R. v. Johnson, 2021 ONCJ 489
ONTARIO COURT OF JUSTICE
(Toronto Region)
HER MAJESTY THE QUEEN
Respondent
— AND —
TREVOR JOHNSON
Applicant
Ruling on Garofoli Application
Evidence and Submissions: 17-19 May 2021, 7 June 2021, 21 July 2021
Ruling: 22 September 2021
(59 paras.)
Counsel for the Applicant: Andrew Stastny
Counsel for the Respondent: Alexia Bystrzycki, Ryan McSheffrey
Introduction
1On 26 May 2020 search warrants were issued for four separate locations where it was alleged that the Applicant was storing cocaine and related drug trafficking paraphernalia: his home, a restaurant owned by his sister, and two motor vehicles registered to him. The confidential informant's tip relied upon by the police specified that the Applicant stored his drugs at his family's restaurant, and that he would pick up quantities as needed for his deals. The ITO submitted by the Affiant, Detective Constable Landry, to search these places was identical, in fact, for each location
2It is conceded by the defence that the search warrant for the family restaurant, Rose's Halal Kitchen, located at 1960 Lawrence Avenue East, Unit 8a, could have been issued and therefore cannot be successfully challenged.
3As for the two motor vehicles belonging to the Applicant, a 2015 Chevy Cruz and a 2008 Honda Civic, no evidence was found in either location. Hence, while the Applicant submits that that there was an insufficient basis for the issuance of the warrants for the two vehicles, the issue is rendered moot and does not need to be addressed further for the purposes of this ruling.
4It is the issuance of the search warrant in relation to the Applicant's residence at 8 Kilpatrick Place in Scarborough, however, that is at the heart of the matter. It is this address that the Applicant states no basis exists for the search warrant being issued. In particular, the Affiant's assertion that this address was being sheltered by the Applicant from the authorities is vigorously contested. It is, accordingly, this issue that occupies central importance in these proceedings.
Evidentiary Record on Application
5According to the judicial summary produced before the hearing, a confidential and anonymous source revealed to the authorities, on a date within 60 days of 26 May 2020, when the search warrants were obtained, that a drug trafficker named "Trevor" resided at 8 Kilpatrick Place in Scarborough. The source had firsthand knowledge of this person being in possession of cocaine at his 8 Kilpatrick Place residence. He also possessed and sold fentanyl. The source further indicated that "Trevor" would store cocaine at his family's restaurant, located in the area of Lawrence Ave East and Warden Avenue, and pick some up as needed for his deals.
6After receiving this information, surveillance was placed on the Applicant, including 8 Kilpatrick Place, over a period of about two and one-half weeks. The first date of surveillance was 7 May 2020. On this date two motor vehicles were observed in the driveway: a Chevy Cruz, ownership of which was registered to the Applicant and a Mazda 3, registered to his sister, Chamaikha Johnson. The Applicant drove the Chevy Cruz at an unspecified time1 to an address on Tower Drive where he met up with an unknown female who was driving a Nissan motor vehicle. A hand to hand transaction through the Nissan's driver's window was observed. The Applicant then returned to 8 Kilpatrick Place.
7Surveillance next took place on 13 May 2020. On that date the Chevy Cruz arrived and parked in the driveway of 8 Kilpatrick Place. It then was driven to Pro-Tech Auto Detailing Inc. on Eglinton Avenue east where the Applicant was observed in the rear parking lot. Later that day, the Honda Civic was observed parked at Kilpatrick Place. The Applicant then drove it to the rear parking lot at Pro-Tech. Subsequently, he went to Rose's Halal Kitchen and was observed entering the restaurant. He left with an unknown male in the Honda Civic and went to a nearby McDonald's. Surveillance was subsequently discontinued.
