Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241115 DOCKET: C70670

Fairburn A.C.J.O., Zarnett and Favreau JJ.A.

BETWEEN

His Majesty the King Appellant

and

Onyejebechi Ifesimeshone Respondent

Counsel: Diana Lumba, for the appellant Gregory Lafontaine, for the respondent

Heard: March 21, 2024

On appeal from the acquittal entered by Justice Mary L. Hogan of the Ontario Court of Justice on May 3, 2022.

Zarnett J.A.:

Introduction

[1] The Crown appeals the respondent’s acquittal on serious drug trafficking charges. The acquittal was the consequence of the trial judge’s exclusion of evidence supporting the charges. That evidence was seized by police while conducting searches pursuant to search warrants. The warrants had been issued with the authorization of a judge (the “issuing judge”).

[2] The trial judge held that the warrants were not properly authorized. In her view, based on the record before the issuing judge, the warrants could not have issued, primarily because the information from confidential sources that supported issuance, although credible, was neither compelling nor sufficiently corroborated. The searches were therefore illegal, violating the respondent’s right, under s. 8 of the Canadian Charter of Rights and Freedoms, not to be subjected to unreasonable search and seizure. She held that the evidence should be excluded under s. 24(2) of the Charter, as its admission would bring the administration of justice into disrepute.

[3] The Crown argues that the trial judge made errors of law in coming to her conclusions, which displace the deference normally owed to a judge reviewing an issuing justice’s authorization for a search warrant.

[4] For the reasons that follow, I accept the Crown’s argument that the trial judge’s finding that the search warrants could not have issued was the result of errors of law. Contrary to her conclusion, based on the record before the issuing judge, the warrants could have issued. As the searches were legally authorized, the evidence was not obtained in violation of the Charter and should not have been excluded. I would therefore allow the appeal, set aside the acquittals, and direct a new trial.

The Search and the Charges

[5] On November 15, 2020, Toronto Police Service (“TPS”) officers executed search warrants issued under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, relating to three addresses and two vehicles associated with the respondent. The issuance of the search warrants had been authorized by the issuing judge, Feldman J., based on an Information to Obtain (“ITO”) sworn by a TPS officer that included information he obtained from confidential sources.

[6] At one of the addresses, located in Vaughan, police found approximately 66 kilograms of crystal methamphetamine, 11 kilograms of fentanyl, 20 grams of cocaine, and $2,100 in Canadian currency. [1] The respondent was charged with possession for the purpose of trafficking of the three drugs.

The Challenge to the Warrants

[7] When the respondent challenged the legality of the search, the Crown conceded that the form of the ITO provided to the respondent, which had been substantially redacted to protect the confidential sources, could not justify the issuance of the search warrants. The Crown instead relied on the original unredacted ITO. Under Step 6 of the procedure established in R. v. Garofoli, [1990] 2 S.C.R. 1421, the original unredacted ITO was sealed, accessible only by the trial judge, and a judicial summary was prepared to inform the respondent of the nature and type of information that was redacted.

[8] Although the original ITO cited information from three confidential sources, before the trial judge the Crown relied only on the information contained in the ITO from two of them.

The Trial Judge’s Decision

[9] The trial judge cited the principles upon which the issuance of a search warrant is reviewed. She reminded herself that a warrant review is not a hearing de novo. She identified the question as whether, on the record that was before the issuing judge as amplified on review, the warrant could have issued, not whether it should have issued: R. v. Araujo, 2000 SCC 65, [2000] S.C.R. 992, at paras. 51, 54. She described how the reviewing judge is to consider whether there was sufficient, credible and reliable evidence to permit the issuing judge to find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the place sought to be searched: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 84.

[10] Using the framework in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, the trial judge instructed herself that information provided by a confidential source that forms the basis for the issuance of a search warrant must be compelling, credible and corroborated, and that the information is to be assessed on its totality, as weaknesses in one area may be compensated by strengths in the others.

[11] The trial judge found that, although the two confidential sources relied on by the Crown were credible, their information was not compelling or sufficiently corroborated.

[12] The confidential source information was not compelling because, in her view, it was “fairly basic biographical information amounting to not much more than ‘tombstone information’”. She found that the information they provided as to the respondent’s drug activities was not firsthand. One source’s information was unsourced, and it was unclear whether the information from the other was “firsthand or simply hearsay or rumour from others.” Additionally, “the information provided by the two confidential sources contains almost no information regarding the [address in Vaughan at which the drugs and money were found] and no information consistent with drug activity at that address.”

[13] The trial judge found the information not sufficiently corroborated. In her view, what was corroborated was mostly biographical information: “[T]here was a failure on the part of the police to corroborate the most important details of the confidential sources’ information – that drug activity was in some way associated to the addresses and cars … to be searched.”

[14] The trial judge also found that the ITO did not provide a sufficient nexus between the respondent and the places to be searched that would provide reasonable grounds to believe that evidence of offences would be found at the places sought to be searched.

