Charter Ruling on Garofoli Review
Ontario Court of Justice
Before: Justice Davin M.K. Garg
Heard: May 1 and July 3, 17 and 24, 2025
Reasons Released: October 23, 2025
Counsel
Tessa Moran — agent for the respondent, Public Prosecution Service of Canada
Kendra Stanyon — counsel for the applicant, Lual Ngong
GARG J.:
Overview
1The applicant is charged with drug and firearm offences following police searches of a residence and motor vehicle. The searches yielded fentanyl, cocaine, a handgun, ammunition, and cash. The applicant challenges whether the warrants could have issued and seeks to exclude the resulting evidence.
2A search warrant represents a careful balancing act. The warrant only issues when the state's interest in investigating crime outweighs the individual's privacy interests. The affiant presents the police case through an "information to obtain" (ITO), which must disclose credible information establishing reasonable grounds to believe that the searches will afford evidence with respect to the commission of an offence at the places to be searched.
3I am satisfied that the ITO met this threshold. It was not flawless. Notably, the inclusion of the applicant's occurrence reports—internal police records of prior interactions—without clarifying whether charges were laid or how they resolved, risked painting an incomplete picture. Other issues, such as the affiant's decision to include certain details and omit others, required correction on review. But viewed holistically, the corrected ITO gave a basis to search the residence and motor vehicle at the time when the warrants were sought. I find no intent to mislead the issuing justice and no negligence in the ITO's preparation.
4The ITO was sufficiently reliable. The warrants could have issued. The applicant's Charter rights were not breached. The evidence from the searches is admissible at trial.
Facts
Investigative and Procedural History
5I will start by summarizing the relevant context.
6The police began investigating the applicant and a person believed to be his girlfriend, Ms. Lauren Thompson. The police received information from a confidential informant who claimed that the applicant was a drug trafficker. The police then conducted surveillance of the applicant and Ms. Thompson. On various days in December 2022, the police saw the applicant or Ms. Thompson using a white Mercedes and attending at or near a residence located at 72-6 Chestnut Drive in Grimsby, Ontario ("the residence").
7The police sought and obtained tracking warrants for the Mercedes as well as a black Jeep. The devices were installed in January and February 2023, respectively. The applicant no longer challenges the authorizations for the tracking devices.
8The police conducted further surveillance on two days in February 2023. They then sought search warrants for the residence as well as the two motor vehicles. The warrants were granted on March 1, 2023, and executed on March 3, 2023. The police located evidence in the residence and the Mercedes that resulted in the charges before the court. No evidence was found in the Jeep.
9The warrants for the residence and the Mercedes were issued off the same ITO. The applicant contends that once the ITO is corrected through the Garofoli review process, the warrants could no longer have issued.
The ITO
10The relevant ITO was filed as Exhibit 7. I have only considered the redacted ITO. I have not relied on the unredacted version or the summary of the redactions.
11Detective Constable Ryan Tweedle of the Hamilton Police Service was the affiant of the ITO. He deposed that he had reasonable grounds to believe that the applicant and Ms. Thompson possessed fentanyl and cocaine for the purpose of trafficking. He concluded that the items to be searched for—fentanyl, cocaine, scales, currency, debt lists, drug packaging, cell phones, and tenancy or identification documents—would afford evidence of the offences and were present in the residence and vehicles.
12The affiant principally relied on the following bodies of information in forming his grounds:
Information from a confidential informant who advised that the applicant possessed fentanyl and "deals a lot of drugs". The informant also referred to the applicant's girlfriend driving a white Mercedes and holding a "large amount of drugs" for the applicant and trafficking them.
Information linking the applicant to his "girlfriend", Ms. Thompson.
Information linking the applicant and Ms. Thompson to the residence and motor vehicles to be searched.
The applicant's criminal history.
Surveillance observations of the applicant and Ms. Thompson engaging in driving patterns interpreted by the police as counter-surveillance efforts.
Surveillance observations of the applicant and Ms. Thompson engaging in what the police interpreted as multiple drug transactions.
Legal Principles
13The affiant's legal obligation when seeking an ex parte authorization is the full, fair, and frank disclosure of material information: R. v. Araujo, 2000 SCC 65 at para. 46. In the context of a search warrant, the affiant must include all material information that could undermine: (a) the probability that the offence occurred; (b) the probability that evidence will be found at the place of the search; and (c) the reliability and credibility of the information establishing grounds for the warrant: R. v. Booth, 2019 ONCA 970 at para. 56. Only information that bears on the merits or substance of the authorization is "material": R. v. Nguyen, 2011 ONCA 465 at para. 51. Omissions are material if the issuing justice would have been concerned about granting the warrant had they known about the missing information: R. v. Alizadeh, 2014 ONSC 1624 at para. 13.
14Misleading or inaccurate information can be excised outright from the ITO: R. v. Shivrattan, 2017 ONCA 23 at para. 26. Information that should not have been included in the warrant application will always be excised in this way: Booth at para. 58.
15Alternatively, material omissions or inaccuracies can be corrected by adding information to present an accurate picture or by replacing incorrect details with accurate ones: R. v. Morelli, 2010 SCC 8 at paras. 57, 60, 96. However, information cannot be added that would strengthen the warrant application: Booth at para. 59. I will describe this process as "addition" instead of "amplification" to distinguish between the expansive defence tool of adding information and the narrow Crown tool of amplifying the ITO: Hasan, Nader, et al. Search and Seizure. Toronto: Emond Montgomery, 2021 at 608-609, 621-623.
16Whether information has been excised or added, extensive or significant edits may demonstrate that the affiant failed in their duty to be full, fair, and frank. The corrected record might demonstrate that the affiant deliberately, or at least recklessly, misled the issuing justice, rendering the entire ITO unreliable as a basis upon which to issue a warrant: Shivrattan at para. 27; R. v. Debartolo, 2018 ONSC 916 at para. 38. However, as Blair J.A. cautioned in Nguyen at para. 57:
[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.