8Two days later, on 15 May 2020, surveillance determined that neither the Chevy Cruz nor Honda Civic was in the driveway at 8 Kilpatrick Place, but they were located at Pro-Tech Auto Detailing Inc. in the rear lot. The Applicant got into the Chevy Cruz and drove it to the front lot where two unknown males approached the open driver's side window. A hand to hand transaction was then observed. Thereafter, the Applicant returned in the vehicle to the rear lot. Subsequently, he departed in the Honda Civic for an address on Gilder Drive where a hand to hand transaction was observed with an unknown male party. The Applicant then returned to Pro-Tech. He later left in this vehicle for an Essa Gas station on Lawrence Avenue East where he met an unknown male. They drove together to the Cedarbrae Mall. The Applicant was subsequently seen to engage in a drug transaction there with an unknown female party who was a passenger in a GMC Sierra. After leaving the Mall, the Applicant returned to Rose's Halal Kitchen. He later left in the Civic for the Walmart Superstore on Eglinton Ave East where surveillance was discontinued.
9The next day, 16 May 2020, surveillance did not initially locate either the Chevy Cruz or Honda Civic at 8 Kilpatrick Place. The Chevy was later seen arriving at Pro-Tech and then being driven by the Applicant to Whitby where he picked up an unknown female passenger. A drug transaction was observed afterward when the Applicant returned to Scarborough at an address on Warden Avenue. He and the female passenger then attended Rose's Halal Kitchen. Subsequently, the Applicant drove a Ford Focus to a Pizza Pizza on Lawrence Avenue East where a hand to hand transaction was observed. He then returned to the restaurant where he returned to the Chevy Cruz. A short time later, he and the unknown female passenger left in the Chevy Cruz and returned to 8 Kilpatrick Place.
10On 19 May 2020 surveillance was set up at Rose's Halal Kitchen restaurant. The Applicant's Honda Civic was parked at the time at 8 Kilpatrick Place. Thereafter it was driven by the Applicant to the restaurant where an unknown female immediately exited from it. The Applicant then drove away towards Warden Avenue; he was not seen thereafter that day.
11The final day of surveillance took place on 25 May 2020. Officers attended both the Applicant's residence on Kilpatrick Place and Pro-Tech Auto Detailing Inc. on Eglinton Ave East. No cars were in the driveway at 8 Kilpatrick Place. The Chevy Cruz, however, was located at the rear of Pro-Tech. It was later observed to leave the premises and travel westbound on Eglinton Ave East near Gilder Drive. Surveillance was discontinued shortly afterwards.
12In the "Investigative Checks" portion of the ITO, it is stated that the police Versadex system reveals that the Applicant is last documented as having no fixed address. It is also noted that the Applicant is before the courts awaiting disposition on a set of charges, including possession of a Schedule I Substance for the purpose of trafficking, as well as being on a recognizance for Theft Under $5,000.
13It is also detailed in this portion of the ITO that the Affiant performed an MTO query of the Applicant. According to this check, the Chevrolet Cruz and Honda Civic motor vehicles were registered in the Applicant's name. His address, however, was listed as 132 Copley Street, Pickering.
14The Affiant's "Grounds for Belief' in the ITO included the statement that the Applicant had been observed going and coming from the target addresses prior and after drug deals with unknown persons. As a result, reasonable and probable grounds existed that he was in possession of cocaine and that he was storing that substance within his address, his family business and his vehicles.
15In the "Conclusion" section of the ITO, the Affiant asserted that the Applicant was sheltering his Kilpatrick Place address. The paragraph in question reads in its entirety as follows:
It is also in my experience that drug traffickers shelter their true home. addresses and any possible addresses in which they store narcotics. This is done to avoid detection from police. Through the investigation it is clear Mr. Johnson's home address is 8 Kilpatrick Place Scarborough. However, it is clear he is sheltering this address by not having it as his home address on his licence. Mr. Johnson sister is the owner of his family's restaurant located at 8a-1960 Lawrence East, Scarborough. In my experience drug traffickers will often keep their narcotics at a second location as an effective way to avoid detection from the police or secure their drugs from competing dealers or customers.