[15] As the information from the confidential sources did not provide sufficient grounds upon which the search warrants could have issued, the basis for authorizing them necessarily fell – the balance of the information in the ITO was on its own insufficient.

[16] The trial judge held that the search warrant could not have issued and therefore the search was unlawful, violating the respondent’s right under s. 8 of the Charter not to be subjected to unreasonable search and seizure. Applying the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, she concluded that the evidence seized in the execution of the search warrants should be excluded under s. 24(2) of the Charter. The infringing conduct was serious, as there was “a complete failure of the police to investigate”, thus favouring exclusion. The impact of the breach also favoured exclusion. Notwithstanding that exclusion would gut the Crown’s case, and society’s interest in adjudication on the merits favoured inclusion, balancing the factors led to the conclusion that admission of the evidence would bring the administration of justice into disrepute. The evidence was therefore excluded.

[17] As the Crown had no other evidence to tender, the respondent was acquitted on all counts.

Grounds of Appeal

[18] The Crown raises two grounds of appeal, one in connection with the finding that the warrants could not have issued and therefore s. 8 was violated (the s. 8 ground) and one in connection with the decision to exclude the evidence assuming the trial judge was right to find a section 8 violation (the s. 24(2) ground).

Analysis

(1) The Section 8 Ground

[19] An appellate court owes deference to the findings of the reviewing judge (here, the trial judge) in her assessment of the record and her disposition of the s. 8 application. “Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge’s decision”: Sadikov, at para. 89.

[20] The Crown concedes the trial judge correctly cited the law on warrant review and the Debot analysis. But the Crown argues that the trial judge made errors that amount to a misapplication of the law in finding the confidential source information was not compelling and that it was not sufficiently corroborated, as well as about whether there were reasonable grounds to believe evidence of the offences would be found at the places to be searched.

(i) Was the Information Compelling?

[21] I accept the Crown’s argument that the trial judge made errors about whether the information from the confidential sources was compelling. She misapprehended the evidence in a manner that went to substance, not detail, and the misapprehension played an essential role in her reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[22] The trial judge’s conclusion that the confidential sources’ information was not compelling was a function of two misapprehensions of the evidence. First, she saw it as limited to “fairly basic biographical information”. Second, she said that to the extent it included information about the respondent’s drug dealing, it was not firsthand – unsourced in the case of one confidential source, and unclear as to whether it was rumour or hearsay in the case of the other.

[23] The information attributed to the confidential sources in the ITO included some biographical information, such as the respondent’s age, phone number, addresses and vehicles. On its own, that type of information is not compelling, since it is largely publicly available. However, the confidential sources’ information was not limited to that type of information. Both confidential sources referred to one of the addresses associated with the respondent having been searched by the police under a search warrant in the summer of 2020. This information was corroborated by the police. This is not information that would be generally known to the public, indicating the confidential sources had a deeper knowledge of the respondent’s activities. The trial judge failed to advert to that information or consider its effect.

[24] Second, and more importantly, the confidential sources’ information about the respondent’s drug trafficking activities, which included information about the types of drugs he dealt in and “specific information” about where his drug activities took place, was incorrectly characterized by the trial judge as all being unsourced or unclear as to its source. She said that it was unclear whether any of that type of information from one of the confidential sources was firsthand or simply hearsay or rumour from others. Yet, in respect of that very confidential source, the judicial summary stated that the (unredacted) ITO contained: “First-hand information about accused’s recent drug trafficking practice, including type of drug.”

[25] The trial judge’s misapprehension of the type of information that the confidential sources provided, especially her error about whether any of the information about drug dealing was firsthand, was central to her conclusion about whether the information was compelling. While information that takes the form of bald conclusory statements or rumour or gossip is not compelling, an informer’s personal, detailed and recent observations of drug trafficking may be considered compelling: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 18.

[26] Accordingly, on the question of whether the warrants could have issued, the trial judge’s error was material. The issuing judge could reasonably have taken the information from the confidential sources, whom the trial judge accepted as credible, to be compelling, as it revealed a level of close knowledge about the respondent and, in connection with drug trafficking, there was specific firsthand information from one of them.

(ii) Was the Information Corroborated?

[27] The Crown also argues that the trial judge misapplied the law in the way she addressed whether the confidential sources’ information was corroborated. Although the trial judge correctly instructed herself that corroboration of criminal activity is not required, she placed such a heavy emphasis on its absence as to have in effect required it.

[28] In her reasons, the trial judge stated that “there was a failure on the part of the police to corroborate the most important details of the confidential sources’ information – that drug activity was in some way associated to the addresses and cars named as places or things to be searched.” She mentioned the police having confirmed the respondent being a tenant at two of the addresses (including Vaughan), having seen his car parked there, and his having entered it and driven to another location. But she immediately followed that with the comment: “Nothing, however, having to do with drug activity was noted in these observations.” Although the police had confirmed the respondent’s age, phone number, cars, addresses and the prior search, she still referred to the “complete lack of corroboration by the police”. She stated that “[p]rior to the police entering three different residential premises, some corroboration of drug activity is required.”

