Court Information
ONTARIO COURT OF JUSTICE DATE: December 1, 2023
BETWEEN:
HIS MAJESTY THE KING
— AND —
DEVANTE MOORES
Before: Justice Louise A. Botham
Ruling on: Sections 8, 9 & 24(2) of the Charter of Rights and Freedoms
Counsel: Faiyaz Alibhai & Sara Gardezi …...... for the Public Prosecution Service of Canada Ravin Pillay …………………………….… Counsel for the Applicant Devante Moores
Ruling
[1]
Background
On April 2, 2022, a search warrant was executed at 25 The Esplanade, Unit 2415, 6 Frederick Street and on a white Acura registered to Devante Moores.
2At 1:35 p.m., prior to the execution of the warrant at the Esplanade, Mr. Moores was observed at 25 The Esplanade pulling a covered wagon through the elevator lobby door and entering the residence section of the underground parking area. He was arrested as he approached the Acura. Two duffle bags, containing multiple bricks of cocaine totaling 50 kilograms, were found in the wagon and seized. Mr. Moores was in possession of two sets of keys. One was used to enter Unit 2415, the other to enter 6 Frederick Street.
3The search warrant then executed on Unit 2415, 25 The Esplanade led to a seizure of 139 kilograms of cocaine and 97 kilograms of methamphetamine. Nothing of interest was seized from the Acura and 48,000 in cash was seized from 6 Frederick Street.
4Mr. Moores challenges the issuance of the search warrant and the lawfulness of his arrest, asserting that his s.8 and s.9 Charter rights have been breached. He seeks an order excluding all evidence seized from him and the addresses in question.
[5]
Onus of Proof
He submits that since the Crown bears the onus of establishing the lawfulness of the warrantless search and that search is connected to the searches authorized by warrant, the Crown should also bear the onus of establishing the lawfulness of those searches.
6The Crown bears the onus of establishing the lawfulness of a warrantless search. Where the search is incident to an arrest and the lawfulness of that arrest has been challenged, the Crown also bears the onus of establishing that the arrest itself was lawful, even though ordinarily the claimant would have that burden. See R. v. Gerson-Foster, 2019 ONCA 405 at para 75.
7The Applicant submits that the principle in Gerson-Foster should extend to the issuance of the search warrant in this case. It is submitted that the need to avoid conflicting burdens is equally applicable where the warrantless search is based on the same grounds as those set out in a warrant and where the two searches are conducted in close temporal proximity. As with a Section 9 Charter claim, while the burden on a claimant to establish the warranted search normally resides with an accused Applicant, the need to avoid conflicting burdens and conflicting results strongly favors that the onus reside on one party. Where, as here, the onus is already on the Crown on the same issue, then that onus should remain on the Crown on the determination of the lawfulness of the warranted search. (See para 71 and 72 of the Applicant’s factum)
8I am not persuaded by this submission nor do I accept the analogy put forward by the Applicant.
9The lawfulness of a warrantless search incident to arrest is necessarily connected to the lawfulness of the arrest itself. In this case, a warrant was issued after judicial consideration of the materials set out in the accompanying ITO. It is presumptively valid. The Respondent may rely on some or all of the grounds set out in that warrant to justify the arrest and search of the Applicant and bear the burden of persuasion on that issue but that does not detract from the presumptive validity of the warrant.
10The Applicant bears the onus of displacing the presumption of validity attached to the issuance of the warrant in question. The Respondent bears the onus of establishing the lawfulness of the arrest and subsequent search of the Applicant.
[11]
Challenge to the Search Warrant
I propose first to deal with the Applicant’s challenge to the issuance of the search warrant.
12The ITO used to obtain a warrant to search all three places has been heavily redacted to protect the identities of the confidential sources who provided some of the information relied on by the affiant. The Crown prepared a summary with respect to those redactions. There is one portion of the ITO, Appendix Y that the Crown has not summarized and the Crown is not relying on any of the information contained in that appendix. The Crown does rely on the unredacted information set out in the other appendices and a judicial summary has been prepared.
13The Applicant submits that limited or no weight should be given to the unredacted information in the ITO, given the nature of the judicial summary.
14It is submitted that the judicial summaries are too generic and void of details to allow for a meaningful challenge to the information relied on to support the issuance of the warrant judicial summary. Most specifically, it is submitted that the summaries do not provide sufficient detail with respect to the nature of the redacted information to support a finding that the information provided by the confidential sources was credible, compelling or corroborated by other means.
