ONTARIO COURT OF JUSTICE
Date: 2024-12-20 Court File No.: CR-22-28108309
B E T W E E N :
HIS MAJESTY THE KING Respondent
— AND —
ZHONG ZHANG Applicant
Before: Justice K.A. FILLIER
Heard on: March 19, 20, April 8, 24, June 27, July 8, 29, September 24, October 16
Reasons for Judgment on Charter Applications [1]
Counsel: Mr. D. Wilson, for the Respondent/Crown Mr. R. Rusonik, for the Applicant/Accused
Introduction
1Mr. Zhong Zhang was arraigned before me on February 8, 2024, on charges of possession for the purpose of trafficking fentanyl and possession for the purpose of trafficking cocaine. He plead not guilty.
2At the outset of the proceedings, counsel for Mr. Zhang made clear that the outcome of the case would turn on the result of a Section 8 “Garofoli” challenge to several judicial authorizations. He advised that if unsuccessful on the Section 8 Application, Mr. Zhang would otherwise concede the Crown’s case and invite verdicts of guilty, preserving his client’s right to appeal these rulings.
3As the Section 8 Garofoli Application unfolded, two other Applications were brought on behalf of the Applicant – namely, an Application to stay the proceedings pursuant to section 24(1) of the Charter for a violation of 11(b), and an Application to stay the proceedings for a violation of section 7 of the Charter alleged to have arisen owing to the “Affiant’s failure to make notes in relation to his preparation of the Informations to Obtain in the matter.” [2]
4These reasons provide my analysis and findings on all three applications beginning with the 11(b) Application, then the Garofoli, and finally the Section 7.
Application #1 – Section 11(b) Charter Application
Positions of the Parties
5The Applicant argues that a violation of his section 11(b) rights arose when the Crown was not in a position to complete final argument on the scheduled completion date for hearing of the Garofoli Application on July 30, 2024. He submits that had the matter completed as scheduled, no infringement would have occurred. However, he argues that the Crown’s request for additional time, which ultimately led to a continuation date of September 24, 2024, lead to a violation of his right to be tried within a reasonable time.
6The Crown submits that there has been no violation of the Applicant’s rights under 11(b) of the Charter. He says that the adjournment of the proceedings from July 29, 2024, to September 24, 2024, was due to the last minute filing of the Applicant’s Application to stay the proceedings under 24(1) for the alleged Section 7 violation. On a detailed assessment of the entirety of the case the Crown argues that a total of 8 months and 22 days is attributable to the defence. The Crown argues that the 11(b) Application should be dismissed.
The Law
7Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. In the seminal case of R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada created the framework to be applied in assessing whether cases have been tried within a constitutionally acceptable timeframe. In the provincial court the ceiling for matters to be completed is 18 months. If the anticipated end of trial, minus defence delay, exceeds the ceiling, then the delay is presumptively unreasonable. The onus then shifts to the Crown to establish exceptional circumstances to justify the delay. Should the total delay, minus defence delay and exceptional circumstances fall below the presumptive ceiling then the onus is on the defence to show that the delay is unreasonable.
8Calculation of the presumptive ceiling begins from when the charge is laid and runs to the actual or anticipated end of trial – this is considered the total delay. Delay attributable to the defence is subtracted from the total delay. Defence delay can be waived (either explicitly or implicitly) or caused by the conduct of the defence. Delay can be attributed to the defence where is solely or directly has caused the delay. Furthermore, to attribute delay to the defence does not require the whole period of delay to have been entirely caused by the defence – this is assessed on a case-by-case basis. The Supreme Court of Canada made clear in Jordan, supra, that all participants are required to take proactive steps to prevent unnecessary delays.
9In R. v. Grant, 2022 ONCA 337, the Ontario Court of Appeal held that where an adjournment is caused by the defence, depending on the circumstances, account should be taken not just of the delay between the original start date for the matter to the new start date, but also to any “ripple effect” arising from the adjournment. In Grant, supra, where the defence-caused adjournment of the preliminary hearing resulted not only in delay to a new date, but also a longer hearing because the hearing could no longer be held on consecutive days (thereby lengthening the hearing) it was appropriate to deduct the delay right through to the end.
