His Majesty the King v. Timothy King and Abdalle Farah, 2026 ONCJ 95

CITATION: R. v. King, 2026 ONCJ 95

DATE: 2026 01 30

COURT FILE No.: Halton Info # 998 25 12101346, # 998 24 12103267

BETWEEN:

HIS MAJESTY THE KING

— AND —

TIMOTHY KING and ABDALLE FARAH

Before Justice Jennifer Campitelli

Heard December 2^nd^ and 3^rd^, 2025 and January 6^th^, 2026

Reasons for Judgment Released January 30, 2026

Jesse Razaqpur counsel for the Public Prosecution Service of Canada

Robin McCourt counsel for the accused Timothy King

Graham Zoppi…………………………………….counsel for the accused Abdalle Farah

CAMPITELLI J.:

1Following the arrest of Dario Dilber in May of 2024, the Ontario Provincial Police and the Halton Regional Police entered into a joint investigation labelled “Project Catfish”. This investigation ultimately culminated in the drafting of an omnibus ITO, which requested authorization for the search of several different locations and vehicles. Multiple search warrants were issued with respect to the ITO submitted on August 30, 2024. Those warrants were executed on September 5, 2024. I was appointed to serve as a case management judge pursuant to s. 551.1 of the Criminal Code of Canada. As such, a global hearing was scheduled before me relative to challenges being brought to the authorizations by Mr. King and Mr. Farah pursuant to the principles outlined in R. v. Garofoli.

2Mr. King is charged with a number of counts on information 998 25 12101346, which is before the court. Significantly, Mr. King is charged with 5(2) Fentanyl pursuant to the Controlled Drugs and Substances Act (CDSA), 5(2) MDMA CDSA, 5(2) Methamphetamine CDSA, 5(2) Ketamine CDSA, 5(2) Oxycodone CDSA, and being in possession of a “Glock” handgun contrary to s. 91(1) of the Criminal Code, wherein numerous related firearm counts are further charged.

3Specifically, Mr. King challenged the search of “Location #7: 824 Nebo Rd. Hamilton, Ontario and surrounding property including trailers, outbuildings, and vehicles on property registered to Timothy KING (1972/10/13). He argued that the Information to Obtain (ITO) the search warrant failed to establish that there were reasonable and probable grounds to believe the evidence sought would be located at “outbuildings”. Specifically, Mr. King argued that the authorizing document did not capture outbuildings located beyond the fence-line or backyard of 824 Nebo Rd. Those outbuildings were not described for the issuing justice, they were not articulated and thus, the scope of the search authorized did not include those locations. Consequently, the Applicant took the position that the search violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms to be secure from unreasonable search and seizure.

4Mr. Farah is charged with a number of counts on information # 998 24 12103267, which is also before the court. Significantly, Mr. Farah is charged with three separate counts of 5(2) Cocaine (CDSA), 5(2) Fentanyl (CDSA), and a number of firearm counts related to the seizure of a loaded “Smith and Wesson” handgun.

5Mr. Farah challenged the search of “Location #4”, Unit 1010 of 168 Plains Road West, Burlington and “Location #6”, Unit G of 97 Elgar Avenue, Hamilton, Ontario. Specifically, he argued that the Information to Obtain (ITO) the search warrant failed to establish that there were reasonable and probable grounds to believe the evidence sought would be located at these addresses. With a view to “Location #4” in particular, he argued any observations of drug related activity were dated at the time the affiant authored the ITO. Therefore, they were not capable of establishing the requisite grounds. Consequently, Mr. Farah took the position that both searches violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms to be secure from unreasonable search and seizure. Mr. Farah further argued that, should I find the search of “Location #4” violated Mr. Farah’s Charter rights, he also challenged the search of a Toyota CHR, arguing the grounds articulated were solely grounded in items seized from “Location 4”.

6Mr. King sought exclusion of the following evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms:

(1) All illicit property located in the “824 West Outbuilding”

(a) “Glock” handgun, and magazine;

(b) Fentanyl and Analogues 189.9g;

(d) Dilaudid/Hydromorphone 362 pills (62.9g);

(e) Tramadol 180 pills (87.9g);

(f) Ketamine 928.7g; and

(g) MDMA 759.3g.

(2) All illicit property located in the “Seacan Outbuilding”

(a) Methamphetamine 1955g.

(3) All illicit property located in the “Shelter Logic Tent”

(a) Methamphetamine 212g; and

(b) Oxycodone 77 pills.

7Mr. Farah sought exclusion of the following evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms:

(1) All illicit property located in Unit 1010 of 168 Plains Road West, Burlington

(a) A loaded “Smith and Wesson” handgun; and

(b) Cocaine 800g.

