COURT FILE NO.: 818/17 DATE: 2019 05 28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN S. Stackhouse, for the Crown

• and -

DEMETRE HIBBERT AND RAQUEL WILLIAMS M. Luft, for Demetre Hibbert M. Salih, for Raquel Williams

HEARD: February 15, 2019

RULING RE: Step Five of the Garofoli Process

Dennison J.

Overview

[1] Mr. Hibbert is charged with a number of gun offences as a result of police locating a loaded gun behind the stereo of his BMW upon execution of a search warrant.

[2] Ms. Williams is charged with possession for the purpose of trafficking in cannabis, methamphetamine, and heroin as a result of police seizing these drugs during the execution of a search warrant at her residence.

[3] The applicants seek to exclude the gun and drugs that were seized pursuant to the execution of two search warrants issued in this investigation. The applicants submit that there were no reasonable and probable grounds to issue the search warrants, and therefore the searches violated s. 8 of the Canadian Charter of Rights and Freedoms and the evidence should be excluded pursuant to s. 24(2) of the Charter.

[4] I was appointed as the case management judge in this trial pursuant to s. 551.1 of the Criminal Code, R.S.C., 1985, c. C-46, for the purpose of the pre‑trial Charter applications in this case. I made several earlier rulings related to the Charter challenge, including disclosure rulings and applications for leave to cross‑examine the affiant and sub-affiant.

[5] The warrants in this case contain information provided by a Confidential Informant (“CI”). At this point in the proceedings, the Crown is not relying on the CI information, pursuant to step five of the Garofoli application, but rather argues that based on the unredacted Information to Obtain (“ITO”), the issuing justice could have issued the warrants. The applicants argue that there were not reasonable and probable grounds to have issued the search warrants based on the redacted warrants.

[6] The search warrants were obtained as a result of an investigation into a drive-by shooting that occurred on December 2, 2016. Police conducted an investigation to determine who was the shooter. Their investigation led them to believe that it was Mr. Hibbert.

[7] On January 11, 2017, search warrants were issued to search a BMW, licence plate BZLK 466, which was believed to be Mr. Hibbert’s vehicle, and 107-7340 Goreway Drive, Mississauga (the “Goreway address”), which was believed to be Mr. Hibbert’s residence.

[8] Police learned just prior to executing the search warrants that Mr. Hibbert had left the country for approximately two weeks. Police were of the view that this reduced the likelihood that the gun, ammunition, and clothing would be located and as a result, police decided not to execute the search warrants.

[9] Police confirmed that Mr. Hibbert returned to Canada on January 21, 2017. Police returned to their investigation in March 2017. As a result of their investigation, the affiant came to believe that Mr. Hibbert was residing at the Goreway address and at Ms. Williams’ apartment at unit 201-8 Newhaven Manor, Brampton (the “Newhaven address”).

[10] On March 6, 2017, Police Constable (“PC”) Sherwin sought judicial authorization for three criminal search warrants. The items to be searched for were the gun, ammunition, a white spring jacket with dark designs all over it, and a blue hooded sweatshirt. The warrants were to search i) the BMW; ii) the Goreway address, and iii) the Newhaven address. Justice of the Peace Florence granted the warrant for the BMW but denied the warrants for the residences. With respect to the Goreway address, she found that there was an insufficient description of the address, and with respect to the Newhaven Manor address, she cited insufficient evidence to justify entry.

[11] The affiant, PC Sherwin, prepared a new ITO to reapply for search warrants for the residential addresses. In the new ITO, he stated that he addressed Justice of the Peace Florence’s concerns. On March 9, 2017, Justice of the Peace Morin granted the search warrants to enter the BMW, the Goreway address, and the Newhaven address.

[12] On March 10, 2017, police arrested Mr. Hibbert and executed the warrant on the BMW. As previously noted, a loaded gun was found in the BMW. During the execution of the search warrant at the Newhaven address, numerous drugs were located, and Ms. Williams was charged with possession of these drugs for the purpose of trafficking. There was nothing of interest seized at the Goreway address.

[13] The applicants submit that there were not reasonable and probable grounds to justify the issuance of the warrant by the Justice of the Peace. In support of their arguments, the parties raise a number of grounds and adopt each other submissions. They also submit that paragraph 20 of the ITO should be excised, as the information contained in that paragraph was obtained in violation of Mr. Hibbert’s s. 9 Charter rights. I will address this preliminary issue first.

Preliminary Issue: Should Paragraph 20 of the ITO be Excised?

[14] It is not disputed that reference to evidence that was obtained in violation of an applicant’s Charter right should be excluded from the ITO and not be considered in determining if there was a basis upon which the issuing justice could have granted the authorization. This procedure prevents the state from benefiting from the illegal acts of police officers without sacrificing a search warrant that would have been issued in any event: see R. v. Grant, [1993] 3 S.C.R. 223, at pp. 251‑2.

[15] The applicants submit that paragraph 20 of the ITO should be excised, as the information was gathered in violation of s. 9 of the Charter. This paragraph contains information with respect to a “traffic stop.” The applicants submit that this traffic stop was not done for a legitimate purpose under the Highway Traffic Act, R.S.O. 1990, c. H.8. They submit that the officer’s sole purpose in stopping the vehicle was to see what information could be gathered to assist in the shooting investigation. This violated Mr. Hibbert’s s. 9 Charter rights not to be arbitrarily detained, and therefore any information obtained from Mr. Hibbert’s illegal detention should be excised from the ITO.

[16] Crown counsel submits that there is no basis to excise paragraph 20 of the ITO, as this was a legitimate traffic stop. The officer saw the vehicle speeding. He did not pull the vehicle over immediately, as when he ran the license plate, the vehicle came back as being connected to a shooting. In those circumstances, it made sense for the officer to wait to stop the vehicle until backup arrived.

A. Relevant Evidence

[17] The information in the ITO states that York Regional PC Brozny conducted a traffic stop on Mr. Hibbert’s BMW on December 22, 2016. Mr. Hibbert was driving the vehicle and advised the officer that he was currently living at the Goreway address. The two occupants in the car were identified as Khadeem Brown‑Ramkissoon and Jahlani Brown-Ramkissoon, who both stated that their address was 3234 Victory Crescent, Mississauga.