15In the course of an ex-parte, in camera hearing, I had reviewed the portions of the unredacted ITO that the Crown is relying upon. I was satisfied that the judicial summary was sufficient to allow the Applicant to make meaningful submissions with respect to the adequacy of the ITO. I provided reasons for that decision in my June 27, 2023 ruling.
16I do not disagree that in assessing the adequacy of the ITO I am to consider whether the accused’s inability to directly challenge the redacted potions should affect the weight to be given to those portions. In doing so I am directed to consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it and whether its nature is such that it was susceptible to being challenged in cross-examination. Where I believe that the accused is not sufficiently equipped to challenge certain redactions, then I am not to consider the redacted information.
17There were two confidential sources in this investigation. Confidential source #1, was said to be a carded source registered to a police service in the Province of Ontario. Source #1 had provided information in the past with respect to one project that resulted in seizure of illegal contraband and subsequent arrest being made. Source #1 had provided dated information about a large-scale drug network/group operating in the GTA. This drug network was responsible for distributing cocaine at the kilogram level. The information from Source #1 was dated to between 6 months and 3 years before the warrant was issued. Paragraph 17 to 24 summarizes in generic terms the actual information provided by Source #1 relating to this group. In each paragraph, certain individuals were identified by the Source. Those names have not been disclosed but were provided to the issuing justice.
18The issuing justice was advised with respect to the nature of the information provided by Confidential Source #1, specifically whether first or second hand, the nature of the relationship between the confidential source and the suspect and the recency of the information. The issuing justice was advised with respect to the degree to which individual pieces of information had been corroborated or not. The issuing justice was provided with any facts that might detract from the reliability of Source #1, including whether or not the source had a criminal record.
19The ITO states that within 9 months prior to the issuance of the warrant, Source #2 provided information about a large-scale drug trafficking network in the GTA, said to traffic in cocaine. Source #2 said that this group utilizes drug runners to traffic the cocaine. This information was said to relate to the same network referenced by CS#1. Source #2 did not provide any information about Devante Moores.
20The issuing justice was made aware of whether or not Source #2 had provided information in the past and the nature of that information. In terms of the current information being provided by Source #2, the issuing justice was made aware of whether the information was firsthand or second hand and the basis of the source’s knowledge. The issuing justice was advised as to when the information had been provided. The issuing justice was aware of any factors which might detract from the Confidential Source #2’s reliability or credibility.
21One month within the date that the warrant was issued, Confidential Source #1 provided information about Devante Moores and his connection to one of the individuals previously identified by the source has having been involved in the drug networking group, as discussed in the redacted paragraphs 16 to 24.
22It is this aspect of the judicial summary that the Applicant most strongly urges lacks sufficient detail to allow myself to rely on the unredacted ITO when assessing the sufficiency of the ITO.
23The significance of this paragraph is clear. It provides a link between Devante Moores and an unknown person said to be involved in the large- scale drug trafficking network under investigation. No other details are provided in the judicial summary with respect to what that connection is said to be.
24The Applicant fairly points out that the connection could be incriminating or non- incriminating, based on the summary. Not knowing what is alleged to be the connection, it is submitted that it is impossible to mount a meaningful challenge to the unredacted assertion.
25The Applicant has referred me to the trial decision of R. v. Jama, 2023 O.J. No. 2420, where the reviewing justice found that the judicial summary was not sufficient to provide the Applicant with a foundation to attack the affiant’s view that the confidential sources were credible and reliable or that the information provided was compelling. (see para. 110 to 113).
26As always, every case turns on its facts. I see this case differently.
27In this particular case, I am not persuaded that the Applicant is prejudiced in its attack on the issuance of the warrant by the nature of this summary.
28Although the exact nature of the connection is not disclosed in the summary, it is clear that there was a connection alleged and that the issuing justice was aware of the details. It is clear from the judicial summary that the issuing justice was also aware that there was no corroboration for the assertion. The issuing justice was also aware that no information was provided as to the basis for the assertion, namely whether it was from personal knowledge or simply second hand, rumour.
29Those frailties are clear from the judicial summary and those frailties would have been clear to the issuing justice. Submissions with respect to the frailty of the assertion of a connection can be and were made by the Applicant.