(2) All illicit property located in Unit G of 97 Elgar Avenue, Hamilton, Ontario

(a) Cocaine 34g; and

(b) Oxycodone 25 pills.

(3) All illicit property located in the Toyota CHR

(a) Cocaine 39g.

8On January 14, 2026, I made the following ruling with reasons to follow:

(1) Mr. Farah’s application was dismissed outright.

(2) With a view to Mr. King’s application, I found that the following searches violated his rights, as protected by s. 8 of the Canadian Charter of Rights and Freedoms: (1) the search of “The 824 West Outbuilding” and (2) the search of “The Seacan Outbuilding”. However, I found that after the three factors outlined in R .v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) were balanced, the evidence must be included. Exclusion of the evidence would bring the administration of justice into disrepute.

9Here are those reasons.

The Legal Framework

10In R. v. Campbell [2022] O.J. No. 5155 at para. 36 (SCJ), Justice Allen very helpfully summarizes some of the guiding principles governing the review process:

(1) The warrant is presumed valid and it falls to the defence to prove invalidity on a balance of probabilities: [R. v. Wilson, (2011), 2011 BCCA 252, at para. 63, (B.C.C.A.)]:

(2) The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewing judge to substitute their view for that of the issuing court: [R. v. Garofoli, at p. 1452];

(3) The role of the review is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could — not would — have issued. There has to be some evidence that might reasonably be believed on the basis of which the warrant could have issued: [R. v. Morelli, at para. 40; R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, [1990] 2. S.C.R. 1421, at p. 1452, (S.C.C.)];

(4) The reliability of the information must be adjudged at the time of the application for a warrant. It cannot be considered ex post facto from the results of the search: [R. v. Garofoli and R. v. Araujo, at paras. 54 - 56].

(5) Warrant review requires a contextual analysis. Reference to all the information contained within the four corners of the information in the ITO provides a fair and reasonable context. The review must involve a scrutiny of the whole of the document and not a limited focus on an isolated passage or paragraph: [R. v. Garofoli, at p. 1452];

(6) An authorization may be set aside on the grounds of fraud, material non-disclosure, misleading disclosure or the discovery of new evidence that shows that the actual facts are different from those upon which the authorization was granted: [R. v. Garofoli, at p. 1399].

(7) Non-disclosure arising from an improper motive or intention to mislead the issuing justice may, standing alone, invalidate the warrant despite the existence of requisite grounds to issue the warrant: [R. v Colbourne, 2001 4711 (ON CA), [2001] OJ No 3620, at para. 40, (Ont. C.A.); R. v Kesselring 2000 2457 (ON CA), [2000] OJ No. 1436 (Ont. C.A.)].

(8) The review is not an exercise in examining the conduct of 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: [R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787, at para. 57, (Ont. C.A.)].

(9) Facts that would be known to anyone familiar with the suspect and would not in any way substantiate the allegation that the suspect was involved in the crime do not address the reliability of the confidential source: [R. v. Zammit, 1993 3424 (ON CA), 1993 CarswellOnt 93, at para. 26, (Ont.C.A.)]; and

(10) Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: [R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673, at para. 20, (Ont.C.A.).

11Moreover, the reviewing judge must keep in mind that the authorizing justice must consider the ITO as a whole on a common-sense, practical and non-technical basis, and that the authorizing justice is entitled to draw reasonable inferences from the contents of the ITO: R .v. Kaup 2022 ONCA 383, [2022] O.J. No. 2249 at para. 6 (Ont. C.A.).

Analysis

Did the Information to Obtain (ITO) the search warrant establish that there were reasonable and probable grounds to believe the evidence sought would be located at Unit G of 97 Elgar Avenue, Hamilton, Ontario or Unit 1010 of 168 Plains Road West, Burlington?

The Suspected Drug Transactions Involving Mr. Farah

12On March 24, 2024, Mr. Dario Dilber was placed under arrest for Driving While Under Suspension. He was operating a red Chevrolet Malibu. Investigators conducted a search incident to Mr. Dilber’s arrest of the immediate area of the Chevrolet Malibu, which yielded a seizure of 436.1g of Fentanyl and 498.2g of Cocaine. Investigators also seized over $5000 in cash, and a digital scale with suspected drug residue on it. As previously stated, Mr. Dilber’s arrest initiated “Project Catfish”.¹ On June 6, 2024, Mr. Farah came to the attention of investigators as he engaged in an interaction with Mr. Dilber, which investigators believed was consistent with a drug related transaction. Mr. Dilber was operating the same Chevrolet Malibu involved in the drug related seizure on March 24, 2024, and attended the area of 97 Elgar Avenue, Hamilton. Mr. Farah was observed with two cell phones. He hugged Mr. Dilber through an open driver’s door window, the pair engaged in a brief conversation, and Mr. Dilber then departed the area. This interaction lasted approximately seven minutes.² The ITO then refers to several suspected drug transactions, which investigators believed specifically involved Mr. Farah. The details of those suspected transactions are briefly summarized as follows:

