ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DENNIS MAI AND JANE NGUYEN
Before Justice Robert S. Gee
Heard on June 30, 2026
Reasons on the Applicants' s. 8 Application released on July 23, 2026
Counsel: Tessa Moran................................... counsel for Public Prosecution Service of Canada Sonya Shikhman............................................................ counsel for applicant Dennis Mai Madalyn Bavaro ......................................................... counsel for applicant Jane Nguyen
Gee J.:
INTRODUCTION
1The Applicants seek an order quashing the search warrant that authorized the search of their residence located at 26 Greenshire Drive, in Hamilton, and an order excluding the evidence obtained as a result of that search pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.
2The application is more commonly known as a Garofoli application, based on the principles established in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The Applicants challenge the warrant on both a facial and sub-facial basis. They submit that the Information to Obtain ("ITO") failed to disclose reasonable and probable grounds to believe that evidence of drug trafficking would be found in the residence, that the information relied upon was stale by the time the warrant was executed, that the nexus between the suspected criminal activity and the residence was insufficient, and that the affiant failed in his obligation to be full, frank and fair by omitting material information revealed during cross-examination.
3The Applicants further submit that the manner in which the ITO was drafted amounted to a subversion of the authorization process and that the court should exercise the residual discretion discussed in R. v. Paryniuk, 2017 ONCA 87, to quash the warrant notwithstanding the existence of sufficient grounds.
4The Crown submits that the warrant was lawfully issued, that the surveillance observations provided strong corroboration of the anonymous tip, that the affiant's omission does not materially undermine the grounds when the ITO is properly corrected, and that there is no evidence of bad faith, deliberate deception, or subversion.
5For the reasons that follow, I conclude that while the ITO contained an omission that ought to have been disclosed, the corrected ITO continued to provide sufficient reliable evidence upon which the issuing justice could have issued the warrant. The application is therefore dismissed.
GOVERNING PRINCIPLES
6The legal principles governing this application are well settled.
7A search warrant is presumptively valid and the burden rests upon the applicants to establish that the warrant was unlawfully issued. As the Court of Appeal held in R. v. Sadikov, 2014 ONCA 72, judicial review of a warrant begins from the premise that it is valid and the onus lies upon the party challenging it to demonstrate otherwise.
8The reviewing judge does not conduct a de novo hearing and does not substitute his or her own opinion for that of the issuing justice. The question is whether there was sufficient credible and reliable evidence upon which the issuing justice could have found reasonable and probable grounds. As stated in Garofoli, reaffirmed in Sadikov, and reiterated in R. v. Morelli, 2010 SCC 8, the issue is whether there was reliable evidence that might reasonably be believed and upon which the warrant could, not necessarily would, have issued.
9The applicable constitutional standard remains that established in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. The issuing justice must be satisfied that there are reasonable and probable grounds to believe that an offence has been committed, and that evidence of the offence will be found at the place to be searched. The standard has repeatedly been described as one of credibly based probability rather than certainty, proof beyond a reasonable doubt, or even proof on a balance of probabilities.
10The scope of a Garofoli review is a narrow one. In R. v. Nguyen, 2011 ONCA 465, the Court of Appeal cautioned that the reviewing process is not an exercise in examining police conduct with a "fine-toothed comb", fastening upon minor errors or omissions and embellishing them to the point that police conduct rather than the sufficiency of the grounds becomes the central issue. Similarly, in R. v. Victoria, 2018 ONCA 69, the Court emphasized that complaints about an affiant's inferences, omissions, conclusory statements, or reasoning do not automatically undermine a warrant. The reviewing court remains focused on whether the authorization could have issued.
11At the same time, an affiant owes a well-established duty of candour. In Morelli, the Supreme Court emphasized that affiants must avoid incomplete recitations of known facts that invite inferences that might not otherwise be drawn. In R. v. Booth, 2019 ONCA 970, the Court of Appeal held that the duty of full, frank and fair disclosure requires an affiant to disclose material information capable of undermining the probability that an offence has been committed, undermining the probability that evidence will be found at the place to be searched, or calling into question the reliability of information relied upon to establish the grounds.
