R. v. Pham, 2021 ONCJ 285

Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 04 07

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN PHAM, JONATHAN PHAM and DAVID PHAM

Before: Justice Newton-Smith

Heard on: August 13, 14, September 8, 17, October 5, 7, November 4, 2020 and January 28, 29, 2021

Reasons for Judgment released on: April 7, 2021

Counsel: I. Glasner and J. Mitschele.............................................................. counsel for the Crown R. Rusonik................................................................ counsel for the accused David Pham J. Hershberg.............................................................. counsel for the accused John Pham N. Gorham.......................................................... counsel for the accused Jonathan Pham

RULING ON CHARTER APPLICATION

NEWTON-SMITH J.:

I. OVERVIEW

1John, David and Jonathan Pham are charged with various offences arising out of the execution of several search warrants. The search warrants were based upon the results of an investigation that flowed from the issuance of tracking warrants.

2David and Jonathan are twin brothers and John is their older brother.

3The trial commenced before me on August 13, 2020 with an Application (the “Garofoli”) brought collectively by the defence challenging the issuance of the first tracking warrant on the basis that it violated their rights as protected by s.8 of the Charter. An Application has also been brought pursuant to s.7 of the Charter seeking a stay of proceedings on the basis of lost evidence.

4The warrant was based on information from a confidential source [the “CHS”] and was largely redacted. The Crown sought to rely on the redacted information and made resort to the “Step Six“ procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421 at p.1461.

5At the outset the defence was provided with a heavily redacted version of the Information to Obtain [the “ITO”], together with a proposed judicial summary prepared by the Crown summarizing the contents of the redacted portions. In accordance with the second and third step of the Garofoli procedure, I heard submissions from counsel with respect to the necessity for the redactions and the adequacy of the judicial summary.

6Most of the Crown’s submissions were made ex parte in order not to divulge information that may have identified the confidential source. I also heard ex parte evidence from the affiant, and reviewed email communications from the affiant that had been redacted, with respect to issues relating to the CHS’s criminal record.

7Summaries were prepared with respect to those email communications and the affiant’s ex parte evidence.

8The unredacted ITO and aforementioned email communications and testimony from the affiant have been made sealed exhibits.

9During the course of the submissions, I questioned the need for some of the redactions. In some instances the Crown agreed to unredact the portion in question. On those occasions where the Crown did not, I ultimately accepted the Crown’s submissions about the need to maintain the redactions. I also made several suggestions about how greater detail could be provided in the proposed judicial summaries. Again, Crown counsel agreed with most of my suggestions.

10The Applicants also prepared a list of questions with respect to the redacted portions which were answered following an ex parte exchange between the Crown and I.

11Following this process, the Applicants received judicial summaries of the redacted portions of the ITO, the affiant’s emails and the affiant’s ex parte evidence. They also received answers to the list of questions asked.

12It was at that juncture in the process that the Applicants then called two witnesses on the Charter Application.

13After that evidence was heard, the Applicants applied to cross-examine the affiant DC Seto and the sub affiant DC Smith. The Crown consented to some of the requested cross-examination and I allowed cross-examination in others. [1]

14Following the hearing of all of the evidence on the Charter Application I invited the Applicants to make further submissions on the summaries provided. They chose not to and we proceeded to final submissions on the Application. During the course of those submissions the Applicants took the position that nothing short of complete disclosure of the redacted ITO would suffice to allow for a meaningful challenge. Ultimately it was the position of the Applicants that the Crown’s request to resort to Step Six should be denied.

15Where, during the course of these reasons, it is necessary for me to refer to redacted portions of the materials I have made the references in the form of endnotes. A copy of these reasons with all of the endnotes redacted will be provided to the Applicants and the public. An unredacted version will be sealed and placed in the court file so that it will be available to any reviewing court. An unredacted version will also be provided to Crown counsel.

II. THE EVIDENTIARY RECORD

A. The ITO

(i) Overview of the ITO

16The warrant sought was a vehicle tracking warrant pursuant to s.492.1(1) of the Criminal Code. The affiant states that the vehicle sought to be tracked, a 2014 Nissan Maxima CFMV704, was “owned and used by Jonathan, David and John Pham”. The offences suspected to have been committed were trafficking and possession for the purpose of trafficking in a Schedule I substance, and possession of proceeds of crime.

17The affiant’s grounds to suspect are set out in the body of the ITO. Those grounds are based on information from a CHS, surveillance evidence and various database checks. Appendix X contains the source information as well as information pertaining to the source.

18Appendix X was almost entirely redacted, as were references to the source information in the body of the ITO.

19The affiant’s grounds to suspect are primarily based on five areas of information:

• the CHS information that the Phams were trafficking drugs out of a condo at 33 Bay Street, Toronto
• checks and surveillance confirming the Pham’s association to the address of 33 Bay Street and with the Nissan
• information with respect to a previous warrant and John Pham’s criminal record
• surveillance observations from March 27, 2019 of Jonathan and David Pham driving to the Whole Foods store on Bayview Avenue, Toronto and engaging in what the affiant characterised as “counter-surveillance” driving
• surveillance observations from April 2, 2019 of John Pham engaged in what the affiant believed to be a “drug transaction”

20In the introductory paragraphs, under the heading OVERVIEW OF THE INVESTIGATION, the affiant sets out that the information contained in the ITO relates to a drug investigation called Project “Gemini” conducted by the Asian Organised Crime Task Force (AOCTF). The investigation began in 2019 as a result of information from a CHS that twin brothers, David and Jonathan Pham, were engaged in drug trafficking out of a condo in the downtown area. Paragraph 9 summarises the investigative tasks that had been completed, and the conclusions drawn, as follows:

a) Most of the information provided by the confidential human source has been corroborated through various database checks and physical surveillance. As a result, I believe the source to be truthful with no ill intent. b) AOCTF surveillance officers have located the address that the PHAM’s are believing to be using to traffic in [redacted] of 33 Bay Street, Unit #3313, Toronto. c) AOCTF surveillance officers have confirmed that Jonathan PHAM owns a 2014 black Nissan Maxima bearing Ontario licence plate CFMV704 and Jonathan, David and John PHAM make use of the vehicle. d) AOCTF surveillance officers observed that the PHAM’s drive in a counter-surveillance manner. e) AOCTF surveillance officers observed John PHAM meet with an unknown male for what I believe to be a drug transaction.

21Following the introduction, under the heading GROUNDS FOR BELIEF, the affiant states that in early 2019 he received a CHS report from the handler that identified Jonathan, David and John PHAM as drug dealers operating in Toronto. The type of drug(s) is specified. He then sets out that the information supplied by the CHS along with “an assessment of their credibility” is contained in Appendix X.

(ii) Background Checks, 33 Bay Street and the Nissan

22Background information relating to the Pham brothers derived from checks and surveillance, including information connecting them to the 33 Bay Street condo and the Nissan, is set out in paragraphs 19-22.

23OPP checks showed Jonathan and David to be twin brothers and John to be their older brother. The checks also showed all three brothers having resided at 16 Henley Road Hamilton, Ontario and Jonathan Pham having an address of 3313-33 Bay Street current as of February 27, 2019.

24MTO records showed Jonathan and David Pham residing at 16 Henley Drive, Stoney Creek, Ontario. Jonathan Pham had one vehicle registered in his name, the Nissan Maxima, CFMV704.

25Surveillance evidence from March 27, 2019 showed Jonathan and David Pham getting into the Nissan in the underground parking lot of 33 Bay Street and returning later that day.

26In paragraph 22 the affiant states:

22. CPIC shows that Jonathan and David PHAM have a criminal history for trafficking marihuana, possession of cocaine, and proceeds obtained by crime in 2013 but the charges were withdrawn. In the 2013 case Hamilton Police Service executed a CDSA search warrant at the PHAM’s residence of 16 Henley Drive, Stoney Creek. Jonathan and David were inside the residence at the time of the search warrant. 34 pounds of marihuana, cocaine residue, and $8905.00 of currency was seized.

