ONTARIO COURT OF JUSTICE DATE: 2023 01 26 COURT FILE No.: Brampton 3111 998 22 31102705 and 21 14445
BETWEEN:
HIS MAJESTY THE KING
— AND —
JAMAL DAYE, TEYANNAH FEARON, JOSHUA ISAAC
Before Justice G.P. Renwick Heard on 25 January 2023 Reasons for Judgment released on 26 January 2023
C. Coughlin and A. Mountjoy.......................................................... counsel for the Crown R. Gupta.................................................................. counsel for the Defendant Jamal Daye A. Stastny.................................................... counsel for the Defendant Teyannah Fearon M. Bojanowska.................................................. counsel for the Defendant Joshua Isaac
Ruling on Garofoli [1] Application
Introduction
1The three Defendants are jointly charged with several firearms offences and related counts arising from the discovery and seizure of two handguns found by police in a condominium residence during the execution of a search warrant. [2] The prosecution is proceeding by indictment. All Defendants have elected to have their trials in provincial court. [3] At issue in this Application is the admissibility or exclusion of the seized firearms and related items during the Defendants’ trials.
2On an earlier occasion, an Order was made by Regional Senior Justice P.R. Currie (acting in the place of the Chief Justice) for a joint hearing of this Application, pursuant to s. 551.7 of the Criminal Code. Although it is unlikely that I will hear both trials, for the purposes of this Application, I am the trial judge.
3Somewhat ironically, the Defendants have brought this Application to quash a search warrant issued by a judge of the Superior Court. The attack upon the search warrant is purely one of facial validity: should the warrant have issued on the basis of the evidence presented in the Information to Obtain (“ITO”). The Defendants allege that there was an insufficiency of evidence to meet the test for the issuance of the search warrant. The prosecution disagrees.
4There does not appear to be any contest respecting the governing legal principles. Rather, the parties part company on the application of the law to the evidence that was put before the issuing justice.
5There has been no application for further disclosure, to seek leave to cross-examine the affiant, or on the part of the prosecution to seek to amplify the record or augment the information upon which the affiant relied.
Governing Legal Principles
6Garofoli hearings involve the determination of the admissibility of evidence. Constitutional considerations involving disclosure, the right to cross-examination, and full answer and defence are contextualized and balanced with other considerations. [4]
7The point of a Garofoli hearing is to determine whether the warrant authorizing a search and seizure was valid. The admissibility of the evidence obtained from executing the warrant is in issue. The context involves a challenge to a court order that is presumed to be lawfully made by a judicial officer. The test for the trial judge reviewing a prior authorized search is well settled:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [5] [emphasis added]
8It must also be kept in mind that the purpose of the ITO is to establish a reasonably grounded belief that the offences alleged were committed and that the requested search would afford evidence of the offence. The ITO must contain reasonable grounds to believe that these statutory preconditions have been met. The ITO affiant is not required to establish the statutory preconditions beyond a reasonable doubt, or even to establish a prima facie case. The threshold for the issuance of a warrant is low. Reasonable grounds exist at the point that "credibly based probability replaces suspicion." [6]
9The reviewing court must consider whether the entirety of the affidavit in support of the requested search contains reliable information upon which the authorizing justice could have granted the order; i.e., was there “some evidence that might reasonably be believed on the basis of which the authorization could have issued.” [7] For this reason, a microscopic parsing of the ITO may be inappropriate. The ITO must include full, fair, and frank disclosure, but:
…there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual…Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months or even of years. [8]
10Whereas the authorizing justice is asked to consider the probability of finding evidence in a particular place, the review conducted by the trial judge is a possibility analysis – could the warrant have issued on the basis of what was submitted to the issuing justice. The test for review is exacting and permits no variance:
While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer. [9] [emphasis added]
11A defendant may challenge a warrant on its face – do the grounds supporting the warrant meet the test for issuance and/or does the warrant authorize the search that was conducted. [10] A facial validity challenge is fairly simple. The scope of review is fixed: “it is the ITO, not an amplified or enlarged record.” [11]
12Where the reviewing court determines that the search warrant ought not to have been granted because the test for issuance was not met, the search warrant is quashed and the fruits of the warrant become the product of a warrantless search. Unless there is any other lawful basis for the seizure at issue, the court will undoubtedly find a breach of s. 8 of the Charter and have to determine whether or not the seized evidence should be excluded from the defendant’s trial pursuant to s. 24(2). [12]
Overview
13In this case, the Defendants have not alleged fraud, non-disclosure, or an attempt to mislead on the part of the ITO affiant. The argument is uncomplicated: there was an insufficient basis upon which to ground a reasonable belief that evidence of the suspected crimes would be found in the residence allegedly visited by one of the targets of the investigation. From the Defendants’ perspective, the ITO did not establish that the suspect had any association to the actual condo unit that could ground any suspicion (let alone a reasonable belief) that the residence was used to store clothing, firearms, or any other evidence relating to the apparent gang warfare taking place in a different city over the months and weeks leading up to the granting of the search warrant at issue.