[18] PC Brozny was cross-examined at the preliminary inquiry regarding the stop. The transcript from the proceeding was filed as an exhibit on the voir dire. I also permitted the applicants to cross-examine PC Brozny as a sub-affiant to the ITO, as an email was disclosed to the applicants after the preliminary inquiry in which PC Brozny advised PC Paschalis that “[n]o one was breaching and nothing criminal, so wasn’t able to get into the vehicle unfortunately”.

[19] At the preliminary inquiry, PC Brozny testified that he was driving in lane one when he observed a silver BMW travelling in lane three at a high rate of speed. He ran the licence plate. PC Brozny learned that Mr. Hibbert was flagged as a surveillance person in a shooting, and there was a notation that if police had any interaction with the vehicle, they were to contact the officer in charge of the shooting investigation. PC Brozny testified that this notation “piqued my interest and I wanted to gather more information in regards to it.” The vehicle pulled into the courthouse, and the driver and two passengers exited the vehicle and entered the building. They were in the courthouse for approximately ten minutes.

[20] PC Brozny testified that he wanted to see if the person of interest was driving the vehicle. He testified that he was not sure what else he would find, but he was going to pass on any information he learned. He also stated that he listed the call type as “suspicious vehicle” as opposed to a “traffic stop”, as he felt that “suspicious vehicle” was the most applicable call type at the time.

[21] PC Brozny called for backup to assist with the stop. He stopped the BMW shortly after it exited the courthouse parking lot. The second car arrived as he was stopping the vehicle. PC Brozny informed the driver that he was stopping him for a document check under the Highway Traffic Act. The driver provided his identification in the name of Demetre Hibbert.

[22] At that point, PC Brozny went back to his cruiser and conducted checks on the Ministry of Transportation site and CPIC. He learned that Mr. Hibbert was on bail and was not to have contact with Travis Foster. The officer then looked up a mug shot of Mr. Foster.

[23] PC Brozny returned to the vehicle and asked the passengers to identify themselves. He agreed that none of the passengers looked like Mr. Foster. He obtained their identification, advising them that he wanted to ensure that Mr. Hibbert was not breaching his bail. He advised Mr. Hibbert that he was investigating a potential breach of bail. He did not offer him the opportunity to speak to counsel.

[24] The other officer collected verbal identification from the front passenger and PC Brozny collected an identification card from the rear passenger. PC Brozny then conducted checks on the passengers as well. PC Brozny agreed that everyone in the vehicle was probably detained once he started to investigate whether Mr. Hibbert was breaching his bail. No search took place of the vehicle.

B. Analysis

[25] Section 9 of the Charter establishes that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of the section is to protect individual liberty from unjustified state interference.

[26] Police are not acting arbitrarily when they exercise their power to stop and detain occupants of a motor vehicle pursuant to s. 216(1) of the High Traffic Act based on criteria that are relevant to highway safety concerns. The criteria applied to justify a motor vehicle stop is sometimes referred to as “articulable cause”: see R. v. Wilson, [1990] 1 S.C.R. 1291, at pp. 1293-4.

[27] The Ontario Court of Appeal in Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), at paras. 52-54, leave to appeal to SCC granted, [1999] S.C.C.A. No. 87, discussed “articulable cause” in the context of traffic stops as follows:

The phrase "articulable cause" has been used in two different ways in the s. 9 jurisprudence. The phrase has been used in cases where "articulable cause" is said, when considered in combination with other factors, to supply the legal justification for detention. In Simpson, supra, at p. 202 O.R., p. 501 C.C.C., articulable cause as a factor justifying detention was described as:

… a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

This description was approved by the majority in R. v. Jacques, [1996] 3 S.C.R. 312, at pp. 325-26, 110 C.C.C. (3d) 1, at p. 11.

The phrase "articulable cause" used in connection with stops made under s. 216(1) does not refer to factors which standing alone would justify interference with the liberty of the subject, but rather refers to the reasons behind the exercise of the statutory power to stop and detain. Articulable cause exists under s. 216(1) if the police have a reason for stopping the vehicle which is legitimately connected to highway safety concerns. In this context, articulable cause is used only to distinguish between those lawful stops which are random and, therefore, arbitrary and those lawful stops which are selective and not arbitrary.

When articulable cause is used in reference to a stop under s. 216(1), it may refer to a stop flowing from a reasonable suspicion that a driver is violating some law pertaining to highway regulation and safety. It may also refer to more generalized safety concerns as in the case of the officer who stops trucks because experience teaches that trucks are more likely to be unsafe. Since the lawfulness of the stop does not depend on the existence of articulable cause, it is unnecessary to connect that cause to a specific person, offence or investigation as long as that cause is legitimately connected to legitimate highway safety concerns.

See also R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 60.

[28] There is no dispute that police may have a dual purpose in stopping a motor vehicle that includes a legitimate Highway Traffic Act stop as well as another investigative purpose: see Brown, at paras. 29-31. However, the traffic stop cannot be used as a pretense or ruse to conduct a criminal investigation.

[29] I find that based on the evidence given by PC Brozny at the preliminary inquiry and on cross-examination, the Highway Traffic Act stop was a pretext for the officer to conduct a criminal investigation. His sole purpose in stopping the vehicle was to conduct a criminal investigation. I have come to this conclusion for the following reasons.

[30] First, PC Brozny testified that he saw the motor vehicle travelling at a high rate of speed. There is no evidence what rate of speed the vehicle was traveling or that the officer used his radar to determine the speed. The officer did not stop the vehicle at that time, as he would have been entitled to do. Rather, he waited for ten minutes, and when he observed the driver return to the vehicle, he still did not stop him. The Crown submits that it makes sense that the officer waited to stop the vehicle until he had backup, given that it was connected to a shooting. However, there was no evidence that this was the reason that he waited, and in fact, he initiated the stop just prior to the backup car arriving.