16The defence sought leave to cross-examine the Affiant, Detective Constable Landry. It is the defence position that while there was reasonable grounds to believe that the Applicant was dealing drugs, given that the informant tip pointed specifically to the family restaurant, all the other locations, including the Kilpatrick Place residence, was the major source of dispute.
17The Affiant's assertion of sheltering drugs was therefore specified as one of the areas of proposed cross-examination. More particularly it was stated that while the Affiant indicated that the Applicant was sheltering his home address by not having 8 Kilpatrick Place, Scarborough on his driver's licence, the Affiant failed to disclose that even though he had access to this information through his investigative file, the Applicant was actually on bail at the relevant time and had a residence condition of "reside at an address approved of by surety". In addition, the Recognizance of Bail sets out that the Applicant's surety address, his mother, Rosemarie Johnson, is 132 Copley Street, Pickering, which is the same address as that on the Applicant's driver's licence. As a result, it was argued that the Applicant may not, in fact, have been sheltering anything, but rather living at an address approved of by his mother, who happens to have an address listed on the bail, that is the same as the address listed on the Applicant's licence.
18Following the submissions of the Crown and defence, Constable Landry was permitted to give evidence on point. As of May, 2020, he had been with the Drug Squad for over two years and had been an Affiant for one or two search warrants. In preparing the ITO, he acknowledged that he had access to a number of investigative tools including data bases, such as MTO and the police Versadex case management system.
19With respect to the MTO query, the officer testified that it indicated the Applicant was the registered owner of the Chevy Cruz and Honda Civic, as well as a third motor vehicle, a Dodge RPC, that was not associated with the investigation. His address was listed as 132 Copley Street in Pickering in the MTO records; this was also the registered address for his motor vehicles. His driver's licence indicated 132 Copley Street as his registered address as well.
20According to the Versadex inquiry, Constable Landry learned that the Applicant was last documented as having no fixed address. This information was set out in the Applicant's CPIC and criminal record check, as well as from his last police interaction in 2019. The officer testified that having no fixed address does not necessarily mean that the person is homeless, but rather that address information may not have been obtained for a number of reasons, such as the individual refusing to answer or the police being unable to ascertain the location.
21Constable Landry further stated that he read the occurrence of the 2019 drug charges and summarized ii in the ITO. He agreed that the Applicant's address was relevant, and he included information about it. As for the bail he was on for these charges, the officer mentioned that the Applicant was on a recognizance and before the courts for those charges, but he did not know if he read the bail document itself as the bail conditions would appear on CPIC and he read them there. While he was unable to say that he actually looked at the court documents, he was aware of the conditions listed in them, including that he reside at an address approved by his surety.
22It was put to the officer that it would be important to disclose that the Applicant had a residence condition, and he might have been required, in fact, to reside at 8 Kilpatrick Place. He replied that if there was an address for the Applicant in the court documents it would have been checked and listed. He agreed, though, that there was no mention in the ITO of his bail conditions. He also acknowledged that he should have specified that the Applicant was bound by two recognizances at the time, rather than simply stating that he was before the courts, by which he meant that he was not in custody.
23Officer Landry testified that according to the surveillance observations it appeared the Applicant seemed to be residing at 8 Kilpatrick Place. The officers were trying to confirm his address for the purposes of the drug investigation, however, and not investigating whether this amounted to a breach of his bail residence condition. Had the Applicant been staying at another address where he stayed overnight, that would have been recorded and a search warrant requested for that address. By having a bail address in Pickering where his vehicles were also registered, though, the Applicant was sheltering his Kilpatrick Place address in Scarborough by not updating his residency. The witness acknowledged he did not indicate in the ITO that the Copley Street address in Pickering was his mother's address, although his vehicles were stated to be registered there. He denied that he omitted to mention this so as to make it appear the Applicant was sheltering his address at 8 Kilpatrick Place.
24While the Justice of the Peace issuing the search warrant was made aware the Applicant was on bail, the witness agreed the bail conditions were not set out in the ITO, nor that the surety was his mother. The officer was not in a position to speak to his mother about where the Applicant was required to live or if she approved of the Kilpatrick Place address, given the ongoing drug investigation. Had the bail compliance unit reached out to the Applicant's mother, this could have hindered the investigation and resulted in the Applicant changing the way he did business.