12However, the law does not require perfection. Affiants are expected to be full, frank and fair, but not flawless. As the Court of Appeal observed in R. v. Green, 2015 ONCA 579, police officers are not wordsmiths and ITOs are not to be parsed as though produced by meticulous solicitors. The inquiry remains directed at materiality rather than drafting perfection.
13Where a reviewing court identifies omissions or inaccuracies, the ordinary remedy is excision and amplification. The court removes improper information, adds information that ought to have been disclosed, and then assesses whether the warrant could still have issued on the corrected record. That approach is derived from Garofoli, R. v. Araujo, 2000 SCC 65, and Morelli.
14Only in exceptional circumstances will a court invoke the residual discretion described by the Court of Appeal in Paryniuk to set aside a warrant despite the existence of sufficient grounds. That residual discretion is reserved for circumstances involving deliberate deception, bad faith, fraudulent misrepresentation, deliberate non-disclosure, or comparable conduct that genuinely subverts the authorization process.
THE ITO
15The investigation began when police received an anonymous Crime Stoppers tip alleging that Dennis Mai was trafficking drugs. The affiant expressly acknowledged that the tip source was anonymous and that the reliability of the source could not be assessed. The tip was therefore not relied upon as a self-sufficient basis for grounds and required corroboration.
16Police subsequently conducted database checks linking Mr. Mai and Ms. Nguyen to the residence at 26 Greenshire Drive and to vehicles associated with that address.
17The primary basis for the warrant consisted of surveillance conducted on eight separate dates between April and May 2024. During those surveillance periods police repeatedly observed Mr. Mai departing from and returning to the residence, meeting with various individuals for short periods, and engaging in conduct which the affiant believed to be indicative of drug trafficking.
18The affiant identified several observations that he believed constituted drug transactions, including interactions occurring at the residence and in Shopper's Drug Mart parking lots. The ITO relied not on direct observations of drugs or currency but rather on the cumulative significance of the observations and the inferences the affiant believed reasonably arose from them.
19The ITO also acknowledged there was ongoing renovation work being done to the residence and distinguished certain visitors whom the affiant believed were involved in that construction activity.
CHALLENGES BY DEFENCE TO ITO
20The Applicants submit that the ITO never rose above the level of suspicion. They emphasize that the anonymous tip was entirely devoid of detail and that the surveillance observations lacked the hallmarks typically associated with established trafficking investigations. No drugs were observed. No hand-to-hand exchanges were observed. No confidential informants were used. No intercepted communications were obtained. No controlled purchases occurred.
21The Applicants argue that the observations are equally consistent with innocent activity, particularly given the evidence of the ongoing renovations at the residence.
22The Applicants further argue that the warrant suffers from a temporal nexus problem. Even assuming some of the observations support an inference of trafficking, the last surveillance observation occurred on May 15, 2024, approximately eight days before the warrant was executed. The Applicants submit that there was no evidence establishing a credibly based probability that drugs or evidence would still be present in the residence at the time of the search.
23Finally, the Applicants rely heavily on the cross-examination of Detective Constable Blake and submit that his conscious omission of information regarding a construction-company vehicle demonstrates a failure to be full, frank and fair and amounts to subversion of the authorization process.
AFFIANT’S CROSS EXAMINATION AND THE LICENCE PLATE OMISSION
24The applicants in a previous application sought leave to cross examine the affiant and were granted a limited right to cross examine him on one, narrow issue referenced in paragraph 45 of the ITO concerning one of the observations made on April 18, 2024. This observation was of a brief meeting Mr. Mai had in a Shopper’s Drug Mart parking lot with a person operating a Dodge Ram pick up truck.
25The affiant acknowledged that he reviewed surveillance notes indicating that the licence plate registered to the Dodge Ram involved, was registered to Ferrell Builders' Supply Limited. He further acknowledged that the issuing justice would not have known that fact because he chose not to include it in the ITO.