14It will be helpful to offer a brief review of the contents of the ITO to assess the cogency of the arguments advanced.
15The police investigation that produced the ITO was extensive and protracted. Various shootings between two apparent Brampton street gangs took place during the five-month period between 24 December 2020 and 01 June 2021. The ITO detailed information learned about the various shooting suspects, their associations, their gang affiliations, and the apparent motivations for retaliatory shootings. The ITO included chronologies of the various shootings, information learned from witnesses, the results of police-computer queries, surveillance, video camera footage, cell tower analyses, cell phone associations, cell phone searches, maps, photographs, criminal histories and outstanding charges, and suspect connections, associations, and rivalries. A complete reading of the ITO provides a solid basis to believe that the offences alleged were serious, on-going, and in one case fatal.
16At least one of the targets of the months-long investigation was Taoviq Ihanza (“TI”), a suspected member of a gang known as “Curb Service.” His brother was shot on 24 December 2020 by members of a suspected rival gang, “Zone 3.” This began a series of related shootings between the two gangs during the indicated timeframe.
17Physical and electronic surveillance of TI took the police to the area of a condo building at 80 Queens Wharf Drive, Toronto. On two occasions police saw TI enter that building. On one occasion a vehicle associated to TI left the underground parking for the building. Police came to believe that TI had likely visited unit #1010 when he first attended the building. Police then learned that the occupants of unit #1010 had been convicted of drug trafficking.
18Given the connection of TI to a street gang that, among other crimes, conducted drug trafficking, police believed that a link between TI and unit #1010 was established. Given TI’s visit to the building on one occasion approximately 12 hours after a shooting on 01 June (an event in which TI was implicated), police believed that it was reasonable to conclude that TI was using unit #1010 to store his firearm, clothing from the various shootings, or his cellular telephone. On this basis, the affiant included condo unit #1010 among several other addresses sought to be searched through the judicial pre-authorization process.
Positions of the Parties
The Defendants
19Counsel for the Defendants take no issue with the ITO generally, or the other addresses included in the ITO for which search warrants were also granted. Instead, issue is taken with the lack of any actual evidence of a connection between TI and unit #1010 or its occupants.
20The Defendants argue that propensity reasoning (once a drug dealer always a drug dealer) and generalized suspicions (as a member of a gang that was involved in guns and drugs TI would certainly associate with the occupants of unit #1010, who were convicted drug traffickers) do not amount to reasonable grounds to believe that TI was using unit #1010 to store anything.
21Another argument was that the large volume of information contained in the ITO essentially camouflaged the absence of reasonable grounds respecting unit #1010. In oral submissions, it was suggested that perhaps the police knew that this was a fishing expedition but included this address into the ITO anyway.
22The Applicants also urged the court to find that the observations of TI at the condo were stale. The last time before the issuance of the warrant that TI had been seen at the building was 01 June 2021.
The Prosecution
23The prosecution took issue with the characterizations of the police observations as weak or stale. Rather, the surveillance evidence and cell phone analysis portrayed a regular connection between TI and unit #1010.