17The scope of warrant review is narrow. I must decide whether the corrected record supplies information, reasonably capable of belief, based on which the warrants could have issued. The onus is on the applicant to show that the warrants could not have issued: R. v. Paryniuk, 2017 ONCA 87 at para. 43; R. v. Sadikov, 2014 ONCA 72 at paras. 83-88.
Correcting the ITO
18The applicant proposes numerous corrections to the ITO. I accept the respondent's argument that I must apply a holistic lens to the analysis. While the affiant's manner of framing certain information in the ITO might appear slanted or exaggerated in isolation, disregarding the context of what the affiant had observed or learned during the investigation would distort the analysis. I acknowledge the potential for confirmation bias; namely, that the police might interpret information in a way that confirms their pre-existing suspicions of criminal activity (see e.g., R. v. Woo, 2017 ONSC 7655 at para. 56). The police cannot engage in circular reasoning. Believing someone is a drug trafficker does not make everything they do evidence of trafficking. However, the assessment of reasonable grounds also considers an officer's experience: R. v. MacKenzie, 2013 SCC 50 at paras. 62-63; R. v. Wu, 2015 ONCA at para. 50. It would be artificial to disregard the affiant's experience during the investigation when evaluating how the information was presented in the ITO.
19I turn now to each proposed correction:
20Paragraph 33 – The affiant listed the applicant as a person of interest in a human trafficking probe in which Ms. Thompson was his surety. The associated occurrence report says there were no grounds to start a human trafficking investigation and does not disclose a connection between the applicant and Ms. Thompson. The paragraph is erroneous and ought not to have been included in the ITO. It is excised.
21Paragraph 34 – The affiant fairly summarized the occurrence report outlining an incident between Ms. Thompson and the applicant's family. The paragraph does not suggest the applicant being involved in the incident. It was appropriate for the affiant to include information that strengthened the connection between Ms. Thompson and the applicant (even if indirectly via the applicant's family). The paragraph is not misleading and does not require correction.
22Paragraph 37 – It was appropriate in this paragraph for the affiant to introduce the applicant's occurrence reports on police databases. The applicant does not suggest that the paragraph is erroneous. The paragraph does not require correction. However, I accept the applicant's argument that it was misleading for the affiant to then include details of occurrences without indicating whether charges were laid, and, if so, their disposition in court. It is not sufficient to paste the CPIC into the ITO and expect the reviewing justice to conduct a manual cross-check. Such an exercise is unwieldy. It is unclear how the reviewing justice would know which occurrence related to which entry—or lack thereof—on the CPIC. The needed corrections will be addressed in the subsequent paragraphs.
23Paragraph 38(a) – The affiant summarized a 2014 occurrence in which the applicant and others were apparently found in an apartment containing cocaine and a rifle. The paragraph starts with the heading, "Trafficking Cocaine". I see no basis to quibble with how the affiant summarized the occurrence report. My concern is that he included the report without disclosing the outcome of the charges. The only reasonable inference from the CPIC is that the applicant was not convicted of anything. The affiant ought to have included that information. Even if the affiant was uncertain about the disposition, he could have said as much in the ITO. As it stands, I find that the paragraph is misleading and must be excised. As the Court of Appeal recognized in R. v. Adler, 2020 ONCA 246 at para. 31, the legitimacy of including certain information in an ITO might depend on whether it is placed in sufficient context.
24Paragraph 38(b) – The affiant summarized a 2016 occurrence in which the police found drugs and drug paraphernalia in a vehicle occupied by the applicant and two others. The paragraph again starts with the heading, "Trafficking Cocaine". The applicant argues that the affiant omitted important details, such as the fact that the vehicle did not belong to the applicant and that he was seated in a passenger seat. In my view, the significant omission is that the affiant failed to disclose that the applicant was only convicted of simple possession. Without that detail, the affiant failed to cite facts that he knew or ought to have known and thereby invited the issuing justice to draw unwarranted inferences: see R. v. Morelli, 2010 SCC 8 at para. 58. I have already explained why pasting the CPIC into the ITO was insufficient. Nevertheless, the whole paragraph does not need to be excised. It is sufficient to add the disposition. Addition is appropriate because the conviction to the lesser included offence was already shown in the CPIC and does not advance the warrant application. Also, the "Trafficking Cocaine" heading is excised.
25Paragraph 39 – The occurrence outlined in this paragraph is excised in its entirety on the consent of the parties because the associated charges had been stayed following the finding of a Charter breach.
26Paragraph 40(a) – The affiant noted the applicant's outstanding charges for driving-related offences. While not particularly probative, there is no need for excision.
27Paragraph 40(e) – This paragraph leads into the applicant's CPIC. The affiant wrote, "He has many convictions shown below". The word "many" is fair and does not require excision. The inclusion of the CPIC allowed the issuing justice to agree or disagree with that characterization.
28Paragraph 50 – The time noted for when the police observed the applicant during their surveillance is amplified on consent. It should read 2:26 pm instead of 2:46 pm.
29Paragraph 51(a) – The affiant noted that the counter-surveillance tactics lasted for 25 minutes. The duration is excised on consent. The ITO erroneously presents the duration as a direct observation instead of an inference.
30Paragraph 60 – The applicant was observed over two days in a black Nissan sedan. The affiant indicated that the vehicle was a rental. The affiant added his opinion that car rentals are frequently used by drug dealers to try and conceal their identity. I find that the paragraph is not misleading. The applicant's primary argument is that the affiant did not spell out other factors that could sap the probative value of the applicant using a rental car. However, the ITO states when the rental car was used and what the police observed on those days. The affiant did not overstate the applicant's use of a rental car. When an ITO indicates what the police observed, there is no need to add what was not observed. Furthermore, the stated relevance of the rental car—that potential drug traffickers use them to switch up their vehicles and avoid police detection—is consistent with the police having observed the applicant engaged in counter-surveillance tactics and using different vehicles. The affiant was entitled to rely on his experience regarding the link between drug trafficking and rental cars: see R. v. Cartmer, 2024 ONCA 674 at para. 15. No corrections are required.