[31] Second, when PC Brozny finally stopped the vehicle, he told the driver it was for a document check. There was no evidence that he told Mr. Hibbert that he observed him speeding or that he was stopping him because he was speeding.

[32] Third, PC Brozny was specifically asked, “is it fair to say that this particular stop was conducted because of the note that you saw on the database?” His answer was “yes, I wished to investigate that further”. He also testified that when he ran the licence plate and discovered there was a surveillance person involved in a shooting, “it piqued my interest and I wanted to gather more information in regards to it.” He wanted to see if the person of interest was driving the vehicle. He testified that he wasn’t sure what else he would find, but he was going to pass on any information he learned. There was no mention in his testimony of having any interest in pursuing a legitimate Highway Traffic Act concern. His sole focus was on gathering information that might assist in the investigation. His intention of trying to assist was further demonstrated by the email in which he stated that, unfortunately, he could not find a basis to search the car.

[33] As a result of my finding that the officer stopped Mr. Hibbert for the sole purpose of conducting a criminal investigation, Mr. Hibbert and his passengers were arbitrarily detained and their s. 9 Charter rights were violated.

[34] The information contained in paragraph 20 of the ITO is therefore excised, as it was obtained in matter that violated Mr. Hibbert’s s. 9 Charter rights. Although not explicitly raised in submissions, while Ms. Williams’ Charter rights were not violated, I find that it would be unfair and inappropriate to allow the paragraph to remain in considering whether the warrant was sufficient with respect to the Newhaven address: see R. v. Guindon, 2015 ONSC 4317.

[35] Given that I have found that Mr. Hibbert’s Charter rights were violated when the vehicle was stopped, I need not determine whether Mr. Hibbert would have standing to argue that the Charter rights of the two passengers were violated when they were asked for their identification. In addition, counsel did not focus his argument on whether Mr. Hibbert’s s. 10(b) Charter rights were violated and given my findings and the limited evidence called on this issue, I am not prepared to make such a finding.

Issue #1: Is There Reliable Evidence that Might Reasonably be Believed on the Basis of Which the Warrant Could have been Issued?

The Governing Legal Principles

[36] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Obtaining a search warrant prior to searching a location ensures that the privacy interests of an individual are balanced against the state interest to investigate crimes by an independent judicial officer: see R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 22.

[37] To obtain a search warrant, police must demonstrate upon oath that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the specified place and time of the search.

[38] Reasonable and probable grounds is credibility-based probability. It does not require proof on the balance of probabilities, but it must not be based on speculation: see Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 166-8; and R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[39] In determining whether to grant the authorization, the issuing justice considers the evidence in the ITO as a whole, “approaching the assessment on a common sense, practical, non-technical basis”, and is entitled to draw reasonable inferences from the evidence in the ITO: Sadikov, at para. 82.

Standard of Review

[40] Once a search warrant is issued, it is presumptively valid. To challenge its validity, the applicant must establish on the balance of probabilities that there was insufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[41] In reviewing the warrant, the court does not simply consider the ITO that was before the issuing justice. Rather, the court must exclude erroneous information contained in the ITO and may consider additional evidence adduced on the voir dire to correct minor errors in the ITO. The review process is not a trial and must not become one. The purpose of excision is not to excise information that contradicts other information, but rather to excise information that is not correct: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 58-59; and R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, leave to appeal to SCC refused, [2010] 1 S.C.R. ix, at paras. 21, 28.

[42] In reviewing the validity of a search warrant, I am not permitted to substitute my own decision for that of the authorizing justice. It is not a de novo hearing. The issue to be determined is whether there was “at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued”, not whether I would have issued the search warrant: Araujo, at para. 51; see also Morelli, at para. 40; and Sadikov, at para. 84.

[43] The warrant review is also not intended to be an exercise in examining the conduct of the police with a fine-tooth comb, “fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 57. The reviewing judge is to consider the whole of the ITO, not isolated passages. The reviewing judge is not to conduct a word-by-word dissection of the ITO. As the jurisprudence has recognized, police officers are not legal draftspersons and may not word things as concisely as counsel. It will also not be surprising that an ITO has some flaws in it. The issue to be determined if whether the core substance of the ITO could support the issuance of the warrant: see R. v. Ngo, 2011 ONSC 6676, at para. 34; and Nguyen, at para. 57.

[44] In considering the sufficiency of the ITO, the reviewing courts must take into account that the affiant is entitled to draw inferences and make deductions based on his experience. Similarly, in reviewing the warrant it must be remembered that the issuing justice was entitled to draw reasonable inferences stated from the facts: see Ngo, at para. 35.

[45] Inaccuracies in the ITO on their own are not a sufficient basis to find bad faith or an intention to mislead such that the warrant should be set aside. The existent of fraud, non-disclosure, or materially misleading evidence are all relevant factors to consider along with the other evidence filed on the voir dire, but “their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: Ebanks, at para. 20, citing R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. That being said, a trial judge has residual discretion to set aside a properly-issued search warrant where the judge is satisfied that the conduct of the police was subversive in the pre-authorization process: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 66, leave to appeal to SCC refused, [2017] S.C.C.A. No. 81.

C. Are There Reasonable Grounds to Believe that Mr. Hibbert was the Shooter such that the Warrant Could have been Issued?

[46] The first issue that I will consider is whether there was sufficient credible and reliable evidence to permit the authorizing justice to find Mr. Hibbert was the shooter such that the warrant could have been issued.

[47] The ITO reveals that police came to believe that Mr. Hibbert was the shooter based on information they initially received from Ms. Lewis. She was a passenger in the car that was shot at. Police conducted further investigation to corroborate the information that Ms. Lewis provided.

[48] The applicants submit that there is not a sufficient basis to find that Mr. Hibbert was the shooter. They submit that I should not place reliance on the information provided by Ms. Lewis as she was not asked to identify the shooter in a photo lineup. The applicants also submit that much of the information Ms. Lewis provided is based on second-hand information and therefore should not be given any weight. It is also the position of the applicants that Ms. Lewis’ identification evidence does not support an inference that Mr. Hibbert was the shooter. Ms. Lewis identified the shooter as having a teardrop tattoo on his face and that he had temple-length braids or dreads. This information was not corroborated, and in fact, Mr. Hibbert is not described as having a teardrop tattoo.

