Court File and Parties

Ontario Court of Justice

Date: 2020-08-18

Court File No.: 4811-998-19-15007929

Between:

Her Majesty the Queen

— And —

Stefan Atovich and Paul Spencer

Before: Justice Newton-Smith

Heard: November 12, 2019, February 10, March 9, 2020

Submissions made in Writing

Reasons for Judgment released on: August 18, 2020

Counsel

D. MacDonald, S. Kim and L. Price — counsel for the Crown

P. Mergler and J. Hechter — counsel for the accused Stefan Atovich

G. Partington — counsel for the accused Paul Spencer

Rulings Re: Constitutional Question, Appointment of Amicus and Section 8 of the Charter

NEWTON-SMITH J.:

I. The Proceedings to Date

(i) Garofoli Application

[1] Mr. Atovich and Mr. Spencer are charged with various offences arising from the execution of two Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA") search warrants. Both search locations were apartment units in Etobicoke.

[2] The trial commenced before me on November 12, 2019 with a Garofoli Application brought by Mr. Atovich seeking to have all of the evidence seized excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter") on the basis that the searches violated his rights as protected by section 8 of the Charter. Mr. Spencer joined Mr. Atovich in the Application, although concedes that he has standing only with respect to the Lake Shore residence.

[3] At the outset of the Garofoli, Crown counsel conceded that the redacted version of the Information to Obtain (the "ITO") did not set out sufficient grounds to justify the issuance of the warrants. The Crown applied under "Step Six" to have the court consider the redacted portions of the ITO in relation to the Charter challenge.

[4] I was provided with a copy of the unredacted ITO. It was made a sealed exhibit on the Application. Crown counsel prepared a draft judicial summary of the redacted portions of the ITO, copies of which were provided to the Court and to defence counsel.

[5] After reviewing the unredacted ITO and the proposed judicial summary I had a number of questions for Crown counsel about the need for some of the proposed redactions. The Crown and I corresponded in writing with respect to the proposed judicial summary. The Crown in turn corresponded with the affiant with respect to issues relating to informant privilege. Our correspondence involved several communications back and forth over the course of a month. The written communications between the Crown and I were sealed and made part of the court record. Over the course of our communications Crown counsel agreed that some additional information could be included in the judicial summary and that some of the redactions were unnecessary.

[6] At the conclusion of our sealed correspondence counsel for Mr. Atovich and Mr. Spencer were provided with the judicial summary arrived at as a result of my communications with the Crown.

(ii) The Application to Cross-Examine the Affiant and Sub-Affiants

[7] After reviewing the judicial summary, counsel for Mr. Atovich brought an application to cross-examine the affiant and two sub-affiants. Cross-examination was sought in 52 sub-areas. In a ruling released on February 14, 2020 I allowed cross-examination in 6 areas.

[8] The cross-examinations of Det. Wilson and PC DeSousa occurred on March 9, 2020. Days later the WHO declared Covid-19 a pandemic and the following week the Ontario Court of Justice suspended all trials. Through case management conference calls the parties in this matter agreed to continue with written submissions with respect to any issues relating to the judicial summary, the ITO and the section 8 challenge.

(iii) Sufficiency of the Judicial Summary, Excision and Amplification

[9] Following the cross-examinations of the affiant Det. Wilson and the sub-affiant PC DeSousa, counsel for Mr. Atovich made written submissions with respect to the sufficiency of the judicial summary provided and also requested excision of certain portions of the ITO. The Crown in turn requested amplification of one area in the ITO.

[10] On April 21, 2020 I released my ruling with respect to the sufficiency of the judicial summary and the excision and amplification issues.

(iv) Additional Issues Raised

[11] On May 12, 2020, the date on which the defence was to file their written submissions with respect to the section 8 issue, counsel for Mr. Atovich filed an additional Charter application seeking the following:

• a declaration that further section 8 proceedings would violate the Applicant's rights under sections 7 and 11(d) of the Charter,
• an Order either
  • appointing state funded counsel to litigate with the benefit of redacted materials, or
  • staying the proceedings against the Applicant, and
• a declaration that the warrants could not have issued in this case.