27Later, in paragraph 30, under the heading INVESTIGATION INTO JOHN PHAM the affiant writes that MTO records from March 8, 2019 show John Pham residing at 16 Henley Drive, Stoney Creek.

28In paragraph 31 the affiant states:

CPIC shows that John PHAM has a criminal history involving drugs. On October 18th, 2010 John was convicted for possession of a schedule I substance (Cocaine) for the purpose of trafficking (x2) for Hamilton Police Service charges. On July 20th, 2012 John was convicted of possession of a schedule I substances (Cocaine) for the purpose of trafficking, and possession of a schedule II substance (Marihuana), for Hamilton Police Service charges.

(iii) The March 27, 2019 Trip to Whole Foods

29In paragraphs 23-27 the affiant sets out the information on which the conclusion, “the PHAM’s drive in a counter-surveillance manner” from paragraph 9d, and later repeated in paragraph 50 under the heading CONCLUSION, is based.

30Paragraph 23 sets out that:

On March 27th 2019, members of the AOCTF conducted surveillance at 33 Bay Street, Toronto. At 19:35 hrs David and Jonathan PHAM entered the 2014 black Nissan Maxima, Ontario plate CFMV704 which was parked in the underground paid public parking area of the building in spot 278.

31Paragraph 24 states:

The Nissan was followed by surveillance officers and it appeared to be driving in a counter surveillance manner by travelling in an indirect route. At 20:02 hours the Nissan attends the underground lot for Whole Foods Market grocery store, 1860 Bayview Avenue Jonathan, I identify Jonathan and David PHAM as the occupants of the vehicle.

32Included in paragraph 24 is an “Affiant note” followed by a map showing the route taken by the Phams as described by the affiant. The note reads:

[Affiant note: As a trained physical surveillance officer, and previously being a member of the Ontario Provincial Police physical surveillance unit, I believe the turns on to Soudan Avenue and north on Falcon Street indicated by the red lines below was an indication of counter surveillance. Based on my surveillance experience, experienced criminals about to conduct in illicit activity in most cases illicit drug transactions will try to determine if they are being followed by police or competitors by turning onto smaller residential streets which have less traffic flow to identify vehicles making the turns with them. It is possible that the turn on to Soudan Avenue was to avoid traffic on the major street Eglinton Avenue, however, the Nissan travelled back north on Falcon Street only to travel east on Eglinton Avenue, if the intention was to avoid heavy traffic on Eglinton then the Nissan could have circumvented the traffic by travelling east all the way to Bayview Avenue then heading north to the final destination.]

33Paragraph 25 then states, “At 20:08 hours the twins are observed leaving the grocery store by Detective Constable Chris MARCOS #1664 and one was holding a brown paper bag in his right hand. The twins enter the Nissan”.

34Paragraph 26 describes the route that the Phams took back home:

At 20:09 hrs the Nissan departs and was followed. The vehicle again travelled in a counter surveillance manner. It departed south on Bayview Avenue, the map below shows the route that the vehicle travelled. The red lines indicate multiple turns and side streets they travelled, which I believe to be counter surveillance as they took a completely indirect route only to return to Bayview Avenue. I believe that they were travelling in a counter surveillance manner from 33 Bay Street, and returning to 33 Bay Street, because they were aware that they were being followed and also to conceal their association to 3313-33 Bay Street, Toronto because they are storing and/or trafficking controlled drugs or substances at this location.

35The paragraph is again followed by a map showing the route in red. Superimposed on the map is the following statement:

The red lines indicate counter surveillance. The vehicle took an indirect route only to get back on to Bayview Avenue south bound which is the road and direction they were already travelling on when they departed the Whole Foods Market.

36Paragraph 27 details a follow up investigation at the Whole Foods by DC Smith two days later on March 29, 2019. The affiant states:

I spoke with D/Cst SMITH who reviewed security camera footage at the grocery store and observed that Jonathan and David PHAM entered the business and purchased beverages which was placed in the brown paper bag. The PHAM’s then left the store. This furthers my belief that they travelled to and from 33 Bay Street, only to pick up beverages in a counter surveillance manner to hide their intention of conducting an illicit drug transaction and conceal the location of 3313-33 Bay Street.

37Following this paragraph is another “Affiant note” which states that:

Affiant note: Based on my experience, I believe the PHAM’s were on their way to conduct an illicit drug/substance transaction somewhere in the are of Bayview Avenue and Eglinton Avenue and at some point discovered that they were being followed by the a surveillance team. Instead of continuing with the drug transaction they attended the Whole Foods Market, to purchase only beverages. I believe this was to hide their true intention of conducting a drug transaction which they abandoned because at that point the PHAM’s were aware they were being followed. It should be noted that there is a Whole Foods Market, 87 Avenue Road, Toronto which is approximately 4 kilometres from 33 Bay Street that they could have attended but instead they travelled 15 kilometres to the location at 1860 Bayview Avenue I do not believed they travelled the extra distance. Furthermore, on the way back to 33 Bay Street, from the Whole Foods Market, I believe the PHAM’s used counter surveillance to confirm they were being followed and to also lose the surveillance team by using a series of 12 turns using small, quieter streets and major roads and using a completely indirect route to return to Bayview Avenue south and ultimately 33 Bay Street.

(iv) The April 2, 2019 “Drug Transaction”

38In paragraph 32, under the heading INVESTIGATION INTO JOHN PHAM, the affiant sets out the information on which the conclusion, “John PHAM met with an unknown male for what I believe to be a drug transaction” from paragraph 9e, and later repeated in paragraph 49 in the CONCLUSION, is based.

39The surveillance observations are as follows:

At approximate 15:23 John PHAM entered the Nissan … which was parked in the underground public parking lot at 33 Bay Street on the P2 level in spot #15. PHAM was followed to 28 Lee Centre Drive, Scarborough parks in the lot and remains in the vehicle. At 16:27 an unknown black male … who was operating a black Hyundai ..parks by John PHAM … The unknown black male exited his vehicle and entered the front passenger seat of the Nissan Maxima they have a very brief interaction. The unknown male exits the Nissan and enters his Hyundai and they both departed their separate ways. John PHAM was followed and he returned to 33 Bay Street.

40In the “Affiant note” which follows, the affiant writes:

Based on my experience as a police officer I believe this brief interaction was an illicit substance/drug transaction between PHAM and the unknown male. The relationship between John PHAM and the unknown male appears to be a business relationship and not a personal relationship as they only met for a matter of seconds in a parking lot which does not even give them time to have a conversation.

41The note further sets out that security footage showed the unknown male leaving a neighbouring building at 8 Lee Centre Drive minutes before the meeting. Two days later the Hyundai was seen parked in spot 104 in the underground parking at 8 Lee Centre Drive. Which leads the affiant to state:

It appears that the unknown male resides at 8 Lee Centre Drive. This furthers my belief that PHAM and the unknown male do have any type of personal relationship as the unknown male does not want PHAM to attend or know where he resides, instead he meets PHAM at a neighbouring parking lot. PHAM travels almost 1 hour from the downtown Toronto area to Scarborough to meet the unknown male in a parking lot for seconds not enough time to have any type of conversation but enough time for them to conduct an exchange or transaction. Furthermore, in my experience I have learnt that drug traffickers operate mainly in a cash only business.

(v) Grounds for Belief

42Under the heading GROUNDS FOR BELIEF THAT THE TRACKING WARRANT AND PRODUCTION ORDER WILL AFFORD EVIDENCE the affiant twice repeats his belief regarding the counter surveillance. At paragraph 33 he writes, “Current physical surveillance conducted by AOCTF has shown that the PHAM’s have been observed mostly at 33 Bay Street…it has also shown that the PHAM’s travel using counter surveillance techniques”. And again at paragraph 35, “Surveillance officers have also observed Jonathan PHAM travelling in the Nissan using counter surveillance by taking side streets and an indirect route away from 33 Bay Street, and returning to 33 Bay Street leading me to believe that the PHAM’s are surveillance conscious.”