[49] The Crown submits that while there may be some frailties with Ms. Lewis’ identification evidence, the information she provided is sufficiently reliable when one considers the circumstances in which she came forward to police, and that most of the information she provided was corroborated by police.

[50] I agree with Mr. Hibbert’s counsel’s submission that other evidence contained in the ITO does not support Ms. Lewis’ evidence that Mr. Hibbert had a teardrop tattoo on his face, and there is no confirmatory evidence that Mr. Hibbert’s hair was as described by Ms. Lewis. However, in considering the sufficiency of the grounds to issue the warrant, I am mindful that while there may be issues with respect to the reliability of Ms. Lewis’ description of the shooter, this is not a trial. It is not my role to determine if Mr. Hibbert was in fact the shooter.

[51] My role is to consider the totality of the evidence to determine if it discloses reasonable grounds or a credibly-based probability that Mr. Hibbert was the shooter such that the warrant could have issued. The standard for the issuance of the warrant does not require proof of a prima facie case or even proof on a balance of probabilities, but must be based on more than a suspicion: see R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166.

[52] After considering all of the evidence in the ITO, I am satisfied there was sufficient credible and reliable evidence to permit a justice to find that there were reasonable and probable grounds to believe that Mr. Hibbert was the shooter.

[53] Ms. Lewis admitted to police that she was the person who initially contacted police to advise them where the black Honda Civic that had been shot at was parked. She initially advised police that:

• She was seated in the front passenger seat of the black Honda Civic when it was shot at. The shooting happened on Goreway Drive when the suspect vehicle drove up beside it and began to shoot.
• She described the suspect vehicle as a silver four-door car that she believed to be a BMW. The car was in good condition and the windows were heavily tinted.
• Prior to the shooting, the shooter got out of the silver BMW and approached the black Honda Civic.
• She described the shooter as a black male with no accent, approximately 25 years old, approximately 5’ 9”, and as having temple-length braids or dreads. The shooter had a raindrop tattoo under his left eye and was wearing a blue hooded sweatshirt with the hood up and a white spring jacket with dark designs all over it.

[54] Ms. Lewis was subsequently interviewed by police. She provided the police with additional information that is contained in the ITO, including:

• She described the suspect vehicle as having a burnt out front right headlight.
• She believed the suspect had the nickname “Meechie”.
• She had driven past an apartment building twice since the shooting and observed the suspect vehicle parked in front of the building. This information is not relied upon in reviewing the warrant, as it was inaccurate.
• She confirmed on a map that the address of the building was 7340 Goreway Drive.
• She believed that the shooting was in relation to a feud between two gangs: the “Ave” boys and the “MBG”. During the confrontation with the vehicle she was in, she heard the shooter say, “are you reppin the Ave boys.”
• She knows the “MBG” group to live in the high-rise building across from the McDonalds at the intersection of Derry Road and Goreway Drive in Mississauga.

[55] There is no dispute that the ITO was inaccurate in stating that Ms. Lewis “saw the suspect vehicle at the address”. The affiant’s notes and his cross‑examination made it clear that the information police received from Ms. Lewis was that it was her boyfriend who attended the Goreway address and saw the vehicle. She attended at the address with her boyfriend on one day, but the vehicle was not present. This was sloppy drafting in the ITO. There is, however, no evidence to find that this was intentionally done to mislead the issuing justice. Nor does it provide a basis to give no weight to Ms. Lewis’ information that the shooter’s vehicle was seen at 7340 Goreway Drive. Rather, less weight should be given to this information, as it was not based on firsthand knowledge.

[56] Other information that Ms. Lewis provided about the shooter was not sourced in the ITO. During the affiant’s cross-examination, he stated that the information Ms. Lewis provided regarding the shooter’s name, nickname, and where the shooter lived came from another source – her boyfriend. I do not find the fact that this information was not firsthand renders her evidence unreliable, given the extent to which her evidence was corroborated. The corroborative evidence includes:

• Information received from PC Wegenschimmel the day after Ms. Lewis provided information regarding the nickname of the shooter was that he believed that “Meechie” is likely Demetre Hibbert, with a birth date of October 27, 1993.
• Mr. Hibbert goes by “Meech”, as indicated on his Facebook page – “Meech Eva-Strap Hibbert.” The photos on the Facebook profile match the mug shot of Mr. Hibbert.
• Information from Constable Angevine advised that Mr. Hibbert drives a silver 2007 four-door BMW bearing license place BZLK 466. This vehicle had custom vehicle skirting, dark tinting on the windows, and neon lights.
• License plate BZLK 466 is registered to a 2007 BMW 28X four-door silver. The registered owner is Clarice Brown of 333 Aubrey Road, Mississauga.
• A PQT check states that Mr. Hibbert has a tattoo on his left forearm of the name “Clarice.” Police believe that she is a family member.
• On December 13, 2016, the BMW was observed in the south east parking spaces in front of 7340 Goreway Drive. The car had dark tinted windows, black rims, a black spoiler, and a silver body kit. The body kit was in reference to the distinct vehicle skirting. It was believed that Mr. Hibbert entered the vehicle.
• On December 16, 2016, Mr. Hibbert was observed driving the BMW through surveillance. The surveillance photo matched Mr. Hibbert’s mug shot photo.
• On December 2, 2016, video surveillance footage from 3533 Derry Road East shows that at approximately 3:32 p.m., Mr. Hibbert’s BMW entered the north parking lot. At approximately 4:13 p.m., Mr. Hibbert’s BMW is observed leaving the north parking lot. This is directly prior to the shooting.
• Surveillance taken from the Tim Horton’s located at 3650 Derry Road East on December 2, 2016, at approximately 4:29 p.m. (directly prior to the shooting), shows the victim’s vehicle driving east on Derry Road East. Directly beside the victim’s vehicle is another vehicle driving with the passenger window open. It appears as though there is some sort of communication going on between the vehicles. The second vehicle is a silver car with dark wheels and rims and dark window tinting. There also appeared to be skirting. The affiant reviewed the video surveillance photo of the vehicle and the Tim Horton’s video and believes them to be the same vehicle.
• Shawn Kitty, the superintendent of 3533 Derry Road, knows that Mr. Hibbert drives a silver BMW bearing Ontario plate BZLK 466. He provided a picture of the vehicle’s license plate to confirm this information.