[12] On May 24, 2020 counsel for Mr. Atovich filed a further Application, this time framed as a "Notice of Constitutional Question along with a Notice of Application", and added the following additional request:

• A Declaration that common-law authorities which would mandate a Charter-violative application of Step Six of Garofoli (rendering the subsequent litigation not in accordance with the principles of fundamental justice) are of no force and effect, pursuant to s. 52 of the Constitution Act 1982

[13] Mr. Atovich's current submissions are essentially threefold. He challenges the sufficiency of the judicial summary as being the result of unconstitutional jurisprudence which violates his section 7 and 11(d) rights. He requests the appointment of amicus. And he submits that there is not sufficient and reliable evidence on the basis of which the warrants could have issued. I will deal with them in that order.

II. The Section 7 and 11(d) Issues

(i) The Position of the Defence

[14] It is the Applicant's position that, "the Step Six procedure can (and indeed, was carefully designed to) be constitutional", but that "absent an appointment [of amicus] this Honourable Court's April 21 ruling will render further section 8 proceedings pertaining to the validity of the warrants constitutionally deficient": Applicant's Factum, at para 3.

[15] At the outset of his factum the Applicant states, "To be clear, this is not a submission on the issues on which this Honourable Court ruled on April 21, 2020", but later submits that, "The problem appears to flow from this Honourable Court's application of Crevier and Reid": Applicant's Factum, at paras 3 and 91.

[16] The issue is later framed as a complaint with the decisions of the Ontario Court of Appeal providing guidance to trial judges in navigating "Step 6": "To be clear, reliance on Crevier, Reid and Thompson does not dispose of this Application, because 'any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect', and that fundamental principle applies to Crevier, Reid and Thompson": Applicant's Supplementary Submission, at para 2.

[17] The Applicant's position is less clear than he asserts.

[18] If his quarrel is with this court's application of appellate authority then his remedy is with another court.

[19] If his complaint is that the highest court of this province has provided unconstitutional guidance to trial judges tasked with navigating Garofoli and "Step 6", the appropriate time to bring that constitutional challenge would have been prior to argument with respect to the judicial summary. That the Applicant waited until after receiving a ruling on the final judicial summary suggests that his complaint is with this court's ruling and not the body of law on which submissions were previously made.

[20] Further, amongst the remedies sought by the Applicant is a declaration pursuant to section 52 of the Constitution Act. That is not a remedy within the jurisdiction of this Court: R. v. Lloyd, 2016 SCC 13, at para 15.

[21] Setting these issues aside, the crux of the Applicant's position is that this court has, "no jurisdiction to consider (let alone rely on) any Crown submission which references a detail to which the Applicant does not have himself have access": Applicant's Factum, at para 92. He submits that in responding to his section 8 challenge the Crown is in possession of details to which the Applicant does not have access, and that if the Court were to consider and rely on any such details his client's section 7 and 11(d) rights would be violated. He seeks the appointment of amicus with unrestricted access to those details as a remedy for the constitutional deficiency of the process. Should such an appointment not be granted the available remedy he seeks is a stay.

(ii) Law and Analysis

[22] The Supreme Court of Canada made clear in Garofoli that a proper balance between the right to make full answer and defence and the interests of law enforcement can be achieved where the accused is provided with a summary of the general nature of the deletions: R. v. Garofoli, [1990] 2 S.C.R. 1421, at paras 95-99.

[23] The Ontario Court of Appeal has subsequently ruled on issues relating to "Step 6" and judicial summaries.

[24] In 2015 in Crevier, Justice Rouleau writing for the Court, addressed arguments relating to the sufficiency a judicial summary. The section 7 right to make full answer and defence was squarely before the Court. After extensive analysis of the competing interests of law enforcement, informer privilege and the right to make full answer and defence Justice Rouleau set out an illustrative list of the types of information that trial judges should consider in preparing judicial summaries: R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.) at paras 44-85.

[25] In 2016 in Reid, Justice Watt writing for the Court, again in the context of balancing the right to make full answer and defence against the interests of law enforcement, affirmed the guidance provided by Crevier and re-iterated that, "by its very nature, a summary is general, not detailed … [and] … need only make the accused aware of the nature of the redacted material, not its substance and not its details.": R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26 (C.A.), at paras 87-90.

[26] Faced with this body of case law, the Applicant essentially asserts that any jurisprudence which disagrees with his assertion that failure to provide the Applicant, or by proxy amicus, with the details of the redacted material is in breach of sections 7 and 11(d) of the Charter.

