minicounsel

Date: 2022-09-13 Court File No.: 20-2255 Location: Windsor, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

ERNEST GYAMFY

Before: Justice Shannon L. Pollock

Heard on: August 10, 2022 Reasons for Judgment Released on: September 13, 2022

Counsel: Sue Szasz and Andrea Harris........................................................ Counsel for the Crown Sandra Kimberg.......................................................................... Counsel for the Defendant

Introduction

1The defence seeks a ruling that the warrants authorized to search “the vehicle of” the Applicant, a black 2019 Nissan Rogue with Ontario plates CKDL859, “the residence of” the Applicant at 305-350 Church Street in Windsor, Ontario and “the residence of” the Applicant at 38-550 Sandison in Windsor, Ontario should be quashed. The Applicant submits that the police conduct in obtaining those warrants was so subversive of the pre-authorization process that the warrants should be quashed to protect that process. In the alternative, the Applicant submits that once certain serious inaccuracies are excised from the Information to Obtain, there does not remain sufficient credible and reliable evidence for its issuance. The Applicant submits that these portions are too serious for them to be corrected by amplification. The Applicant points out that when the original request for warrants was denied, the affiant added information regarding the interpretation of tracking data that was misleading. The Applicant submits that the result is a breach of their section 8 Charter rights.

2The Respondent takes the position that the affiant’s interpretation of the tracking data was not misleading. The Respondent submits that the affiant was being full, fair and frank. The Respondent submits that there are no errors in the ITO but that, if there are, these minor errors can be corrected through amplification. The Respondent’s position is that there remains sufficient credible and reliable information on the basis of which the warrants could have issued and that they are valid.

3The search warrants were issued and executed on November 24, 2020. The ITO has been vetted. The affiant relied upon a confidential source, physical surveillance and tracking data in seeking to obtain the warrant. Illegal substances, a loaded firearm, money and paraphernalia was located.

Section 8 – General Principles on Reviewing Warrants

4As the reviewing justice, a court must look at the Information to Obtain in its entirety. It is the totality of the information which must be considered in an assessment of whether the warrant could have issued.

5Warrants are presumed to be valid. As stated by the Court of Appeal for Ontario in R. v. Sadikov, 2014 ONCA 72 at paragraph 84: “The reviewing judge does not substitute his or her view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search.”. The Court went on to say: “Said another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could -not would -have issued.”.

The Information Contained in the ITO – The Search Warrants

6The affiant swore one ITO to support the issuance of warrants for the three (3) locations. When the warrants were first submitted for review, they were rejected by the Justice of the Peace. The reason provided was that there was no evidence that Source A “has observed that the things to be searched for are in the places to be searched, at this time”. The Justice of the Peace questioned how the police knew that the items to be searched for were at either place at the time. There was also a further, minor question, in relation to how someone could be a prohibited driver but not have a criminal record on which the Justice of the Peace sought clarification.

7Evidence was added to the ITO by the affiant and it was resubmitted to the same Justice of the Peace who then issued the warrants. The following is the verbatim evidence that was added to address the concerns of the Justice of the Peace in relation to this issue:

i) “Within the past 24 hours” was added to “Source A told me the following information”. That information was in relation to a purchase of fentanyl from the Applicant and the fact that the Applicant had just returned from Toronto and was “loaded up”.

ii) After what is outlined in i) above, the affiant added an “affiant note” as follows: “I believe the term “loaded up” means that Gyamfy is currently in possession of a quantity of fentanyl intended for sale. Data from the cell phone tracker indicated that Gyamfy attended 350 Church Street as soon as he returned to Windsor from Toronto. Officers observed Gyamfy engage in activity consistent with drug trafficking on the evening of November 23, 2020 after leaving the residence on Sandison.”

iii) “On November 24, 2020, I applied for CDSA search warrants for 38-550 Sandison Street, 305-350 Church Street and the black Nissan Rogue with Ontario plates CKDS859. The warrant application was denied by Justice of the Peace Hoffman for reasons stated in Paragraph 11. Addressing Justice of the Peace Hoffman’s concerns, it is my firm belief that there are reasonable grounds to believe that GYAMFY is currently in possession of fentanyl for the purpose of selling it in the places to be searched for the following reasons:

a) Source A provided information within the past 24 hours that GYAMFY (portion vetted out) sell Source A fentanyl. I believe there is a reasonable nexus between GYAMFY (portion vetted out) sell him/her fentanyl and GYAMFY being currently in possession of fentanyl.