History of the Proceedings
10On December 29, 2022, Durham Regional Police Service (“DRPS”) arrested the Applicant for possession for the purpose of trafficking as he exited a residential building at 15 Fort York Boulevard in Toronto. When he was searched incident to arrest over 2 kilograms of methamphetamine packaged in clear Ziploc bags and 13 grams of cocaine packaged in a small Ziploc bags were found in a grey satchel he was carrying. He was also in possession of a cell phone, and both the fob and keys associated to unit 2808-15 Fort York Boulevard. Later that day police executed a CDSA telewarrant to search the residence at 2808 – 15 Fort York Boulevard and a white Hyundai associated to Mr. Zhang. Located in Unit 2808 were the following:
(a) Heroin (1,013.96 grams) (b) Cocaine (6,051.5 grams) (c) Methamphetamine (8,093 grams) (d) Fentanyl (3,276 grams) (e) Benzodiazepine (798.53 grams) (f) $110,140 in Canadian currency (g) Several kilos of cutting agents
11The Applicant was ultimately charged with seven counts of possession for the purpose of trafficking contrary to section 5(2) of the CDSA and possession of proceeds of crime over $5000 contrary to section 354(1)(a) of the Criminal Code of Canada. The Information was sworn on December 30, 2022, and the Applicant was released on bail January 5, 2023.
12Between March 17, 2023, and April 28, 2023, the Crown provided substantial disclosure. By the Spring of 2023 Applicant’s counsel had apparently communicated that the sole issue to be litigated in respect of the case was a Garofoli challenge to several judicial authorizations. On May 10, 2023, a Judicial Pre-trial was conducted during which time a litigation schedule was agreed upon. On May 29, 2023, the following dates were set on record for the Garofoli Application to be heard:
(1) February 8, 2024 (2) March 5, 2024 (3) March 19 and 20, 2024 (4) April 8, 2024 (5) April 24, 2024
13February 8, 2024, was originally scheduled to be a disclosure motion. However, after arraignment Applicant’s counsel advised that the disclosure issues had been essentially resolved. On March 5, 2024, the parties appeared before this Court and advised that despite the day having been set aside, the Applicant was not in a position to argue the Application to Cross Examine the Affiant. Counsel indicated that he had completed the first draft of the application to cross-examine the previous evening and that the application to cross-examine was going to be “quite extensive” – he proposed that the Application for Leave to Cross-examine be argued on the 19 and 20 “as originally anticipated.” [3]
14On March 13 at 11:30 pm counsel for the Applicant electronically filed a 743 page “Application for Leave to Cross Examine the Affiant” which included a combined Notice and 96-page Factum proposing 18 areas of cross-examination. I note that this filing was three business days before the scheduled date for hearing on the 19.
15On March 19, 2024, at the start of the day this Court raised the concern that there had been no Section 8 Garofoli Application filed against which the application for leave to cross examine the Affiant could be considered. In response, and while the matter was being addressed in Court, the Applicant emailed to the Clerk of the Court an “Anticipated Notice of Application Pursuant to Section 24(2) of the Charter of Rights and Freedoms to Exclude Eidence for Breach of the Applicant’s Rights as Protected by Section 8 of the Charter of Rights and Freedoms”. The proviso on the “Anticipated Notice of Application” was that it was “to be amended as necessary upon the completion of the Application to Cross-Examine, the cross-examination allowed, and all defence evidence.” To characterize the “Anticipated Notice of Section 8 Application” as a bare bones notice would be an overstatement. It alleges that the Affiant was not “full, fair and frank” rendering the entirety of the Informations to Obtain (“ITO”s) unreliable without any specific detail. I note that no other Section 8 Garofoli Application was filed ever in this case.
16As for the Respondent’s materials, those were filed electronically on March 18, 2024, at 9:12pm. They were forwarded to this Court the morning of March 19 (some 8 minutes before court began at 9:30am) and were more than 450 pages in total.
17On March 19 some time was spent addressing the issue of standing and whether the Applicant even had standing to challenge many of the ITOs. The matter was then adjourned to March 20 to hear fulsome submissions on the Application for Leave to Cross Examine the Affiant. On March 20, Applicant’s counsel argued the leave to cross application up until about 3:20 pm when the Court had to break due to an emergency. The matter was remanded to April 8 for counsel to continue submissions on the leave to cross. As of March 20, 2024, the Crown was opposed to any cross-examination of the Affiant.