[27] The Supreme Court of Canada was alive to the Charter in 1990 when Garofoli was decided. Subsequent appellate decisions, in particular those of the Ontario Court of Appeal, dealing with the application of Garofoli, the "Step 6" procedure and judicial summaries have been similarly alive to the competing interests at play and in particular the accused's section 7 and 11(d) rights. The decisions that the Applicants asks this court to find unconstitutional were made within the last five years. This is not a situation where a Charter provision is being raised that was not previously considered, or where there have been significant developments in the law, or a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Absent such circumstances the law requires that courts follow and apply authoritative precedents: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras 38-42.

[28] Asking this Court to find that the guidance offered by the Ontario Court of Appeal on this point is unconstitutional is tantamount to asking this court to overrule binding authority. I do not find that there exists here circumstances which permit me to depart from that authority.

III. The Request for Amicus

[29] The Applicant argues that it is the failure to provide him with the details of the redacted materials that renders the proceedings unconstitutional. He offers the solution of amicus as rendering the proceedings constitutional.

[30] The appointment of amicus in the context of "Step Six" proceedings has also been addressed by the Court of Appeal. In Shivrattan Justice Doherty, speaking for the Court, made clear that, "the appointment of amicus on a 'Step Six' procedure is the exception rather than the rule. It is incumbent on the defence to demonstrate why the specific circumstances of the case require the appointment of amicus": R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210 (C.A.), at para 66.

[31] A similar request for amicus was again addressed in Thompson and clearly rejected by the Court; "The appellant submits, further, that amicus should be appointed in the 'vast majority of cases' because it is 'by and large a constitutional necessity to step six'. These submissions must be rejected.": Thompson, 2017 ONCA 204, [2017] O.J. No. 1221 (C.A.) at paras 15-16, 23-24.

[32] While a door was left open in Shivrattan for the appointment of amicus in exceptional cases, the Applicant has not provided any reasons unique to the circumstances of this case which require such an appointment.

IV. Section 8 of the Charter

A. The ITO

(i) Overview

[33] The version of the ITO on which the parties made their section 8 submissions, and on which this ruling is based, contains the amplification and excisions which I ordered in my Ruling of April 21, 2020. This ruling is based on the unredacted ITO but read as amplified and excised by my April 21, 2020 Ruling. It is made without consideration of the redacted portions which have not been summarized and on which the Crown does not rely.

[34] Because I have reviewed and considered the redacted ITO as described, it is necessary for me to refer to the redacted portions in order to explain my conclusions. Where I do so the references are in endnotes. In order to preserve and protect informant privilege the copy of these reasons made available to the Applicant and the public does not contain the endnotes. A complete copy of these reasons containing the endnotes will be sealed and placed in the court file and a copy will also be provided to Crown counsel.

(ii) Overview

[35] On October 24, 2018 the affiant, relying on one ITO, applied for two CDSA search warrants. One to search 2335 Lake Shore Boulevard West, Unit #219, Etobicoke, Ontario and the other to search 165 Legion Road North, unit #625, Etobicoke, Ontario. Both addresses were residences associated with the target, who is identified in the ITO as being named "Stephen Holtz".

[36] It is agreed that the Applicant, Stefan Atovich, has standing to challenge both warrants and that the Applicant, Paul Spencer, has standing to challenge only the Lake Shore Boulevard warrant.

[37] The ITO begins by setting out the affiant's belief that the following offences have been, or will be, committed:

1. Possession of a schedule 1 substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
2. Possession of proceeds of crime, contrary to s. 354(1)(c) of the Criminal Code;
3. Conspiracy to commit an indictable offence, contrary to s. 465(1)(c) of the Criminal Code; and
4. Trafficking in a weapon, contrary to s. 99 of the Criminal Code.

[38] Following this, the places sought to be searched are set out:

1. 165 Legion Road North, Unit #625, Etobicoke, Ontario;
2. 2335 Lake Shore Boulevard West, Unit #219, Etobicoke, Ontario; and
3. Any associated outbuilding or storage locker(s) related to 2335 Lake Shore Boulevard West, Etobicoke.

[39] The ITO has several appendices. Appendix A lists the items to be searched for. Appendix B lists the offences in relation to which the warrants were sought. Appendix C sets out the grounds relied on by the affiant. Appendix D lists the investigative sources. Appendix G lists the involved officers. Appendix X contains information with respect to the CI.