b) Data from the cell phone tracker, physical surveillance and information from Source A indicated that GYAMFY has recently returned to Windsor from Toronto. Information from Source A is that GYAMFY brings fentanyl from Toronto to Windsor for the purpose of selling it.

c) Data from the cell phone tracker indicated that GYAMFY attended 350 Church Street as soon as he arrived back to Windsor from Toronto in the afternoon of November 23, 2020. GYAMFY went to 38-350 Sandison Street after he left 350 Church Street. Based on the source information and the cell phone tracker data, I believe that GYAMFY is using 305-350 Church Street as a “stash” location to store and prepare drugs for sale.

d) Officers conducted physical surveillance of GYAMFY on November 23, 2020. He was observed leaving 38-550 Sandison Street with a male associated to the apartment at 350 Church Street in a black Nissan Rogue and engaging in behaviour that is consistent with drug trafficking and then immediately returned to 38-550 Sandison Street.

e) On three days of surveillance, GYAMFY was observed engaging in activity consistent with drug trafficking where he conducted short meets with people but never at 38-550 Sandison Street or 350 Church Street. Surveillance confirmed that GYAMFY does not have customers attending his residence or the “stash” location. This is a common method employed by mid-level to high end drug traffickers to protect the location of their product and profit from police detection or robbery by rival drug traffickers. For these reasons, I do not believe it is reasonable to expect Source A to see the items being searched for in the places to be searched.

f) I believe that the above noted observations and information from Source A indicated that GYAMFY is possession of fentanyl for the purpose of trafficking and that the fentanyl and other items to be searched for will be inside 38-550 Sandison Street, 305-350 Church Street, and the black Nissan Rogue.”

iv) In an area summarizing surveillance conducted on October 26, 2020, the affiant had originally stated: “In summary, during this period of surveillance, GYAMFY was observed conducting counter-surveillance and engaging in behaviour that is consistent with drug trafficking. Specifically, GYAMFY was observed conducting two drug transactions in two different parking lots”. To this area, the affiant added: “after leaving 38-350 Sandison Street. This strengthens my belief that GYAMFY is keeping fentanyl and/or other evidence relating to the offence of possession of a controlled substance for the purpose of trafficking at 38-550 Sandison Street.”

v) In an area summarizing surveillance conducted on November 13, 2020, the affiant had originally stated: “In summary, during this period of surveillance, GYAMFY was observed conducting counter-surveillance and engaging in behaviour that is consistent with drug trafficking. Specifically, GYAMFY was observed conducting two drug transactions”. To this area, the affiant added: “after leaving 38-550 Sandison Street. This strengthens my belief that GYAMFY is keeping fentanyl and/or other evidence relating to the offence of possession of a controlled substance for the purpose of trafficking at 38-550 Sandison Street.”.

vi) In an area summarizing surveillance conducted on November 16, 2020, the affiant had originally stated: “In summary, during this period of surveillance, GYAMFY was observed conducting counter-surveillance and engaging in behaviour that is consistent with drug trafficking.” To this area, the affiant added: “after leaving the residence at Sandison Street. This strengthens my belief that GYAMFY is keeping fentanyl and/or other evidence relating to the offence of possession of a controlled substance for the purpose of trafficking at 38-550 Sandison Street. The presence of the male driving the Mazda which is associated to the apartment on Church Street further supports my belief that this male and 305-350 Church Street are related to GYAMFY’s drug trafficking.”.

vii) Under the subheading “Grounds to Believe That Things Sought Are Presently At the Place to Be Searched” the affiant added two (2) sub-paragraphs as follows:

c) During surveillance, GYAMFY was observed engaging in activity consistent with drug trafficking after leaving 38-550 Sandison. GYAMFY would then return to 38-550 Sandison afterwards. This activity causes me to believe GYAMFY is keeping fentanyl and items related to the trafficking of controlled substances as well as the proceeds of the trafficking inside unit 38 at 550 Sandison.

d) When GYAMFY returned to Windsor from Toronto the data from his phone tracker showed his first stop was at 350 Church Street. Just prior to leaving 550 Sandison and engaging in activity consistent with drug trafficking a vehicle associated to 350 Church attended the Sandison address and a male accompanied GYAMFY while engaged in activity consistent with drug trafficking. I believe fentanyl and other items related to the distribution of controlled substances are being kept at 305-350 Church Street.

viii) The affiant added some information to explain the issue of the Applicant being a prohibited driver.

