Court File and Parties

Ontario Court of Justice

Date: September 16, 2020

Court File No.: Newmarket 19-01335K

Between:

Her Majesty the Queen

— and —

Oabelt Marogy

Reasons for Judgment on Charter Application

Before: Justice Edward Prutschi

Heard: September 15, 2020

Reasons for Judgment Released: September 16, 2020

Counsel:

• Avik Ghosh, for the Crown
• Gregory Lafontaine, for the Defendant

PRUTSCHI J.:

[1] The Applicant, Oabelt Marogy, is charged with a single count of trafficking cocaine. His home was searched on February 14, 2019 pursuant to a search warrant. The search revealed a large quantity of cocaine, related weighing and packaging materials, and a substantial quantity of cash. The Applicant claims a breach of his section 8 Charter right to be free from unreasonable search and seizure and argues that the evidence obtained as a result of the search be excluded pursuant to s. 24(2).

[2] For the reasons that follow, I find that there has been no such breach and the evidence obtained pursuant to the search warrant is admitted at his trial.

The Facts

[3] The relevant facts are laid out in the affidavit Detective Constable Jason Pampena, prepared setting out the information to obtain ("ITO") the search warrant. At the time the ITO was prepared, Pampena had been with York Regional Police for nine years and was primarily responsible for the investigation of "property and drug related offences". Pampena noted his prior experience conducting drug investigations, preparing judicial authorizations, participating in surveillance teams and executing search warrants.

[4] An investigation began in January 2019 into known drug user and suspected drug trafficker, Carlo Fuorivia. Fuorivia was seen in surveillance in a Chrysler van being operated by Odishu Bato. Police identified this van as a rental vehicle contracted to Bato and Mr. Marogy. As a result, police attention expanded to include surveillance of Bato and the Applicant.

[5] Surveillance of the two took place on three days in February 2019. On February 1, Mr. Marogy was seen to exit a home at 3 Rockton Court in Brampton. This home was owned by Mr. Marogy's brother. Mr. Marogy was seen to enter a 2015 black Mercedes Benz C400 bearing license plate CFTK 506. This vehicle was parked in the driveway and was registered to Mr. Marogy, listing a home address of 3 Rockton Court.

[6] Mr. Marogy travels from Rockton to a gas station where he parks "driver door to driver door" with a waiting Jeep. There is a brief interaction between the two cars. The registered driver of the Jeep had an old 2008 charge for possession of a Schedule I substance though this charge was noted withdrawn.

[7] Following the interaction with the Jeep Mr. Marogy is observed driver door to driver door with the Chrysler van he and Bato had rented. Bato is operating the Chrysler. Four minutes later, at a different location, Bato is seen to engage in a hand to hand exchange with an unknown male driver.

[8] On February 2, Mr. Marogy's Mercedes is seen parked on the road in front of 3 Rockton Court. Mr. Marogy drives the Mercedes from Rockton Court to another home in Brampton where an unknown male is observed to exit, approach the passenger side of Mr. Marogy's car, and walk away "clenching something in his right hand".

[9] From there, Mr. Marogy drives to a Starbucks where he again meets Bato who is driving the Chrysler van. There is a brief meeting between Bato and Mr. Marogy. While surveillance does not reveal anything else of note for Mr. Marogy that day, Bato goes on to engage in seventeen suspicious interactions which the affiant believes were suspected drug deals.

[10] On February 7, Mr. Marogy is seen to exit 3 Rockton Court and enter the Mercedes which was parked on the driveway. He drives directly to a Shoppers Drug Mart parking lot in Vaughan where there is a brief interaction with an unknown male.

[11] Over the next two and-a-half hours, Mr. Marogy travels around engaging in a total of eight brief transactions that the affiant believes to have been drug deals. Though no hand-to-hand exchanges are observed, one of the homes Mr. Marogy visits and one of the vehicles he interacts with were previously associated with suspected drug deals performed by Bato back on February 2.