[40] There are three offences listed in Appendix B in relation to which the warrants were sought, all alleged to have been committed by "Stephen Holtz" on October 24, 2018:

1. Possession of a controlled substance for the purpose of trafficking, s. 5(2) CDSA;
2. Possession of Proceeds, s. 354(1) CCC; and
3. Conspiracy to commit the offence of possession for the purpose of trafficking in cocaine, s. 5(2) CDSA by facilitating the sale of cocaine, s. 465(1) CCC.

[41] The following are the listed items sought in Appendix A, all of which relate to the offences listed in Appendix B:

1. Controlled substances and cutting agents
2. Items related to the distribution of controlled substances
3. Electronic devices and data contained within
4. Identification, records and documents showing ownership and association
5. Proceeds of crime

[42] In the introduction the affiant states his belief that the person he believes committed, or will commit, the listed offences is Stephen Holtz, date of birth January 19, 1985. The above addresses are listed as his Address 1 and Address 2.

[43] In the executive summary which follows the affiant explains that information had been received from a confidential source [CI] that a male was trafficking controlled substances in the GTA, that through investigation the male was identified as being Stephen Holtz, that his association to the Legion Road address was confirmed through the building's property management, and that his association to both addresses was confirmed through surveillance on October 17, 18, 22 and 23, 2018.

[44] Also set out in the executive summary is a connection between Stephen Holtz and an Ontario Provincial Police (OPP) firearms trafficking investigation.

[45] The affiant states that on October 4, 2018 the target of the OPP investigation met with a male in Toronto and conducted what was believed to be a firearm-related transaction, and that on October 10, 2018 the male was identified as Stephen Holtz.

[46] Appendix X details the information provided by the CI and sets out issues relating to the informant's background and credibility including any motivation for providing information. This was the first time, to the affiant's knowledge, that the source had ever provided information to the police.

(iii) The Surveillance and Investigation related to the Legion Road and Lake Shore Boulevard Addresses

[47] In the body of the ITO the affiant sets out that in the course of the investigation the sub-affiant DC DeSousa spoke with the property manager of 165 Legion Road North, and was informed that Holtz was the tenant of unit 625 and had been since April of 2018. Holtz had an access card to the building and DC DeSousa was provided with several pictures related to his "fob activity" on September 28, 2018 and October 1, 2018. The security footage pictures showed a man appearing at the front desk and using the elevators. The phone number which Holtz provided to the building management was 647 649 5435.

[48] The surveillance evidence described in the ITO was as follows.

[49] On October 17, 2018 surveillance officers observed Holtz walk to a nearby convenience store and then back to 165 Legion Road North.

[50] On October 18, 2018 surveillance officers observed Holtz just after 7 pm leaving 165 Legion Road North on foot wearing a black knapsack and going to a Metro grocery store and a Rabba convenience store. He was then followed to an apartment building at 2335 Lake Shore Boulevard West where he entered the building and "keyed his way into unit 219". He could be seen inside the apartment through the windows of the unit and "accessing the balcony area of the apartment" and putting on a jacket. Just after 8:30 pm he was seen leaving the building with an unknown male and walking to a pizza store before returning to 2335 Lake Shore Boulevard West. At 9:45 pm Holtz left "carrying the same black knapsack" and was seen walking into the front doors of a nearby apartment building at 2323 Lake Shore Boulevard West. At the same time the unknown male was seen leaving in a car. At 9:53 Holtz was seen leaving the 2323 Lake Shore Boulevard West apartment building and taking a taxi back to 165 Legion Road North.

[51] On October 22, 2018 surveillance officers observed Holtz shortly after 5 pm exiting 165 Legion Road North carrying a knapsack. He walked to an apartment building at 5 Crown Hill Place and went in the front door. An hour later he was seen leaving carrying "the same knapsack" and walking back to 165 Legion Road North.

[52] On October 23, 2018 surveillance officers observed Holtz at approximately 6:13 pm exiting 165 Legion Road North "carrying a thick black satchel" and walking to 2323 Lake Shore Boulevard West. A short time later he was seen walking into 2335 Lake Shore Boulevard West and entering unit 219 with a key. Surveillance officers observed Holtz on the balcony of unit 219 with an unknown male. "Both remained in the unit for a period of time". "Moments" after surveillance officers observed the lights to 219 shut off the unknown male was seen walking westbound on Lake Shore Boulevard West. "A short time later", the unknown male was seen returning to 2335 Lake Shore Boulevard West and entering the front door. Holtz was not seen at this time.