18On April 8, 2024, the case resumed, and the Applicant continued making arguments on leave to cross examine the Affiant. After the luncheon recess, the parties advised the Court that they had reached an agreement whereby the Crown would consent to cross-examination of the Affiant on 9 of the proposed 18 areas originally sought. Mr. Rusonik indicated that he was “reserving, depending on the outcome of the cross- examination, the right to ask to expand to areas 1, 2, and 4.” The matter was then adjourned to April 24 for cross-examination of the Affiant.
19On April 24 the Affiant was cross examined by defence counsel for the entire day on the areas upon which the parties had agreed. At the conclusion of that cross- examination Mr. Rusonik indicated he wished to make further argument on leave to cross in respect of the other remaining areas. The matter was adjourned to the 27 of June for that purpose. On June 27 the parties appeared before the Court but due to an ongoing serious sexual assault case with a vulnerable victim, Mr. Zhang’s matter could not proceed. July 8 was set for the argument on the further leave to cross examine, and time was earmarked on July 18 for further cross-examination if permitted. The previously set dates of July 29 and 30 continued to be preserved for final argument.
20On July 8 I heard further argument on leave to cross examine the Affiant. Given the time constraints I advised the parties I would be able to provide my bottom line only with reasons at a later date. On July 15 the parties were notified that I would not be permitting further cross-examination.
21On July 21, counsel for the Applicant wrote to the Judicial Secretaries inquiring when reasons would be provided, indicating they were necessary for the purpose of making final submissions on the Garofoli. On July 23, my reasons for denying any further cross-examination were emailed to all counsel.
22Three days later, on July 26, 2024, a mere three days before the final argument on the Garofoli was set to be heard, the Applicant filed a new Application to stay the proceedings under section 24(1) of the Charter for an alleged violation of his rights under Section 7, which was 260 pages consisting of a detailed Notice and caselaw. Furthermore, on the 29 of July during oral argument, Applicant’s counsel raised yet another new issue during argument about the facial validity of one of the ITOs.
23After hearing argument from Applicant’s counsel on July 29, 2024, the Crown asked for time to respond in writing given the new issues raised. Applicant’s counsel did not object to the adjournment and the matter was set return on September 24, 2024, for any final questions from the Court. I note that the parties were advised that I was unavailable after July 30 until September 9, 2024. Ultimately the 24 of September was agreed upon.
24On September 16, 2024, the Applicant filed a section 11(b) Application in writing. This was the first time that a delay concern had ever been raised by the Applicant.
Analysis and Conclusion
25The basis for the Applicant’s claim of an 11(b) violation is quite narrow – he argues that the Crown should have been able to complete final argument on July 30, 2024, and its failure to do so violated his right to be tried within a reasonable time. In my view, this position is without merit.
26Firstly, I find that it was the way Applicant’s counsel proceeded throughout the litigation that was the cause of any delay. Voluminous materials (in the ordinance of hundreds of pages) were filed with virtually no notice in advance of scheduled motion dates, well outside the timeframes by the Ontario Court of Justice Rules and well- established practice directions. The Crown and the Court proceeded in addressing the Applicant’s motions in each instance, despite the Crown having been provided with next to no time to respond and this Court with minimal time to prepare.
27Second, the insistence that the Applicant’s last-minute section 7 Application should have been somehow forecasted by the Crown when further cross-examination of the affiant was denied is difficult to comprehend. In his section 7 materials the Applicant writes:
The Application to stay was a perfectly reasonable response to Your Honour’s decision to not allow further cross-examination to ground a Section 24(2) application. It was, as the Supreme Court put it in Jordan, an example of “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and was not “frivolous.” It is simply a way to frame the constitutional violation involved based on the evidence that is available in support of it after being denied the opportunity to create a further basis for a Section 24(2) application pursuant to Shivrattan and Green.
28To be clear, the Applicant has no constitutional right to cross examine an affiant in order to create the basis for a Charter application. Once further cross-examination was denied, the Applicant had the entirety of the evidence he was ever going to have with which to mount his final argument on the Section 8 Garofoli. It can hardly be said that the Section 7 Application filed three days before the day set for final argument could have been anticipated by anyone.