[12] On February 13, Bato is arrested. He is operating a Ford Edge vehicle which had been swapped for the Chrysler under the same rental contract that remained in effect under both Bato and Marogy's name. A search of that vehicle incident to arrest revealed twenty-two dime bags containing approximately fourteen grams of cocaine.

[13] The next day on February 14 a search warrant is obtained for Mr. Marogy's home and car. Appendix "A" of the warrant catalogues the typical list of items sought in relation to trafficking investigations including scales, packaging materials, cash and drugs.

[14] Appendix "B" of the warrant lists the charges in relation to which the search is sought. The first two counts relate to the co-accused, Bato, noting trafficking and possession for the purposes of trafficking with a specific offence date of Feb. 13, 2019, coinciding with Bato's arrest.

[15] In relation to Mr. Marogy Appendix "B" reads:

On the 7th of February 2019 Oadeblt MAROGY was observed attending several parking lots throughout the city of Vaughan and engaging in 8 suspected drug transactions consisting of short meetings or hand to hand exchanges contrary to s. 5(1) of the Controlled Drugs and Substances Act

[16] It is clear from a review of the ITO that the affiant never observed Mr. Marogy to engage in a "hand-to-hand" exchange though he made numerous other observations of interactions he believed were consistent with drug trafficking. Excising the reference to hand-to-hand exchanges does not, in my view, meaningfully alter the assessment of reasonable grounds.

[17] Upon execution of the warrant, police find 134 grams of cocaine, a scale, drug packaging material and substantial amounts of cash.

Legal Analysis

[18] A search performed pursuant to a search warrant is considered presumptively reasonable. The onus is on the Applicant to establish a breach of his section 8 right on a balance of probabilities.

[19] The Applicant has launched a facial attack on the validity of the search warrant. As the reviewing judge, I am not to substitute my own view for that of the issuing justice. My role is not to determine whether the warrant should have issued, but rather to decide whether, based on the information contained within the ITO affidavit, the warrant could have issued (R. v. Garofoli, [1990] 2 SCR 1421).

[20] Justice Hill in R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 at paragraph 34, collected a series of key general principles to guide a reviewing justice which I summarize here:

• A warrant is presumptively valid until the challenging party establishes that there was no basis for its issuance.

• The reviewing judge is not to engage in "examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence".

• Scrutiny of the ITO must take a holistic approach, assessing the document as a whole without devolving into a hyper-focussed examination of isolated passages.

• Police officers are not trained legal draftspersons and should not be held to the exacting standards of lawyers.

• Perfection is not the standard against which the ITO should be measured.

• The ITO must present reliable, balanced and material facts supporting the affiant's belief in a clear and concise manner. It need not include every minute detail of a police investigation.

[21] The Applicant makes three distinct arguments. First, that the ITO failed to articulate reasonable grounds to believe that the offence of trafficking had been committed. Second, that the ITO failed to demonstrate reasonable grounds to believe that evidence of the offence of trafficking might reasonably be found at the Applicant's home. Finally, that the warrant is legally invalid on its face for authorizing searches of two separate independent places on a single warrant. I will address each of these arguments in turn.

No Reasonable Grounds for Offence

[22] Though raised in his written materials, during oral submissions, the Applicant chose not to strenuously pursue this line of argument, and for good reason. It is abundantly apparent that there existed at least some evidence to reasonably believe that Mr. Marogy was involved in drug trafficking during the time he was under surveillance.

[23] While that evidence was very weak for the brief observation made on February 1, it was more apparent on February 2, when Mr. Marogy was observed to interact with an unknown male who exited the Mercedes "clenching something in his right hand".

[24] If neither February 1 nor 2 were sufficient, Mr. Marogy's flurry of brief dalliances with eight different persons in the span of roughly two and half hours put to rest any plausible claim that he was not engaged in suspicious behaviour. As noted approvingly by the ONCA in R. v. Dezainde, [2015] O.J. No. 3368 (at paragraph 7), at some point before eight stops, "…any thought of innocent coincidence disappears. A pattern of conduct emerges."