[57] Counsel for Mr. Hibbert submits that the affiant’s belief that the vehicle seen in the Tim Horton’s video is the same vehicle as seen in the surveillance photograph is not reliable evidence. The applicants submit that when the video is viewed, one cannot say that they are the same vehicle. The surveillance photograph was not made an exhibit; however, the Tim Horton’s video was. Upon reviewing that video, I can say that the vehicle appears to match the description of the vehicle provided by Ms. Lewis that it is a four-door sedan with heavily tinted windows. It also appears to be low to the ground which is consistent with the skirting that was observed by police. In the circumstances, without having seen the surveillance photograph, I cannot say that the affiant’s inference that it was the same car is speculative and should not be considered in assessing the sufficiency of the ITO.

[58] The Crown submits that the timing of the videos provides further evidence from which one may infer that that Mr. Hibbert was the shooter, given the time at which Mr. Hibbert is seen in the BMW at 3533 Derry Road East and the distance between that location and the Tim Horton’s located at 3650 Derry Road East.

[59] The Crown also submits that I may take judicial notice of the distance between 3533 Derry Road East and the Tim Horton’s located at 3650 Derry Road East and Goreway Drive. Judicial notice may be taken of notorious facts. The Court of Appeal has held that, generally speaking, maps may be relied upon by the court when taking judicial notice “because maps are a readily accessible source of indisputable accuracy”: R. v. Calvert, 2011 ONCA 379, 12 M.V.R. (6th) 18, at para. 8; see also R. v. Ghaleenovee, 2015 ONSC 1707, 19 C.R. (7th) 154. I am satisfied that it is appropriate to consider Google Maps for the purpose of determining the location of the addresses in proximity to one another and for no other purpose.

[60] I agree with the Crown’s submission that Mr. Hibbert’s observed location prior to the shooting, the Tim Horton’s video, and the statement of a driver who heard the shooting provides further evidence from which one may infer that Mr. Hibbert was the shooter. As noted above, Mr. Hibbert was observed leaving the parking lot 3533 Derry Road at approximately 4:13 p.m. At approximately 4:29 p.m., the video from the Tim Horton’s located at 3650 Derry Road shows two cars side by side, one that appears to match the description of Mr. Hibbert’s BMW. A call from a witness came in at 4:38 p.m. He told police that while he was driving on Goreway Drive, he saw a small black car pass him. He heard four loud bangs, looked back, and saw the same black car turn around on Goreway Drive and travel north bound. He noticed that the front passenger window had been smashed out.

[61] The applicants also point to an omission in the search warrant that they submit demonstrates that there is insufficient credible evidence to believe that Mr. Hibbert was the shooter: the ITO does not include the fact that Ms. Lewis told the affiant that the name of the shooter was either Menzelle or Mandelle.

[62] I permitted the applicants to cross-examine the affiant regarding this omission. His explanation for this omission does not assist the applicants in demonstrating that it’s inclusion in the ITO would have either adversely impacted the sufficiency of the grounds to believe that Mr. Hibbert was the shooter or that it was a deliberate omission intended to mislead the issuing justice. The affiant explained that Ms. Lewis seemed unsure when she referred to the two names and repeatedly used the nickname “Meechie”. The affiant explained that was why he included the nickname she provide as opposed to the other names. Moreover, the source of Ms. Lewis’ information is unknown. The Crown also points to the fact that the next day, an officer provided an address linked to the nickname that is associated to the area that Ms. Lewis believed the shooter lived, providing further corroboration that Mr. Hibbert is the shooter. The inclusion of the two possible names of the shooter in the ITO would not have adversely impacted the sufficiency of the grounds to believe that Mr. Hibbert was the shooter.

[63] There is also no basis to find, as the applicants suggest, that this was a deliberate omission in an attempt to mislead the issuing justice. The affiant explained why he did not include the names: in his mind, Ms. Lewis was not sure, and he had received information confirming the identity of the shooter through the nickname “Meechie.”

[64] After considering the ITO that was before the issuing justice as amplified on review as well as the omission, I find that there was credible and reliable evidence to permit the justice to find that Mr. Hibbert was the shooter such that the warrant could have been issued. As such, I need not consider Crown counsel’s alternative argument that there would be a basis to search the BMW if there were insufficient grounds to believe that Mr. Hibbert was the shooter.

D. Are There Reasonable Grounds to Believe that Evidence of the Offence Would be Found in the BMW when the Warrant was Issued?

[65] The second criterion for the issuance of the warrant is that there must be reliable and credible grounds to believe that the gun, ammunition, and clothes would be found in the BMW at the time the warrant was issued. I am cognizant of the fact that I must consider the whole of the evidence contained in the ITO, as well as any errors and amplifications, in making this determination.

[66] Counsel for the applicants submit that there is no credible and reliable evidence that Mr. Hibbert would still be in possession of the gun some three months after the alleged drive-by shooting, and therefore there were no reasonable grounds to believe that evidence of the offence would be found at the time the warrants were issued. Counsel for the applicants argue that the lack of currency of the information cannot be bridged by the evidence and inferences relied upon by the affiant. In particular, they submit that:

• It is speculative to infer that Mr. Hibbert was the target of the shooting on February 25, 2017. This in turn undermines the affiant’s inference that Mr. Hibbert would still be in possession of the gun, for protection as a result of the ongoing gang dispute.
• There is a lack of reliable and credible grounds that Mr. Hibbert lives a “criminal lifestyle” which would require him to carry a gun for protection and that Mr. Hibbert is involved in an ongoing gang feud three months after the shooting.
• There is a lack of reliable and credible information to support the affiant’s belief that because the victim group is aware that Mr. Hibbert shot at them and were reluctant to report the shooting to the police, this heightened Mr. Hibbert’s need to carry a gun three months after the shooting.
• The fact that Mr. Hibbert was seen carrying a satchel in December 2016 does not support an inference that he still possessed the gun at the time of the execution of the warrant.