(iv) The OPP Firearms Investigation

[53] In the body of the ITO the affiant set out his knowledge of the OPP investigation and the connections to Holtz.

[54] On October 10, 2018 DC DeSousa was informed by the property manager for 165 Legion Road North that an OPP officer, DC Roy, had attended the building to make inquiries about unit 165.

[55] DC DeSousa then spoke with a DC Watson from the OPP who informed him that on October 4, 2018 the target of their investigation had met with an unknown male in the area of Park Lawn Road and Lake Shore Boulevard West in Toronto and conducted what the OPP believed to have been a firearms transaction. The unknown male was followed back to 165 Legion Road North and subsequently identified by DC Roy as Stephen Holtz of unit 625.

[56] DC DeSousa reviewed the OPP surveillance report from October 4, 2018 and an Investigative Action Report prepared on October 11, 2018. The following information which DC DeSousa learned therein is reported in the ITO.

[57] On October 4, 2018 the OPP conducted physical surveillance of their target, Dwayne MacKenzie. There were also wiretaps. Calls were intercepted between MacKenzie and a Jon Rasmussen indicating that McKenzie would be meeting with an unknown male in Toronto to traffic a firearm. MacKenzie was seen outside his residence with a black gym bag. He met with Rasmussen and they both drove to 2313 Lakeshore Boulevard where they met with an unknown male, later identified as Holtz. Holtz got into MacKenzie's vehicle. They both then got out of the vehicle and MacKenzie retrieved a black bag from the trunk. Holtz had a canvas satchel. They then got back into the vehicle, "and completed what is believed to be a firearms transaction … Following the transaction, the unknown male, later identified as HOLTZ, was followed to 165 Legion Road where he entered the building."

[58] When DC Roy of the OPP attended 165 Legion Road to investigate he met with building management and was shown the surveillance video from the date and time when the unknown male entered the building following the meeting with MacKenzie. Building management identified the male as Holtz from unit 625 and with phone number 647 649 5435. That phone number had been in frequent contact with the OPP's target MacKenzie and was in contact with MacKenzie around the time of the October 4, 2018 meet.

[59] On October 17, 2018 at 9 am DC DeSousa spoke with Det. Watson from the OPP and was advised that their target MacKenzie was attempting to conduct a firearms transaction with Holtz later that day involving 100 rounds of ammunition and a firearm. At 4 pm that day Det. Watson told DC DeSousa that the transaction may not happen that day.

(v) The 911 Call

[60] The affiant included in the ITO information related to a Versadex query which he had conducted in relation to 165 Legion Road North unit 625. He states that he learned that at 9:11 am on August 26, 2018 an unknown male had called 911 asking for an ambulance. The male advised the call taker that he was "high on cocaine, could not feel his face and was going to pass out". When officers arrived on scene the male was in an ambulance being treated. The paramedics advised the officers that it was "medical only" and no further investigation was undertaken.

[61] The affiant states that, "there are two phone numbers listed within the radio call itself but there is no association to HOLTZ". The affiant later states that, "Holtz was never seen or spoken to in relation to the radio call on that day. Furthermore, it was never confirmed whether the complainant testified positive for cocaine use. However, the caller/complainant did make a spontaneous utterance to the 911 call taker stating that he was high on cocaine which shows some correlation between unit 625 and drugs, specifically cocaine."

(vi) The CI

[62] The affiant described the CI as being, "heavily immersed in the drug trafficking sub culture".

[63] The information provided by the CI was that a male was, "supplying large amounts of drugs throughout the Greater Toronto Area". The date that the CI provided the information was contained in the ITO.

[64] The name that the CI knew the male by was contained in the ITO. The CI provided a description of the male. The CI was shown an MTO photograph of Stephen Holtz and confirmed it to be the person he was referring to. The date on which this identification was made was contained in the ITO.

[65] Information that the CI provided with respect to his relationship with Holtz was also contained in the ITO.

B. Law and Analysis

(i) Review of a Search Warrant

[66] In order to issue a search warrant the issuing justice must be provided with, "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search": Hunter v. Southam Inc., [1984] 2 SCR 145, at p. 168; R. v. Campbell, 2011 SCC 32, [2011] 2 SCR 549, at para. 14.