29And finally, the transcripts from July 29, 2024, reveal that the Applicant took no objection to the Crown’s request for time to respond to the newly raised issues, nor should he have. It was entirely reasonable and appropriate for the Crown to be given time to respond thoughtfully and with time to prepare. The notion raised in oral argument that it was somehow incumbent on Crown counsel to stay up all night on the 29th to respond on the 30th of July is completely unreasonable. In my view any delay occasioned in this matter after July 29 falls entirely at the feet of the Applicant. The Application for 11(b) relief is dismissed.
Application #2 – The Garofoli Challenge
Positions of the Parties
30The Applicant argues that as a result of the Affiant’s failure to be full, fair and frank throughout a series of judicial authorizations, the warrant(s) executed which led to the seizure of evidence against violated his right to be free from unreasonable search and seizure and cannot be upheld as constitutionally valid. In the result, he argues, all the seized evidence must be excluded.
31In response, the Crown argues that the Applicant does not have standing to challenge the vast majority of the impugned Judicial Authorizations. For those where the Applicant does have standing, the Crown submits that no section 8 violations have been established and the Garofoli application should be dismissed.
Background of the Investigation and The Warrants
32In 2022 Police received confidential human source information that a man named Dane Goodwin was trafficking fentanyl in Oshawa. Based on this information an investigation entitled “Project Verdin” began. As the investigation unfolded several individuals became suspects in drug trafficking connected to Dane Goodwin. Throughout Project Verdin several ITOs were sworn in support of six Judicial Authorizations dated:
(1) October 24 (in support of issued on October 25 for A tracking warrant for a Dodge Ram truck operated by Dane Goodwin) (2) November 3 (A tracking warrant issued on November 3 for a Mercedes being operated by Anthony Borges and a Transmission Data recorder for the phone being carried by Dane Goodwin) (3) December 7 (For A Production Order for Video Recordings, Fob records, and tenant information in respect of a condo unit associated to Somlack Litthimane at 21 Scollard Street in Toronto between October 20 and December 7, 2022 AND a tracking warrant for a Mercedes operated by Somlack Litthimane) (4) December 19 (For the extension of Tracking warrants for the vehicle of Dane Goodwin and Anthony Borges, and a Transmission Data Recorder and Assistance Order regarding a cell phone being carried by Dane Goodwin) (5) December 29 (Production Order for Video recordings, Fob records and tenancy information associated to Zhong Zhang at the address of 15 Fort York Blvd. in Toronto between December 22 and December 29, 2022 ) (6) December 29 (Telewarrant to search 2808 – 15 Fort York Blvd and a White Hyundai associated to Zhong Zhang).
33Detective Constable Paul Troccoli was the Affiant for each of the aforementioned ITOs. There is no dispute that Mr. Zhang, the Applicant, is not mentioned in any ITO until December 29, 2022. Again, the Applicant argues he has standing to challenge ALL of the ITOs, whereas the Crown submits that he only has standing to challenge the judicial authorizations from December 29, 2022, wherein he has a reasonable expectation of privacy.
The Law on Standing
34At the outset of the litigation in this case it can fairly be said that there was some uncertainty in the law regarding excision of unconstitutionally obtained evidence from an ITO where the party seeking excision is not the subject of the Charter violation. In Guindon, 2015 ONSC 4317, Justice Byrd held that erroneous material should be excised from an ITO even where the Applicant has no personal interest in the information. Guindon, supra, however, seemed to be in conflict with the Ontario Court of Appeal decision in R. v. Chang, 173 C.C.C. (3d) 397, wherein the Court held that to allow a litigant to challenge a judicial authorization where he or she did NOT have a reasonable expectation of privacy would result in a totally unworkable and unprincipled approach that would permit scrutiny of judicial authorizations going backwards with no end in sight. Observing this conundrum in the law in the recent decision of R. v. El-Zahawi and Chung, 2024 ONSC 122, Justice DiLuca observed (at footnote 30):
The defence seeks a finding that Mr. Sliwinski’s phone records were unlawfully obtained under this production order. There is an interesting issue regarding Mr. El-Zahawi’s standing to allege that Mr. Sliwinski’s phone records were unlawfully obtained. The caselaw on standing for the purpose of excision is deeply divided, see inter alia, R. v. Kang, R. v. Colegrove, 2022 NSSC 132, R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), R. v. Shayesteh (1996), 111 C.C.C. (3d) 225 (Ont. C.A.), R. v. Guindon, 2015 ONSC 4317, R. v. Hamid, 2019 ONSC 5622, R. v. Vickerson, 2018 BCCA 39, R. v. Brounsuzian, 2019 ONSC 4481, R. v. Abdullahi, 2014 ONSC 6036. I need not decide this issue as I am amply satisfied that the ITO sets out a sufficient basis upon which Mr. Sliwinski’s phone records could be obtained.