[29] I agree with the Crown that the trial judge’s approach reflects an error.

[30] First, it is an error to require the police to have obtained confirmation of the informer’s description of the accused’s criminal activity. As Rosenberg J.A. said in Rocha, at para. 22, “[t]he police will rarely be able to corroborate [an informer’s information] to the extent of having observed commission of the offence and that level of confirmation is not required”. He went on to state, at paras. 23-24, that corroboration of details the informer provided, even if not of the criminal activity, cannot be disregarded if it substantiates the reliability of a source’s information (see also R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 40). This court has held that all corroborative information, even of neutral facts, must be taken together: R. v. Brown, 2021 ONCA 119, 403 C.C.C. (3d) 457, at paras. 52-55.

[31] Although the trial judge referred to the lack of a requirement for such confirmation of criminal activity, her repeated references to the absence of this type of corroboration elevated its importance such that it was effectively a requirement, especially since she discounted all other corroboration the police obtained.

[32] In any event, the question for the trial judge was not whether, if she had been the issuing judge, she would have discounted the value of the available corroboration and been concerned with the lack of corroboration of criminal activity. Nor was the question whether she would have found that more surveillance was required. As Watt J.A. said in Sadikov, at para. 88:

It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record … [or] to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued….

In this case, the issuing judge could have considered the actual corroboration to be germane, and the lack of corroboration of drug activity to be something that was neither required nor expected, as in the end it was the corroborated information, considered in totality, rather than any aspect in isolation, that mattered: Brown, at paras. 52-55.

(iii) The Debot Factors Taken Together

[33] It follows that the trial judge’s assessment of the information from the confidential sources on the credible, compelling and corroborated factors, assessed in totality, cannot stand. The issuing judge was entitled to reasonably view the sources as credible (as did the trial judge), and (for the reasons above) as compelling and sufficiently corroborated.

(iv) Sufficient Nexus to the Places to be Searched

[34] The Crown also argues that the trial judge erred in finding that there was an insufficient nexus between the alleged offences and the places to be searched by, in effect, requiring direct evidence of drug activity at the Vaughan location. In fairness to the trial judge, she did not say that there needed to be direct evidence. But, as noted above, the trial judge referred to a lack of corroborated information about drug activity at the Vaughan address, or at the other locations to be searched, several times.

[35] It is an error to hold that, in effect, direct evidence was required to establish a link between the Vaughan address and drugs that would be evidence of the commission of offences. Reasonable inferences may be relied on in the absence of direct evidence. The question was whether the ITO set out facts sufficient to allow the issuing judge to reasonably draw the inference that evidence of drug trafficking would be found at that location: R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at paras. 22-25; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 16-18. In my view, it did.

[36] As the Crown points out, the trial judge incorrectly stated that the information provided by the two confidential sources “contains almost no information” regarding Unit 404-2910 Highway 7, the address in Vaughan where the drugs and cash were seized. Both confidential sources provided information about that address. One gave information about the respondent and his association to Unit 404-2910 Highway 7; the other said the respondent lived in the area of Highway 7 and Jane Street. The police confirmed that the respondent was a tenant at the Vaughan address.

[37] The location in Vaughan could be reasonably inferred to be the respondent’s residence, or one of them. Moreover, two days before the issuance of the search warrants, police conducted surveillance at that location, after confirming with on-site management that the respondent was the registered tenant. They saw one of the respondent’s vehicles parked in the underground parking garage of the Vaughan location. Later they observed him drive out of the underground parking garage, park his vehicle in the parking lot of another building in Toronto, exit his vehicle, walk toward the front driver side of another vehicle in the parking lot, and then walk away after a “quick interaction” with the other driver. The confidential source whose information included “[f]irst-hand information about accused’s recent drug trafficking practice, including type of drug”, described the respondent as conducting drug transactions from his vehicles. It was therefore a reasonable inference, available to the issuing judge, that evidence of drug trafficking would be found at the respondent’s Vaughan residence.

Conclusion

[38] For these reasons, I conclude that the trial judge erred in finding that the warrants could not have issued. Applying the proper standard of review, the warrants could have issued. As the searches were conducted under properly authorized warrants, the trial judge’s conclusion that the evidence was obtained in violation of the Charter necessarily falls. It is therefore unnecessary to consider the Crown’s alternate argument that even if there was a Charter violation, the trial judge erred in excluding the evidence under s. 24(2).

[39] I would allow the appeal, set aside the acquittals, and direct a new trial.

Released: November 15, 2024 “J.M.F.” “B. Zarnett J.A.” “I agree. Fairburn A.C.J.O.” “I agree. L. Favreau J.A.”

[1] These amounts are those referred to in this court by the Crown, accepted for the purpose of the appeal by the respondent. The trial judge referenced different (but still substantial) amounts of drugs in her reasons.