26The applicants argue this detail should have been disclosed by the affiant as this meeting could plausibly have been related to the renovation work being done on the accused’s residence and as such undermined the basis for the issuance of the warrant.
27Detective Constable Blake candidly acknowledged that he had reviewed the information and decided not to include it because, in his assessment, it was not significant to the grounds. He testified that he focused on patterns of behaviour and observed conduct rather than registered vehicle ownership information. He maintained throughout his testimony that notwithstanding the ownership of the vehicle, he believed the interaction was a drug transaction and not related to the renovations occurring at the residence.
28I agree with the Applicants that this information ought to have been included.
29The fact that a vehicle involved in one of the observations was registered to a construction-related business is information capable of supporting an innocent explanation for the interaction. Whether the affiant personally accepted that explanation is not determinative. The issuing justice was entitled to know that fact and independently assess its significance.
30Accordingly, the ITO must be amplified to include the information that the vehicle bearing licence plate BA26604 was registered to Ferrell Builders' Supply Limited.
31However, I do not agree with the Applicants' submission that inclusion of this information materially undermines all the remaining Shopper's Drug Mart observations.
32The Applicants argue that once it is known that one of the Shopper's Drug Mart observations involved a vehicle connected to a construction company, all subsequent Shopper's Drug Mart meetings become suspect and are equally capable of innocent explanation. Respectfully, I do not accept that proposition.
33The fact that one interaction occurred with a vehicle having some apparent connection to the construction industry does not transform every subsequent Shopper's Drug Mart interaction into a construction-related meeting. The later observations involved different individuals, different vehicles, different circumstances, and different dates. Their significance does not depend upon the interpretation assigned to the April 18 event.
34Even accepting the Applicants' position at its highest and treating the April 18 observation as materially weakened, the remaining observations retain independent evidentiary value. They do not stand or fall as a collective unit.
35As recognized in R. v. Lao, [2013] O.J. No. 1995, the existence of an innocent explanation does not require observations to be treated as innocuous. Likewise, in R. v. Nero, 2016 ONCA 160, [2016] O.J. No. 1027 (Ont. S.C.J), the court noted that evidence may reasonably support multiple inferences. The existence of an innocent interpretation does not eliminate the possibility of a criminal one. The inquiry remains whether, viewed in their totality, the observations could support the reasonable inference drawn by the issuing justice.
36Accordingly, while I conclude that the licence plate information ought to have been disclosed, I do not accept that amplifying the ITO by including this information materially undermines the significance of the remaining Shopper's Drug Mart observations.
TEMPORAL NEXUS
37The Applicants' temporal nexus argument, it could be argued, is their strongest.
38The Applicants rely in particular upon the reasoning discussed in R. v. James, 2019 ONCA 288, and submit that while surveillance may provide evidence of trafficking at one point in time, the warrant may nevertheless fail if there is insufficient evidence that drugs or evidence remained at the residence when the warrant was sought and executed.
39I accept that general proposition. Grounds must exist at the time the warrant issues. Evidence of trafficking does not automatically establish that evidence will be present at a residence days or weeks later.
40However, I do not accept that the information in the present case was stale.
41Unlike the circumstances relied upon by the Applicants, this was not a case involving a single historical observation from which continuing possession was inferred. Rather, police observed a recurring pattern of suspected trafficking activity over approximately five weeks culminating only eight days prior to execution of the warrant. In this case, police observed what the affiant believed to be trafficking-related activity over this extended period of time. Significant observations occurred on April 18, April 23, April 29, April 30, May 9, and May 15. The observations were recurring rather than isolated. The issuing justice was entitled to infer from this that the activity was ongoing.
42The significance of that consistency is that it permits an inference of continuing activity rather than a single isolated event. While the crime stoppers tip itself was weak, the surveillance observations supplied repeated corroboration and repeatedly linked Mr. Mai to the residence and target vehicles.