30Standing on its own, regardless of how the connection was described, I think it unlikely that that a warrant to search locations associated with Mr. Moores would have issued, given the frailties that I have already referenced. However that assertion gained credibility as a result of observations of Mr. Moores between March 22, 2022 to April 1, 2022. Ultimately the basis for the belief that drugs would be found at the address in question, arose from the police observations set out in the ITO.
31On March 22, 2022, at 5:37, a male, later identified as Mr. Moores was seen in the underground garage at 25 The Esplanade. He was seen to put a gym bag and hockey bag in the trunk of a car registered to him. He left the car and returned with a blue suitcase which was also put into the car. He drove the car to another area of parking associated with the building and left it there. Fifteen minutes later, he walked to 1 Church Street and met with a male, subsequently identified as David Pham, who was driving a white Dodge Journey. Mr. Pham got out of the car. Mr. Moores got into the car and drove back to where his Acura was parked. He transferred the gym bag and hockey bag into the white Dodge Journey and drove back to Mr. Pham, a distance of some 240 meters.
32Later that evening, at 7:14 p.m., Mr. Moores drove to The Esplanade, just west of Church Street. He parked his car and walked to 1 Church Street again meeting up with David Pham. He got into the white Dodge Journey again and drove back to where he had parked the Acura. He put the blue suitcase in the Dodge and drove back to Mr. Pham, who then drove the car away. The interaction lasted 4 minutes.
33Mr. Pham was then followed to 18 McMurrich Street in Toronto where another unknown male with a satchel entered the front passenger seat. The two men drove around the block and three minutes later, the unknown male left the car and removed the blue suitcase from the vehicle and walked out of sight.
34The Affiant’s characterization of these actions as consistent with someone moving contraband, in this case narcotics, is a reasonable one and certainly an available inference.
35Mr. Moores’ residence was established as 6 Frederick Street, not 25 The Esplanade.
36On March 25, 2022, further surveillance was conducted. Mr. Moores was seen to leave the elevator lobby of 25 The Esplanade with a rolling suitcase and walk towards his car. He was not observed to load the suitcase into his car but he was seen to drive to 1 Church Street where Mr. Pham was waiting in his vehicle. They both drove into an underground parking garage at Colborne Street and Leader Lane, a distance of 290 meters. Three minutes later Mr. Moores left the parking garage and drove to 6 Frederick Street. Eight minutes later Mr. Pham was observed to leave the underground in his vehicle. He drove to 29 Queens Quay East in Toronto and stopped along the curb. Fourteen minutes later, a white Toyota Runner stopped behind him. Both vehicles drove into the underground parking garage for 15 Queens Quay and parked side by side on P2 level. The two drivers spoke, no observations were made with respect to anything being exchanged. Ultimately, Mr. Pham left, drove to 2801 Jane Street and parked. He was observed walking toward a staircase with a rolling suitcase that appeared light.
37A short time after Mr. Moores arrived at 6 Frederick Street, he and another person got into his car and drove to 146 Fort York Boulevard where they entered the underground parking garage. There a second unknown person entered his car and then exited, less than two minutes later. Mr. Moores and the first person then left the garage.
38On March 29, 2022, Mr. Moores was observed to take two full black garbage bags from 25 The Esplanade to 70 Distillery Lane, where he placed the bags in a dumpster which was rolled into an employee only area. He entered that area, together with the male who was wheeling the dumpster. An hour later, he left and drove back to 25 The Esplanade into the underground parking garage. A short time later, he left and drove to 60 Colborne Street. Ten minutes later he was seen leaving that laneway, followed by David Pham back to 25 The Esplanade.
39As a result of a production order and general warrant, it was learnt that Mr. Moores had accessed 25 The Esplanade on March 22, 2022 using two different fobs, both associated with Unit 2415. Neither were in his name. He was not the registered tenant for that unit. Between March 22nd and March 29th one of the fobs was used twice to access level P2 on the parking garage, the other fob was used 53 times to access level P2 on the parking garage.
40As a result of viewing video footage from 25 The Esplanade, Mr. Moores was observed on March 22nd at 12:00 p.m., to enter the parking garage and park in the resident’s section. He was seen to walk away from his car, pulling a wheeled cart loaded with several bags. Twenty minutes later, he was seen to return to his Acura, with an empty wheeled cart. A short time later, he was seen walking back to the elevator with the cart loaded with more large bags.