43The CONCLUSION contains 5 paragraphs, 47-51. In paragraph 47 the affiant states that:

Credible information has been received from the CHS in relation to Jonathan, David and John PHAM and their drug trafficking operation in Toronto region. I believe this information has been corroborated during this investigation through background checks on Jonathan, David and John PHAM and through observations made during physical surveillance conducted by AOCTF officers.

44Paragraph 48 confirms that the Nissan is registered to Jonathan Pham and that all three brothers have been seen using it.

45Paragraph 49 repeats the affiant’s belief that John Pham was observed driving the Nissan to an “illicit drug transaction” with an unknown male on April 2, 2019.

46Paragraph 50 reads:

Jonathan, David and John PHAM have been observed attending 3313-33 Bay Street, Toronto despite their registered address being 16 Henley Street, Stoney Creek, Ontario. Jonathan and David PHAM travelled in a counter surveillance manner leaving and attending 33 Bay Street. I believe they are purposely trying to conceal any association to this address as it is where they are conducting their drug trafficking operation.

(vi) Appendix X

47Appendix X, which sets out the information relating to the one source, is mostly redacted. The affiant’s source of information was a CHS report authored by the source’s handler. The affiant explains that he corroborated the source information, “where possible through police records or other records”.

48The affiant sets out that the source has provided information in the past. Specific information is given with respect to this, including the month and year when the information was given, whether a charge was laid and whether a conviction was entered. The affiant included information about an occurrence where the source provided information that did not lead to any seizures.

49The affiant provides information with respect to the source’s connection to the drug subculture, criminal record and motivation for providing information to the police.

50The affiant then summarises the information that he received with respect to the CHS. On a date in 2019 the source told the handler that he wished to provide information on twin brothers who were trafficking drugs. The source identified the twins as David and John Pham in their late twenties, with a 30 year old brother John. Some information is provided about the length and nature of their relationship. There is also information provided about a vehicle(s).

51Some limited information is given about the modus operandi of the drug trafficking including information about a downtown Toronto condominium address where the source claimed drugs were dealt from. The basis of knowledge for some of the CHS information is disclosed.

52The source’s criminal record was reproduced by cutting and pasting from CPIC. The information provided included convictions, dates and sentences. No information with respect to withdrawn or stayed charges is included. The criminal record as provided was incomplete.

B. The Evidence With Respect to the Incomplete CHS Criminal Record

53It was revealed through the disclosure and crown vetting process that the criminal record for the CHS included in the ITO was incomplete. The affiant provided an explanation for this to the Crown in the form of two emails. I have reviewed those emails, and they have been made part of the court record in the form of sealed exhibits. The affiant then testified in an ex parte hearing with respect to this issue. A redacted copy of that evidence, with a judicial summary was provided to the defence.

54DC Seto testified that he had been with the OPP since April of 2009, and a member of the AOCTF since November of 2018. This was the first time that he had been an affiant in an ITO using a CHS. He testified that in preparing the ITO he ran the source through CPIC and then copied and pasted the record into a draft ITO. Once the draft ITO was complete he submitted it to superior officers for review.

55DC Seto testified that he had omitted the last entry on the informant’s record through a “sloppy clerical error” while cutting and pasting. Because he did not bother to update the informant’s record when he drafted the subsequent ITOs, he never caught the error. He explained that in the redacted portion of the ITO he was, “trying to explain that potentially the credibility of this person could be in question so I didn’t think to update the criminal record”. Eventually the error was caught during a crown vetting meeting after charges were laid. At that meeting DC Seto was asked to review the record to ensure that it was accurate. It was only then that he realised that the latest entry in the criminal record had been dropped from the ITO.

C. The Defence Evidence

56The Applicants called two witnesses on the Charter Application, the Applicant Jonathan Pham, and Manoj Krishnan, a manager at the Whole Foods store on Bayview Avenue in Toronto.

(i) The Evidence of Jonathan Pham

57Jonathan Pham testified that on March 27, 2019 he and his twin brother David drove to the Whole Foods on Bayview Avenue. The reason for their trip was to purchase a health food supplement called MSM.

58Mr. Pham admitted that he and his brother were making fentanyl. In researching cutting agents they had learned that MSM, a legal health food supplement, can be used to “cut” fentanyl without producing negative side effects.

59Mr. Pham testified that he and his twin brother David lived in Stoney Creek. John, their older brother, lived in the condo at 33 Bay Street. They were using a condo at 16 Harbour Square, which is connected to 33 Bay Street, to produce and store fentanyl. Photographs taken when the search warrant was executed at 16 Harbour Square show bottles on the floor which Jonathan Pham identified as bottles of MSM purchased at Whole Foods.

60They began by purchasing MSM on the internet but then moved to making the purchases in cash at Whole Foods. Mr. Pham testified that they were concerned about the record being created through their use of Amazon.

61Starting in January of 2019 they were buying MSM at Whole Foods about every two weeks. Each time that they went they would clear out the entire stock on the shelf. The first time they went to the Yorkville Whole Foods, which is closest to the condo, but that location was out of stock. A store employee told them to go to the Bayview store. The second time they went to Yorkville and MSM was in stock. They third time that they returned the Yorkville store it was out of stock again. On the fourth trip, at the end of March, they decided to just go directly to the Bayview Store. While Mr. Pham could not recall the exact date of that trip it was agreed that it was March 27, the date of the surveillance.

62Mr. Pham testified that because he was not from Toronto he was not familiar with driving in the City and tended to use the navigation app Waze.

63The March 27th trip was the first time that they decided to drive directly to the Bayview Whole Foods from the condo. They used Waze which directed them to take the DVP north to Bayview Ave.. When they got to the Bayview/Bloor exit Jonathan was on the phone and missed the voice prompt to turn onto Bayview. Waze redirected them to take Bloor to Mt Pleasant. Just before the Mt. Pleasant and Eglinton intersection they were directed to turn east on Soudan and then north on Falcon to Eglinton.

64Mr. Pham agreed that their route to the Bayview Whole Foods that evening as depicted in the ITO was accurate. He testified that the reason that they were directed by Waze to cut across Soudan and Falcon, was to avoid the major construction at Eglinton and Mt. Pleasant.

65A Metrolinx document was put into evidence showing the construction at the intersection in March of 2019. The intersection had a large crater in its midst and was reduced to one lane of traffic in each direction with no turns permitted.

66Mr. Phan testified that once inside the store they picked up a basket and proceeded to the health food section where they cleared out the supply of MSM. They then made two more stops in two different aisles before heading to the checkout. First to the aisle with the drink cooler to get some bottled water, and then to the prepared food section to get some sandwiches. They paid in cash. He estimated that with the MSM they probably had about 15 items total.

67With the assistance of counsel the twins staged a re-enactment of their visit to Whole Foods that evening which was recorded and put into evidence.

68On the way home they retraced their route there, taking Bayview to Eglinton and then cutting down Falcon and across Soudan to Mt. Pleasant. Mr. Pham testified that the route home as depicted in the ITO was wrong. He testified that because of the construction they never drove through the intersection of Mt. Pleasant and Eglinton.

69A cell phone record was put to Mr. Pham in cross-examination showing that a phone call made from his phone at 20:19 that evening registered at a tower at Mt. Pleasant and Eglinton. Mr. Pham had no specific recollection of making a call but did not dispute that one had been made. He also had no exact recollection of the timing of their trip that evening but did not dispute that the surveillance had him leaving Whole Foods at 20:09. The Crown suggested that the fact that a cell tower at Mt. Pleasant and Eglinton registered a call from his phone 10 minutes after he had left the Bayview Whole Foods meant that he was “hovering” around the intersection. Mr. Pham testified that it was possible that they had stopped for food or at a store, but that he had no recollection of having done so.

70During his evidence Mr. Pham was shown maps of routes that he had driven in April and May of 2019 that were derived from the tracking device placed on his car pursuant to the warrant. From those maps Mr. Pham identified April 18, 21, 25 May 1, 14, 26, 31 June 3, 9. He testified that the routes taken on April 18, May 1, 14, 26, June 3 and June 9 showed them visiting Whole Foods locations between Hamilton and Toronto to purchase MSM in Oakville and Square One in Mississauga.