8Information which formed the basis for the initial tracking warrant was included in the search warrant ITO. There was also further evidence by way of surveillance which was conducted with the assistance of the phone tracker. Also, source A had provided further information since the tracking warrant application.

9The ITO stated that since the tracking warrant had issued on October 6, 2020, the source had made a further purchase of fentanyl from the Applicant. Within twenty-four (24) hours of the ITO being sworn, the source had provided information that they had purchased fentanyl from the Applicant after the last time he was in Toronto, that he had just come back from Toronto and was “loaded up”. The cell phone tracker indicated that the Applicant had been in Toronto from November 19 to the 23rd. The ITO was sworn on November 24, 2020.

10The affiant swore that the cell phone tracker data indicated that the Applicant had attended at 350 Church Street as soon as he returned to Windsor from Toronto. He remained there for approximately twenty (20) minutes before going to the Sandison Street residence. Officers had observed the Applicant engage in activity which the affiant believed to be consistent with drug trafficking on the evening of November 23, 2020 after leaving the residence on Sandison. This conduct had been observed on previous occasions as well. The ITO stated that tracking data revealed that almost every night while in Windsor, the Applicant stayed at 38-550 Sandison Street.

11The ITO stated that police spoke to the building caretaker at 350 Church Street and learned that the Applicant was previously living at 350 Church Street but was now only visiting regularly. Although he did not have a formal tenancy agreement he had taken over the apartment when a friend moved out and was responsible for the rent.

12The affiant, an experienced officer and drug investigator, outlined her belief that some drug traffickers use “stash” locations to store their product. It was her belief that the Church Street address was being used as a “stash” location by the Applicant.

13Surveillance from November 23, 2020 revealed that the Applicant was operating a black Nissan Rogue. A Hertz Canada representative advised police that the vehicle was rented to Mesach Wellington whose address and phone number were both connected directly to the Applicant. Vehicles being driven by the Applicant had been used in the observations made by police during surveillance which were believed to be consistent with drug transactions.

Cross-Examination of the Affiant

14Leave was granted to cross-examine the affiant on five (5) specific areas.

15Cross-examination of the affiant revealed that the officer had previously dealt with tracking data and had prior working knowledge of it. The affiant was aware that a lot of factors go into GPS data including the fact that it might be affected by cellular coverage and tall buildings in the area. The affiant agreed that tracking data is not 100% accurate and does not give a specific pin-point location instead providing a radius of the area in which the device is located.

16The affiant was also familiar with the term “GPS drift” which could mean that a person is stationary but that the data shows them moving. It could also mean that the data could drift to the next available tower and not the closest one.

17The affiant agreed that tracking data is most helpful when it is accompanied by surveillance and that it is a investigative tool and not something that should solely be relied upon.

18The affiant testified that, in this investigation, the data was being provided by way of “pings” every five (5) minutes. That meant that every five (5) minutes a radius of the mobile device’s location would be was received by the investigators.

19A screenshot of one (1) example of how the affiant was receiving the data reveals that there are multiple green circles shown on a map with each of them representing a “ping” for the radius of where the mobile device would be, subject to any issues of GPS drift. The affiant marked 350 Church Street with an “X” on this screenshot. That “X” is within two (2) of the green circles on the map. There are multiple “pings” located on another location on the map which is a short distance away. The affiant testified that it was their belief that the data on this screenshot meant that the Applicant went to 350 Church Street. This was based on the fact that on previous days of surveillance, one in particular, the Applicant had been inside of 350 Church Street with his device which would ping in a similar fashion and it was believed to be due to drift as he had not been seen leaving the building at 350 Church Street (ie: he was at 350 Church Street but his phone was “pinging” on a nearby location). The affiant stated that tracking data is not an exact science.

20The affiant was taken through several sessions from the November 23, 2020 data and agreed that, of those, only two (2) were within the 350 Church Street radius. The affiant agreed that it was possible that the Applicant was somewhere else within the radius and, specifically, somewhere on Ouellette Avenue. It was also agreed that it was within the realm of possibility that the Applicant was driving through the area on this date.