31Paragraph 65 – The affiant outlined observations of Ms. Thompson delivering items to a house. The applicant argues that the affiant ought to have included additional details to allow the issuing justice to assess whether Ms. Thompson was engaged in drug trafficking as opposed to decluttering her car. The following information is added: "when exiting the residence, Ms. Thompson was seen moving items in the trunk of the Mercedes and went into the residence a few times to place small bags or items from the back door into the trunk and was moving stuff around". Despite adding this information, I see no need to correct the affiant note opining that Ms. Thompson subsequently engaged in drug trafficking.
32Paragraph 70 – The affiant summarized the police observations of a driver's route. The driver was believed to be the applicant. The affiant described him as "looping [an] industrial area". But the route described was not a loop. The phrase is excised as erroneous.
33Paragraph 73 – The affiant continued to describe the driver's route. There is no suggestion that his description was erroneous. There is no basis for excision.
34Paragraph 81(a) – The affiant opined that the illogical route, the stops and starts, the U-turns, and the last-minute lane changes showed counter-surveillance driving. I decline to excise this opinion. The affiant fairly outlined the underlying observations, which allowed the issuing justice to form their own opinion. The inference of counter-surveillance driving is reasonable and is not at all undermined by the applicant driving a rental car. The police also did not need to see the applicant's ultimate destination to conclude that his route along the way was illogical. For example, the route outlined in paragraph 73 is plainly illogical. The applicant was observed entering the highway only to exit at the next interchange and double back in the direction from which he had come.
35Paragraph 86(a) – The affiant outlined observations of Ms. Thompson. The applicant challenges the affiant note that the observations were typical of a drug transaction and the accompanying belief that one had taken place. The applicant is correct that the police did not observe details that would strengthen the inference of drug trafficking, such as the other person attending at Ms. Thompson's window or reaching into the vehicle. But the affiant fairly summarized what the police did observe. His note is explicit that the police did not observe a hand-to-hand transaction. There is no basis for excision.
36Paragraph 100 – The affiant outlined observations in a parking lot and included a detail that a person walked up to the Mercedes and briefly interacted with the applicant on the passenger side of the vehicle. The applicant challenges this detail as erroneous because it does not appear in the central scribe notes. However, the affiant gave a potential explanation for the discrepancy under cross-examination. He explained that the central notes were not his sole source for surveillance details. My assessment of the affiant's testimonial credibility and reliability appears later in these reasons. At this point, I simply say that there is no basis to excise the detail.
37Paragraph 100(a) – The affiant opined that the meeting in the parking lot was pre-arranged. I see no basis to excise the opinion. It is not unreasonable. The possibility that a random person approached the vehicle and interacted with the occupants for some benign reason does not negate the reasonable inference that the meeting was pre-arranged. The fact that Ms. Thompson parked at the Wendy's and went inside does not mean that the parties did not also attend for a pre-arranged meeting. The police are not required to negative every alternative inference on the ultimate issue, much less with respect to opinions they form along the way: see R. v. Lao, 2013 ONCA 285 at para. 59. However, since all material facts that could undermine grounds should be put before the issuing justice, the details with respect to Ms. Thompson's conduct are added to the ITO.
38Paragraph 114 – The affiant summarized tracker data on the Mercedes. The affiant wrote that the vehicle was parked overnight at the residence "for the most part" during the period in question. I accept the applicant's argument that the description is potentially misleading and must be excised. It is replaced with the vehicle being there for 29 out of 49 nights. "For the most part" could suggest a higher frequency than what the underlying data supports.
39Paragraph 115 – The affiant stated that the Mercedes did not exhibit any pattern of frequenting specific locations, apart from time parked at the residence and at a car dealership in Niagara. He then asserted that this indicated there was no other location where drugs were being kept. That assertion is conclusory. As phrased, it presumes as fact the existence of drugs. It is likely that the affiant merely intended to convey that the absence of other locations increased the likelihood that drugs, if present, would be found at the residence or in the vehicles. While this flaw appears to stem from imprecise drafting, I nonetheless excise the assertion.
40Paragraph 117 – The affiant stated that the tracker data on the Mercedes indicated that the driver did not maintain conventional employment or adhere to normal business hours. Regardless of whether this information adds much to the affiant's grounds, there is no basis for excision. The wording of the paragraph does not discount the possibility of remote employment.
41Paragraph 118 – The affiant outlined that the Mercedes made several long-distance trips to the Kingston area for stays of very short duration. I accept the applicant's ultimate submission that the following information should be added: "there were also overnight and multi-day trips made to the area in the same time period". While the paragraph is not misleading, I agree that more context is appropriate.
42Paragraphs 119(a) and 120(a) – These affiant notes are similar. Each follows details about two specific trips in which the vehicle traveled a considerable distance—from Grimsby to Belleville or Kingston—and remained for only 23 and 67 minutes, respectively, before returning to Grimsby. The affiant opined that the trips were indicative of a higher-level drug transaction. The applicant argues that the opinions should be excised because they are unsupported, particularly given the vehicle's overnight and multi-day trips. I disagree. The existence of longer trips does not diminish the relevance of two trips involving six to eight hours of travel for a very brief stay. The affiant was entitled to include his opinion that such trips were indicative of drug trafficking, and he acknowledged the limitations of that opinion. While the trips could have been benign, as I noted earlier, the reasonableness of the opinion is assessed against all conduct associated with the Mercedes that was known to the affiant when submitting the ITO. I decline to excise the opinions.
43Paragraphs 124 and 126 – These paragraphs concern the Jeep. They are otherwise the same as paragraphs 115 and 117 respectively. I therefore reach the same conclusions. The second sentence of paragraph 124 is excised. I make no corrections to paragraph 126.