[67] A review of the issuance of a search warrant begins with the presumption that the warrant is valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30. The burden is on the applicant challenging the warrant to demonstrate that the minimum standard has not been met: R. v. Crevier, 2015 ONCA 619, at para. 66. That minimum standard of reasonable and probable grounds means a "credibly based probability" that an offence has been committed and there is evidence to be found at the place searched. It does not mean proof beyond a reasonable doubt, or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, at para. 127-128; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166.

[68] As the reviewing justice, the question that I must determine is whether or not the warrant could have issued, and not whether or not I would have issued the warrant. My decision is based upon the record that was before the issuing justice as amplified, and excised, by the evidence adduced at this hearing and my previous rulings: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, at para. 51.

(ii) Full, Fair and Frank – The Obligations of the Affiant

[69] The affiant's obligations to the issuing justice are well established. The facts should be set out, "truthfully, fully and plainly" and the affiant should "never attempt to trick [the] readers": Araujo, at para 47. And while, "those drafting search warrant applications are not to be held to the standard of pleadings or lawyer created documents", affiants are obliged to demonstrate a degree of care in drafting commensurate with the order sought. That is to say, commensurate with a court order authorizing intrusion into a reasonable expectation of privacy: R. v. MacDonald, [2005] O.J. No. 551 (S.C.), at paras 78-79, R. v. Hosie, [1996] O.J. No. 2175 (C.A.), at para 31.

[70] The Applicant here alleges that the affiant engaged in a "pattern of chicanery", and displayed, "tunnel vision … or something more nefarious", from "whence a pattern of bias emerge[d]": Applicant's Factum, at para 117.

[71] In support of these allegations the Applicant points to the fact that the affiant made repeated reference to Holtz carrying knapsacks and stated that in his experience as a drug investigator bags are used to conceal and transport drugs and money. The Applicant acknowledges that many of these references were excised as a result of the excision of the hallway camera references, but submits that they have evidentiary value as a demonstration of bias.

[72] That people who sell drugs have to transport them in something is an obvious fact. As is the fact that many more people carry knapsacks and satchels than deal drugs. Any issuing justice would be alive to these facts. The affiant's reporting of his experience as a drug investigator coupled with the surveillance observations does not amount to a demonstration of bias or an attempt to mislead.

[73] The Applicant points to statements made by the affiant that officers were "currently…assembling and are on route … in anticipation to execute the said warrants" and submits that these statements were "plainly meant to place pressure on the justice of the peace to conclude that circumstances of imminent emergency prevailed". In making this submission the applicant references Justice Hill's findings in MacDonald. However, in MacDonald the impugned paragraphs of the ITO stated that, "it is a real possibility that safety concerns exist and public safety is at risk". While I agree that the statements made here by the affiant were unconnected to the grounds for issuance, no assertions about unexplained public safety or imminent danger were being made and the statements simply lacked probative value.

[74] The Applicant points to the error in the ITO with respect to the date of the alleged gun transaction as evidence that the affiant ought to have taken greater care to ensure compliance with his duties. This is an issue on which I allowed cross-examination and ultimately amplification to correct the date. In so doing I have already found that the error was minor, technical and made in good faith.

[75] The Applicant submits that the statements in the ITO that Holtz was observed on October 18 and October 23 using a key to enter the Lake Shore Boulevard unit are false. He asserts that the sub-affiant, Officer DeSousa, "misled [the] affiant, knowing that by doing so he would be party to misleading an issuing justice, and then misled this Honourable Court under oath". I allowed cross-examination of Officer DeSousa with respect to his observations of Holtz entering the Lake Shore Boulevard unit.

[76] Officer DeSousa testified that on October 18 he heard keys jingling and being put in the keyhole. He testified that the keyhole was shoulder high and that he could see from the waist to shoulder area from his vantage point. On October 23 he positioned himself to a better vantage point and on that occasion he could see the keys in Holtz's hand as he walked down the hallway. Officer DeSousa agreed that he did not record in his notes that he saw the keys in Holtz's hand or heard the keys jingling. The officer testified that on neither occasion did Holtz knock on the door prior to entering.

[77] I accept Officer DeSousa's evidence that it appeared to him that Holtz was using a key to enter the unit. I do not find that he was attempting to mislead in conveying to the affiant that Holtz had keyed into the unit. While his recollection that he heard the key jingling on October 18 and saw it as he walked down the hall on October 23 did not come until he testified, it was not until then that he was asked to explain his observations that he had seen Holtz "key into the unit".