21The affiant testified that on another day of surveillance, the Applicant had been seen attending at a restaurant at 276 Ouellette Avenue. The location of that restaurant is within three (3) of the sessions from November 23, 2020. There was no physical surveillance of the Applicant within the area of Church Street on November 23, 2020.

22The affiant agrees that she did not state any of these facts or factors in the ITO. There was no information regarding the radius and drift in the data received communicated to the authorizing Justice of the Peace. They did not note that the tracking data disclosed the Applicant was “in the area” and instead stated that the data showed that the Applicant was “at” 350 Church Street.

23The affiant was also cross-examined on the information obtained from the landlord at 350 Church Street. The affiant agreed that there was another officer with her when she spoke to this person. The interview was not recorded in any way other than to reduce it to 2/3 of a page of notes in her the affiant’s memo book.

24In those notes, the affiant recorded the following: “Ernest does not have a formal tenancy agreement. Ernest had a friend that lived in #305 one year ago, moved out, Ernest took over payments. Ernest lived there a little while but only visits now. He has a friend live in 305. don’t know his name but he drives a grey Mazda CRJS(or 5)163. Friend = young black male 5’6”, medium build. -Ernest doesn’t always pay rent -company wants him evicted”.

25In the ITO, the affiant included information received from the landlord. At paragraph 27(b), it stated: “GYAMFY lived there consistently for a little while but now only seems to visit regularly.”.

26The affiant explained that her notes are not a true statement and are only notes of her conversation with that witness to identify the unit the Applicant had access to and his history there. The affiant agreed that she chose to paraphrase instead of taking a statement in another form. The affiant testified that the words “visit regularly” were the affiant’s understanding of what the witness had said although she had no specific recollection of the word “regularly” being used.

Quashing a Warrant for Subversion of the Pre-Authorization Process – The Law

27The Court of Appeal for Ontario has made it clear that a warrant may be quashed where the process is so subversive of the search warrant process that the process needs to be protected by quashing the warrant. There is a residual discretion to set aside a warrant despite the presence of a proper evidentiary base for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. R. v. Paryniuk, 2017 ONCA 87 at paragraph 69, also see: R. v. Vivar, 2009 ONCA 433.

28If non-disclosure by the affiant was for some improper motive or was intended to mislead, that non-disclosure standing alone may invalidate a warrant despite the presence of reasonable and probably grounds to issue the warrant.: R. v. Colbourne at paragraph 40.

29Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. The threshold for setting aside the warrant in these circumstances is high.: R. v. Paryniuk, 2017 ONCA 87 at paragraph 62.

30Earlier this year, Justice Nakatsuru of the Ontario Superior Court of Justice cited the following principles to be considered:

The police misconduct must be egregious enough to subvert the judicial authorization process through deliberate nondisclosure, bad faith, deception, fraudulent misrepresentation or similar conduct.
The threshold for setting aside the warrant in these circumstances is high.
The conduct necessary to engage this discretion has been described as being so subversive of the search warrant process as to in effect amount to an abuse of process, requiring that the warrant be quashed.
“Subversion” connotes undermining, corrupting, weakening, destroying or disrupting a system or process.
The residual discretion to set aside a warrant on this basis is exercised having regard to the totality of the circumstances.: R. v. Downes, 2022 ONSC 4308 at paragraph 43.

The Garofoli Application – The Law

31On a Garofoli application a judge must determine whether, based on the record before the authorizing justice, as amplified on review, the authorizing justice could have granted the order. The judge must decide whether, after excision and amplification, there was reliable evidence which might reasonably be believed on the basis of which the warrant could have issued.: R. v. Paryniuk, 2017 ONCA 87 at paragraph 43.

32Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary foundation remains. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared.: R. v. Paryniuk, 2017 ONCA 87 at paragraph 46.

33The reviewing court must exclude inaccurate information included in the ITO and may refer to amplification evidence to correct minor errors and not deliberate attempts to mislead. Only minor, technical errors can be addressed by amplification evidence. : R. v. Morelli, 2010 SCC 8 at paragraph 41 and 43.

34Inaccuracies on their own are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant. It is not the reviewing judge’s role to draw inferences or to prefer one inference over another. R. v. Sadikov at paragraphs 87 and 88.