44Paragraph 127 – The affiant described 17 short-duration stops by the Jeep at a cemetery where it parked at the most secluded location in the back. The affiant opined that these frequent, brief visits were indicative of trafficking. The applicant argues that this paragraph should be excised as irrelevant. I disagree. The information is relevant because it aligns with a broader pattern of vehicles associated with the applicant or Ms. Thompson making short stops at various locations. Whether this evidence significantly advances the affiant's grounds is a separate question. However, excision is not warranted based on relevance. Nor was it misleading for the affiant to include his opinion, given that he disclosed both the basis for the opinion and its frailties.
45Paragraphs 131 and 132 – The affiant outlined observations of Ms. Thompson driving to a Sandman hotel and Moxies restaurant complex. The applicant was the front passenger. Upon arrival, the applicant ran into the restaurant and returned three minutes later without any food or take-away bags. As Ms. Thompson pulled away, the applicant fully reclined his seat. Ms. Thompson then drove to a nearby Wendy's drive thru and LCBO before returning to the residence. I agree with adding to the ITO that the parties made purchases at the Wendy's and LCBO. The additions give context to the applicant exiting the Moxies without any food.
46Paragraph 132(a) – The affiant opined that the visit to Moxies was indicative of a drug transaction because of its short duration followed by the applicant exiting without any food and reclining his seat in the vehicle. Unlike other affiant notes that I declined to excise, this opinion is not reasonably supported by the underlying facts. I accept that the affiant made unwarranted logical leaps in forming his opinion. The opinion is therefore misleading and must be excised. The underlying observations remain.
47Paragraph 134 – The affiant indicated that tracker assisted surveillance allowed the police to locate the Jeep in the Chatham Kent area. No corrections are needed because the addition suggested by the applicant is not material.
48Paragraphs 137 to 139 – These paragraphs concern observations of the applicant attending a residence in the Chatham-Kent area with an unknown male. The affiant detailed what he learned from local police: an individual named Derek Holdaway was subject to conditions requiring him to reside at that address. The affiant summarized Mr. Holdaway's outstanding charges and prior convictions and noted that he had been the target of search warrants and was associated with drug trafficking and firearms possession. One might question the affiant's choice to describe Mr. Holdaway as a "well-known criminal". But the risk of misleading the issuing justice was attenuated because the description was immediately followed by Mr. Holdaway's outstanding charges and convictions. I see no basis for excision. The applicant does not allege that the affiant inaccurately conveyed this information. Counsel argued that the police never observed the applicant directly associating with Mr. Holdaway. However, the ITO does not assert any such association or that Mr. Holdaway was present during the applicant's visit. It simply records that the applicant entered a residence where Mr. Holdaway was required to live.
49Paragraph 139(a)(i) – The affiant note is excised in its entirety on the consent of the parties.
50Paragraphs 140 and 140(a) – In these paragraphs, the affiant summarized police observations of the applicant interacting with the driver of a Dodge pickup truck. The applicant seeks excision of the affiant's description of a "brief interaction" in paragraph 140 and the statement in paragraph 140(a) that the applicant "paused briefly at the driver's side window." These details matter because they bear on the strength of the inference that the applicant engaged in a drug transaction. The applicant argues that the details are erroneous because they do not appear in the central scribe notes. I decline to excise the details. The affiant testified that he was drafting the ITO in real time while monitoring surveillance chatter. I accept that he heard that the applicant had paused at the truck. The details are therefore not erroneous. My assessment of the affiant's testimonial credibility and reliability appears later in these reasons. To be clear, amplification by the Crown is not permitted to add facts from the affiant's testimony into the ITO; I refer to the testimony only to address the applicant's argument for excision.
51Paragraph 141 – The affiant outlined how the applicant drove in an illogical loop for no apparent purpose and returned to "the exact spot", parking behind a waiting SUV. The phrase "the exact spot" is excised because the affiant acknowledged in his testimony that it was overstated. The affiant also indicated that the SUV's engine was running and its trunk was open. I see no basis to excise the detail about the engine running. Finally, the affiant stated that the SUV's occupants exited after the applicant stopped behind it. The applicant argues this detail is erroneous and should be excised. I once again accept the affiant's testimony on this issue. I do not excise the detail.
52Paragraph 141(a) – I do not excise the affiant's summary of the above observations and his opinion that the police observed a clear drug transaction. The earlier excision of the applicant returning "to the exact spot" does not undermine the observation of him doing an illogical loop. The affiant's opinion of the loop being a counter-surveillance tactic was reasonable.
53Paragraph 143 – The paragraph is part of the summary of the affiant's belief that an offence had been committed. The excision of the affiant note at paragraph 139(a)(i) applies here to remove the reference to specific drugs in Mr. Holdaway's outstanding charges. No further excisions are required given that I did not excise the balance of paragraphs 137 to 139.
54Paragraph 144 – Excision of the summary of the applicant's conduct is unwarranted. The affiant's description of the SUV as "waiting" was appropriate. Officers saw the applicant park behind the SUV and then interact with its occupants.
55Paragraph 147 – The affiant noted that the applicant has a "history" of trafficking illegal drugs "spanning many years". The "spanning many years" portion is excised on the consent of the parties. The rest of the paragraph remains. The one entry on the applicant's CPIC for drug trafficking, though not recent, supports the affiant's use of the word "history".
56Paragraph 148 – The paragraph appears in the affiant's summary of his grounds to believe an offence had been committed. The applicant's CPIC, which is reproduced in the ITO, already specifies his exact number of convictions for drug and firearm offences. Repeating those details would undermine the purpose of a summary. No corrections are required other than changing the word "firearms" to the singular on the consent of the parties.
57Paragraph 150 – No corrections are required to how the affiant summarized the tracker data regarding the Mercedes' long-distance trips of short duration. However, the reference to Ms. Thompson continuing to exhibit characteristics of someone attempting to conceal her activities is misleading. Based on the information in the ITO, there is no basis to say that Ms. Thompson "continues" to engage in such conduct. The phrase "continues to exhibit" is excised and replaced with "has exhibited".