41As a result of viewing other video footage it was determined that Mr. Moores was accessing Unit 2415. Footage from March 29th showed him at 12:00 p.m., entering elevator #4 empty handed and going to the 24th floor. He can be seen to walk to the right. It was determined that Unit 2415 is located to the right of the elevator. At 12:35 he was seen to enter the elevator from P2 lobby, again empty handed and using elevator #1. At 3:17 p.m., he can be seen to enter P2 lobby empty handed. At 3:29 p.m., he can be observed to leave the P2 lobby with a black garbage bag and walk to visitor parking. At 3:43 p.m., he is seen entering the P2 lobby carrying a large black bag over his shoulder. AT 6:43 p.m., he can be seen entering the P2 lobby with a collapsed dolly and box, he boarded the elevator and hit the button for the 24th floor. At 7:41 p.m., he can be seen entering the elevator on the 24th floor, pushing a dolly with a weighted black gym bag onto the elevator and arriving at P2 level. At 7:46 p.m., he can be seen to take elevator #4 up to the 24th floor.
42Through surveillance and a production order, a connection between Mr. Moores and 25 The Esplanade was developed.
43The behaviour observed on the video footage and through actual surveillance was consistent with someone transporting or delivering drugs. There may well be other innocent explanations for the conduct but the inference sought to be drawn by the Affiant, was reasonable.
44As always, it is important to keep in mind the scope of my role as a reviewing justice. The warrant is presumptively valid. Where the information relied upon to obtain the warrant can be fairly said to provide a basis for the issuing justice to conclude that there were reasonable grounds for the issuance of that warrant, that presumption is not displaced.
45This is not a case where the grounds to issue the warrant emanated solely or largely from the information provided by the confidential source.
46The assertion of a connection between the Applicant and a member of a GTA drug operation came from a carded informant who had proven reliable in the past. It created a suspicion about Mr. Moores. The surveillance of Mr. Moores lent credence to that suspicion.
47There were observations by the police of behaviour which was consistent with someone involved in drug trafficking. That behaviour was associated with Unit 2415 at 25 The Esplanade. His repeated attendance at that address and his connection to a unit in that building for which he seemingly had no legal connection could support an inference that he was using that address to assist in that criminal conduct. It was reasonable, given the police observations and the conduct captured on the building video surveillance to conclude that items were coming in and out of the unit in the building for which he had 2 fobs.
48The fact that a reliable source had connected him with a member of a large-scale drug operation together with his observed actions provided a basis to believe that the activity he was engaged in was drug related and that drugs would be found in Unit 2415.
49I am satisfied that there was a basis for the issuing justice to determine that there were reasonable grounds to believe that controlled substances and related material would be found at the addresses in question and the Applicant’s automobile.
[50]
Handler Misconduct
The Applicant submits that even if there existed a basis for the issuance of the warrant, those grounds would have been weakened by the disclosure of an incident of misconduct on the part of the handler for Confidential Source #1.
51The officer had been found guilty of professional misconduct when he failed to keep notes with respect to an arrest from 2016.
52The Affiant was cross-examined on his failure to include this information in the ITO. He has testified that he became aware of the finding of professional misconduct after he had prepared the ITO and the search warrant had been executed. He testified that had he known, he would have personally reviewed the handler’s notes to satisfy himself that the information being provided was accurate and he would have advised the issuing justice of the finding of misconduct. It was his evidence that he had followed that process in a subsequent unrelated ITO.
53The Applicant submits that this finding of misconduct, casts doubt on the reliability of the handler as a conduit for the information coming from confidential source #1 and affects the weight that can be given to the source information.
54Clearly the handler should have notified the Affiant about the finding of misconduct or that there was an outstanding charge of misconduct, if the matter had not concluded at the time the ITO was prepared. I also think that the Affiant should have notified the prosecutors when he learnt of the issue, even though the warrant had already been issued and he should have recorded the circumstances surrounding his discovery of the misconduct.
55However the real issue is whether the inclusion of that information would, as asserted by the Applicant, have affected the weight given to the source information in this case.
56The misconduct was from 2016. It involved a failure to note an interaction with a member of the community, who had been arrested and then released without charges.
57It is impossible of course to speculate on how the issuing justice would have reacted, had that information been included in the ITO. I can say that it would not have changed my belief that there were reasonable grounds to issue the warrant.