No Reasonable Grounds to Believe Evidence Will Be Found in the Home

[25] The Applicant strenuously argued that, even with reasonable grounds to believe Mr. Marogy was engaged in street level drug trafficking, there was nothing to reasonably suggest that evidence of his February 7 drug deals would be found in his home a week later on February 14 when the warrant was executed.

[26] Dealing first with the temporal lag, I cannot agree that a single week between the last noted surveillance and execution of the search warrant dilutes the reasonable grounds. Leaving aside this relatively short gap of time, only one day earlier the police grounds are considerably bolstered by the arrest of Bato, who is found in the jointly rented vehicle in possession of twenty-two dime bags of cocaine.

[27] Read as a whole, the ITO makes it clear that police believe Bato and Mr. Marogy are acting in concert. They interact on two of the three days that the pair are under surveillance. After their interactions on February 1 and 2, Bato goes off to engage in a spree of suspected drug deals. On the seventh, though Mr. Marogy is not seen with Bato, he visits one home and one vehicle from Bato's earlier transactions. Thus, the apparent connection between Bato and Mr. Marogy is relevant to assessing the existence of reasonable grounds for the warrant.

[28] The affiant's experience is also relevant in assessing whether there were reasonable grounds to believe evidence of trafficking would be located in Mr. Marogy's home. A trained officer is entitled to draw inferences and make deductions based on his or her own experience. D.C. Pampena quite fairly identified his inferences, interspersed throughout the ITO, by marking them "Affiant note" and placing the text in italics. He explicitly relied on this experience in stating his belief that drug traffickers would locate drugs, packaging materials and cash in their residences or vehicles.

[29] This was not an entirely speculative comment coming from an experienced officer. The belief is bolstered by the surveillance observations themselves. Each of the three days commences with Mr. Marogy exiting his home, entering the Mercedes and then going directly to a suspected drug transaction. Though counsel for Mr. Marogy stresses that the Applicant is never seen to walk out of his home carrying a bag or satchel, the absence of such glaringly obvious evidence is not surprising in an environment where the illicit product, and the cash it is exchanged for, are small and easily concealed.

[30] In R. v. Soto, 2011 ONCA 828, at paragraph five the Ontario Court of Appeal explicitly noted the "obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence."

Invalidity on the Face of the Warrant

[31] The Applicant urges me to make a strict reading of s. 487(1) and note the singular language authorizing the search of a "building, receptacle or place". He argues that the requirement for specificity of location mandates that those executing the warrant be directed to a single place and not multiple places.

[32] In Mr. Marogy's case, the warrant authorizes a search of "a residence at 3 Rockton Court, Brampton" and a "Black Mercedes Benz with Ontario Licence Plate – CFTK 506". Counsel for the Applicant notes that nothing on the face of the warrant places the Mercedes at the Rockton address, though the warrant itself is a Telewarrant whose final paragraph advises that police are on site maintaining observation of "3 Rockton Court in Brampton, as well as MAROGY's Black Mercedes Benz – CFTK 506, pending judicial authorization to enter and search the said residences and vehicle."

[33] The Applicant relies on R. v. Brennen, [2000] O.J. No. 3257 which states at paragraphs 53-54 that:

"A separate search warrant should issue in respect of each building, receptacle or place to be searched unless there are multiple buildings, receptacles or places at one location. [citation omitted] Absent exigent circumstances, a vehicle which is a place for the designation of things to be searched, is generally subject to search by a prior authorization model of a warrant to search."

[34] The Applicant emphasizes that ambiguity or lack of specificity is not the issue here. It is a formulaic drafting error to have listed two separate places on a single warrant and that the proper approach requires the issuance of separate warrants for the home and the car. Alternatively, a single warrant could have issued which explicitly noted the address and the car located presently at that address. Having failed to implement either of these approaches, the warrant is fatally flawed and cannot be relied upon.

[35] With respect, I disagree. The drafting of a search warrant is not akin to the casting of a spell or the brewing of a potion where the absence of a single word or ingredient results in explosive mystical failure. Section 487, and subsequent caselaw, place appropriate emphasis on precision wording in search warrants for very good reason: to ensure sufficient specificity of place such that no ambiguity about the scope of the warrant can arise during its execution.