35On September 10, 2024, the Ontario Court of Appeal released its decision in R. v. Maric, 2024 ONCA 665 which, in my view, provides a complete answer to the issue of standing in this case. In Maric, supra, the Appellants had argued at trial that they should also benefit (by way of excision from judicial authorizations) where the Court found a violation of someone else’s Charter rights. This argument was rejected by the trial judge and on appeal, the Court (under the heading “Excision for One is NOT Excision for All) stated as follows:
180In his application, Mr. Brounsuzian argued that the information obtained as a result of the searches of Unit 3802 should also have been excised in Mr. Brounsuzian’s case. As discussed above at para. 94, the application judge held that an accused is only entitled to excision from an ITO of evidence unconstitutionally obtained if that evidence was obtained as a result of a violation of their personal Charter rights. Per the application judge, Mr. Brounsuzian was not entitled to excision of this information from the June 27 ITO because it was obtained as a result of the breach of Mr. Maric’s Charter rights.
181We see no basis to interfere with the application judge’s refusal to excise the police observations of the empty reusable Metro grocery bag and Nike shoebox found inside Unit 3802, which linked Mr. Brounsuzian to Mr. Maric.
182We agree with the application judge that this court’s decision in Chang is the leading authority. Mr. Brounsuzian suggests that while Chang precludes someone from relying on non-accused third parties’ rights for excision, the decision does not go so far as to prohibit reliance on the breach of a co-accused’s rights, where the issue has been or is to be decided in that same proceeding. In support of his position, Mr. Brounsuzian relies on several lower court decisions, including R. v. Guindon, 2015 ONSC 4317; R. v. Hamid, 2019 ONSC 5622, 448 C.R.R. (2d) 198; and R. v. Colegrove, 2022 NSSC 132, 511 C.R.R. (2d) 171.
183The lower court cases cited by Mr. Brounsuzian are not determinative. Indeed, a competing line of trial-level jurisprudence takes issue with the proffered cases: R. v. Singh, 2024 ONSC 1302, at paras. 134-147; R. v. Frenn, [2021] O.J. No. 2511 (O.C.J.), at para. 49; R. v. Ritchie, 2016 ONSC 1092, at para. 49; R. v. Kang, 2020 BCSC 1151, at para. 197. The cases relied upon by Mr. Brounsuzian are not binding on this court and sit uncomfortably against the appellate jurisprudence on this subject.
184As this court explained in Chang, where there is no evidence that impugned information was obtained as a result of a breach of the accused’s personal Charter rights, there is no basis for excision: Chang, at paras. 35-41. Said otherwise, the enforcement of Charter rights must be personal to an accused. As the Supreme Court held in R. v. Edwards, [1996] 1 S.C.R. 128, 26 O.R. (3d) 736, the Charter protects people and not places: Edwards, at para. 45. Put simply, as Mr. Brounsuzian had no reasonable expectation of privacy in Unit 3802, he did not have standing to challenge the search conducted there, nor seek a remedy: Edwards, at para. 51; R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 44; R. v. Rahey, [1987] 1 S.C.R. 588, at p. 619.
185In the cases relied upon by Mr. Brounsuzian, the courts seem to have been motivated by the view that the police should not be able to benefit from unlawful conduct, thereby limiting the application of Chang to those cases where the reviewing judge would have to conduct a discrete inquiry into the alleged breach of third-party rights: Guindon, at paras. 4, 6; Hamid, at para. 48. In our view, this conflicts with our jurisprudence on standing, and with the basic principle that Charter enforcement is limited to the applicant's personal rights.