[67] It is the position of Crown counsel that the ITO contains reasonable grounds such that the reviewing justice could find that evidence of the offence would be located in the BMW in March 2017. Crown counsel does not dispute that the ITO contains some flaws and that some of the language is conclusory. While not conceding these points, it is her position that even if paragraph 20 of the ITO is excised, no reliance is placed on the Victory Crescent shooting, and no weight is given to the conclusory language in the ITO, there is still sufficient basis to believe that evidence of the offence would be located in the BMW such that the warrant could be issued.

[68] Crown counsel submits that given the unique factual context of this case, it is reasonable to infer that Mr. Hibbert would still be in possession of the evidence of the offence, including the gun, ammunition, and clothing, three months after the shooting. She submits that Mr. Hibbert had no reason to get rid of the items. The fact that the shooting took place in broad daylight and the shooter is likely known to a victim group who would not likely report it to police provides a sufficient basis to believe that Mr. Hibbert knew there was no need for him to get rid of the evidence. The fact that Mr. Hibbert continued to drive the BMW after the shooting further supports this inference.

[69] After considering the entire record that was before the issuing justice, excluding errors and considering amplifications, I do not find that there is credible reliable evidence to believe that the items would be located in the BMW such that the warrant could be issued three months after the drive-by shooting.

[70] The primary difficulty I have with this warrant is the staleness of the information. Mr. Hibbert is alleged to have possessed the gun in December 2, 2016, yet the warrant was not executed until March 10, 2017, more than three months later. I do not find that there is a credible evidence to provide reasonable grounds to believe that Mr. Hibbert would be in possession of evidence of the offence in March 2017, for the reasons set out below.

E. What is the Importance of the Currency of the Information?

[71] The currency of the information contained in an ITO assists in giving credence to the reasonable and probable grounds to believe that evidence of the offence will be present at the premises at the time of the search. Currency may be relevant to the facial and subfacial validity of the warrant: see R. v. Turcotte (1987), 39 C.C.C. (3d) 193 (Sask. C.A.), at p. 206 and R. v. Woo, 2017 ONSC 7655.

[72] The currency of the information is one of the factors to be considered in the constellation of factors. The fact that information is dated is not, in and of itself, fatal. The nature of the items to be searched for is also a relevant consideration, including whether it is a perishable good or other consumable. In the context of guns, a variety of factors may be considered in determining if there are reasonable grounds to believe that an accused would still be in possession of the gun. As noted by the Court of Appeal in R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 48, citing R. v. Delchev, 2011 ONSC 1994, at paras. 73-75, “an inference can be drawn that ‘criminals who are illegally in possession of guns’ may have them for long periods of time” (emphasis added). This inference is however, dependent upon the circumstances.

[73] For example, in R. v. Campbell, the search warrant was upheld as the informant stated that he observed a gun one and a half weeks before at the residence that was searched. The officer was unequivocal in his belief that the gun was at Mr. Campbell’s residence. The information that the gun was seen at the residence was found to be credible, corroborated, and compelling, as it was based on firsthand information.

[74] In contrast, in R v. Adansi, 2008 ONCJ 144, the trial judge found that there were insufficient grounds to issue the warrant. The primary concern with the warrant was the use of the officer’s view that the accused may have transferred the evidence to his apartment and his motor vehicle as opposed to would have. However, the trial judge also held that the passage of two months made it “no longer reasonable to say that a gun was still at the defendant’s home or car, as it would be equally consistent to find that a suspect had now divested himself of such incriminating evidence”: at para. 70. That case involved a kidnapping at gunpoint on January 13, 2006. The victim did not identify the suspect until February 25, 2006. The guns that were used in the offence had not been recovered.

[75] There is also American jurisprudence that has considered the importance of the currency of information as it relates to search warrants involving guns. For example, in Allen v. State, 798 N.E. 2d 490 (Ind. C.A. 2003), the court held that while the staleness of the information must be determined on the facts and circumstances of each case, the court found that handguns and rifles were the type of property that a person reasonably could be expected to keep for at least a period of a month and a half.

[76] Similarly in People v. Hulland, 110 Cal. App. 4th 1646 (C.A. 2003), the court held that although there is no bright line indicating when information becomes stale, information that is more than four weeks old is generally considered to be insufficient to demonstrate present probable cause. The court held that longer delays with respect to the information are only justified where there is evidence of an activity continuing over a long period of time or the nature of the activity is such to justify that the inference will continue until the time of the search.

[77] In Delchev, the trial judge was satisfied that despite the fact that the unredacted warrant did not disclose when a CI last saw the guns, the warrant was valid. The CI claimed to have seen guns in two residences associated with the suspect on several occasions. There was evidence that the target was involved in ongoing drug trafficking. The affiant stated in the ITO that “criminals who are illegally in possession of guns tend to have them for long periods of time. Firearms are expensive to purchase and are kept to provide the criminal (particularly drug dealers) with protection against rival drug dealers. They are also used to threaten and intimidate members of the community and as such are a precious commodity that is not easily given up”: at para. 74. The trial judge was satisfied that based on all of the information, the fact that the unredacted ITO did not state when the CI last saw the guns was not a sufficient basis to find that the warrant could not have issued: at paras. 69, 76-80.

[78] In R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal to SCC refused, 2015 CarswellOnt 652, the Court of Appeal upheld a wiretap authorization where the evidence showed that the accused had purchased guns some three years earlier. This investigation involved the alleged criminal gang Doomstown Crips. The accused argued that there was an insufficient basis to believe that he was still trafficking in guns. The Court of Appeal rejected this argument, stating at para. 140:

[W]e observe that, in some situations, a gap in time between an event referred to in an ITO and an authorization would be important because the dated aspect of the information would make it less reasonable to believe that the interception of the person’s communications would afford evidence of a specified offence. However, we agree with the trial judge that in this case, the fact that guns had allegedly been supplied to Lucas some years before the investigation into the offences referred to in the ITO did not undermine the grounds for issuing the authorization to intercept his communications. The ITO provided reasonable grounds to believe that Lucas had not disposed of all the guns delivered to him by Cooke, that he had supplied guns to the Doomstown Crips in the past, and the surveillance evidence from January 2006 indicated that Lucas may have been transporting guns. The ITO thus provided reasonable grounds to believe that Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons. [Emphasis added.]