(1) June 18, 2024³

(a) Mr. Farah was operating a Hyundai Venue, which was registered to Enterprise Rent-A-Car;

(b) At 3:43 p.m. the Hyundai Venue parked in the parking lot of the Giving Closet Thrift Shop located at 1162 Barton Street East, Hamilton. The vehicle parked directly beside a grey Ford F150, wherein an unknown male immediately exited the Ford F150 and entered the front passenger seat of the Hyundai;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #1 involving Mr. Farah)

(d) Mr. Farah then drove the Hyundai to the parking lot of 5 Kendale Court, Hamilton at 5:10 p.m. The Hyundai parked beside a 2009 GMC Sierra, wherein an unknown male immediately exited the GMC Sierra and entered the front passenger seat of the Hyundai;

(e) A minute later, the unknown male exited the Hyundai, returned to the GMC Sierra, and both vehicles left the area;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #2 involving Mr. Farah)

(f) At 5:30 p.m. Mr. Farah parked the Hyundai in the parking lot of the Governors Green apartment building located at 101 Governors Road;

(g) At 5:35 p.m. an unknown male exited the apartment building and entered the front seat of the Hyundai;

(h) Five minutes later, at 5:40 p.m., the unknown male exited the passenger seat of the Hyundai and re-entered the apartment building;

(i) At 5:42 p.m. the Hyundai departed the parking lot.

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #3 involving Mr. Farah)

(j) Then, at 5:57 p.m. the Hyundai entered the parking lot of an apartment building located at 500 Aberdeen Avenue, Hamilton, Ontario;

(k) At 5:58 p.m. an unknown male with grey hair and a red shirt entered the passenger seat of the Hyundai;

(l) A minute later, at 5:59 p.m., the unknown male exited the Hyundai and re-entered the apartment building;

(m) At that point, the Hyundai departed the parking lot;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #4 involving Mr. Farah)

(n) At 6:21 p.m. the Hyundai proceeded to enter the parking lot at 2 Castlewood Boulevard, Hamilton. Four minutes later, at 6:25 p.m., a black BMW X5 entered the parking lot, and less than a minute later, an unknown male entered the passenger seat of the Hyundai;

(o) Within the same minute, the unknown male exited the Hyundai, and the Hyundai departed the parking lot at 6:34 p.m.;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #5 involving Mr. Farah)

(p) At 6:54 p.m. the Hyundai proceeded down an alley at the back of the Canadian Tire Gas Bar located near the corner of Victoria Avenue South and Main Street East, Hamilton;

(q) At 6:56 p.m. the Hyundai parked outside of a residence between 54 and 56 Victoria Avenue, South, Hamilton. Then, at 7:05 p.m. The Hyundai departed the area;

(i) Although surveillance was lost, because of the short duration the Hyundai was in the area of Victoria Avenue, South, Hamilton, the Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #6 involving Mr. Farah)

(r) Significantly, at 7:16 p.m. the Hyundai enters the parking lot of 97 Elgar Avenue, Hamilton. At 7:17 p.m. Mr. Farah exited the driver’s seat of the Hyundai and entered Unit G, then re-entered the Hyundai within the same minute.

(2) July 3, 2024⁴

(a) At 8:25 p.m. Mr. Farah was observed to exit Unit G of 97 Elgar Avenue, Hamilton and depart in a Honda Odyssey;

(b) The Odyssey pulled into the driveway of 301 Mohawk Road, East, Hamilton at 8:31 p.m. The address was noted to have boarded up windows and doors;

(c) At 8:33 p.m. an unknown male was observed leaning into the passenger side of the Odyssey. Then, at 8:37 p.m., the Odyssey left the area;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #7 involving Mr. Farah)

(d) At 9:02 p.m. the Odyssey attended 7 Watchgate Court, Hamilton. An unknown male was observed leaning into the passenger side of the Odyssey;

(e) Then, at 9:04 p.m., the Odyssey left the area;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #8 involving Mr. Farah)

(3) July 10, 2024⁵

(a) Investigators observed Mr. Farah enter the passenger side of a Chrysler 200 parked in front of Unit G, 97 Elgar Avenue at 11:51 a.m.;

(b) Just one minute later, at 11:52 a.m., Mr. Farah exited the Chrysler 200 and returned back to Unit G, 97 Elgar Avenue.