186Accordingly, we see no error with the application judge’s conclusion that this court’s decision in Chang limits automatic excision to information obtained in breach of an accused’s personal Charter rights. Chang was binding on the application judge and he was required to follow it. Furthermore, Chang is a decision of three members of this court. Only a panel of five judges of this court can overrule Chang, but the appellant did not seek the appointment of an enlarged panel. Therefore, it would not be appropriate for us to revisit the outcome in Chang.
36Applying Maric, supra, I find that the Applicant has no standing to Challenge the ITOs other than the two that were sworn in support of both the Production Order and the Search warrant on December 29, 2022 wherein he clearly has a reasonable expectation of privacy.
The December 7, 2022 ITO Re Scollard
37In reaching my conclusion on standing I have also considered the argument made by the Applicant that the December 7 ITO sworn in support of a production order for records, including surveillance video, at a condominium located at 21 Scollard Street in Toronto. Counsel for the Applicant argued that this Judicial Authorization was qualitatively different since its execution led police to images of Mr. Zhang who was observed on CCTV footage within the common areas of the condominium. At the time of drafting, Somlack Litthimane was the target of the production order as police believed he was connected to the address. After reviewing the CCTV footage obtained as a result of the execution of the production order, police identified Mr. Zhang as an associate of Somlack Litthimane and as someone who had met with Dane Goodwin on previous dates during the investigation. Counsel for the Applicant argued that the seizure of Mr. Zhang’s images during the execution of the Production Order amounted to a seizure of his “lifestyle and biographical information” over which he has a reasonable expectation of privacy, thereby giving him standing to challenge the production order. I disagree.
38In R. v. Nguyen, 2023 ONCA 367, the Ontario Court of Appeal was faced with a similar argument to the one made by the Applicant here. In dismissing the Appeal, the Court in Nguyen, supra, made clear that even residents of a condominium do not have a reasonable expectation of privacy in all common areas. Applying the requisite contextual analysis in this case, I do not agree that the Applicant had a reasonable expectation of privacy in the publicly accessible and common areas of the building at 21 Scollard Street from which his image was obtained.
39The review of the seized video captured Mr. Zhang in the areas of the main entrance to the building, the lobby and the elevators – all publicly accessible parts of the building. The main entrance and lobby of 21 Scollard are publicly accessible, glass walled, and covered by non-covert cameras which were totally unconnected to police. The elevators, though less visible, are also a highly accessible common area of the building with non covert cameras not installed by authorities.
40On the record before me, there is no evidence establishing what connection the Applicant has to 21 Scollard street. The information obtained by police in this case is analogous to the case of R. v. Saciragic, 2017 ONCA 91 wherein the Court of Appeal found there was no reasonable expectation of privacy in one’s municipal address. I am not persuaded that Mr.Zhang’s privacy interests were engaged and he does not have standing to challenge the December 7 ITO.
The Law – Garofoli
41Search warrants under s. 487 and production orders under s. 487.014 are issued based on “reasonable and probable grounds”. This standard requires “credibly based probability”.
42The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, [1990] 1 S.C.R. 241. An officer is entitled to rely on training and experience assessing grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 117 C.C.C. (3d) 193 (ONCA). An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465. The obligation to make full, fair and frank disclosure is heightened by the ex-parte nature of search warrant proceedings.
43The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant or production order. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established, see R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.). An issuing justice is, however, permitted to draw reasonable inferences from stated facts, see R. v. Nero, 2016 ONCA 160. An affiant need not underline the obvious, see R. v. Vu, 2013 SCC 60.
44On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant or production order. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the authorization, see R. v. Araujo, [2000] S.C.R. 992 and R. v. Sadikov, 2014 ONCA 72.
45The review is conducted based on the whole of the ITO, using a common-sense approach sensitive to all of the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant, see R. v. Morelli, 2010 SCC 8.