43The issue is not whether there was certainty that drugs remained in the residence on May 23. The question is whether there was a credibly based probability that evidence of trafficking would be found there. In my view, the repeated observations over several weeks permitted that conclusion.
44Accordingly, I reject the argument that the grounds were stale or that the temporal nexus to the residence was insufficient.
SUBVERSION
45The Applicants further submit that the way the affiant dealt with Mr. Mai's prior involvement with police supports a finding that the authorization process was subverted. They acknowledge that the affiant repeatedly stated throughout the ITO that he understood his obligation to be full, frank and fair and that he was not relying upon certain prior investigations and charges involving Mr. Mai to establish reasonable and probable grounds. However, the Applicants argue that despite those disclaimers, the affiant included extensive detail concerning Mr. Mai's historical involvement in drug investigations, including circumstances surrounding prior arrests, and interactions with police.
46The Applicants submit that the level of detail included far exceeded what was necessary to provide background information and served to portray Mr. Mai as an individual with a longstanding association to drug trafficking, notwithstanding the affiant's assertion that he was not relying upon that information as part of the grounds. According to the Applicants, the inclusion of this detail had the effect of strengthening the appearance of the grounds while information that detracted from the trafficking inference, such as the registration of the April 18 vehicle to a construction-related business, was omitted.
47The Applicants argue that this contrast is significant. In their submission, the affiant demonstrated a willingness to include extensive information that tended to support suspicion of drug trafficking while excluding information that supported an innocent explanation for observed conduct. They submit that this reflects a selective approach to disclosure inconsistent with the obligation to be full, frank and fair. The Applicants therefore contend that the treatment of Mr. Mai's prior police involvement, when considered together with the omission of the licence plate information and the affiant's refusal during cross-examination to acknowledge that the omission should have been disclosed, demonstrates an effort to present the facts in a manner calculated to favour issuance of the warrant and supports a finding that the pre-authorization process was improperly subverted.
48I do not agree.
49The omission regarding the licence plate is concerning. As indicated above, I find that the information ought to have been disclosed. However, the evidence falls far short of establishing deliberate deception, bad faith, fraudulent misrepresentation, or comparable misconduct.
50I also do not accept the broader premise underlying much of the subversion argument.
51Applications for judicial authorization are routinely reviewed by judges and justices of the peace experienced in assessing search warrants and judicial authorizations. Issuing justices are not passive recipients of police information. They are independent judicial officers charged with determining whether the statutory and constitutional preconditions for issuance have been satisfied.
52Issuing justices are presumed to know the law. This means they are presumed to understand the distinction between evidence and inference. They are presumed to appreciate the limitations inherent in anonymous tips and hearsay information. They are presumed to understand the legal standard governing reasonable and probable grounds. Most importantly, they are presumed to independently evaluate the information placed before them rather than simply adopt an affiant's conclusions.
53The affiant's role is to provide information and identify the inferences they believe arise from that information. The decision whether those inferences ought to be accepted belongs entirely to the issuing justice.
54Several of the Applicants' submissions proceed from the premise that the issuing justice might simply have accepted the affiant's conclusions without critical assessment. There is no basis for such an assumption. The authorization process presumes an experienced and legally informed judicial decision-maker capable of independently evaluating the material and assigning such weight to it as is appropriate.
55This is not to diminish the importance of the duty of full, frank and fair disclosure. That duty is fundamental. However, an omission or a mistaken assessment of relevance does not, without more, establish that the authorization process was manipulated or subverted.
56The evidence before me demonstrates that Detective Constable Blake made a relevance judgment with which I do not entirely agree. It does not demonstrate deliberate deception. It does not demonstrate bad faith. It does not demonstrate an attempt to improperly influence the issuing justice. At its highest, it demonstrates a conscious but erroneous assessment of the significance of information that should have been disclosed.
57I also do not agree that inclusion of the historic investigations demonstrates bad faith or selective disclosure. The affiant expressly identified the limitations of that information, disclosed the fact that certain matters did not result in convictions, and disclosed concerns relating to the 2010 investigation. While one may debate the weight to be afforded that information, its inclusion does not support an inference of deliberate unfairness or manipulation.