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #9 involving Mr. Farah)

(c) Mr. Farah pulled into the driveway at 301 Mohawk Road East, Hamilton at 4:53 p.m. Of note, Mr. Farah attended this same residence on July 3, 2024;

(d) A minute later, at 4:54 p.m. the Odyssey departed the driveway;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #10 involving Mr. Farah)

(e) At 5:03 p.m. investigators observed the Odyssey park west of East 36^th^ Street, Hamilton at which time an unknown male carrying a white grocery bag entered the passenger side of the vehicle;

(f) A minute later at 5:04 p.m., the Odyssey departed the area, and investigators noted there was no longer an individual in the passenger seat;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #11 involving Mr. Farah)

(g) The Odyssey then travelled to the south lot of the Governors Green apartment building at 5:35 p.m., where Mr. Farah was previously observed on June 18, 2024;

(h) At 5:39 p.m. an unknown male entered the passenger seat of the Odyssey, exited a minute later, and walked away from the vehicle;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #12 involving Mr. Farah)

(i) At 5:42 p.m. the Odyssey parked in the Spring Creek Plaza located at 232 Governors Road;

(j) Two minutes later, at 5:44 p.m. an unknown male was observed walking away from the Odyssey and the Odyssey departed the area shortly thereafter;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #13 involving Mr. Farah)

(k) At 5:53 p.m. the Odyssey pulled into the Ultramar Gas Station located at 1837 Main Street, West, Hamilton;

(l) Two minutes later, at 5:55 p.m. an unknown male approached the driver’s side window of the Odyssey before walking into the gas station kiosk. The Odyssey departed the area shortly thereafter;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #14 involving Mr. Farah)

(m) At 6:03 p.m. an unknown male was observed by investigators entering the passenger seat of the Odyssey briefly before exiting and walking away;

(n) The Odyssey then conducted a U-Turn and left the area;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #15 involving Mr. Farah)

(o) A short time later, the Odyssey entered the RBC parking lot located at 15 Plains Road East, Burlington;

(p) At 6:43 p.m. an unknown female party exited the passenger side of the Odyssey, entered a Hyundai SUV that was parked beside it, and the Odyssey departed the area;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #16 involving Mr. Farah)

(q) At 7:03 p.m. the Odyssey pulled into the visitors parking lot located at 140 Plains Road, West, Burlington;

(r) Five minutes later, at 7:08 p.m. an unknown female entered the passenger seat of the Odyssey, and exited the vehicle within a minute. She subsequently entered a two-door black sports car, where departed the area;

(s) The odyssey departed the area at 7:10 p.m.;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #17 involving Mr. Farah)

(t) The Odyssey returned to the parking lot of 97 Elgar Avenue, Hamilton at 7:33 p.m., where Mr. Farah was observed to interact with the occupant of a Chevrolet Cruz. Mr. Farah reached into the driver’s side window of the Cruz, and then entered Unit G using a key;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #18 involving Mr. Farah)

(4) July 24, 2024⁶

(a) At 4:11 p.m. Mr. Farah exited Unit G, 97 Elgar Avenue, Hamilton and entered a Ford EcoSport. He drove to 824 Nebo Road and 830 Nebo Road, Hamilton and parked at the rear of the residence, after driving down a laneway at 4:33 p.m.;

(b) At 4:33 p.m. the EcoSport departed the Nebo Road address and returned to 97 Elgar Avenue at 4:51 p.m.;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #19 involving Mr. Farah). This observation is also significant is the addresses on Nebo Road are connected to Timothy King.

(5) August 8, 2024⁷

(a) At 3:48 p.m. Mr. Farah exited the driver’s seat of a Hyundai Kona and entered 168 Plains Road, West, Burlington. At 4:47 p.m., Mr. Farah exited the building and entered the Kona;

(b) A short time later, at 5:09 p.m., Mr. Farah parked the Kona in the driveway of 12 Eaton Street, Hamilton. An unknown male exited the passenger side of the vehicle, and at 5:10 p.m. the Kona departed;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #20 involving Mr. Farah)

(c) At 6:01 p.m. Mr. Farah attended Unit G, 97 Elgar Avenue and opened the door using a key. He departed that address in the Kona at 6:44 p.m.;

(d) Then, at 7:15 p.m. Mr. Farah parked the Kona in the parking lot of 122 Hatt Street where an unknown male entered the passenger side of the vehicle. Investigators observed Mr. Farah to exit the parking lot at 7:23 p.m., and he was the lone occupant of the Kona at that time;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #21 involving Mr. Farah)

(e) At 7:29 p.m. the Kona parked in the driveway of 94 Emerson Street, Hamilton. At 7:33 p.m. an unknown female approached the passenger side of the Kona and leaned into the vehicle;

(f) A short time later, at 7:36 p.m., the female walked to the backyard of 94 Emerson and Mr. Farah remained in the Kona;