[79] In cases where dated information was found to be sufficient to infer that the accused is still in possession of the gun, there is often evidence that the accused was seen in possession of the gun on more than one occasion or the accused is associated with criminal activity involving a gun over a period of time. In this case, Mr. Hibbert was seen in possession of the gun on one occasion – the alleged offence – and there is no evidence that he continued to be involved in criminal activity using a gun after that date.

[80] To help address the inferential gap that Mr. Hibbert would still be in possession of the gun, ammunition, and clothing, more than three months after the shooting, the affiant relied on the following: a) Mr. Hibbert lives a criminal lifestyle (relying on appendix D, which is redacted) that requires him to carry a gun for protection. b) Mr. Hibbert is involved in a violent feud between street gangs based on the December 2, 2016, shooting and the retaliatory shooting at Victory Crescent. c) The victim group is aware that Mr. Hibbert shot at them and was reluctant for police to be involved, which heightens Mr. Hibbert’s need to carry the gun, as he would be concerned for his safety. d) Mr. Hibbert was recently seen carrying a satchel, and in the officer’s experience, satchels are used as a means for individuals to carry guns.

[81] The above evidence, when considered cumulatively, does not provide sufficient credible and reliable information to infer that the gun, ammunition and clothing would be found more than three months after the shooting such that the warrant could have been issued, as set out below.

a) Is There a Basis to Believe that Mr. Hibbert Lives a Criminal Lifestyle?

[82] One of the reasons the affiant provided for the belief that Mr. Hibbert was still in possession of the gun is that “the criminal lifestyle that Demetre lives (see appendix D) requires him to carry a gun for protection”. At this stage of the Garofoli application, the Crown is not relying on Appendix “D”, as it is redacted because it contains CI information.

[83] The use of the term “criminal lifestyle” suggests that Mr. Hibbert is involved in ongoing criminal activity. There is very little suggestion of ongoing criminal activity in the redacted warrant. The only references to Mr. Hibbert’s involvement in a criminal lifestyle relates to his alleged involvement in the December 2, 2016, shooting, which forms the basis for obtaining the warrant, and his outstanding charges for possession of a substance and breach of recognizance.

[84] The information that Ms. Lewis provided about the December 2, 2016, shooting permits an inference that the shooting was gang related, as she heard the shooter say “are you reppin the Ave boys”. If this gang feud was ongoing and Mr. Hibbert was involved in the feud, this would provide a basis to infer that he may still possess the gun.

[85] There is, however, little evidence of an ongoing gang feud. Ms. Lewis believed that the shooting was in relation to a feud between two gangs – the “Ave boys” and the “MBG”. This information was second-hand and there are no details regarding the nature of the feud. There is no evidence contained in the ITO that Mr. Hibbert has had continued involvement in any gang or criminal activity using a gun since December 2, 2016. The ITO does not contain any information that he is a known member of a gang or associated with any members of a gang. None of the residences he is associated to are connected to any criminal or gang activity. The ITO does not contain any information that Mr. Hibbert has been seen engaging in any criminal conduct.

[86] The fact that Mr. Hibbert has an outstanding charge for possession of an unknown controlled substance and a breach of recognizance for an unknown underlying offence provides does not provide a compelling basis to draw an inference that he lives a criminal lifestyle. It is also unknown when he was charged with these offences.

b) Is There a Basis to Believe that Mr. Hibbert is Involved in an Ongoing Violent Gang Feud?

[87] This question is closely related to the question above regarding Mr. Hibbert’s involvement in ongoing criminal activity. If there is an ongoing gang feud involving Mr. Hibbert, this would assist in supporting an inference that he would still have the gun in his possession. The evidence relied upon to support the inference that Mr. Hibbert is involved in an ongoing gang feud comes from two sources: first, Ms. Lewis’ information, and second, the affiant’s belief that Mr. Hibbert was the target of a retaliatory shooting.

1. Ms. Lewis’ information

[88] Ms. Lewis stated that she believed the December 2, 2016, shooting was in relation to a feud between the Ave boys and the MBG, and that she heard the shooter say “are you reppin the Ave boys”.

[89] It is reasonable to infer that the initial shooting was gang related given what Ms. Lewis heard the shooter say. However, there is little credible and reliable evidence to believe the gang feud is ongoing. Ms. Lewis’ information that there was an ongoing gang feud was based on second-hand information. The ITO provided no details with respect to the nature of the feud, what if any role Mr. Hibbert was said to have in the gang feud, and whether it was still ongoing.

[90] The Court of Appeal recently considered a similar issue in Herta, where there was a lack of information regarding a dispute contained in the ITO. In that case, the CI provided information that a Mr. Callahan had a gun that he took into 1670 Clover Avenue the day prior to the execution of the warrant. The ITO indicated that “Callahan was in a dispute and would not be anywhere without the gun’”: at para. 44. The Court of Appeal, at para. 47, found that:

[T]he CI information about the dispute and Callahan not being anywhere without his gun is somewhat conclusory in nature. There is no basis upon which to assess the veracity of those claims because, as Martin J.A. put it in Debot, no “details” were provided and the CI did not disclose his or her “source or means of knowledge”. Was the information about the dispute mere gossip, or did Callahan tell the CI that he was in a dispute? Did someone else tell the CI that fact? Was the information about Callahan carrying the purported gun at all times gossip or conjecture on the part of the CI? Although the details supporting those claims may have been in the appendix to the ITO, the contents of the appendix were redacted. Thus, while I would not discount the claims about the dispute and Callahan carrying a gun altogether, I would not characterize them as “compelling”.