58The defence has not established an infringement of s. 8 with respect to the issuance of the search warrant in this case. I can also say, had I been persuaded that the Crown should bear the onus of establishing that the warrant was lawfully issued, I would have been satisfied that they had met their onus.
59The Application to exclude the results of the search of 25 The Esplanade, the car and 6 Frederick Street is dismissed.
[60]
Lawfulness of the Arrest
The Applicant seeks an order excluding from evidence those items seized as a result of his arrest on April 2, 2022. It is his position that his arrest was unlawful and therefore there was no authority to search either his person or the wagon that he was removing from 25 The Esplanade.
61Police are entitled to search a lawfully arrested person and seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape or provide evidence against them. (Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 180-81). The search must be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest and it must be conducted reasonably. The police do not need reasonable and probable grounds for that search incident to arrest, they only require some reasonable basis to do what they did. (R. v. Caslake, [1998] 1 S.C.R. 51, at para. 19 and 20).
62A lawful arrest requires that the arresting officer have subjective reasonable and probable grounds to believe that an offence has been committed and those grounds must be justifiable from an objective viewpoint.
63I am satisfied on the facts of this case that both standards have been met.
64On April 2, 2022, a warrant had been granted to search Unit 2415 at 25 The Esplanade Avenue. It was believed that Devante Moores was moving drugs in and out of that unit, as well as storing them there. The warrant also authorized the search of his motor vehicle and his personal residence. The search of those areas was to occur between 1:27 p.m. and 6:00 p.m. on April 2, 2022.
65Officers were organized to execute that warrant. DC Chant the arresting officer was one of those officers. He arrived at 25 The Esplanade at 1:15 p.m.
66When he arrived, he observed the Acura believed to belong to Mr. Moores parked in the resident parking section. He determined that if Mr. Moores was observed moving controlled substances from the building, they would arrest him and execute the warrant.
67The Acura was parked in the residential parking garage, close to the garage door. He parked fairly close to the driver’s side of the Acura and waited. At 1:53 p.m., he saw Devante Moores exit the elevator lobby pulling a wagon with handle and wheels. There was something in the wagon. It was higher than the side of the wagon and covered with a blanket. He believed that Mr. Moores was using the wagon to transport narcotics to his car.
68He approached Mr. Moores and took him to the ground. He was assisted in doing so by two other officers. He identified himself as a police officer and told him he was under arrest for possession for the purpose of trafficking and that a search warrant would be executed at various places associated with him.
69He did not provide him with RTC, he understood that other officers did so.
70He searched him and found a key fob for the Acura and two sets of keys in the right side of his jacket, as well as other items. All were seized.
71He then searched the wagon being pulled by Mr. Moores. There was a black duffel bag and a green duffel bag. He opened both and observed what he believed to be cocaine. He then searched the Acura. He maintained custody of everything that he seized.
72The arresting officer had been involved in some surveillance of Mr. Moores. He was aware through ongoing briefing meetings that it was believed that Mr. Moores was involved in the distribution of narcotics. He was aware that Mr. Moores had been seen in the past transporting containers from the building and then managing those containers in a way that he believed was consistent with drug trafficking. He was aware of the contents of video footage which also supported his belief that drugs were being moved in and out of the premise at 25 The Esplanade. He was aware that Mr. Moore was the target of the investigation and believed to be connected to the unit for which the warrant had been issued.
73He was also aware that the belief that the location was being used to store drugs had been accepted by a judicial officer as a basis to issue a warrant to search that premises as well as Mr. Moores’ home and car.
74I am satisfied that the officer’s subjective belief that the items being taken by Mr. Moores from the building were drugs was objectively reasonable, given the evidence before me.
75I am satisfied that the officer had reasonable and probable grounds to arrest Mr. Moores for possession of a narcotic for the purpose of trafficking.
76The officer had reasonable grounds to believe that the Unit at 25 The Esplanade was being used to store drugs, given the observations of himself and his fellow officers. He had information that Mr. Moores was not only connected to that unit but that he had been observed in the past moving items in and out of that unit, in a way that was consistent with the distribution of narcotics. It was completely reasonable to search the wagon to secure evidence. The search was carried out in a reasonable manner.
77The Crown has met its onus and established that the arrest was lawful and the associated search incident to arrest was lawful. I can find no beach of Mr. Moores’ Charter rights The application to exclude the results of that search fails as well.
Released: December 1, 2023
Justice Louise A. Botham