(i) The Affiant formed the belief that this interaction was a suspected drug transaction (suspected drug transaction #22 involving Mr. Farah)

13After Mr. Dilber’s arrest on March 10, 2024, he was initially connected to Unit 1010 168 Plains Road West, Burlington, Ontario. Following Mr. Dilber’s interaction with Mr. Farah on June 6, 2024, which investigators believed was drug related, Mr. Dilber, along with Ms. Dowling, returned to168 Plains Road, West, Burlington. Additionally, on June 26, 2024, Mr. Dilber and Ms. Dowling returned to 168 Plains Road West with a bag that is believed to be involved in a drug related transaction.⁸ Mr. Farah is observed to enter 168 Plains Road West, Burlington on August 22, 2024 with a Walmart bag. At this stage in the investigation, investigators no longer believed Mr. Dilber was residing at that address.

14The applicant took the position that that the interactions observed by investigators involving Mr. Farah were innocuous. He stressed that investigators at no point observed the exchange of items, there was no documented seizure of narcotics following any of the interactions referenced, and the individuals involved were not connected to any previous drug seizures. All this might be true; however, it is important that the interactions between these parties, which were observed by investigators over months of surveillance, are not considered in isolation. The applicant argued that the observations outlined by the affiant fell short of meeting the requisite threshold. Simply put, it was the applicant’s position that it could not be reasonably inferred that the interactions involving Mr. Farah were drug related transactions. This was mere speculation. The applicant further argued that the affiant’s speculative based conclusions were unsupported by other information in the ITO, which as a whole did not provide reasonable grounds to believe that drug related evidence would be located at either Unit G, 97 Elgar Avenue, Hamilton or Unit 1010, 168 Plains Road, Burlington. Certainly, an objective assessment of the totality of the circumstances surrounding each interaction is required; however, the overall investigative context must not be ignored.

15Consequently, I reviewed the observations related to the applicant in the context of all of the information, which was contained within the four corners of the ITO. On this evidentiary record, investigators commenced “Project Catfish” after Mr. Dilber was arrested with a significant amount of Fentanyl and Cocaine. Mr. Dilber was then observed to engage in what the affiant believed was a drug related transaction with Mr. Farah. Following that interaction, Mr. Farah was believed to engage in twenty-two suspected drug related transactions between June 18, 2024, and August 8, 2024. Each very similar, wherein individuals attended the passenger side of motor vehicles being driven by Mr. Farah for very brief periods of time. Mere minutes. Certainly, individuals involved in illicit drug trafficking are entitled to legitimate social interactions. To conclude that everyone a drug dealer interacts with is either buying or selling drugs would rely, at least in part, on stereotypical thinking: R .v. Downes [2022] O.J. No. 3410 (S.C.J.). However, again, the overall investigative context must be considered on these facts. Therefore, in my review, I focused my analysis on the nature of the interactions observed. In particular:

(1) The repeated brevity of the interactions observed by investigators over months of surveillance. Obvious, planned meetings in various locations where individuals briefly attended inside various motor vehicles being driven by Mr. Farah, then exited; and

(2) The multitude and similarity of the extremely brief interactions engaged in by Mr. Farah. For example, on June 18, 2024, Mr. Farah was believed to have engaged in six suspected drug related interactions. On July 10, 2024, he was believed to have engaged in ten very similar suspected drug related transactions.

16I concluded it was reasonable for the authorizing justice to infer that the interactions observed by investigators were consistent with drug related transactions. This was not mere speculation on the part of the affiant; rather, the requisite threshold of reasonable and probable grounds was met. These interactions must be considered objectively, within the totality of the investigative context. Each case involves a fact specific analysis and in the result, I find this evidentiary record can be distinguished from that in R .v. Downes. What investigators observed and communicated to the issuing justice was a pattern of arranged meetings characterized by brief interactions inside a motor vehicle. I find the brevity, similarity and multitude of these interactions was more than innocuous on these facts.

The Applicant’s Connection to Unit G, 97 Elgar Avenue, Hamilton and Unit 1010, 168 Plains Road, Burlington

17Carrying the analysis forward, I also find the nature of the transactions observed and Mr. Farah’s connection to Unit G, 97 Elgar Avenue, Hamilton and Unit 1010, 168 Plains Road, Burlington supports credibly based probability that evidence of the listed offences would be found at both addresses.