[36] Indeed Brennen suggests as much noting:

"The search warrant process is location critical and a high degree of precision is expected. The description must be clear and unambiguous, leaving no doubt in the mind of the person executing the warrant that he or she is at the proper place." (at para. 53)

"Given the express wording of the warrant as to the location and places to be searched, can it be said with sufficient precision that someone unfamiliar with the investigation would conclude from the search warrant itself, that the accused's vehicle would be included or subsumed in the word property." (at para. 67)

[37] In Brennan, police arrived at a dwelling house with a search warrant for that property. The accused did not live in the home to be searched but his truck was parked in the driveway. Though the warrant made no mention of this vehicle, police searched it, locating a quantity of drugs. The Applicant similarly relied on R. v. Clarke, [2012] O.J. No. 901. This too was a case of a search warrant which explicitly named a residential address with no reference to a vehicle, though the vehicle was ultimately searched. The court ruled in both cases that the residential warrant did not extend to on-site vehicles (but also admitted the evidence under s. 24(2) despite the s. 8 breach).

[38] These facts are easily distinguishable from Mr. Marogy's situation where the warrant explicitly lists both a municipal address and a specific vehicle identified by its make, colour and licence plate.

[39] While strictly speaking it would have been preferable for the ITO to explicitly note the precise location of the Mercedes at that moment – whether it was on the driveway, in the garage, or parked adjacent to 3 Rockton Court - it is difficult to see how there is any ambiguity whatsoever in relation to the location being searched. The Applicant would have had a more persuasive argument had the Mercedes been located away from the Rockton property with police proceeding to search it and locate drugs within. However, in Mr. Marogy's case nothing of note was seized from the car at all and its notation on the face of the warrant cannot operate to invalidate an otherwise lawful search of the home.

[40] Returning to my task as a reviewing judge, having carefully reviewed the totality of the ITO along with the face of the warrant, I cannot say that the issuing justice had no evidence before him or her upon which the warrant could issue. Accordingly, I find the warrant valid and there to be no violation of Mr. Marogy's right to be free from unreasonable search and seizure.

Section 24(2) Analysis

[41] As I have found there to be no breach of section 8, an analysis under s. 24(2) is not required, but I provide these cursory reasons as guidance.

[42] The three-branch test for exclusion is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

The Seriousness of the Charter-Infringing Conduct

[43] The search of a private residence is at the very apex of intrusive state conduct and thus must be considered a serious violation of the right to be free from unreasonable search and seizure. However, the search in this case was presumptively reasonable having taken place pursuant to a search warrant obtained upon full, fair, and frank disclosure by the officer. Police had every reason to believe their conduct was authorized by law and proceeded in a reasonable manner in furtherance of that belief.

The Impact of the Breach on the Charter-Protected Interest of the Accused

[44] Other than an individual's personal bodily integrity, there is no place more critical to protect against unreasonable search and seizure than a person's home. The impact upon an occupant of police searching a home is profound even where the search is executed expeditiously and with care.

Society's Interest in Adjudication on the Merits

[45] The evidence at issue includes 134 grams of cocaine, a digital scale, packaging materials and nearly $50,000 in Canadian and US cash. It is real evidence which forms the foundation of the Crown's case on a serious charge of trafficking in an illicit drug.

[46] While the violation of the sanctity of the home has considerable negative impact upon an individual's Charter rights, the seriousness of this particular breach is significantly attenuated by the existence of a presumptively valid search warrant and the good faith of the officers involved in acquiring and executing it.

[47] Inclusion of real evidence fundamental to the Crown case in such circumstances would not bring the administration of justice into disrepute. Indeed, exclusion is far more likely to tarnish the public's perception of the fair operation of our justice system and the public interest in seeing criminal trials resolved on their merits must take precedence.

Released: September 16, 2020

Signed: Justice Edward Prutschi