58Paragraph 151 – The affiant concluded that police surveillance showed the applicant and Ms. Thompson working together from the residence. I decline to excise this paragraph. At this stage, the affiant was summarizing his grounds based on the totality of the investigation. It was reasonable for him to opine that the applicant and Ms. Thompson were acting together given the surveillance of them in the same vehicle. Whether the residence is accurately described as their "primary" residence is immaterial; what matters is that the ITO sufficiently establishes their significant connection to that location.
59Paragraph 164 – In summary form, the affiant stated that the tracker data showed many trips, some believed to involve drug transactions, beginning and ending at the residence. I disagree that the paragraph is misleading because it omitted the absence of recent surveillance that linked the residence to drug trafficking. The paragraph is confined to the tracker data, and the affiant had already acknowledged its limitations. Even if the trips tied to drug trafficking are limited to the two described in paragraphs 119 and 120, the affiant did not claim that there were "many" such trips. From my reading of the ITO, the word "many" describes the trips to and from the residence generally. I take no issue with that word given that the Mercedes was there for 29 of 49 nights.
60Paragraph 175 – The affiant concluded that the police surveillance observed 11 suspected drug transactions. The applicant acknowledges that little turns on whether this conclusion is corrected on review. The issue is whether the ITO provided a basis for the issuing justice to form their own conclusions in line with those reached by the affiant. While I have quibbled with the affiant's opinion that some observed interactions were drug transactions, this paragraph does not present those opinions as fact; the affiant appropriately used the qualifier "suspected."
61The following table summarizes my conclusions with respect to the proposed corrections:
| Paragraph | Type | Details |
|---|---|---|
| 33 | Excision | Entire paragraph |
| 34 | No corrections | |
| 37 | No corrections | |
| 38(a) | Excision | Entire paragraph |
| 38(b) | Addition; excision | Add: "the applicant was only convicted of the lesser included offence of simple possession of cocaine" Excise heading "Trafficking Cocaine" |
| 39 | Excision | Entire paragraph |
| 40(a) | No corrections | |
| 40(e) | No corrections | |
| 50 | Amplification | Change time from 2:46 pm to 2:26 pm |
| 51(a) | Excision | Phrase "for 25 minutes" |
| 60 | No corrections | |
| 65 | Addition | "When exiting the residence, Ms. Thompson was seen moving items in the trunk of the Mercedes and went into the residence a few times to place small bags or items from the back door into the trunk and was moving stuff around" |
| 70 | Excision | Phrase "looping industrial area" |
| 73 | No corrections | |
| 81(a) | No corrections | |
| 86(a) | No corrections | |
| 100 | No corrections | |
| 100(a) | Addition | "Ms. Thompson parked at the Wendy's, exited the vehicle, and went inside" |
| 114 | Correction | Replace "for the most part" with "29 out of 49 nights" |
| 115 | Excision | Second sentence: "This indicates that there is no other location where drugs are being kept other than the vehicles and residence sought" |
| 117 | No corrections | |
| 118 | Addition | "There were also overnight and multi-day trips made to the area in the same time period" |
| 119(a) | No corrections | |
| 120(a) | No corrections | |
| 124 | Excision | Second sentence: "This indicates that there is no other location where drugs are being kept other than the vehicles and residence sought" |
| 126 | No corrections | |
| 127 | No corrections | |
| 131 | No corrections | |
| 132 | Addition | "The parties made purchases at the Wendy's and LCBO" |
| 132(a) | Excision | Entire paragraph |
| 134 | No corrections | |
| 137 | No corrections | |
| 138 | No corrections | |
| 139 | No corrections | |
| 139(a)(i) | Excision | Entire paragraph |
| 140 | No corrections | |
| 140(a) | No corrections | |
| 141 | Excision | Phrase "the exact spot" |
| 141(a) | No corrections | |
| 143 | Excision | Specific drugs of the outstanding charges |
| 144 | No corrections | |
| 147 | Excision | Phrase "spanning many years" |
| 148 | Correction | Replace "firearms" with "firearm" |
| 150 | Correction | Replace "continues to exhibit" with "has exhibited" |
| 151 | No corrections | |
| 164 | No corrections | |
| 175 | No corrections |
Could the Warrants Have Issued?
Whether the Warrants Could Have Issued on the Face of the Corrected Record
62The applicant argues that the warrants could not have issued on the corrected ITO. There are two facets to the applicant's argument: whether the warrants could have issued on the face of the corrected record, and whether the affiant's approach rendered the ITO insufficiently reliable to support issuance of the warrants. I will address each claim in turn.
63I must assess whether the corrected ITO presents reliable evidence that might reasonably be believed that could have led the issuing justice to issue the warrants: R. v. Vu, 2013 SCC 60 at para. 16. I remind myself that the issuing justice could have drawn inferences from the facts stated in the ITO, so long as those inferences were reasonable: R. v. El-Azrak, 2023 ONCA 440 at paras. 96, 101. The issuing justice would have read the ITO as a whole and with regard to its author: R. v. Green, 2015 ONCA 579 at para. 18.
64The investigation started when the police received a tip from a confidential informant. Based on the information available in the redacted ITO, the informant told the police in December 2022 that the applicant possessed fentanyl, dealt a lot of drugs, and was always in supply. The informant provided the applicant's home address and motor vehicle (the white Mercedes). The informant also provided information about the applicant's girlfriend. The informant shared that the girlfriend drove the white Mercedes and would hold drugs for the applicant and traffic them.
65I must assess whether the tip was credible, compelling, and substantially corroborated by independent police investigation. There is no evidence that allows me to assess the informant's credibility at the time that they shared the tip: see R. v. Curry, 2020 ONSC 86 at para. 27. The ITO only says that the informant was a first-time source. There is no information about their motivations or criminal antecedents, if any. The informant did not have a history of providing reliable information.