18Many of the relevant interactions observed by investigators, where I have found it was reasonable for the issuing justice to infer that they were consistent with drug related transactions, initiated at either Unit G, 97 Elgar Avenue, Hamilton or Unit 1010, 168 Plains Road, Burlington. Mr. Farah argued that the suspected drug related transactions observed, which were specifically connected to Unit 1010, 168 Plains Road, Burlington, were not proximate enough to when the affiant authored the ITO. Essentially, although the Applicant conceded the requisite grounds may have exited initially, those grounds no longer remained on August 30. 2024. I disagreed. The transactions specifically connected to Unit 1010, 168 Plains Road, Burlington must be considered with a view to the greater investigative context. This address was but one amongst several addresses frequented by individuals engaged in the suspected drug related activity observed. This was an alleged web of organized drug related activity involving multiple associated individuals and addresses. It is against this backdrop that the grounds articulated in the ITO must be viewed. Moreover, as I detailed above, Mr. Farah’s suspected drug related transactions on August 8, 2024, were proximate to both Unit G, 97 Elgar Avenue, Hamilton and Unit 1010, 168 Plains Road, Burlington. That was less than a month prior to the date the affiant sought authorization to search these addresses.

19The test is whether there was sufficient credible and reliable information, which would permit a justice to conclude there were reasonable and probable grounds that an offence had been committed and that evidence of the specified offence would be found at the time and place of search: R. v. Edwards-Cyrus [2018] O.J. No. 6740 at para. 10 (C.A.) citing R. v. Sadikov 2014 ONCA 72, [2014] O.J. No. 376 at para. 84 (C.A.) and R. v. Morelli 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40 (S.C.C.). I previously concluded that there was sufficient credible and reliable information to permit the issuing justice to conclude there were reasonable and probable grounds to believe the parties, including the applicant, were engaged in drug related transactions. I further concluded that the proximity of the relevant transactions to both Unit G, 97 Elgar Avenue, Hamilton and Unit 1010, 168 Plains Road, Burlington, were of significance on these facts. I found the totality of the circumstances supported credibly based probability that evidence of the listed offences would be located at both Unit G, 97 Elgar Avenue, Hamilton and Unit 1010, 168 Plains Road, Burlington.

Did the ITO Establish that there were Reasonable and Probable Grounds to Believe the Evidence Sought would be Located at “outbuildings” Located Beyond the Fence-Line or Backyard of 824 Nebo Rd?

20Mr. King acknowledged there were sufficient grounds articulated by the affiant with respect to the residential addresses located at 824 Nebo Road, Hamilton. However, he argued those grounds did not extend to the “outbuildings” which were not specifically referenced by the affiant in the ITO. Essentially, given the affiant did not outline specific observations relative to certain “outbuildings”; particularly, the “outbuildings” located beyond the fence-line, the issuing justice could not have been sufficiently aware of their existence such that any search authorized would have captured those “places”. To illustrate his point, Mr. King directed my attention to page 185, paragraph ‘viii’ of the ITO, where the affiant indicates that “investigators have been unable to confirm the presence of trailers, vehicles or outbuildings in the rear of the property of 830 Nebo Road, as observations of this area are unable to ne made due to the property layout”.⁹

21The crown strongly opposed this application, taking the position that the affiant’s grounds extended to any and all outbuildings on the property. The crown directed my attention to the affiant’s language following the quote stressed by the applicant. Highlighting the affiant then stated, “individuals have been observed exiting the backyard of this property, which leads investigators to believe that their presence exits. As a result, I am requesting that police be granted the authority to search these locations if they are located”. Additionally, the affiant further stated, I believe that a trailer (and the numerous vehicles on 824 Nebo Road) would offer the capability to store controlled substances outside of the residence”.¹⁰

22Investigators were obviously aware of the presence of “outbuildings” on the Nebo Road property. The photograph taken of the front of the Nebo Road property on July 30, 2024, and included on page 83 of the ITO clearly depicted a tent and two trailers. These “outbuildings” were clearly referenced by the affiant, and I found the issuing justice would have been sufficiently aware of their existence and connection to the drug activity observed such that the search authorized captured those “places”. Of note, the “shelter logic” tent is depicted in this image.

23However, the crown asked me to find that the search authorized captured any and all “outbuildings” located beyond the fence-line and backyard area of the Nebo Road properties. Including, “outbuildings”, which appear to be located on the adjacent commercial lot. I heard evidence that the property at issue was mixed residential and commercial, with a trucking business storing numerous tractor trailers on the adjacent property located to the rear. Having read the entirety of the ITO, I could not be certain the issuing justice was made aware of and thus, completely understood this reality. Moreover, I did not find that the affiant articulating that individuals involved in suspected drug related activity were observed to be “exiting the backyard area” established the requisite grounds necessary to search any and all “outbuildings” located to the rear of the 824 Nebo Road properties.

24The affiant must clearly specify the “place” they are seeking authorization to search. This precision is necessary for the issuing justice to understand the scope of the proposed search, preventing searches that are overbroad. This type of precision also allows for appropriate judicial oversight.