71Mr. Pham agreed in cross-examination that he had been arrested in 2013 for dealing marijuana and since then had become more sophisticated, moving to large scale fentanyl production. He also agreed that he made efforts in many ways to conceal his activities.

72The condo at 16 Harbour Square condo was in someone else’s name and they used a debit card in that person’s name to pay the rent. He also admitted to having false pay stubs showing him to have worked 60 hours at a farm in St. Catharines in June of 2019, when he was in fact at that time commuting to and from Toronto almost every day and not legally employed. However, Mr. Pham testified that he did not worry about being followed when he was driving because he had drivers to do his deliveries and never carried drugs on him.

(ii) The Evidence of the Whole Foods Store Manager

73Manoj Krishnan, a store manager at the Whole Foods on Bayview Avenue, testified that in late March of 2019 a police officer came to the store to speak with him. The officer was inquiring about CCTV footage of two individuals who had visited the store. It was agreed that this was DC Smith.

74The officer wanted to see footage from the parking garage but Mr. Krishnan explained that there were no cameras in the garage. The officer then asked for the footage from inside the store, which Mr. Krishnan showed him and explained how it worked. Mr. Krishnan watched with the officer for a bit. The officer asked to be directed to the lobby footage and the drink cooler area near the cash, which Mr. Krishnan did but otherwise left the officer to watch by himself.

75Mr. Krishnan testified that there are 36 cameras covering various areas of the store. He explained that if you want to follow someone’s journey through the store you have to follow the cameras. Mr. Krishnan confirmed that MSM is sold in the health food section, which is captured by a camera. The health food section, the drink cooler area, the prepared food counter where sandwiches are sold, and the cash area are all covered by different cameras.

76Mr. Krishan testified that footage from the cameras is normally preserved for 90 days unless a request is made to preserve it for longer. In order to make such a request, a “video footage release” form has to be filled out. Mr. Krishnan testified that the officer who visited him in March of 2019 made no such request and therefore the video was not preserved.

77When asked how certain he was that the officer who came in March of 2019 did not ask for the video to be preserved Mr. Krishnan said, “very certain”. Mr. Krishnan explained that sometime afterward he was visited by another investigator who wanted to see the same CCTV footage. Mr. Krishnan explained that the police had already come and looked at the footage but left without asking for it to be preserved and so it no longer existed. It was agreed that this was a defence investigator.

78Mr. Krishnan testified that he had recently received a request from a lawyer asking for a copy of the receipt from a purchase on March 27, 2019 but because the request came over a year later the records no longer existed. He explained that, like with the CCTV footage, had the request been made at the time the receipt could have been reproduced. It was agreed that the request came from the Applicant’s counsel.

D. Cross-Examination of the Affiant and Sub-Affiant

(i) The Evidence of the Affiant DC Seto

79On the evening of March 27, 2019 a surveillance team of six officers, including the affiant DC Seto, followed the Pham brothers. Each officer was alone in a vehicle.

The Counter Surveillance Driving Observations

80DC Seto testified that he could not recall the exact route that he took when following the Phams to Whole Foods, nor when following them back. During the surveillance the officers were using their in-car radio system to communicate. Central notes were being taken by Officer Robitaille.

81Almost all of the observations in the central notes had a number beside them denoting the badge number of the officer making the observation. The only observations which did not were the ones of the turns taken on the drive back from Whole Foods. These were the turns that DC Seto characterised in the ITO as “counter surveillance driving”.

82When asked who was responsible for those counter surveillance driving observations DC Seto answered, “It would be all of the officers combined following the turns, and then after the debrief and look at that route, or just even while we’re driving, the route was strange and it drew our attention.” He then went on to say, “It’s very difficult to be able to know exactly who has called the turn and recall that turn … we’re not always doing the turn with the target”. When asked if he himself had seen any of the strange turns he responded, “for those turns that they – in the central notes, I don’t recall if I saw those turns, but it was the route, the entire route that was considered counter-surveillance.” DC Seto testified that there could have been times when they lost sight of the vehicle and made assumptions about what turns had been made based on where they next saw the vehicle.

83DC Seto testified that he couldn’t recall anything unusual about the intersection of Mt. Pleasant and Eglinton on the evening of March 27, 2019 and wasn’t sure that he drove through it. He testified to having no recollection about turns being prohibited in that intersection.

84He did testify that he knew Eglinton Avenue to “always have construction” and agreed that he made no mention of this in the ITO. His explanation was that he had said in the ITO that, “there may have been heavy traffic”. However, DC Seto agreed that in his affiant note at para.24 of the ITO he had dismissed this explanation by stating:

It is possible that the turn on to Soudan Avenue was to avoid traffic on the major street Eglinton Avenue, however, the Nissan travelled back north on Falcon Street only to travel east on Eglinton Avenue, if the intention was to avoid heavy traffic on Eglinton then the Nissan could have circumvented the traffic by travelling east all the way to Bayview Avenue then heading north to the final destination.

85When shown the Metrolinx picture of the intersection with a large hole in the ground, major construction and no turns allowed DC Seto testified that he might not have noticed because his attention would have been on the surveillance and not the road conditions.

The Whole Foods Observations and the CCTV Footage

86The day after the March 27 surveillance it was decided that DC Smith would go back to the Whole Foods at Bayview to see if he could find out what the Phams were doing while in the store. DC Seto testified that he had relied on DC Smith’s account of what had occurred in the store.

87DC Seto testified that he had a conversation with DC Smith following his visit to the store. According to DC Seto, DC Smith told him that he had been able to follow the Phams’ journey through the store on the CCTV footage and that they had just purchased some beverages. DC Seto testified that he could not recall ever having seen DC Smith’s report from that day.

88DC Smith’s report stated that the Phams had made two stops in the store to collect items for purchase. DC Seto acknowledged that the version of what had occurred in DC Smith’s report, was different from what he, DC Seto, had reported in the ITO.

89DC Seto testified that had he known about the second stop in whole foods that DC Smith put in his investigative report he would have included it in the ITO. He testified that, “I assume it was just something missed under translation when I was talking to him. But I don’t know why I didn’t know about that second item”.

90DC Seto testified that it was his belief that it was strange that the Phams had driven all the way to the Bayview Whole Foods to spend so little time there. It was his belief that they had gone there to “do drug trafficking”. However, DC Seto testified that when DC Smith reported that all they had done was buy drinks he did not think that there was any evidentiary value to the CCTV footage. He never asked DC Smith, or any other officer, to secure a copy.

91In July of 2020, at the request of the Crowns, DC Seto returned to the Whole Foods on Bayview to see if the video still existed. Prior to going there he did not review DC Smith’s report nor ask DC Smith if he had asked to have the video preserved.

92DC Seto has a finding of misconduct under the Police Services Act. He testified that this was the result of a “really bad decision” that he made when he was a young officer and still on probation. DC Seto testified that he damaged a police cruiser that he was driving but, rather than admitting that he had caused the damage, told his superior officer that he didn’t know what happened, and that the damage had been caused in his absence while the car was parked. He then wrote a report in which he repeated the lie. DC Seto agreed that the implication of what he told his superior officer, and then wrote in the police report, was that the damage had been caused by someone else. His explanation was that he thought that he would lose his job because he was on probation and had seen a memo stating that avoidable collisions had serious consequences. DC Seto did not correct the lie until the next day when he was confronted by his sergeant.

93DC Seto testified that he had volunteered to be the affiant because he was new to the unit and wanted to learn as he wasn’t experienced in large projects and drafting warrants.

(ii) The Evidence of the Sub-Affiant DC Smith

The March 27 Surveillance

94DC Smith was also part of the March 27, 2019 surveillance team.

95Like DC Seto, DC Smith could not recall what exact route he drove that evening, either to or from the Whole Foods. Nor could he recall if he had passed through the intersection of Mt. Pleasant and Eglinton. When asked to describe the intersection he had no recollection of the construction.