66The tip was more compelling. The informant provided current information. They provided some details, including the specific drug that the applicant was said to possess. The nuance that the Mercedes belonged to the applicant but was driven by his girlfriend reflected a degree of insider familiarity exceeding what would reasonably be known to the general public. However, the ITO does not state whether the informant learned their information through first-hand observations or second-hand hearsay or rumours; see R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 at paras. 35-40.
67Subsequent police investigation, at outlined in the ITO, significantly corroborated the informant's tip, both in its "innocent" and "criminal" aspects: see R. v. Campbell, 2003 MBCA 76 at paras. 26-27. For example, the police confirmed that the informant correctly provided the applicant's address. The informant also correctly gave information about the girlfriend driving the white Mercedes that belonged to the applicant. This was not a minor biographical fact. It gains particular significance because the vehicle was being used in what the police believed was a drug trafficking operation. The corroboration therefore does more than validate a peripheral detail; it strengthens the plausibility of the informant's allegation that the girlfriend was actively involved in trafficking for the applicant, using the very vehicle implicated in the suspected operation.
68Of significance, the subsequent investigation, particularly the police surveillance, corroborated that the applicant and his girlfriend (Ms. Thompson) were engaged in drug trafficking. The police did extensive surveillance, during which they made observations that reasonably supported a belief that the conduct of the applicant and Ms. Thompson was consistent with drug trafficking: see R. v. Cartmer, 2024 ONCA 674 at para. 15. The surveillance must be examined holistically. The police were not required to establish that each individual interaction was a drug transaction. The surveillance showed the applicant and Ms. Thompson frequently driving and meeting with people for short durations in different locations. Any one of these meetings could be benign, but in conjunction they formed a pattern. The surveillance enabled the police to make the following observations:
December 14, 2022 – Ms. Thompson was driving the Mercedes, and the applicant was the front passenger. Ms. Thompson drove in an illogical manner that suggested counter-surveillance tactics. Both the applicant and Ms. Thompson were looking around and staring at other cars. Later in the day, the applicant was seen walking away from the area of the residence wearing a backpack that looked full. He was attentive and looking around.
December 20, 2022 – Ms. Thompson was driving the Mercedes and entered the residence. Two people in succession drove to the residence for a quick interaction before departing. Ms. Thompson then drove away from the residence to a house with something in her hand. She quickly returned to her car and drove back to the residence. The details that I added to paragraph 65 do not undermine these police observations.
December 20, 2022 – The applicant was driving a rental car. He did counter-surveillance driving.
December 21, 2022 – The rental car and the Mercedes were both parked near the residence. The applicant exited the residence. He was attentive. He got into the rental car and sped away. Ms. Thompson then exited the residence and got into the Mercedes. She drove to a residence where someone attended the passenger side of the vehicle for a brief interaction before Ms. Thompson quickly drove away.
December 28, 2022 – Ms. Thompson was driving the Mercedes and was attentive to the police surveillance. She conducted loops through a residential area. She eventually parked at the residence. She got out and looked inside cars parked on the street. She got back into the Mercedes and continued her abnormal driving (e.g., looping the area at a very slow speed). She eventually parked in a parking lot. Another vehicle immediately parked in the lot. Ms. Thompson did two loops of the parking lot before parking right next to the other vehicle. The driver of the other vehicle got out and had a brief interaction with Ms. Thompson. Later that evening, the applicant and Ms. Thompson got into the Mercedes. They were holding arms and scanning the parking lot. After some more illogical driving (e.g. driving in and out of a residential complex and a gas station for no apparent purpose), a person was seen walking away from the passenger side of the Mercedes. Ms. Thompson then pulled into a gas station and looped the lot before settling in the parking lot. An unknown person without anything in hand walked up to the Mercedes and had a brief interaction with the applicant on the passenger side. Ms. Thompson also went inside the nearby Wendy's. Ms. Thompson then drove towards the 403-highway eastbound but made a last-minute lane change to go westbound.
December 29, 2022 – Ms. Thompson was driving the Mercedes. She drove in an illogical manner. She eventually reached the residence. She then pulled out of the residential complex and looped the residential area until the police could not continue the surveillance.
February 23, 2023 – Ms. Thompson was driving the Jeep. The applicant was the front passenger. Ms. Thompson drove from the residence to a Moxies restaurant. The applicant briefly entered and exited without any takeaway bags. He reclined his seat in the vehicle. The parties then made purchases at the Wendy's and LCBO before returning to the residence.
February 28, 2023 – The applicant was driving the Mercedes with an unknown male passenger. The applicant and the unknown male went inside a home and exited 50 minutes later. The applicant was wearing a medical mask and showing heightened signs of awareness. Mr. Holdaway, who has a conviction for a firearm offence and faced outstanding drug charges, was on conditions to reside at that home. The applicant later walked to a variety store and paused briefly at the driver's side window of a pickup truck. Whoever was driving the pickup truck immediately drove away after the interaction. The applicant and the unknown male returned to the Mercedes. The applicant drove in an illogical loop before parking behind a SUV that had its engine running and trunk open. The occupants of the SUV got out and walked to the driver's side of the Mercedes. The interaction through the driver's side window only lasted about 10 seconds. The occupants returned to the SUV, and the applicant drove away.
69This surveillance sufficiently corroborated the informant's tip in material respects and supplied reasonable grounds to believe that the applicant and Ms. Thompson were trafficking drugs. The surveillance had its limits: it captured no hand-to-hand exchange and, at times, no physical interaction. But the standard for a warrant is not proof beyond a reasonable doubt, nor proof on a balance of probabilities. It requires only reasonable grounds to believe, and I am satisfied that the ITO met that threshold.
70This conclusion does not end the analysis. Reasonable grounds must be current and tied to a specific location. The applicant principally argues that the ITO failed to provide a reasonable basis to believe that drugs would be found in the residence in March 2023 (the warrants were issued on March 1, 2023). Whatever grounds might have existed in December, the applicant argues that the issuing justice could not have issued a warrant for the residence at the beginning of March. As counsel argued, "An obvious takeaway is perhaps there was something at [the residence] in December. Maybe [the applicant] was a drug trafficker in December. It doesn't mean he's still one actively in March". In making this submission, counsel contrasted the relative strength of the December observations with the weaknesses of the February ones, adding: "even if you find those [December observations] probative, that's December 20th. We're now talking March when the warrants are being drafted. [The police] don't have any current information about [the residence] and the tracker data and surveillance hasn't helped them. And in fact, it's taken away from the argument [that the warrants should issue]".