Position of the Parties
25The overarching position of the defence is that the Affiant only had reasonable grounds that the offence of trafficking cocaine was being committed but lacked the requisite grounds to justify the search of four locations for the same evidence, particularly the Applicant's dwelling at 8 Kilpatrick Place in Scarborough. By seeking multiple authorizations for different locations, the Affiant was improperly seeking to increase the probability that the investigation might be successful.
26It is within this context that the Affiant's assertion that the Applicant was sheltering his Scarborough address assumes particular importance. In the defence view, the sheltering assertion does not stand up as the issuing Justice was not informed of the Applicant's conditions of bail, including the requirement to live at an address approved of his mother. Neither was the Justice informed that the Applicant's family was connected to the Copley Street address in Pickering where his motor vehicles were registered. The bail order, in fact, could have required the Applicant to live at the Scarborough location.
27Stated simply, the defence submits that the police had no information as to where the surety required the Applicant to reside, thereby undermining the sheltering assertion. Indeed, had the Justice been informed of the Applicant's connection to his surety's address in Pickering, the Justice may have found the sheltering argument not to be as compelling. For instance, the Justice might have inquired where the Applicant's surety required him to live and if she approved of the Kilpatrick Place residence. Accordingly, there was no full and frank disclosure of material facts by the Affiant, as required: R v Araujo, 2000 SCC 65, at para. 46; R v Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at para. 109.
28The defence cites Justice North's recent decision in R v Reid, 2020 ONCJ 35 in support of his argument. In that case, as here, the police sought to search multiple locations based on the identical ITO. Noting that reasonable grounds to believe is an objective standard that must stand up to independent scrutiny, the Court went on to find that the ITO did not establish a reasonable nexus between the accused, a drug offence, and the unit in question, where it was asserted, he was storing drugs. Likewise, the police opinion evidence as to sheltering, in the instant case, which could be considered by the issuing Justice, is not objectively reasonable when considered in light of the Applicant's bail conditions and surety approval requirement.
29It is conceded that the role of a judge reviewing the validity of a search warrant is limited, and that the reviewing court cannot substitute its own view for that of the issuing Justice: see R v Sadikov, 2014 ONCA 72 at para. 88. Indeed, on a Garofoli hearing, even if it is established that the information in the ITO is inaccurate or material facts are omitted, it does not follow that the statutory preconditions have not been met: R v Beauchamp, 2015 ONCA 260, at para. 88.
30The confidential tip against the Applicant, it is conceded, was compelling and detailed, and connected him to the family restaurant. There was no reference, however, to dealing drugs out of his home on Kilpatrick Place. Indeed, there was only one date, 7 May 2020, where the Applicant was observed leaving that location to do a drug deal. While it is acknowledged that the ITO is not to be evaluated against a standard of perfection, it fails to set out a reasonable belief by the Affiant that drugs would be found at the Applicant's residence, apart from the misleading sheltering assertion. The mere possibility of finding evidence at the Applicant's residence does not meet the credibly based probability standard that reasonable grounds requires: R v Morelli, 2010 SCC 8.
31Even if reasonable grounds, viewed objectively, existed to justify the. Kilpatrick Place search, the Affiant must still have subjective grounds in justification of his belief. A search without subjective grounds is illegal, even where objective grounds would have existed had the officer acted on those grounds: see R v Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at para. 29; R v Lai, 2019 ONCA 420, at para. 24. Neither do reasonable grounds to believe that the offence of trafficking in narcotics is being committed justify, on its own, the search of the Applicant's residence: R v Liu, 2014 BCCA 166, at para. 41; R v Rocha, 2012 ONCA 707, at para. 26; R v Aboukhamis, 2015 ONSC 2860, at para. 38.