96His notes with respect to the return journey read:

Both leave in V1 and followed southbound on Bayview Avenue to eastbound Eglinton Avenue. During this, V1 conducts strange driving patters, fast and slow, on multiple side streets, consistent with counter-surveillance techniques, to Hwy 404 southbound Yonge into rear lane-way of 33 Bay. 88

See central notes for details on team member observations

97DC Smith testified that 88 referred to the final observation made by Detective Johnson of the vehicle returning to 33 Bay Street. That was the only observation which he had attributed to an officer. When asked why none of the counter surveillance driving observations were attributed to a particular officer, DC Smith responded, “Well, I don’t really have an answer for you as to exactly why, I noted team.” He himself had no specific recollection of observing any of the turns which made up the counter surveillance driving.

98At the conclusion of the surveillance that evening, prior to returning to the office, the team met to debrief. DC Smith wrote his notes after returning to the office.

The Whole Foods Video

99During the debrief there was a discussion about the brown bag that one of the twins was seen carrying out of Whole Foods. DC Smith testified that it was decided that follow up should be done the next day at Whole Foods because they thought, “something was inside that bag that would have caused the twins to drive in the manner that they did… we thought that there was something potentially illicit like narcotics or proceeds of crime”.

100DC Smith was tasked with the Whole Foods follow up. On March 28 he met with the store manager and reviewed the CCTV footage from the previous day. He testified that he watched the entirety of the twins journey through Whole Foods on the CCTV.

101DC Smith testified that he went to Whole Foods without his notebook and so had no notes from his visit. When asked why he went without his notebook he responded, “I don’t know”. After returning to the office he wrote up a report.

102Initially DC Smith testified that he didn’t make any notes while watching the CCTV footage. When it was put to him that the report contained precise times, DC Smith responded that he must have “jotted them down on a scratch piece of paper”. He could not explain where the notes were except to say, “I think I misplaced them”.

103The report began with, “The writer viewed footage from the in-store security camera with the on duty manager of the day and viewed the following between the times of 2003 hours and 2007 hours on March 27, 2019.

104In the report DC Smith wrote:

• David and Jonathan observed entering the Whole Foods store via elevator into a main lobby area. One of the brothers picked up a basket
• David and Jonathan walk to a beverage aisle and select an item and place in in their basket
• David and Jonathan walk to a refrigerated section of Whole Foods and select an unknown item and place it into their basket
• David and Jonathan walk to the register and pay for their items

105DC Smith testified that the report documented, “everything that was relevant that I observed”. While he agreed that he didn’t “write exactly every single detail”, DC Smith maintained that had there been a third stop to select an item or items to purchase he would have noted that in his report.

106In describing how the information that he learned from his trip to Whole Foods was conveyed to the affiant, DC Seto, DC Smith answered as follows:

I remember telling my team, and with Mr. Seto in attendance that I had reviewed the video, and basically described the contents of my report there. They attended a beverage aisle and selected what I believed to be beverages, but that was deduced because I couldn’t actually see what they grabbed but they were in the beverage aisle, the beverage section. They then walked down that particular aisle. Almost adjacent to it was a refrigerated section that also contains beverages, and they selected items from that refrigerated section, and my assumption was, it was a drink. However, I couldn’t see exactly what it was

107At the end of the report DC Smith wrote:

• The writer observed the CCTV security footage on the premises and no copy of the video was obtained by the writer as no evidentiary value was observed. The writer did request that the footage be preserved should new developments of evidence surface in the future.

108When DC Smith testified he was less sure that he had actually made the request to preserve the footage stating, “so I remember meeting with the manager there in the room knowing that the video would be preserved on their server and that I could go back and get it should I require it.” DC Smith was asked when, in his experience as a police officer, he had ever encountered a situation where surveillance video is routinely preserved indefinitely. His response was, “Well, I don’t remember”. DC Smith agreed that he never asked the store manager for his name, took any of his contact information or filled out any forms.

109DC Smith’s evaluation of the CCTV footage was that, “nothing of value was observed”. He explained that, while he and his team had initially assumed that the bag contained something illicit, after he had attended the store and reviewed the CCTV footage it was determined “that there was nothing really to it”.

III. ISSUES AND THE LAW

A. Overview of the Law on Warrant Review

(i) The General Principles of Warrant Issuance and Review

110Here the warrant in question is a s.492.1(1) tracking warrant. The grounds required for issuance of such a warrant are reasonable grounds to suspect that an offence has been committed or will be committed, and that the tracking of the thing will assist in the investigation of the offence.

111The standard of reasonable grounds to suspect was recently reviewed by the Supreme Court of Canada in R. v. Ahmad, 2020 SCC 11:

While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity (Chehil, at para.27), it must also be remembered that it provides police officers with justification to engage in otherwise impermissible, intrusive conduct such as searches and detentions. It is therefore subject to "rigorous" "independent" and "exacting" judicial scrutiny (Chehil, at paras.3 and 26). The suspicion must be focused, precise, reasonable, and based in "objective facts that stand up to independent scrutiny" (MacKenzie, at para. 74). In Simpson, at pp. 500-3, the Court of Appeal for Ontario, drawing from U.S. jurisprudence, this Court's application of reasonable suspicion in Mack, and the articulable cause doctrine in R. v. Wilson, [1990] 1 S.C.R. 1291 (S.C.C.), summarized reasonable suspicion as requiring a "constellation of objectively discernible facts" giving the officer "reasonable cause to suspect" that a certain kind of crime was being committed by a particular person or in a particular place. This definition continues to be applied by this Court (see, e.g., R. v. Jacques, [1996] 3 S.C.R. 312 (S.C.C.), at paras. 24-25; Kang-Brown, at para. 76; Chehil, at para.3). Ultimately, the evidence said to satisfy reasonable suspicion must be carefully examined.

Ahmad, at para 46.

112A review of the issuance of a warrant begins with the presumption that the warrant is valid: R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 3, at para.30. The burden is on the applicant challenging the warrant to demonstrate that the minimum standard of reasonable and probable grounds has not been met: R. v. Crevier, 2015 ONCA 619, at para.66.

113A warrant may be challenged on the basis that the record before the issuing justice was insufficient for the issuance of the warrant – a facial challenge. On the other hand, where the challenge asserts that the record itself, the ITO, did not accurately reflect what the affiant knew or ought to have known the challenge is sub-facial. On a sub-facial challenge portions of the ITO that are misleading or inaccurate are excised and the record may be amplified by evidence before the reviewing justice. The validity of the authorization is then determined by the record as excised and amplified on review: World Bank Group v. Wallace, [2016] 1 S.C.R. 207, at paras. 120-121.

114It may also be argued that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable. The focus is on the reasonableness of the affiant’s belief, and not whether the allegations in support of the authorization were ultimately true. R. v. Shivrattan, 2017 ONCA 23, at para. 26, R. v. Phan, 2020 ONCA 298 at paras. 49-51.

115As 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: Garofoli, at p.1452; R. v. Araujo, [2000] 1 S.C.R. 99, at para. 51.

116Even if I find that, after excision and amplification, the warrant could have issued, there remains a residual discretion to set aside a warrant where the conduct of the police has been subversive of the pre-authorization process. This may occur where an officer’s failure to make full and frank disclosure amounts to “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The standard to invoke that discretion is high and must be exercised having regard for the totality of the circumstances: R. v. Paryniuk, 2017 ONCA 87, at para. 69, R. v. Booth, 2019 ONCA 970, [2019] O.J. No.6239 (C.A.), at para. 65, Phan, at paras. 55-56.

(ii) The Affiant’s Obligations

117The 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. As explained by Paciocco J.A. in R. v. Booth:

This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspective of both sides.

Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not “pick and choose” among the relevant facts in order to achieve a desired outcome: Araujo, at para.47; R. v. Morelli, [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite inferences that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed: Morelli, at para.58.

Booth, paras.54-55

(iii) Confidential Source Information

118Where, 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”. Was the source information credible, compelling and corroborated? In assessing the extent to which the information provided by the source meets the Debot criteria, 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, at para.16, R. v. Brown, 2021 ONCA 119 at para. 32.