71I acknowledge the factual underpinnings of the applicant's argument. The police conducted more surveillance in December than in February, and the inference of drug trafficking is more easily drawn from the December observations. Nevertheless, I disagree that the warrant to search the residence could not have issued in early March. When the surveillance is considered collectively along with the tracker data, the issuing justice could reasonably infer that the residence remained connected to drug trafficking.
72As a starting point, I find that the December observations were not so distant that they had become irrelevant a little over two months later. There is no fixed rule as to how recent information must be to remain relevant: R. v. James, 2019 ONCA 288 per Nordheimer J.A. at para. 55. The passage of time is only one factor to consider: R. v. Fuller, 2021 ONCA 411 at paras. 9-10. The activities that the police observed did not suggest that the drug operation was transitory.
73Furthermore, tracker data bridged the gap from December to March by maintaining the connection between the Mercedes, the residence, and the inference of drug trafficking. First, the data showed that the Mercedes was overnight at the residence for 29 of the 49 days between January 10 and March 1, 2023. Second, the data linked the Mercedes—and therefore the residence—to trafficking activity. On February 16 and 25, 2023, the Mercedes made long-distance trips from Grimsby to Belleville and Kingston, remaining for only 23 and 67 minutes respectively before returning to the area of the residence. As I explained earlier, it was reasonable for the affiant to include his opinion that these trips were indicative of higher-level trafficking. While the tracker data alone might not say very much, in context it reinforced the pattern observed in December: the use of the Mercedes for quick visits to various locations before returning to the area of the residence.
74The February surveillance then afforded observations that continued the pattern. Even if no inference of drug trafficking can be drawn from the surveillance on February 23, what matters is that the observations put the applicant and Ms. Thompson at the residence. Then, five days later, the surveillance on February 28 provided a strong inference that the applicant was engaged in drug trafficking. The police once again observed the applicant engaged in counter-surveillance driving and meeting briefly with unknown people who were waiting for him in parking lots.
75The applicant argues that the absence of counter-surveillance driving or other efforts to conceal the residence on February 23 suggests that drugs were no longer present in that location. That is one possible inference. It may mean that the presence of drugs at the residence in early March was not the only reasonable inference: see R. v. Nero, 2016 ONCA 160 at para. 71. However, when the ITO is considered as a whole, I am satisfied that the issuing justice could have reasonably authorized the warrants for the residence and the motor vehicles: see R. v. Reeves, 2017 ONCA 365 at para. 82.
Whether the Entire ITO Was Too Unreliable to Support Issuance
76Up to this point, my analysis has accepted the corrected ITO at face value. I have proceeded on the basis that the police fairly recorded and conveyed their surveillance observations, which the affiant then summarized in the ITO. The applicant raises a further argument. He submits that I should not place trust in the police in this case; that the affiant's misrepresentations and omissions, whether deliberate or reckless, infected the entire ITO and rendered it too unreliable to support issuance. This submission relies on the following principle from R. v. Debartolo, 2018 ONSC 916 at para. 38:
Where there are deliberate misrepresentations and omissions in the ITO these defects may impact on the assessment of the reliability of the balance of the ITO even if deliberate misrepresentation and material omission has not been proven with respect to the details contained in the balance of the ITO after excision.
77I do not give effect to the applicant's submission. My analysis proceeds in three parts.
Flaws in the ITO and Their Effect
78I acknowledge flaws in the ITO. The inclusion of the applicant's prior occurrence reports without stating whether charges were laid and, if so, their disposition, had the potential to mislead the issuing justice. That practice is not acceptable. Cross-referencing should be a straightforward step. If an officer cannot determine a disposition, that information gap should be disclosed in the ITO. Furthermore, some of the affiant's drafting was imprecise. For example, he used "exact same spot" when he meant the "same exact area of the city". And certain affiant notes were overstated. At times they presented individual observations—standing alone—as indicative of drug trafficking. For example, I struggle to understand how running into a restaurant, returning a few minutes later without any take-out bags, and reclining in the passenger seat of a vehicle is "indicative of a drug transaction on several levels". The same concern applies to the note about the tracker data showing the Jeep making 17 short-duration stops at the back of a cemetery.
79Despite these flaws, I do not find that the affiant intentionally sought to mislead the issuing justice, nor do I find negligence or recklessness in his approach. The record suggests that the affiant sometimes struggled to distinguish between what could be inferred from isolated observations and what he inferred from the totality. That difficulty does not mean his notes had the real potential to mislead. The issuing justice was required to consider the ITO in its entirety and to draw independent conclusions. "A narrow focus on a portion of the ITO is inconsistent with the legal requirement that the issuing justice act judicially, which would include diligently and independently reviewing the entire ITO and considering its contents": R. v. Victoria, 2018 ONCA 69 at para. 97. The inclusion of the occurrence reports was not altogether inappropriate, as certain ones tied the applicant to the drug subculture and thus provided some corroboration of the informant's account. The applicant's reliance on R. v. Adler, 2020 ONCA 246 at paras. 30-31 does not change my assessment. Adler featured markedly more troubling conduct, including the failure to mention in the ITO a prior warrantless entry into the accused's home or share with the Crown the real reasons to adjourn a bail hearing. It is telling that the corrected ITO in this case is not materially different from the version submitted to the issuing justice. Some points are clearer and additional context has been added, but the strength of the inferences sought to be drawn remains about the same.