24At all times, submits the prosecution, the affiant was careful to draw legitimate inferences from the investigation and detail the evidence in a compelling way. The experienced issuing justice would not have been misled or duped into including this address just because there were reasonable grounds for other addresses within the ITO.
25The length and content of the ITO were the result of a lengthy investigation of numerous suspects to various shootings and it was appropriate to provide a complete context within which the issuing justice was required to evaluate the strength of the purported beliefs.
[26] The connection between TI and the condo included: i. 21 April 2021 – TI is caught on building security video taking an elevator to the 10th floor; ii. 07 May 2021 – police followed TI to the area of the condo building; iii. 20 May 2021 – TI’s phone was in the area and a vehicle TI used was seen exiting the underground parking; iv. 04 May through 06 June 2021 – TI’s phone connected with cell towers in the area of 80 Queens Wharf Drive 100 times; and v. 01 June 2021 – TI entered 80 Queens Wharf Drive approximately 12 hours after the Tiller Trail shooting.
27The prosecution argued that it was reasonable to infer that TI would carry a firearm for defensive or offensive purposes in light of the on-going gang hostilities. It was also submitted that it was reasonable for the affiant to infer that TI would have a “stash house” for his firearm or other offence-related property given the prior use of a search warrant at his home following his brother’s shooting.
Analysis
28Reasonable grounds to believe is an intermediate threshold of certainty. It is more than a bald suspicion (prejudice), or a reasonable suspicion (which is a state of possibility in respect of a given fact). It is less than proof on a balance of probabilities, yet involves a state of probability. [13]
29An ITO affiant must consider all information presented to her and she cannot disregard information unless it is inherently untrustworthy, unworthy of belief, or known to be false. The information must be reasonably believed. And there is an objective component: The information must reasonably give rise to the stated belief. [14]
30An ITO affiant is entitled to rely on hearsay, proclivities, and personal experience, unless she has a reason to doubt the accuracy or truth of the information. Obtaining reasonable grounds does not demand perfection or even perfect accuracy.
31Like reasonable grounds in other contexts (warrantless searches or arrests), police reliance on imperfect information cannot be faulted unless it was unreasonable to accept the information at face value:
We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [15]
32Though initially there may have been a leap of logic for the security supervisor to suggest which apartment TI may have visited without any proof, once the police knew the background of the occupants of unit #1010 (convictions for drug trafficking), and in light of the information that there were concerns with the number of visitors to the unit, it became reasonable to believe that the presence of TI on the 10th floor was not a mere coincidence. The knowledge of the background of the occupants made it more likely than not that TI went to that apartment.
33Even if it could have been reasonably believed that TI was a regular visitor to unit #1010, there is no evidence suggesting the context of his visits. Was he visiting a friend or relative? Was he selling or buying drugs? Was he staying overnight or momentarily? The police had absolutely no information to provide a basis to believe that unit #1010 was a place with which TI had any significant connection, much less that it could serve as a “stash” house where TI stored evidence of his suspected crimes.
34Even if it could have been reasonably believed that TI had gone to unit #1010 on 01 June 2021 mere hours after the shooting in the early morning, there is nothing to suggest he brought anything that might be evidence to the condo. In fact, in all of the physical surveillance that connected TI to unit #1010 at 80 Queens Wharf Drive, there was not a single observation of him carrying anything to or from the building.
35In saying this, I am not ignorant to the fact that handguns, cell phones, and clothing are easily concealable. However, without direct observations of TI entering or leaving unit #1010, or any other suspicious behaviour associated with his presence at that particular residence, it is speculative at best to suggest that unit #1010 served as a place at which things could be stored or from which things could be retrieved by TI. If the contrary were true, “This would have turned [TI] into walking, ready-made grounds for belief.” [16]
36It must also be remembered that on 21 April 2021, TI had to use the buzzer code to gain entry to the building. It hardly stands to reason that he was so welcomed and frequently a visitor that he would confidently store artefacts of his crimes in a residence to which he did not have unrestricted access.