(iv) Garofoli Step Six

119The Step Six procedure set out in Garofoli allows the Crown to rely on unredacted information in the ITO to defend the warrant’s validity. Where the Crown invokes Step Six the defence is provided with a summary of the redacted material. If the trial judge is satisfied that the summary makes the accused, “sufficiently aware of the nature of the redacted material such that they can mount a challenge in argument or by evidence”, then the summarised portions of the ITO can be relied upon by the trial judge in determining whether or not to uphold the warrant: Brown, at paras.35-38.

120In R. v. Debartolo, 2018 ONSC 1083, Justice Forestell considered the interplay between Step Six and instances where it is alleged that the affiant engaged in the kind of deliberate misrepresentation contemplated in Shivrattan. Justice Forestell found that the impact of any intentional misrepresentations was, “of particular significance” where portions of the ITO have been redacted and are “unavailable to be specifically challenged”: Debartolo, at para. 39.

121I take Justice Forestell to be saying that while the judicial summary may sometimes permit specific challenges to the redacted information, often the summary will permit only general challenges. This being because the summary is required only to be general, and not specific in nature. And that because of this, where an affiant is found to have intentionally, or recklessly, failed in his duty of candour and misled the issuing justice, it is incumbent on the reviewing justice to be particularly alert to any concerns with respect to the reliability of the affiant throughout the balance of the ITO.

122The procedure set out by Justice Forestell in Step Six cases involving allegations of intentional misrepresentation was for excision and amplification to be followed by an assessment of whether the conduct of the affiant taints the reliability of the balance of the ITO. This procedure accords with Shivrattan and the subsequent decisions of the Ontario Court of Appeal in Phan and Brown.

123In determining whether the balance of the ITO is tainted, Justice Forestell found relevant considerations to be the “respective sources of information, the degree of corroboration and the nature and extent of the misleading portions of the ITO”: Debartolo at para. 42.

124If the balance of the ITO is found to be tainted by the deliberate misrepresentations, the ITO should be found to be invalid. This is because the ITO is no longer reliable enough to support a finding of reasonable and probable grounds.

125Unlike the high water mark of a Paryniuk analysis, it is not that the warrant is otherwise valid but being set aside because of a subversion of the authorisation process. Rather, the warrant is not valid, because reliable grounds for its issuance do not exist.

B. The Position of the Defence

126The Applicant’s position begins with the submission that the police had an obligation to preserve the Whole Foods surveillance footage which they did not do and as a result the applicant’s s. 7 rights were violated and a stay is the appropriate remedy. In the alternative, the Applicant seeks the lesser remedy of having the warrant quashed.

127Secondly, the Applicants submit that the redacted ITO does not disclose reasonable grounds to suspect that an offence had been, or would be, committed and the issuance of the warrant violated their s. 8 rights.

128The Applicant further submits that the Crown should not be permitted to engage the Step Six process. It is the Applicant’s position that the affiant deliberately misled the issuing justice with respect to the Whole Foods trip. Because of the deliberate deception, the Applicants submit, they cannot challenge the warrant without full disclosure of the redacted portions and no summary of the redacted portions will suffice.

129Even if the Crown is permitted to rely on Step Six, the Applicant’s argue that the affiant is not credible or reliable and thus his ITO cannot be relied upon to support the issuance of a warrant.

130Whether this is characterised as not permitting the Crown to resort to Step Six and have the Court consider the redacted portions of the warrant, or a finding that the balance of the warrant is so tainted by the misrepresentations that it cannot be relied upon, the result is the same. Either way, counsel concede that it is proper for me to consider the unredacted warrant in a determination of whether or not the balance of the warrant is tainted by misrepresentation.

131Because the issues raised by the Applicant’s are primarily based upon allegations of misrepresentation by the affiant and sub-affiant, I will address the issues in the manner prescribed by Justice Forestell in Debartolo.

C. Excision and Amplification

(i) The Misrepresentation of the Source’s Criminal Record

132The source’s criminal record contained in Appendix X was incomplete.

133The error with respect to the omission of the last entry does appear to be a cut and paste error. I accept the affiant’s explanation for how it came to be that the record was not complete, and I do not find that he deliberately intended to mislead the issuing justice with respect to the source’s criminal history.

134The difference between the incomplete record and the complete record has an impact on the source’s credibility of some significance. The error suggests a carelessness and an inattention to detail that is concerning, but not a deliberate intention to mislead.

135I am prepared to amplify the record to include the source’s complete criminal record.

(ii) The Whole Foods Excursion and the Counter Surveillance Driving

136While the police may have initially believed that the Phams must have had some illegitimate reason for their March 27 trip to the Bayview Whole Foods, by the next day it was clear that nothing illegitimate had occurred. As DC Smith testified, “it turned out to be nothing”.

137I accept the evidence of Jonathan Pham that the purpose of that trip was to drive to the Bayview Whole Foods to buy MSM. I also accept that he and his brother purchased MSM while there.

138The search warrant execution photographs show bottles of MSM in the Pham’s Bay Street condominium. It was Jonathan Pham’s evidence that their local Whole Foods was consistently out of stock which explained why the drove to the further store. There was nothing in the evidence to suggest that while at Whole Foods they did anything other than what Jonathan Pham said they did, which was to shop.

The Journey to Whole Foods

139I accept Jonathan Pham’s evidence with respect to the reason for the route that they took to the store that evening. There is nothing unusual about letting a gps system choose your route, as he testified that they did, especially since he was not from Toronto. I also accept his evidence that Waze directed them to avoid the intersection of Mt. Pleasant and Eglinton and cut across Soudan to Falcon in order to get to Eglinton Avenue.

140There is evidence before me, from the Metrolinx document, that the intersection was confined to single lane traffic and that no turns were allowed. This was due to the construction of the Eglinton Crosstown subway. The intersection itself contained a large gaping hole and very obvious construction.

141DC Seto claimed in his evidence to have no specific recollection of passing through the Mt. Pleasant and Eglinton intersection that evening. As did DC Smith. Both officers testified to having discussed the twin’s driving and route taken that evening at the team debriefing. According to the affiant the twins twice passed through the intersection that evening. If the team was following the twins as they say they were it would not be possible to miss this construction site.

142DC Seto did testify that there was “always construction on Eglinton”, and allowed that “there might have been construction at that intersection, I just don’t recall specifically what type of construction was there”. He made no mention of the construction on Eglinton in the ITO.

143Despite his awareness of the construction on Eglinton Avenue, DC Seto characterised the Pham’s detour around the intersection as “counter surveillance driving”. A characterisation which ignores the construction on Eglinton, and the fact that the intersection itself was a site of major construction where no turns were allowed. It also ignores the simple fact that there is nothing particularly unusual about cutting across side streets to avoid a major intersection with traffic lights

144While DC Seto did offer the possibility that the turns could have been made “to avoid traffic”, in the next line he took away this explanation by saying, “if the intention was to avoid heavy traffic on Eglinton then the Nissan could have circumvented the traffic by travelling east all the way to Bayview Avenue and then heading north to the final destination”. The affiant’s “explanation” again ignores the obvious construction, and most obvious reason for bypassing the intersection.

145There is simply nothing at all unusual about the route that the Pham’s drove to Whole Foods that evening. It was misleading of the affiant to characterise the bypassing of the intersection as “counter surveillance driving”, especially in light of his failure to include any reference to the construction on Eglinton Avenue and in particular the major construction at that intersection.

146Even if I were to accept that the affiant was somehow unaware of the major construction at that intersection, if he wanted to characterise a simple detour around an intersection as counter surveillance driving it was incumbent on him, knowing as he did that there was construction on Eglinton, to make himself aware of the state of the intersection and what explanation that may afford for bypassing it. While an officer, in forming reasonable suspicion is not required to investigate all alternative explanations, here the officer characterised an innocuous event as evidence of criminality, knowing that there was at least one other possible explanation, construction. Knowing, as he admitted, that there was construction on Eglinton the duty of candour required him to at least consider and include this possible explanation. As was the case in Morelli, the affiant’s, “selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.”: R. v. Morelli, [2010] 1 S.C.R. 253, at para 59.