80I generally accept the affiant's explanations for why he drafted the ITO the way that he did. For example, the affiant was cross-examined on how he summarized the surveillance from December 20, 2022. Paragraph 65 did not include details of Ms. Thompson moving items in the Mercedes trunk and transferring small bags and other items from the residence into the trunk. I accept that this omission was not an effort to suppress exculpatory context. The affiant fairly summarized salient points for the warrant application rather than reciting every observed movement. More broadly, the ITO contains several instances where the affiant expressly demonstrated his understanding of the need to be full, fair, and frank—by identifying unknowns, flagging the limitations of the tracker data, and avoiding categorical assertions.
81The affiant's use of generalizing language was not materially distorting. The tracker showed the Mercedes at the residence for 29 of 49 nights (approximately 59%). The affiant is not a meticulous solicitor who might consider "for the most part" a touch overstated: see R. v. Green, 2015 ONCA 579 at para. 18. The affiant did not say that the Mercedes was "always" at the residence. The numerical pattern still supported the residential association relevant to the inference being drawn. Likewise, where the affiant used qualifying language—"appears"; "had the characteristics of"—those qualifiers signalled that he was drawing inferences rather than asserting certainties.
Affiant Credibility on Core Surveillance Details
82The applicant suggested that the affiant fabricated key surveillance facts and inserted them into the ITO to bolster the drug trafficking inference. If made out, that allegation would establish bad faith and undermine the reliability of the entire ITO.
83I reject that the affiant fabricated anything. I found the affiant credible and his testimony reliable. He was cross-examined about surveillance details from February 28 that appeared in the ITO but not in the central scribe notes. He explained that he was keenly listening to the live surveillance chatter while drafting the ITO. He was not part of the surveillance unit, and his focused drafting role left him free of other surveillance duties. In those circumstances, I am not surprised that he captured details from the live feed that do not appear in the scribe notes. I accept that he drafted the ITO contemporaneously, even if he did not record that methodology in his notes. The fact that other officers did not note his monitoring carries little weight, as he was not part of the surveillance team. There is no evidence before me on whether the other officers were even aware of his monitoring. I found the affiant's testimony on this point to be logical, coherent, and compelling:
Q. What you're indicating you heard over the radio, is that an independent memory that you have now, today?
A. I don't remember that independently now, no.
Q. So, fair to say you are assuming that you heard these [surveillance] details over the radio?
A. I am saying that I had more than just what is [in the central scribe] notes, and if you take [those] notes at face value and compare it to what's in the ITO, that's not all I had access to. I also had the live feed over the radio of what was said, and I also had a conversation with the team when they got back, and we ensured that what I put in the ITO was correct.
Prior Credibility Assessments in Other Cases
84Prior credibility assessments from other cases do not negatively affect my assessment of the affiant's credibility or reliability. The applicant relies on two decisions. In R. v. Sodhi, 2019 ONCJ 463, both the affiant and Sergeant Hall (a surveillance officer in the case at bar) testified at trial; Fiorucci J. made negative credibility findings regarding Sgt. Hall (see paras. 32-33, 40) but none against this affiant—at most, certain aspects of his testimony were not accepted. In R. v. Russell, 2024 ONSC 529, on a Charter application concerning a no-knock entry executed by a team that included the affiant and Cst. Lentz (another surveillance officer in the case at bar), Goodman J. found the officers failed to justify the no-knock (para. 14), noted parts of their testimony were contradicted by CCTV, held the entry breached s. 8, and excluded the evidence under s. 24(2). Goodman J. made no express adverse credibility findings against this affiant. He principally found that the police evidence was insufficient to justify the no-knock entry (see paras. 59, 64-66).
85The prior decisions neither import a propensity to lie nor undermine reliability here. It is not uncommon for a trial judge to accord less weight to testimony that conflicts with other proof without finding mendacity. The opinions of other judges regarding the officers' credibility do not, without more, render those officers discreditable: R. v. Ghorvei, 1999 CanLII 19941 (Ont. C.A.) at para. 31. There was no application in these proceedings to cross-examine Sgt. Hall or Cst. Lentz as sub-affiants, and I am not prepared to discount surveillance observations recorded by Sgt. Hall merely because one judge in 2019 was troubled by his testimony in a different context. Even after taking Sodhi and Russell into consideration, I find the affiant credible and reliable on the record before me.
Conclusion
86In sum, I do not find that the affiant sought to deliberately mislead the issuing justice. He did not intentionally add erroneous details or omit necessary ones. Portions of the ITO were sloppily drafted; others were overstated when viewed in isolation. But I would not say that the affiant was reckless in his approach. Considered as a whole, as the issuing justice was required to do, the corrected ITO remained a reliable basis to authorize the warrants; see R. v. Victoria, 2018 ONCA 69 at paras. 97-98. The identified defects do not infect the entire ITO.
Residual Discretion
87Even though the warrants could have issued, the court retains a common law authority to set them aside. This residual discretion is not contingent on finding a Charter breach. Rather, the residual discretion can be used when the police conduct was so subversive of the authorization process that the warrant must be set aside to protect the court's process: R. v. Paryniuk, 2017 ONCA 87 at paras. 69, 74; R. v. Araujo, 2000 SCC 65 at para. 54; R. v. Nyadu, 2024 ONSC 4092 at para. 273. The standard to use this discretion is high: R. v. Phan, 2020 ONCA 298 at para. 56. It has been described as conduct that amounts to an abuse of process: R. v. Vivar, 2009 ONCA 433 at para. 2.
88Given my findings above, I see no basis to invoke this residual discretion. The police conduct did not subvert the authorization process. Any failings in the obligation to make full and frank disclosure were not the product of bad faith: see R. v. Booth, 2019 ONCA 970 at para. 121. The affiant did not undermine, corrupt, or weaken the integrity of pre-authorization process.
Exclusion of Evidence
89I find that the warrants could have issued and do not set them aside. The applicant does not advance other Charter claims. I find no Charter breaches and do not consider the exclusion of evidence under s. 24(2).
Conclusion
90The application is dismissed. The warrants are upheld. The evidence is admissible.
Released: October 23, 2025
Signed: Justice Davin M.K. Garg