32In summary, it is the Applicant's submission that sufficient grounds were lacking to authorize a search of the 8 Kilpatrick Place location. Neither a broad generalization based on police experience nor the misleading assertion as to sheltering suffices. The Applicant's involvement in drug deals on the one date that he left his residence both before and afterwards, 7 May 2020, does not detract from the informant's tip that drugs were kept at the family restaurant, and retrieved, as needed, from that location only. Hence, while the issuance of a warrant to search the restaurant was reasonable, the same cannot be said for any other location, particularly the Applicant's residence.
33The position of the Crown, in response, is that the Affiant was relying upon information in the instant case from a confidential source that was compelling, credible, and provided information that was corroborated by the police, as required: R v Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140. There was, in addition, a sufficient nexus between the investigation and the Kilpatrick Place address, which the source stated was the residence of the Applicant, who was cocaine and fentanyl dealer. Surveillance was placed on this location and revealed a drug transaction, in fact, on one date where the Applicant left this location to traffic drugs and immediately returned afterwards.
34It is noted by the Respondent Crown that the police only need a credibly based probability that an offence has been committed and that there is evidence located at the places to be searched. Such a standard is lower than a balance of probabilities. Indeed, upon further investigation, the Affiant's grounds in support of the warrant may turn out to be false or inaccurate. However, this does not invalidate what is otherwise a valid warrant: see R v Pires and Using, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41, R v Storrey, [1900] 1 S.C.R. 241, at para. 17.
35With respect to the Applicant's position that there was non-disclosure of the bail conditions by the Affiant, the Respondent submits that the fact that the Applicant was on a recognizance of bail that required him to reside at an address approved of by his surety, his mother, is immaterial to the issue as to whether reasonable grounds to search existed. It follows that the fact the address listed on his driver's licence was the same as his mother's address on his bail is likewise irrelevant. In the Respondent's view, there is nothing about this information that suggests the Affiant lacked an honest belief in the requisite grounds for the search warrant to issue.
36Neither is the failure to include details respecting the Applicant's bail conditions in the ITO misleading. The Respondent submits that nothing turns on this. Although the Affiant is required to set out facts fully and frankly in the ITO, the ITO must remain concise and summarize the results of the investigation. There is no requirement that the ITO set out every minute detail of the police investigation: Araujo, at para. 46
37The Respondent emphasizes that the reviewing judge is to consider the totality of the ITO, and not engage in a piecemeal approach. It is not open to the court to substitute its opinion for the issuing Justice, much less to offer a second opinion. Warrant review begins from a premise of presumed validity. That is, the onus of demonstrating invalidity is on the party who asserts it, the Applicant: see Sadikov, at para. 83. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.
38As for the record before the reviewing court, while erroneous information included in the ITO is to be excluded, the additional evidence taken on the voir dire may be considered to correct minor errors in it. Such amplification evidence corrects good faith errors by the police in preparing the ITO but does not excuse deliberate attempts to mislead the authorizing judge. Warrant review requires a contextual analysis, as the Court observed in Sadikov, at para. 87. Inaccuracies in the ITO, on their own, do not constitute a sufficient basis on which to ground a finding a bad faith or an intention to mislead; this is not a reason to set aside the warrant.
39In summary, it is the Respondent's submission that when assessing the totality of the circumstances, there was ample reason to infer that there would be items of drug trafficking evidence at the locations specified in the ITO, including the Applicant's residence at 8 Kilpatrick Place. On the basis of the record before the reviewing court, then, the warrant in question clearly could have issued. The police investigation involved a confidential tip that was credible, compelling and corroborated; moreover, police surveillance and other investigative checks linked the Applicant to drug-related criminal activity, with strong connections to the locations that were searched. Accordingly, the issuing Justice would have been satisfied that reasonable grounds existed for the warrant to issue.
Analysis
40It is not in dispute between the Applicant and Respondent as to the approach to be taken by the reviewing court to the issuance of the search warrant, and the scope and standard of such review. The issue to be determined is not whether the search warrant should have issued, but rather whether, on the basis of the information contained within the ITO, after excision and amplification, the warrant could have issued: R v Garofoli.