What Occurred in the Whole Foods

147The affiant, DC Seto’s, account of what occurred in the store, as contained in the ITO, differs from what DC Smith documented in his report. Which in turn differs from what Jonathan Pham testified to doing in the store. Had the footage been preserved there would be a record before the court of what the Pham brothers did in the store. Unfortunately, it was not.

The CCTV Footage

148Mr. Krishnan, the store manager, testified that from time to time Whole Foods receives requests from the police to acquire or preserve CCTV footage from their stores. When such requests are made a form has to be filled out and signed by the police. Without the completed form, the footage does not get preserved.

149Mr. Krishnan testified that when a police officer came to see him in March of 2019 the officer asked only to be shown the CCTV footage and did not ask for a copy or for it to be preserved. The officer did not give Mr. Krishnan his name or a business card. It is agreed that the officer was DC Smith. Had DC Smith asked for the footage to be preserved, Mr. Krishnan testified that he would have given the officer the form to fill out and sign as there is no other way to preserve or copy the footage.

150I accept Mr. Krishan’s evidence that the officer did not request that the footage be preserved. Had the officer made such a request Mr. Krishnan would have had to give him the form to fill out, which never happened. It is also telling the DC Smith never got the name of the person that he dealt with. It would have made sense for him to do so in order to follow up with his request. Additionally, DC Smith’s evidence that there was “nothing of value” on the footage, suggests that he was not very interested in it. The fact that the footage was not preserved is evidence that no one asked for it to be preserved in the spring of 2019. Despite having written in his report that he had requested the CCTV footage be preserved, DC Smith resiled from this in his evidence saying that he remembered meeting with the manager and “knowing that the video would be preserved on their server for a period of time”, which is a different thing from securing its preservation for future use by the police.

151Without the footage I am left with DC Smith’s recollection of what he saw while at the store, as refreshed by the report which he wrote afterwards, and DC Seto’s recollection of what DC Smith told him about what he had seen. DC Seto testified that he relied only on the conversation that he had with DC Smith and did not himself review the report.

152I appreciate that my focus is on the reasonableness of the affiant and sub-affiant’s belief, and not the ultimate truth of the allegations contained in the ITO: Phan, at para.51. However, where, as here, there is an allegation that the belief was not reasonable, evidence of what actually occurred, would assist in determining the reasonableness of the conclusions drawn in the ITO.

The Role of the Shopping Expedition in the ITO

153In the ITO DC Seto relied on the trip to Whole Foods as corroboration of the source information that, “the twins are trafficking drugs out of a condo in the downtown Toronto area”. At paragraph 27 he states:

I spoke with D/Cst SMITH who reviewed security camera footage at the grocery store and observed that Jonathan and David PHAM entered the business and purchased beverages which was place in the brown paper bag. The PHAMs then left the store. This furthers my belief that they travelled to and from 33 Bay Street, only to pick up beverages in a counter surveillance manner to hide their intention of conducting an illicit drug transaction and conceal the location of 3313-33 Bay Street.

154In the affiant note that follows, DC Seto expands on this belief:

The PHAMs were on their way to conduct an illicit drug/substance transaction somewhere in the area of Bayview Avenue and Eglinton Avenue and at some point they discovered they were being followed by the surveillance team. Instead of continuing with the drug transaction they attended the Whole Foods Market, to purchase only beverages, I believe this was to hide their true intention of conducting a drug transaction which they abandoned because at that point the PHAMs were aware they were being followed.

155He then relies on the fact that they “travelled the extra distance” to the Whole Foods on Bayview when there was a Whole Foods in Yorkville, 4 kilometres from the condo, only to purchase beverages, as evidence that the real purpose of the journey must have been illicit.

156DC Seto testified that he learned that the twins drove all the way there to “purchase only beverages” through a conversation that he had with DC Smith. He testified to having no recollection of ever viewing DC Smith’s report.

157According to DC Smith’s report, the twins had picked up a shopping basket and made two stops in the store to pick up items before heading to the cash to pay. First in the beverage aisle where an “item” is picked up, and then to a refrigerated section where an “unknown item” is selected.

158While standing alone this discrepancy may seem minor, it picks up significance with the importance that the affiant places on the “fact” of the twins having purchased only beverages as being evidence of the nefarious purpose of their trip.

159A total of four pages in the ITO are devoted to the Whole Foods surveillance. The affiant’s conclusions drawn from it are repeated in the Overview and the Grounds for Belief. The counter surveillance driving conclusion plays a role throughout the ITO, and is relied upon by the affiant to fulfill the requirements for a tracking warrant.

160DC Smith was not a reliable historian of his follow up trip to Whole Foods the next day. He testified to having gone there with no notebook. He did not bother to get the name of the manager with whom he spoke and who assisted him in watching the CCTV footage. He claimed in his report to have asked for the footage to be secured yet no forms were ever filled out and the footage never secured. His explanation in his evidence that he “knew it would be preserved” is hard to accept. At first, he testified to having taken no notes while watching the footage and having created the report entirely from memory. When confronted with the exact times in his report, he then testified that he must have taken “scratch notes” which he couldn’t produce because he “must have misplaced them”.

161It was clear from his evidence that the purpose of his trip was to look for evidence of a drug transaction having occurred. It appears that when he found no such evidence DC Smith paid little attention to, and placed little importance on, what he saw on the CCTV footage.

162I do not find DC Smith’s recollection of what he viewed on the CCTV footage that day to be reliable. Moreover, I do not find that the version which made its way into DC Seto’s ITO is reliable. Either DC Smith’s account to DC Seto of what he saw was inconsistent with his report, or DC Seto’s recollection of what DC Smith told him was inaccurate. Neither are consistent with what I find most likely happened in the store.

163What is particularly concerning is that with each iteration of what occurred in the store the trip becomes more suspicious. DC Smith says that they purchased an item from a beverage aisle and an unknown item from a refrigerated aisle. And the affiant writes in the ITO that they “purchased only beverages”. Which then becomes the basis for a conclusion that there had to have been another illegal purpose to the trip, otherwise the twins would not have travelled that distance to buy a drink.

164The affiant’s belief in the “counter surveillance driving” prior to the Whole Foods shop is critical to the narrative. Without it this was nothing but a trip to a grocery store. The belief that they travelled 15 kilometres from the condo to a Whole Foods Market on Bayview Avenue and bought “only beverages” then becomes the evidence that this could not have been the original or sole purpose of the journey.

165Certainly, the surveillance officers, including the affiant, could not have known as they followed the car that evening that there was a reason why the Phams were shopping at the further Whole Foods. It was open to them to question this. However, this was not a clandestine meeting in a secluded location. It turned out to be a trip to a grocery store. Ordinary people drive to grocery stores all the time. There is nothing inherently suspicious about not shopping at the closest store.

166Without the counter-surveillance driving on the way there, and the 15 kilometre trip to buy “only beverages”, the grounds for the affiant’s belief that this was a thwarted illicit trip disappear.

The Route Back from Whole Foods

167The affiant relies on the route taken back to the condo to ground a belief that the twins were trying to “conceal their association to 3313-33 Bay Street”. The route as recounted by the affiant in the ITO is clearly an indirect one. According to the map included in the ITO the twins travelled back along Eglinton Avenue past Mt. Pleasant Avenue, only to turn south and then north again up Mt. Pleasant past Eglinton and then journey east and south until returning to Bayview Avenue south. While there could be some explanation for this route that does not entail counter surveillance driving, it is suspicious and could ground such an inference.

168However, the affiant himself did not make these observations and nor did the sub-affiant. The affiant purported to be relying on what he had heard from other members of the surveillance team but could not say who. For all of the other observations made that evening the central notes contain a notation of the badge number of the officer making the observation. The only observations which are not attributed are the “strange turns” which are said to constitute the counter surveillance driving on the route back.