37Lastly, even if it could have been reasonably believed that on 01 June 2021 TI had visited unit #1010 in possession of a gun used in the shooting earlier that day, what reasonable basis would there be to believe that the firearm or other evidence was likely to remain in that unit indefinitely. The affiant swore the ITO on 18 June 2021. It was as likely that no evidence would be found at the condo 17 days after TI’s last known sighting there as it was that some evidence might be found. This equation of possibility hardly computes to credibly-based probability.
38Perhaps not surprisingly, the affiant spoke imprecisely about the likelihood of finding evidence at unit #1010:
After the shooting at 120 Tiller Trail, Taoviq IHANZA attended this address in the day on June 1st, 2021. I am aware that in the criminal subculture “stash houses” are used to insulate illegal activity and property. It is reasonable that Taoviq may have stored the firearm here as he was concerned police might execute a search warrant on his primary residence of 24 Hubbell Road. I further believe that after the shooting on December 24th, a friend of Taoviq removed firearms from 24 Hubbell Road. It is believable that these firearm [sic] would need to be stored at another address. As this was an address attended after the June 1st shooting it is believable that this could used [sic] as a “stash house”. [17] [emphasis added]
39When viewed in light of the totality of the circumstances, it was entirely aspirational on the part of the police to believe that TI had a significant, on-going connection to the condo and/or its occupants. At its highest, I find that the affiant had a reasonable suspicion that there may be evidence of TI’s offences within unit #1010. In the absence of more inculpatory evidence (items being left at or retrieved from the condo by TI, information about TI’s whereabouts in the days leading up to 18 June 2021, and any actual connection between TI and the occupants of unit #1010), there was nothing to convert the affiant’s reasonable suspicions into reasonable beliefs.
40With the greatest of respect, I am satisfied that there was no basis for the issuing justice to have authorized the search of unit #1010 – 80 Queens Wharf, Drive, Toronto.
Section 24(2) of the Charter
41Having dealt with the Applicant’s arguments concerning the nature of the s. 8 violation and the police conduct leading up to it, I will now turn to whether or not the admissibility of the firearms and related items seized from the condo in the upcoming trials would bring the administration of justice into disrepute.
42The parties agree that the three-prong test from R. v. Grant [18] governs the exclusion of evidence under s. 24(2) of the Charter.
43Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.
[44] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider: i. The seriousness of the Charter-infringing state conduct; ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and iii. Society’s interest in the adjudication of the case on its merits.
45The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” [19]
Seriousness of the Charter-Infringing State Conduct
46This case involves the unauthorized intrusion by the police into a private dwelling. Our common law has long recognized that the privacy interest in one’s home is sacrosanct: “the house of everyone is to him [sic] as his [sic] castle and fortress.” [20]
47There is no evidence of a systemic problem in this case. There is no complaint made respecting any other aspect of the pre-authorization process, the content of the ITO, or the execution of the search warrant. In argument, the Defendants took no issue with any other aspect of the ITO.
48Nor is it alleged that there were any other Charter violations at play. On the contrary, in this case, police sought and received an apparently valid search warrant issued by a superior court judge.
49Also, it must be remembered that the police were attempting to secure evidence that could assist to apprehend those responsible for several shootings and one homicide. This was an extensive investigation that had as its main priority public safety.
50The prosecution urges me to conclude that this factor is neutral, following the analysis in R. v. Herta.
51In that case, the Ontario Court of Appeal overturned a conviction and entered acquittals where a heavily redacted ITO could not support the issuance of the search warrant. Similar to the observations in this case, Windsor police had seen a suspect believed to be in possession of a firearm walking toward a residence one day after a confidential informant had advised them that the suspect was in possession of a firearm.
52In Herta, the ITO suggested that the suspect was living at the address even though he had only been seen walking toward the address once. The court explained its conclusion on the first Grant factor this way:
At the same time, this case involves some sloppy work, specifically around the language that mistakenly suggested that Callahan lived at [information omitted] Clover Avenue. Although I find that there was no intention to mislead the issuing justice, it could have had that effect: R. v. Morelli, 2010 SCC 8, at paras. 99-101. At most, the wording was somewhat careless. It is not so serious, though, that it rises to the level of something from which the court must dissociate itself. There is a human element in what we all do and people can make innocent mistakes. Not everything is deserving of a label.