25On this record, I agreed with the applicant. Based on the information provided in the ITO, the search warrant could not have issued for any and all “outbuildings” located on the 824 Nebo Road property and the adjacent property to the rear. Instead, the search warrant could only have issued with respect to “outbuildings”, which were sufficiently specified for the issuing justice. These “places” included the “shelter logic” tent, which was depicted in the photograph contained on page 83 of the ITO.

26I found Justice Fitzpatrick’s judgment in R .v. Breton provided helpful guidance. Justice Fitzpatrick articulated that reasonable and probable grounds in the ITO do not need to be tied to each and every place that the police seek to search. The issuing justice must consider the evidence in totality. However, if the nature of the property seems “expansive, large and complex with perhaps multiple persons who are in control of the environment, one of whom is not suspected of any crime, this creates an occasion of caution”. In such a circumstances, the ITO must provide a degree of specificity that would prevent the “throwing of the net” over the entirety of the area”: R .v. Breton [2021] O.J. No. 7641 at para. 57 (S.C.J.). On the record before me, 824 Nebo Road was a mixed residential and commercial property that was expansive and diverse. An independent business apparently owned and controlled aspects of this property, including various receptacles located therein. There were various trailers (of different varieties), tents and other “outbuildings”. Certainly, the issuing justice was required to consider the evidence in its totality; however, the nature of the property itself required the affiant to outline a degree of specificity with respect to the “places” to be searched. Ensuring the requisite grounds existed and preventing the “throwing of the net” over the entire property. Simply put, I did not find that the affiant used the precision necessary for the issuing justice to understand the scope of the proposed search. The issuing justice was not able to prevent the search from becoming overbroad, which is what ultimately transpired upon execution. I determined the search could not have issued with respect to the two “outbuildings” located beyond the fence-line at 824 Nebo Road; therefore, the search of those “outbuildings” breached Mr. King’s rights as protected by s. 8 of the Canadian Charter of Rights and Freedoms.

Should the Evidence Seized from the “Seacan Outbuilding” and the “824 West Outbuilding” be Excluded Pursuant to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

27The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms requires a consideration of all the circumstances of the case. Under R. v. Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on integrity of, and public confidence in, the justice system. When conducting this analysis the court must consider: i) the seriousness of the state’s Charter-infringing conduct; ii) the impact of the breach on Mr. King’s Charter-protected interests; iii) society’s interest in an adjudication of the case on its merits: R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 71, 85-86 and R. v. Jhite [2021] O.J. No.2178 at para. 86 (S.C.J.).

The Seriousness of the State’s Charter Infringing Conduct

28With respect to the seriousness of the Charter breach, I assessed whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts condone state deviation from the rule of law by refusing to disassociate themselves from the products of that conduct.

29In Jhite, Justice Stribopolous provides a helpful review of the law related to this branch of the analysis at paragraph 88 of his decision. The Supreme Court of Canada made it clear in Grant that, “ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith”: Grant supra at para. 75. The Police “are rightly expected to know what the law is” Grant supra at para. 133.

30It is relevant that the police sought and obtained a search warrant. As Rosenberg J.A. explained in R. v. Rocha, 2012 ONCA 707 at para. 28 (C.A.):

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. … Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. In this case, the police submitted the fruits of their investigation to a justice of the peace who granted the warrants. … The warrant should not have been granted in relation to the house, but it must be remembered that an independent judicial officer did authorize the search. [emphasis added]

31However, on this record, I put greater emphasis on the fact that I did not find the warrant to be misleading. Certainly, the affiant could have provided greater specificity to the issuing justice with respect to a property that was clearly very diverse. But, having said that, the affiant did articulate the presence of “outbuildings” on the 824 Nebo Road properties, and the police desire to search such receptacles for offence related property. I did not find the language used by the affiant to be misleading or intentionally dishonest, nor was there any suggestion of this type of conduct by Mr. King. There was no bad faith.

32I reminded myself that even if a constitutional breach is not found to be deliberate, in the sense that a police officer set out to violate constitutionally protected Charter rights, the Supreme Court has observed that “exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”: R. v. Paterson 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 44 (S.C.C.). However, I considered this principle against the reality that the affiant established clear and sufficient grounds relative to the residential premises located on the property and the “outbuildings” that were referenced and photographed. The issue here was the breadth of the search requested.

33I also reminded myself that for every Charter breach that comes before the courts, many others may go unidentified and unaddressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion: Grant at para.75.