35What is required in an ITO is that the material facts are set out fully and frankly for the authorizing justice in order that they can make an assessment of whether they rise to the standard required. An affidavit should never attempt to trick its reader into thinking that it means something that it does not.: R. v. Araujo, 2000 SCC 65 at paragraphs 46 and 47.

36A sub-facial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The accuracy of the ITO is tested against the affiant’s reasonable belief at the time, not the ultimate truth of what is asserted.: R. v. Paryniuk, 2017 ONCA 87 at paragraph 77.

Application to the Case

37Despite testimony which revealed that the affiant was aware that tracking data is not 100% accurate and does not give a specific pin-point location instead providing a radius of the area in which the device is located, the affiant stated within the ITO that the Applicant was “at 350 Church Street” and not within the radius of that area. The tracking data was not explained in such a way that the issuing justice was made aware that there were issues such as drift which could cause inaccuracies in the tracking data.

38The affiant drafted the ITO in such a way that the issuing justice was mislead about the tracking data and the location of the Applicant when the affiant stated they were “at 350 Church Street”.

39The most significant date as it relates to the tracking data for the purpose of the decision I must make is November 23, 2020. As it relates to that date and the tracking data, the affiant agreed that it was possible that the Applicant was somewhere else within the radius of the “pings”, including a restaurant on Ouellette which he had previously been seen attending during surveillance. The explanation provided was that although the affiant agreed the Applicant could have been somewhere else it was her belief that the data showed that he did go to 350 Church Street. The affiant testified that she believes she fairly represented the tracking data in the ITO. I disagree.

40Any information in the ITO stating that the Applicant was “at” 350 Church Street or any other location (there is a reference to the tracking data placing the Applicant at the Sandison Street address as well) which relies solely on the tracking data must be excised from the ITO. These statements are inaccurate statements.

41Further, the statement that the Applicant visits “regularly” at 350 Church Street must be removed as it is erroneous information. This was not the information the landlord provided to the affiant.

42The prosecution submits that amplification should be used to correct these errors. I do not agree. Only errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared. I cannot conclude that these errors were made in good faith. There was a complete absence of any explanation about the tracking data contained within the ITO. The affiant made no suggestion that this data wasn’t accurate. The information provided leads the reader to conclude that the tracking data did provide a pinpoint location when it very clearly did not. This is exactly what the court in Araujo warned against.

43The affiant was aware of and experienced in the use of tracking data and chose not to include this information. The affiant knew that the data was not 100% accurate and did not provide a pinpoint location. The affiant was aware that the tracking data only placed the Applicant within certain radiuses and not at a specific location. Further, and even more concerning, the affiant knew that the tracking data placed the Applicant in a radius outside of the Church Street location in a nearby radius but did not include that in the ITO and instead stated that the tracking data placed the Applicant at the Church Street location during that time.

44It is of further concern that three (3) of the four (4) references in the ITO to the Applicant being at the 350 Church Street address were added in after the initial request for the warrant was denied. They were added in response to the issuing Justice asking what grounds there were for belief that the things sought were at the location at the present time.

45After excising the erroneous information referred to, there does not remain sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that evidence of an offence would be found at 350 Church Street at the time the warrant was issued. There was a lack of reliable evidence that might reasonably be believed on the basis of which the warrant could have issued as it relates to that address. There remain sufficient grounds as it relates to the Sandison Street address and the motor vehicle.

46I find there has been a section 8 Charter breach as it relates to the 350 Church Street address.

47The affiant submits that I should set aside the warrant as the police conduct has subverted the pre-authorization process. The threshold for setting aside the warrant in these circumstances is high. I cannot conclude that the affiant has been shown to have deliberately provided false material statements or to have deliberately omitted material facts from the ITO with the intention of misleading the issuing judicial officer.

48Although I have concluded that I could not find good faith on the part of the affiant for the purpose of amplifying the ITO, I cannot find that the failure to provide clarity as it relates to the tracking data was done with the intention to mislead the issuing justice. The application to quash the warrant in its entirety on the basis of a subversion of the pre-authorization process is denied.

Released: September 13, 2022 Signed: Justice Shannon L. Pollock

R. v. Gyamfy, 2022 ONCJ 471

Case Summary

Introduction

Section 8 – General Principles on Reviewing Warrants