[78] The Applicant also submits that the inclusion of the 911 call in the ITO and the affiant's statement that the caller having stated that he was "high on cocaine which shows some correlation between unit #625 and drugs, specifically cocaine" is an example of the affiant's failure to be full, fair and frank. The fact that someone believing that they were experiencing a cocaine overdose contacted 911, and the call was associated to that unit, shows some correlation between cocaine use and that unit. The affiant's assertion of "some correlation" is no more than that.

[79] When the ITO is considered as a whole I see no evidence to support the pattern of chicanery, tunnel vision and bias alleged.

(iii) Credibility, Compelling and Corroboration – The CI Information

[80] Where, as here, the ITO relies on information from a confidential source a review of the grounds for the issuance of the warrant requires consideration of what is commonly referred to as the Debot Criteria, or the "three Cs". In assessing the extent to which the information provided by the CI was credible, compelling and corroborated, the totality of the circumstances must be considered. No one factor is determinative, weaknesses in one area may be compensated for by strength in other areas: R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.), at para. 16.

Credibility

[81] Assessing the credibility of an informant requires consideration of the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 35.

[82] This CI had no known history at all of providing information to the police. In considering all of the factors here, the CI's credibility was weak.

Compelling

[83] Assessing whether the information is compelling requires an assessment not of the source of the information but of the information itself. Factors to be considered include the degree of detail provided, the means of knowledge and the currency of the information: Greaves-Bissesarsingh, at para 40. Information which is specific and exclusive is more compelling than information which is commonly known, or generic. Bald conclusory statements, rumour and gossip are not compelling, detailed first hand observations are: Rocha, at para 18.

[84] The general details provided about Holtz which would be known to anyone reasonably familiar with him are less compelling. Similarly, the information provided about criminal activity lacking in particularity is less compelling than the information which has unique aspects to it. Here much, but not all, of the information provided by the CI could be said to fall into the category of "innocent facts", or information that could be provided by anyone with a reasonable degree of knowledge of the drug subculture, as this CI was said to have.

[85] However, there was a degree of particularity to some of the information provided that made it more compelling, and additionally there was an aspect of the information provided in the unredacted ITO which further elevated the compelling nature of the CI information.

Corroboration

[86] While confirmation of the commission of the offence through direct observation is clearly not required, meaningful corroboration requires more than confirmation of neutral or easily discernible facts. Confirmation of "innocent facts, which could have been known by any number of the suspect's acquaintances" will seldom amount to meaningful confirmation: R. v. Caissey, 2008 65, aff'g 2007 ABCA 380, at paras. 22-24, R. v. Muller, 2011 ONSC 4892 (rev'd on other grounds 2014 ONCA 780) at para. 28.

[87] Here police were able to confirm aspects of the CI information through surveillance and other investigation. While much of the confirmation amounted to confirmation of "innocent facts", some of the aspects of the information provided that went beyond "innocent facts" were confirmed through investigative means.

[88] The information provided by the CI here was reasonably corroborated.

[89] In sum, while the CI's credibility was weak, the information provided was more than somewhat compelling and there a reasonable degree of corroboration.

(iv) The Firearms Trafficking Information

[90] The information provided with respect to the firearms trafficking was based on the OPP investigation and did not depend on CI information.

[91] The OPP had wiretap information showing that their target was meeting with someone to conduct a firearm's transaction. The target was followed and met with someone. The meeting was brief and took place in a car. The person met with was carrying a satchel. When he left the meeting he returned to 165 Legion Road North and was later identified as Holtz through building management. Additionally Holtz's phone number was in frequent contact with the OPP target surrounding the transaction.

(v) Conclusion

[92] The information provided by the CI was sufficiently credible, compelling and corroborated to establish reasonable and probable grounds to believe that Holtz was trafficking in a Schedule I substance and that evidence relating to the drug trafficking would be found at the Legion Road unit and the Lake Shore Boulevard unit.

[93] Additionally reasonable and probable grounds arose from the OPP investigation to establish that Holtz had engaged in a gun transaction from which he had returned to the Legion Road unit. The evidence linking Holtz to the Lake Shore unit and his movements between that and the Legion Road unit established a credibly based probability that evidence relating to the weapons trafficking would be found at both units.

[94] In considering the information provided by the CI, along with the other information that was before the issuing justice, there were grounds to justify the issuance of both warrants.

Released: August 18, 2020

Signed: Justice A. Newton-Smith