Analysis and Findings
46As I have already noted, the Affiant was cross-examined at length by the Applicant with the agreement of Crown counsel. Were I asked to rule, I would not have permitted the majority, if any, of the cross-examination. The transcript of the Affiant’s testimony reveals that out of an entire day only one issue related to the Applicant and the warrants he has standing to challenge. That issue was the Affiant’s failure to include in the December 29 ITOS that Mr. Zhang has no criminal record, that he had a vehicle registered in his name (and therefore was not trying to conceal his identity from police), and that there were no CHS tips about him. In answer, the Affiant testified that he didn’t include it because Mr. Zhang owned a car with one Steven Wong who was arrested for drug trafficking. My interpretation of his position was that he thought it would somehow be more balance to not include any of that information. He also indicated that during the course of writing the various warrants during Project Verdin he refrained from including anyone’s criminal record. He stated that he “generally doesn’t put a person’s criminal record and instead let’s the observations set out in the ITOs speak for themselves.
47The Affiant was also cross-examined about the observations he made of Mr. Zhang at 21 Scollard Street in the common areas after execution of the production order. Counsel sought to illustrate that the Affiant had mischaracterized what the videos showed. The Affiant testified that he did not watch the videos during the preparation of the ITOs but had relied on a report of his colleague, Constable Payne.
48Throughout the proceedings counsel for the Applicant has repeatedly asserted that they are pursuing a finding that the Affiant overall is incredible, dishonest, and unreliable and therefore the ITOs violated Mr. Zhang’s Section 8 right to be free from unreasonable search and seizure. The Applicant asserts that this argument flows from the Ontario Court of Appeal’s jurisprudence in two cases – Shivrattan and Green.
49In R. v. Shivrattan, 2017 ONCA 23, [2017] OJ No. 210, the Court of Appeal quashed a conviction and remitted a matter back for trial after finding the trial judge erred in law in refusing to allow the defence to cross-examine the affiant of a search warrant. On the Section 8 (which involved a heavily redacted ITO with CI information and a resort to Step 6) application at trial the defence presented evidence of a witness (Dooman) that on it’s face appeared to undermine the assertions of the affiant about his conversations with said witness who he had suggested corroborated a CI. Despite this showing, the trial judge refused to allow cross-examination. In finding in favour of the Appellant, Doherty J. wrote at paragraph 40:
The trial judge misconstrued the purpose of the proposed cross- examination of the affiant on para. 12(a). The cross-examination did not seek to demonstrate that the CI did not exist or that the CI had not given information to the affiant. The cross-examination aimed to undermine the affiant’s assertion that Dooman had corroborated the CI’s story. The existence and quality of any corroboration of the CI was important to the warrant’s validity.
50Doherty J. found that there was a realistic possibility that had cross-examination been permitted the reviewing judge may have determined certain information should be excised and the validity of the warrant would then have been an open question.
51In R. v. Green, 2015 ONCA 579, [2015] OJ No 4428, the Court of Appeal dismissed an appeal wherein the Appellant had been refused leave to cross-exam the affiant of a search warrant at the Appellant’s residence. The Court held that it was within the trial judges’ discretion to refuse to allow cross-examination.
52In the case before me, what the Applicant really seeks to do is have this Court rely on the cross-examination of the Affiant on ITOs which the Applicant has no standing to challenge to conclude he is overall incredible and then invalidate the December 29 warrants on the basis that the Affiant is just not a credible witness. There is nothing in either Shivrattan or Green that would suggest a party claiming a Section 8 violation in respect of a warrant or production order has the right to attack an Affiant’s credibility writ large using anything and everything available. To the contrary. Both cases arose based on challenges to judicial authorizations in which the accused had a privacy interest. The Applicant has repeatedly seized on paragraph 36 of Green to support his contention. That paragraph reads as follows:
Sometimes the motion to cross-examine the affiant is made on a wider basis. An accused may argue that the ITO contains statements that are deliberately misleading and sufficiently significant to place the credibility of the entire ITO in issue. Pires, at para 63 holds that if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO, cross-examination should generally be allowed.
53I do not interpret this passage, nor has any other jurist I am aware of, as authority for making an overall attack on an Affiant’s credibility outside the four corners of the ITO(s) at issue.
54I am not persuaded that the Affiant deliberately or recklessly misled the issuing justice. To be clear, most of the testimony of the Affiant is completely unrelated to the two December 29 ITOs over which the Applicant has standing, although I would reach this same conclusion even if it was all relevant and admissible on the Garofoli. He did not materially omit any information and I find he was indeed full, frank and fair. While it would have been preferable for him to note that the Applicant had no criminal record, the failure to do so in no way undermines the preconditions to issuance. There was no Section 8 violation, and the Garofoli Application is dismissed.