41It is further agreed that the affiant is required to provide full and frank disclosure of material facts and do so in a concise and clear manner: Aruajo, para. 47. Such full and frank disclosure of material information which should be included in an ITO requires inclusion of: anything that could undermine the probability that the alleged offences were committed; undermine the probability that the warrant will afford evidence of these crimes; or anything that could challenge the reliability and credibility of the information the affiant relies upon in establishing their grounds: see R v Booth, 2019 ONCA 970, at para. 56.
42It is the application of these principles, however, to the record before me, where the parties differ. The Applicant asserts the ITO was fatally flawed due to misleading statements by the Affiant and a lack of candour and completeness, as evidenced by his testimony, thereby resulting in a violation of the Charter s.8 right to be secure against unreasonable search or seizure. In the Respondent's view, no such misstatements are contained in the ITO or the amplified record, and there was a sufficient basis for the warrant to have issued. It is to the resolution of this conflict that I now turn.
43To begin, I note there is cogent evidence connecting the Applicant to the 8 Kilpatrick Place residence, and this location being linked, in turn, to his drug trafficking enterprise. The confidential source indicated that the Applicant, a drug dealer, resided there. Surveillance observations confirmed the Applicant's presence at this location. He was seen, in fact, dealing drugs immediately after leaving there, on the first day of surveillance, 7 May 2020, and returning immediately afterward. The cars which he drove on almost every occasion, and registered in his name, were often parked at the Kilpatrick Place location throughout the period of two and one-half weeks while he was being surveilled. Hence, as stated in R v Soto, 2011 ONCA 828, at para, 5, "…if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence."
44To be sure, it would have been preferable for the times of all the drug-related activities to be set out in the ITO, and when the Applicant was last at the family restaurant where the source indicated drugs were stored and retrieved as needed. However, the Applicant's travel patterns to his home and the family restaurant was amply detailed before the issuing Justice, and readily apparent from a reading of the warrant on its face.
45What, then, of the Affiant's reliance on his police experience as to sheltering as an indicia of drug trafficking, including the use of a second location where the Applicant accessed drugs and safe-guarded this location. The source's tip, it will be recalled, was that the Applicant would retrieve drugs from the family restaurant for his dealings, as needed, and that he resided at Kilpatrick Place. The MTO documents, however, including his driver's licence, provided his address in Pickering on Copley Street; police occurrence reports stated he was of no fixed address.
46The Affiant was aware of this information. He indicated so in the ITO. He also stated in it that the Applicant was currently before the courts on bail. He was aware, additionally, of the conditions of his release, including that he live at an address approved of by his surety. Notwithstanding the Affiant's cross-examination on this point, nothing turns on whether he saw the actual bail document itself, as opposed to a summary of the conditions in CPIC or Versadex, in my respectful view.
47I am further respectfully of the opinion that the Affiant's failure to specify the Applicant's connection to his surety's address in Pickering, on Copley Street, that is, that his cars were registered there, and it was his mother's residence, does not detract from the sheltering assertion put before the issuing Justice. Let me explain the reasons for reaching this determination.
48To start, whether the Applicant's surety was aware or approved of the Kilpatrick Place is not the question. There is no evidence that the surety knew, in fact, of the Applicant's address in Scarborough. That issue is certainly relevant to bail compliance. But it does not take away from whether the Applicant was hiding this address from the authorities, and others, so that he could use it as a base for his drug trafficking activities in a secure and unknown location, at least as far as everyone apart from his surety was concerned .
49Put another way, the Applicant living at an address approved of by his surety is not mutually exclusive from the proposition that this address was being sheltered. That is, the question is not whether his mother, his surety, was aware or approved that he was living in Scarborough at 8 Kilpatrick Place; the question is whether the Applicant was keeping this address from the knowledge of the authorities, and others, so that they would not be aware of it, and he could engage in drug trafficking activity without the prospect of the police or those involved in the drug trade finding out where he was living and interfering, or worse, with his livelihood.
