantity of cocaine and Canadian currency was seized from Duval SMITH.

141That is the only explicit reference to the previous warrant in the ITO.

142On page 22 of Appendix C, in paragraph 20, which summarises Versadex entries relating to Smith, sub paragraph b reads as follows:

b. On February 6, 2018 SMITH was charged with possession for the purpose of trafficking cocaine and possession of proceeds of crime. During this investigation, SMITH was observed operating a different vehicle not involved in this investigation, a 2005 Infiniti with Ontario licence CDFX 478 registered to a Brandy STENNETT. A quantity of cocaine and proceeds were located on SMITH at the time of his arrest. A quantity of cutting agent and a digital scale were located inside 233 Beecroft Road, unit #905. These charges were withdrawn on April 17, 2018.

143The withdrawn charges referenced in this paragraph are the charges that arose as a result of the execution of the previous warrant referenced by the affiant 22 pages prior in the Overview. However, the affiant never explicitly makes the connection between these paragraphs. The obligation to be full, fair and frank requires the affiant to set out the evidence in as clear, simple and straightforward a manner as possible: Rocha at para. 35. The affiant ought to have simply stated that a warrant was issued for the same residence a year prior, the results of the search and the results of any charges laid in one straightforward paragraph.

144While in the interests of being full, fair and frank it was right for the affiant to inform the justice of the disposition of the charges relating to the previous warrant, it was unnecessary and inappropriate for the affiant to reproduce the CPIC printout of what amounted to over four pages of withdrawn and stayed charges. The Applicant’s criminal record itself was three pages long and contained serious and related charges. The issuing justice would have been under no illusion that the Applicant was without criminal antecedence.

145The affiant was cross-examined with respect to whether or not he had reviewed the ITO for the previous warrant. Sgt. Duran agreed that his unit had been responsible for that previous investigation and that the target, Smith, and the residence, 233 Beecroft Road, unit #905 were the same. However, he testified that he did not seek to review that previous ITO because it was from a year prior and he felt that he had ample information from three separate sources for this warrant. This was also, by extension, his answer for why he did not clearly set out in the ITO what had occurred with the previous warrant.

146The information from CS3 is largely undated, and therefore could have pre-dated the previous warrant. The information from CS1 and CS2, on the other hand, clearly post dates the issuance of the previous warrant. As does the surveillance evidence. This makes the fact and circumstances of the previous warrant of less significance. It does not, however, detract from the affiant’s obligation to present the evidence in a clear and straightforward manner.

C. Conclusion

147I find that the affiant was careless in drafting the ITO. He included reference to a source history for CS2 that did not exist. However, given the fact that at the outset of the information with respect to that source he stated, “The CS has not been proven as of today’s date” I do not find that he was intentionally attempting to mislead the issuing justice. If the affiant’s intention was to mislead it would not make sense for him to have led with the fact that the source had not been proven.

148I find that the manner in which the affiant presented the information with respect to the previous warrant was not straightforward. The issuing justice may have been led to believe that cocaine and drugs were found as a result of the execution of that warrant, rather than the arrest of Smith. Further, the issuing justice may not have appreciated that the resulting charges were the same charges later referenced in the ITO that were withdrawn two months later.

149However, most of the source information for this ITO clearly post-dated the previous warrant. This is not a case where the affiant was trying to recycle the same source information from a previous warrant to get another search warrant for an unchanged landscape. If it was the affiant’s intention to mislead the issuing justice, it is hard to see what was to be gained. A clearer understanding of what occurred with the previous warrant does not, on the evidence before me, impact the grounds for the issuance of this warrant.

150There is no evidence before me as to why those charges were withdrawn and no evidence that contradicts the statement that “a quantity of cocaine and Canadian currency was seized from Duval SMITH”. It remains of some relevance that Smith had a year prior been the subject of a drug investigation which led to the execution of a warrant and the finding of cocaine and cash on his person: R. v. James, [2019] 3 S.C.R. 209, R. v. James, 2019 ONCA 288 at para.59.

151I am also concerned by the affiant’s evidence generally with respect to the presentation of contradictory evidence in an ITO. Contradictory evidence is as relevant as corroborative evidence and should be similarly treated. The affiant’s evidence that it is his practice to highlight corroborative evidence, but to not highlight and contrast contradictory evidence, is concerning. However, while I have concerns with the manner in which the affiant drafted this ITO, there is no basis to find that the affiant here diminished or skirted over contradictory evidence.

152I also find that the affiant ought to have made inquiries of the handlers with respect to the possibility of collusion, especially in light of the fact that two of the sources shared one handler. His evidence that collusion had never entered his mind is concerning, but tempered by the fact that a review of the information from all three sources does not give rise to any suggestion of collusion. Clearly the affiant should have turned his mind to this. However, there is nothing in the evidence or information here that is at all suggestive of the possibility of collusion.

153The question then is, do all of these issues considered together, and in light of the entirety of the ITO and the evidence before me, lead to a finding that the affiant deliberately or recklessly misled the issuing justice such that the entire ITO is unreliable? I find that they do not.

154Having excised the erroneous information with respect to CS2’s history, and pieced together the information with respect to the previous warrant, could the warrant have still issued?

155In reviewing a warrant for sufficiency a “common sense and holistic approach” is required: R. v. Herta, 2018 ONCA 927, at para. 21.

156The amount of detail given from all three sources is, “sufficient to ensure that it is based on more than mere rumour or gossip”: Debot, at p.1168-9. The source information is compelling. Indeed, it rises above that provided in R. v. Nguyen, a case where our Court of Appeal found the source information to be “highly compelling”: R. v. Nguyen, 2015 ONCA 753, at para. 19.

157When the source information is considered as a whole, and in conjunction with the surveillance evidence and database checks, it is credible, highly compelling and has enough corroboration to make up for deficiencies in the credibility of the sources.

158In considering the totality of the circumstances here I find that there existed grounds upon which the warrant could have issued.

Released: February 8, 2021 Signed: Justice A. Newton-Smith

1Reasons on the Leave Application were given orally on October 27, 2020 and released in written form as an endorsement on October 28, 2020.