58This all falls considerably short of the conduct contemplated by Paryniuk and related authorities.
59Accordingly, I decline to invoke the residual discretion to quash the warrant.
COULD THE WARRANT HAVE ISSUED
60Having amplified the ITO to include the licence plate information, I must determine whether the warrant could still have issued.
61I conclude that it could.
62Before turning to the ultimate question, it is important to recall that the issuing justice was not being asked to assess any single observation in isolation. The ITO did not advance the theory that one event, standing alone, established reasonable and probable grounds. Rather, the ITO relied upon the cumulative effect of multiple observations occurring over a number of weeks. As courts have repeatedly recognized in the search warrant context, seemingly innocuous observations may assume greater significance when viewed collectively and in the broader context of an ongoing investigation. The reviewing exercise therefore requires consideration of the totality of the information rather than a piecemeal assessment of individual events.
63Even after amplification of the ITO to include the licence plate information, the investigation continued to reveal a recurring pattern of behaviour. Police repeatedly observed Mr. Mai departing from and returning to the residence, engaging in brief meetings with different individuals, and doing so over an extended period of time. The observations were not confined to a single day, nor were they limited to a single person. Rather, they occurred repeatedly between April and May 2024 and involved multiple separate encounters that the issuing justice was entitled to consider collectively in assessing whether criminal activity was occurring.
64While no drugs, currency, or hand-to-hand exchanges were directly observed, direct evidence is not a prerequisite to the issuance of a search warrant. Reasonable and probable grounds may be established through circumstantial evidence and reasonable inferences drawn from observed conduct. Here, the issuing justice was entitled to consider not only the brevity and repetitive nature of the interactions but also the manner in which they were linked to the residence, which police believed operated as the focal point of the activity being observed. The repeated departures from and returns to the residence provided an evidentiary basis upon which the issuing justice could reasonably infer a connection between the suspected trafficking activity and the residence itself.
65I accept that certain individual observations admit of innocent explanations. The presence of ongoing renovations at the residence is one such example. The inclusion of the Ferrell Builders' Supply licence plate information further strengthens an innocent explanation for the April 18 interaction. However, the existence of innocent explanations for some observations does not require the issuing justice to disregard all competing inferences suggestive of criminal activity. The question is not whether each observation is incapable of innocent interpretation, but whether the totality of the evidence establishes a credibly based probability of criminal conduct. In my view, the corrected ITO continued to meet that threshold.
66I am also mindful that the anonymous Crime Stoppers tip, standing alone, carried little weight. However, the significance of the tip lies not in its independent reliability but in the extent to which subsequent police investigation provided corroboration. By the time the warrant was sought, the issuing justice had before him not merely an uncorroborated allegation of trafficking, but a pattern of surveillance observations spanning several weeks which the issuing justice was entitled to view as consistent with ongoing drug trafficking activity. When considered together, the tip, the surveillance observations, the continued association with the residence, and the affiant's experience-based interpretation of the observed conduct could support reasonable and probable grounds even after the ITO is corrected through amplification.
CONCLUSION
67I conclude that the omission concerning the registration of licence plate BA26604 was information that ought to have been disclosed. The ITO must therefore be considered with that information included.
68Having done so, I am not satisfied that the omission constituted bad faith, deliberate deception, fraudulent misrepresentation, or subversion of the authorization process. Nor am I satisfied that inclusion of the information materially undermines the remaining grounds.
69Again, after considering the corrected ITO as a whole, including the repeated surveillance observations, the ongoing nature of the suspected activity, and the nexus between that activity and the residence, I conclude that the issuing justice could reasonably have found reasonable and probable grounds for the issuance of the warrant.
70Accordingly, the Applicants have not established a violation of s. 8 of the Charter. It is therefore unnecessary to proceed to a s. 24(2) analysis.
71The application is dismissed.
Released: July 23, 2026
Signed: Justice Robert S. Gee