34On this record, neither the applicant, nor the officers who searched the “seacan outbuilding” or the “824 west outbuilding” acted in bad faith. They conducted a search of “outbuildings” on 824 Nebo Road and surrounding property. They were guided by that wording in the ITO. I found the breadth of the search authorized did not capture these two “outbuildings” for reasons previously stated. Notwithstanding, the fact that the state actors believed they were acting in accordance with the powers bestowed upon them by the issuing justice attenuates the seriousness of the Charter breach.

35In summary, I found that the breach of Mr. King’s s. 8 Charter rights deserved placement at the less serious end of the spectrum. Consequently, the first factor favoured exclusion to a degree below moderate.

The Impact of the Charter breach on Mr. King’s Charter-protected Interests

36This inquiry focuses on the seriousness of the Charter breach on the Charter- protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant at para. 76.

37The parties are in agreement that Mr. King was able to regulate access with respect to both the “seacan outbuilding” and the “824 west outbuilding”. Therefore, I did not find that the execution of an unlawful search on either premise would have been a trivial or fleeting intrusion on the applicant’s privacy rights. That being said, I also did not find the search to be overly invasive. The “outbuildings” at issue did not house Mr. King’s personal property and were not consistent with a residential premise by any stretch of the imagination. In fact, they were distanced from Mr. King’s apparent residence. Although, it appears there was some level of video surveillance functioning, which captured the backyard area of one of the Nebo Road properties, I did not find this akin to the level of surveillance and security present in many storage facilities. Furthermore, observations by investigators throughout this investigation illustrated that these properties, including the rear of the properties, were frequented by numerous individuals daily. There was a great deal of human and vehicle traffic. The properties were diverse, and a commercial business had an apparent interest in property to the rear of the 824 Nebo Road properties. Of note, it was on the rear of the 824 Nebo Road properties where the “seacan outbuilding” and “824 west outbuilding” were located.

38When all of the relevant circumstances were considered, I found Mr. King had a significantly reduced expectation of privacy in both the “seacan outbuilding” and the “824 west outbuilding”.

39Therefore, in the circumstances, I found the second factor moderately favoured exclusion.

Society’s Interest in an Adjudication on the Merits

40The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction – that is towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the crown’s case, the third line of inquiry cannot become a “rubber stamp”: R. v. Le [2019] 2 S.C.R. at para. 142 (S.C.C.).

41On this record, the police located the following:

(1) In the “824 West Outbuilding”

(a) “Glock” handgun, and magazine;

(b) Fentanyl and Analogues 189.9g;

(d) Dilaudid/Hydromorphone 362 pills (62.9g);

(e) Tramadol 180 pills (87.9g);

(f) Ketamine 928.7g; and

(g) MDMA 759.3g.

(2) In the “Seacan Outbuilding”

(a) Methamphetamine 1955g.

42“Guns, fentanyl and cocaine represent a serious and ongoing problem for society. Collectively, they amount to a significant danger to the community. The damage caused to families, innocent law-abiding citizens, and the societal fabric cannot be overstated. Society looks to courts to recognize the day-to-day danger caused by drugs and firearms”: R .v. Mengesha, [2022] O.J. No. 4108 at para. 14 (C.A.). On this record, I found the exclusion of the evidence would undermine the truth-seeking function of the trial. The evidence is reliable and critical to the crown’s case. As such, I concluded that society’s interest on a trial on its merits is heightened on this record.

43Therefore, the third factor weighed heavily in favour of admitting the evidence.

Balancing the Grant Factors

44When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: McColman at para. 74. In practical terms, the third line of inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: R .v. McGuffie, [2016] ONCA 365 at para 63 (C.A.)

45In this case, neither the first nor the second factor strongly favoured exclusion. As a result, after balancing the circumstances of this case, I did not believe exclusion of the evidence was necessary to preserve the repute of the administration of justice. Rather, the offences are so serious that the evidence must be included: R .v. Mengesha at para. 15. In the result, I found exclusion of the evidence would bring the administration of justice into disrepute.

Conclusion

46Therefore, I decided:

(1) Mr. Farah’s application was dismissed outright.

Released: January 30, 2026.

Justice Jennifer Campitelli

Footnotes

ITO Page 19, Para. 16(e)(g)(f)
ITO Page 30-31, Para. 21(b)(c)(d)
Observations included by the affiant in the body of the ITO with respect to June 18, 2024 are found on pages 32 – 37.
Observations included by the affiant in the body of the ITO with respect to July 3, 2024 are found on pages 45-47.
Observations included by the affiant in the body of the ITO with respect to July 3, 2024 are found on pages 51-57.
Observations included by the affiant in the body of the ITO with respect to July 24, 2024 are found on pages 74-76.
Observations included by the affiant in the body of the ITO with respect to August 8, 2024 are found on pages 109-112.
ITO Page 41.
ITO Page 185, Paragraph viii
ITO Page 185, Paragraphs viii and x