50That the Applicant's mother had knowledge of the address where he was residing, if in fact she was so aware, thus, is not the same as the Applicant keeping such knowledge away from everyone else. The former is relevant to whether the Applicant was living at an address appropriate for his bail. The latter is relevant as to whether the Applicant was shielding his address from those who could interfere with his criminal activity in the drug trade.
51This, in fact, was the case here. The authorities only became aware of the Applicant's connection to 8 Kilpatrick Place through the source's tip. They confirmed this through surveillance. They observed him conduct a drug transaction on the first date of watching him there, where he left his residence and returned immediately afterward. There is no mention, however, in any of the police records or government databases of the Kilpatrick Place location. From the point of view of government records or official documents registered to the Applicant, 8 Kilpatrick Place did not exist.
52In addition, there was no indication, either from the source, or through surveillance, that the Applicant was bringing others to his Kilpatrick Place address where drug transactions were observed taking place. To the contrary, on each and every occasion the Applicant either left his residence to conduct drug deals elsewhere, or engaged in such activities at other locations.
53Drug traffickers, as the Affiant stated in the ITO, have good reason in his experience to hide the address where they, and their contraband, can be located. It follows that the Affiant's reliance on his police experience as to the reasons for sheltering his residence, in the circumstances of this case, does not amount to impermissible generalization or overstatement. To the contrary it accords with good common sense. As Dunphy J. explained in R v Hobeika, 2017 ONSC 6066, at para. 97:
Drugs and their proceeds are portable. Both need to be stored somewhere. Stash houses may be used. The business is a sophisticated one that generates very significant volumes of cash. It is quite reasonable to expect (as the police did here) that active traffickers in narcotics will use multiple locations in plying their trade providing they have good access and control over them.
54The fact that the police had information that drugs were kept at a commercial premises, the family restaurant, did not make the inference that there were drugs at the Applicant's Kilpatrick Place residence unreasonable. Drugs can be stored and accessed at more than one location: R v Nguyen, 2015 ONCA 753, at para. 34. The issuing Justice, and reviewing court, are entitled to rely on the affiant's opinion as to "the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia": R v Prosser, 2016 ONCA 467, at para.125
55Finally, Constable Landry testified as to why the authorities, conducting a drug investigation, were not in a position to speak to the Applicant's mother as to her knowledge of the Kilpatrick Place address. This would be a matter, as he explained, for bail compliance. Alerting the Applicant's family as to the police interest in his whereabouts would have the very real potential to compromise the drug investigation and result in the Applicant changing his pattern of doing business.
56In summary, then, in reviewing the ITO placed before the issuing Justice, and having regard to the amplified record before me, I am respectfully of the opinion that there is nothing that detracts from the credibly-based propositions that the Affiant put before the Justice. In particular, I am satisfied that there was nothing misleading or incomplete as to the Affiant's assertion that the Applicant was sheltering the 8 Kilpatrick Place address where he was in fact residing.
57Indeed, taking the Applicant's position at its highest, I am satisfied that had the issuing Justice been provided with the additional details as to his connection with Copley Street in Pickering and his conditions of bail requiring him to live at an address approved of by his surety, it would not have impacted the Justice's decision to authorize the warrant to search his residence. Stated shortly, on the basis of the record before the reviewing court, then, the warrant in question clearly could have issued.
Conclusion
58Having conducted a review based on the non-excised portions of the ITO in addition to the amplified record, I conclude that the issuing Justice could reasonably have granted the warrant to search the Applicant's residence.
59There being no s.8 violation in reliance on a valid warrant, it is not necessary to consider the application of s.24(2). The Charter motion based on this portion of the evidence is dismissed.
Released: 22 September 2021
Signed: Justice Rick Libman
Footnotes
- In fact, no times of any of the observations on any of the surveillance dates were included by the Affiant in the ITO. While the defence initially sought leave to cross-examine the Affiant on these omissions, this ground was subsequently abandoned. Leave to cross-examine the Affiant on the sheltering issue, however, was permitted, as will be discussed below.