Accordingly, I conclude that the first Grant factor is neutral in the admissibility analysis. [21]
53That case involved a very intrusive search, the use of sniffer dogs, and the lifting of floor tiles, yet the court assessed the seriousness of the Charter violation as “neutral.”
54In fairness, that court was assessing the significance of police misconduct for the first time on appeal because the trial judge had not found any Charter violation in the drafting of the warrant. Given the factual matrix in that case, the possibility that the poor language may have misled the issuing justice respecting the use of the home as a “residence” for the suspect, and the strong temporal connection between the information received and the warrant issued, I do not consider myself bound by the court’s finding that the seriousness of the unwarranted residential search was neutral.
55Here, reasonable grounds to search unit #1010 were completely absent. However, the search itself was far less intrusive than the one in Herta. On a continuum of severity, I rate this unwarranted search as slightly serious. This factor only nudges toward exclusion of the evidence discovered by police.
The Impact of the Breach Upon the Applicant’s Charter-Protected Interests
56In this case, the Charter violation led directly to the unwarranted intrusion into a residence and the discovery of evidence sought to be used against the Defendants. There is no suggestion that the firearms and other recovered items (including false identification) were otherwise discoverable or that they inevitably would have come to the attention of the authorities. This increases the impact of the Charter violation upon the Defendants.
57The Defendants have not alleged that the execution of the search warrant involved excessive force, property destruction, or other misconduct. The impact of the s. 8 breach is contained (i.e., it is not “compounded”) where the search was carried out reasonably. [22]
58The breach in this case was not trivial, and it was easily avoidable. Further investigation was required before the police could ever seek a warrant for this address. Fortunately, the direct effects of the breach (police intrusion into a home) were short-lived and carried out in an apparently professional manner. [23]
59I find in these circumstances that this factor soundly favours the exclusion of the firearms and related items from the Defendants’ trials.
Society’s Interest in the Adjudication of the Case on its Merits
60In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:
The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [24]
61The prosecution submits that the overall effect of the breach in this case is minimal because good faith efforts were made by the police, the investigation was extremely serious and time-sensitive, and any failure in the pre-authorization process was restricted to the grounds to believe it was necessary to search this particular residence. Otherwise, the ITO as a whole was entirely defensible.
62I agree. I have assessed this breach as slightly serious and the impact upon the Defendants’ Charter protected interests as significant. While it was not intended, this unwarranted search of a residence was entirely foreseeable and preventable.
63The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. The right to privacy in one’s home, remains at the core of protecting the autonomy, liberty, privacy, and security of our residents from the authority of the state.
64However, there is no evidence that the failure of the affiant is long-standing, widespread, or systemic within the Peel Regional Police. To the contrary, it appears that the affiant went to great lengths to advise the issuing justice of all of the salient details of an extensive investigation. I tend to the view that disapprobation of this behaviour by the court is commensurate with the misbehaviour occasioned.
65I do not find that the long-term effect of admitting the firearms and other fruits of the search warrant in the Defendants’ trials, in the circumstances of this case, would bring the administration of justice into disrepute. The affiant missed the mark, but there is nothing to suggest that this was an intentional attempt to subvert the pre-authorization process. It should also be said that in the context of a very lengthy ITO, this failure was not obvious. In fact, the issuing justice also apparently failed to appreciate the shortcomings of the affiant’s beliefs. To the contrary, the exclusion of reliable, crucial evidence that existed independent of the constitutional misconduct would undermine confidence in the justice system.
Conclusion
66Although I have found that the ITO could not have provided a basis for the issuance of a search warrant to search the Defendants’ alleged residence, I am not satisfied on a balance that any evidence ought to be excluded from either of the upcoming trials. For these reasons, the Application is dismissed.
Released: 26 January 2023 Justice G. Paul Renwick