Application #3 – Stay of Proceedings for Failure to Take Notes
55In his third and final Application the Applicant asks for a stay of proceedings as a result of the “Affiant’s failure to make notes in relation to his preparation of the Informations to Obtain in the matter.” He alleges that there exits an insufficient record of available disclosure against which this Court can consider whether the Affiant complied with his duty to be full, frank and fair. The underpinning of this Application is, as pled, the evidence of the Affiant under cross-examination and the so called “concession by the Crown in answer to a disclosure request for the affiant’s notes in regard to his investigation and preparation of the Informations to Obtain”. At Paragraph 6 of his Application for a Stay of Proceedings the Applicant pleads:
The Affiant’s failure to make notes in relation to the preparation of the Informations to Obtain has caused irreparable harm in terms of the Applicant’s ability to make full answer and defence protected by Section 7 of the Charter: The Applicant has no disclosure of what the Affiant actually considered in relation to the drafting of the Informations, and the direct and indirect sources accessed and cannot refer to the steps taken to fulfill his duty to be full, fair and frank and ensure careful verification of the facts sworn in the affidavit materials. The Applicant has no access to the actual record of the conversations claimed by the Affiant. The Applicant’s ability to analyze the sub-facial and facial validity based on what was actually known or ought to have been known by the Affiant is irreparably impaired.
56The Applicant claims that the so called “failure” on the part of the Affiant to make notes amounts to “lost evidence” or a “failure to preserve evidence” leading to a breach of Section 7 and warranting a stay of proceedings.
57In response, the Crown argues that the Affiant complied with his note taking and disclosure obligations and that there has been no breach of Section 7.
Analysis & Findings
58In considering this issue it is important to note that the first time this issue was ever raised was after the Applicant had been denied leave to cross examine the Affiant beyond what the Crown had originally agreed upon. In his pleadings the Applicant stated (as already noted):
The Application to stay was a perfectly reasonable response to Your Honour’s decision to not allow further cross-examination to ground a Section 24(2) application. It was, as the Supreme Court put it in Jordan, an example of “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and was not “frivolous.” It is simply a way to frame the constitutional violation involved based on the evidence that is available in support of it after being denied the opportunity to create a further basis for a Section 24(2) application pursuant to Shivrattan and Green.
59The basis of this position is an enigma. It would appear that my denial of further cross-examination was the genesis for a stay of proceedings for non-disclosure. To the extent this motion was derived as a result of the cross-examination of the Affiant, this is perplexing.
60During the cross-examination of the Affiant there were two areas where the Affiant related having conversations with other officers that were not sourced in the ITOs. First – in the October 24, 2022 ITO re paragraph 22e the Affiant explained that after reviewing the central notes he spoke with investigators and based on those discussions was confident that the unknown male had received a bag from Mr. Goodwin. Notwithstanding that the Central Notes said he “appeared to” receive a bag, the Affiant explained that based on his discussions he was confident the bag had in fact been received.
61Second – In the November 3, 2022 ITO the Affiant discussed a meeting between Mr. Goodwin and an unknown male in Mr. Goodwin’s blue pick up truck. The Affiant testified that the investigators brought this meeting to his attention as they believed it was a drug transaction notwithstanding it departed from Mr. Goodwin’s typical modus operandi. In this instance, the police believed that the drug transaction was stymied by the presence of Toronto Police Officers in the area.
62It is important to note that neither of these issues arise in connection with either ITO to which the Applicant has standing to challenge.
63In my view, the record reveals that the Affiant made notes and sourced nearly every piece of information contained in the ITOs. There is certainly nothing in the December 29 ITOs which has been unsourced and as I have previously indicated, these are the only two ITOs which the Applicant has standing to challenge.
64I am not persuaded that the affiant failed in his duty to make notes and I find that no section 7 Charter breach has been established.
65All of the applications are dismissed.
Released: December 20, 2024 Signed: Justice K.A. Fillier
[1] On December 20, 2024, I read my reasons in court, omitting some citations and summarizing parts in the interest of court time. These written reasons represent my complete judgment. [2] Notice of Application Filed July 26, 2024 [3] See March 5 transcript page 3