169DC Seto was not able to say what route he himself drove, or who observed what turns, he could say only that the route was strange and caught their attention. DC Smith was also not able to say what route he himself drove, and could say only that they drove with “strange driving patterns, fast and slow on multiple side streets”. When cross-examined about this route home, DC Seto testified that it was something that the team “pieced together” in a debriefing that they had somewhere roadside.

170The affiant was entitled to accept and rely on information from other officers. The difficulty is that the chain of information leading to the affiant’s account of what occurred in Whole Foods is not reliable, and his account of the route taken there such an example of tunnel vision, that it leaves open the question of whether or not his account of the route home is reliable.

171There is no chain of accountability for the narrative of the route home. Given the affiant’s complete failure to explain that the construction at the Mt. Pleasant and Eglinton intersection would be an obvious reason to detour around the intersection en route to Whole Foods, I am left to question what other issues that may have accounted for the route home were ignored. I note also that it is hard to see how the affiant comes to the conclusion that the route home was calculated to disassociate the Phams from the Bay Street address when in fact what they did was to return directly to that address, albeit in an indirect route.

172Other than the fact of the twins being seen driving the Nissan from the Bay Street condo, and returning there, the portions of the ITO with respect to the March 27 expedition to Whole Foods and the conclusions drawn with respect to counter surveillance driving and a thwarted “illicit drug transaction” should be excised.

D. The Balance of the ITO

(i) The Alleged Drug Transaction

173The surveillance observation that John Pham drove to a parking lot in Scarborough where he briefly met with someone before driving home again, is not consistent with any of the source information provided with respect to the modus operandi of the Pham’s drug dealing operation. It is one brief meeting which standing alone does not support the conclusion drawn by the affiant that it was a drug transaction.

(ii) The Source Information

174The unredacted source information was that twin brothers, Jonathan and David Pham, were trafficking drugs out of a downtown condo. There was also information that they had an older brother named John. Some information was provided about the modus operandi, a vehicle used and the downtown Toronto condominium where the source said drugs were dealt from. The source of the CHS information is disclosed. The information was reasonably current.

175There is corroboration of the identity of the persons named by the source, their connection to a downtown Toronto condominium, a vehicle referenced by the source and other details not specific to drug dealing.

176There is one aspect of the information provided by the source that is inaccurate on it’s face. The affiant does not address the inaccuracy, and rather provides that a fact learned through checks corroborates this information. I also find the affiant’s use of the term “corroboration” here to be an overstatement. While the inaccuracy and overstatement could be characterised as minor, they serve to create an impression of credibility and corroboration.

177There is another aspect of the source information as reported by the affiant that is inconsistent. A statement is made about the location of a transaction in one sentence which is inconsistent with the information contained in the following two sentences. The first sentence suggests a greater degree of familiarity than the latter sentences. It seems clear from the totality of the information provided by the source that the first sentence is incorrect.

178The details provided by the source with respect to the drug dealing activity itself have some specificity. There is no corroboration of the drug dealing activity itself as described by the source.

179The CHS had provided information to the police in the past. Details are provided with respect to that history including the month and year that the information was provided, whether charges were laid, and whether a conviction was registered. The information provided is detailed enough to be able to say that the CHS had a proven track record.

180The CHS was connected to the drug subculture and had a criminal record. Both of these issues raise concerns with respect to the source’s credibility but also lend authenticity to the information provided.

181The source’s motivation for providing information is set out by the affiant, as well as a concern raised by the affiant with respect to the source’s motivation.

E. Sufficiency of the Warrant

182After excision and amplification there remains the following:

1. Information from a CHS that the Phams are engaged in drug trafficking which includes information about an address used as part of the drug trafficking operation and some information about their modus operandi.
2. Corroboration on non-criminal matters such as names, descriptions, use of a car and connection to the address referenced by the source.
3. A track record and history of the CHS which lends support to the credibility of the information given, but also raises a concern.

183There are several misrepresentations made by the affiant, some significant, all of which strengthen the grounds for the issuance of the warrant and some of which I find do so intentionally.

184Every one of the misrepresentations, inaccuracies and omissions served the purpose of strengthening the grounds for the issuance of the warrant. None are neutral.

185The affiant had a prior finding of misconduct under the Police Services Act. He was cross-examined with respect to this and admitted that he had lied to a superior officer and then committed the lie to writing in a report.

186As a new officer the affiant damaged his police cruiser while driving. He reported to his superior officer that it was not he who had caused the damage. He then continued the lie in a written report.

187While the defence characterises the lie as a purposive attempt to frame someone else, I would characterise it more as a childish denial of responsibility. However, the affiant was not a child at the time. He was a serving police officer who was willing, in his role as a police officer, to lie to a superior and then commit the lie to writing. This is a factor that I give some limited consideration to in assessing whether the misrepresentations in the ITO were intentional or at least reckless.

188I find that the manner in which the Whole Foods trip information was portrayed in the ITO was designed to mislead the issuing justice into believing that the sinister explanation for the trip was the only credible explanation.

189I am also concerned with the manner in which information was passed from the sub-affiant DC Smith to the affiant DC Seto. It leaves me to question how reliable a historian the affiant is when it comes to transcribing to the ITO information learned from other officers.

190There are examples in the source information as it appears in the ITO of inconsistencies and inaccuracies that suggest that either the affiant is misrepresenting the information that he was given, or that he failed to question and clarify. Either way there are aspects of the source information that are both inconsistent and inaccurate.

191Whether this comes from the source, the handler or the affiant’s interpretation of the information that he was given I cannot say. What I can say is that the manner in which the information about the Whole Foods trip passed from DC Smith to DC Seto leaves me with concerns about the reliability of the version of events as portrayed in the ITO. I have concerns with the credibility and reliability of information passing between the team, the sub-affiant and the affiant.

192In considering the misrepresentations and omissions, the deliberate and purposive nature of some and the manner in which they unfolded, I find that the balance of the redacted ITO which is left after excision and amplification cannot be relied upon to sustain the issuance of the warrant.

F. The Section 7 Application

193A corollary of the Crown’s duty to disclose all relevant information in its possession, is the duty to preserve relevant evidence: R. v. Egger, [1993] 2 S.C.R. 451, at p.472. Where evidence has been destroyed or lost as a result of unacceptable negligence, the Crown will have failed to meet its disclosure obligations resulting a breach of s.7 of the Charter: R. v. La, [1997] 2 S.C.R. 680, at para.20.

194The answer to the question of whether or not the loss of the evidence is due to unacceptable negligence depends on the circumstances surrounding the loss of the evidence. The relevance of the evidence is an important consideration. As is the reasonableness of the police conduct. The more relevant the evidence, the greater the degree of care that is required in its preservation: La, at para.21.

195The remedy for a s.7 breach of the duty to disclose depends on the actions of the state and also on the impact of the loss of the evidence on the accused’s right to make full answer and defence. Where the Crown has satisfactorily explained the loss of the evidence, it may still be the case that the accused’s right to make full answer and defence has been prejudiced. Available remedies, short of a stay of proceedings, may be appropriate depending on the circumstances surrounding the loss of the evidence and its impact on the right to make full answer and defence. It is for these reasons that Sopinka J. cautioned against ruling on such applications prior to the hearing of evidence at trial: La, at para.27.

196My findings on the s. 8 Application led to excision of the Whole Foods Trip information from the ITO. The fact of the missing CCTV footage capturing the Pham brothers in the store played a role in that decision.

197At this stage of the proceedings I do not know what impact the loss of the CCTV footage will have on the trial proper. I know only the impact that it has on the Applicant’s ability to challenge the warrant. My findings with respect to the s.8 application, and the decision to excise the Whole Foods Trip from the ITO, is, I find, the appropriate remedy to address the loss of the CCTV footage at this juncture.

IV. CONCLUSION

198Counsel did not address s.24(2) in either their written or oral submissions. I will leave that question until such time as counsel wish it to be addressed.

Released: April 7, 2021 Signed: Justice A. Newton-Smith

1My Ruling on the Application to Cross-Examine was released on October 6, 2020