[91] Similar to this case, I find that the information in the ITO that Mr. Hibbert is involved in an ongoing gang feud is not very compelling as it is conclusory in language with limited details. There is also the problem that the information that supports the inference that there is a gang feud is dated. Ms. Lewis heard the shooter say “are you reppin the Ave boys” more than three months prior to the execution of the search warrant. There is no evidence in the ITO regarding the nature of the feud or evidence to suggest that the gang feud involving Mr. Hibbert continued after that incident.

[92] I recognize that Herta is distinguishable from the present case as there is a link to the BMW that was allegedly used in the shooting, whereas in Herta there was no link to the residence where the search warrant was issued. I would, however, note that in Herta, the CI saw the accused with the gun the day before the issuance of the warrant. In the present case, there is a three-month gap from the time that Mr. Hibbert was seen with the gun to the time of execution of the search warrant. There is little credible evidence of Mr. Hibbert’s ongoing involvement with a gang feud from which one could infer that he would possess the gun for his protection some three months later.

2. The Victory Crescent Shooting

[93] The affiant stated that he had reasonable and probable grounds to believe that Mr. Hibbert was the target of the Victory Crescent shooting on February 25, 2017. If there were reasonable grounds to believe that Mr. Hibbert was the target of the shooting, this may have supported the affiant’s belief that there was an ongoing gang feud and therefore a need for Mr. Hibbert to carry the gun for his protection.

[94] It is worth noting that the Victory Crescent shooting is the only new information that was added to the March ITO to support the belief that Mr. Hibbert was still in possession of the gun. The ITO states in three places that the affiant believes that the recent shooting that took place on February 25, 2017, was in retaliation for the shooting that Mr. Hibbert was allegedly involved in on December 2, 2017. The applicants submit that this was done by the affiant to create a misleading impression of urgency to obtain the search warrant. I am not prepared to make that finding. The ITO sets out that the original shooting was in December 2016, and that the police did not execute the warrant in January 2017 as Mr. Hibbert was out of the country. The fact that this is disclosed in the ITO undermines the applicants’ argument that the affiant was trying to create a fake sense of urgency to obtain the warrant. What it does tend to suggest is that the affiant viewed the Victory Crescent shooting as important information in support of the issuance of the warrant.

[95] Similarly, counsel for Mr. Hibbert argues that the repeated use of the word “a gun” in the ITO instead of “the gun” creates a sense of urgency in that there is a gun out in the community putting the public at risk as opposed to searching for the gun used in the drive-by shooting. I do not agree that the use of this terminology was misleading. The warrant is clear that it is to search for evidence of the offence, which means “the” gun used in the drive-by shooting. It is not my role in reviewing the warrant to dissect it with a fine-tooth comb. Police officers are not legal draftspersons: see Ngo, at para 34. There is simply no basis to find that the use of the words “a gun” as opposed to “the gun” was an attempt to mislead the issuing justice.

[96] After having considered all of the evidence, I find that there is insufficient reliable and credible evidence from which the issuing justice could infer that the shooting at Victory Crescent shooting was gang related and that Mr. Hibbert was the target.

[97] The evidence the affiant relied on in support of his belief that Mr. Hibbert was the target of the shooting at 3234 Victory Crescent includes the following:

• On February 25, 2017, at approximately 1:15 a.m., shots were fired into the residence located at 3234 Victory Crescent, Mississauga. There were four occupants of the house, including Khadeem Brown‑Ramkissoon, Jahlani Brown-Ramkissoon, Lorraine Brown, and Winston Japp.
• Khadeem Brown-Ramkissoon was interviewed by police. He advised that prior to the shooting or as amplified “earlier in the evening”, he was out with his close friend Demetre Brown. He described Demetre as 23 years old, has a birthday in October, and drives a four-door grey BMW.
• Khadeem Brown-Ramkissoon stated that Demetre lives with his girlfriend in Brampton. Investigators believe that Demetre Brown is in fact Demetre Hibbert.
• On February 25, 2017, at approximately 11:00 a.m., police observed Demetre Hibbert and Khadeem Brown-Ramkissoon walking from the area of 3234 Victory Crescent to Demetre’s silver BMW parked on the adjacent street.
• On December 19, 2016, Demetre was observed parking in front of 3234 Victory Crescent at approximately 10:57 a.m. Two unknown males exited the residence and got into the car.
• At approximately 4:30 p.m., on December 19, 2016, Demetre was observed entering 3234 Victory Crescent. He was observed coming out of the residence with a dog, getting something from his vehicle, and then returning to the residence with the dog. At approximately 8:52 p.m., Demetre left the residence.
• Ms. Lewis stated that she believed the shooting in December was in relation to a feud between two gangs, the “Ave” boys and the “MBG.” While in the car, she heard the shooter, believed to be Mr. Hibbert, say, “are you reppin the Ave boys.”

[98] Crown counsel submits that there were reasonable grounds to believe that that Mr. Hibbert was Mr. Brown, as well as grounds to believe that Mr. Hibbert was the target of the shooting.

[99] I agree with Crown counsel that there are a reasonable grounds to believe that Mr. Brown is Mr. Hibbert. I say this for several reasons. First, Mr. Ramkissoon in describing Mr. Brown said he was 23 years old, had a birthday in October, and drives a four-door grey BMW. Mr. Hibbert was 23, his birthday is in October, and he drives a silver BMW. Moreover, there is evidence that Mr. Hibbert has some sort of connection to the familial name of Brown: the BMW that Mr. Hibbert drives is registered to Clarice Brown, and he is associated to the residence at the Goreway address, which is leased to Shareeka Brown.

[100] The Crown suggests that there is a basis to infer that Mr. Hibbert is a cousin to Mr. Brown-Ramkissoon, given the use of the name “Brown”. I believe that would be somewhat speculative, particularly in light of Mr. Brown‑Ramkissoon’s statement to police that Mr. Brown was a close friend. I do not think that much turns on whether he was a distant cousin or a good friend based on the totality of the circumstances. I do, however, find that it is speculative to conclude that Mr. Hibbert was the target of the shooting at the residence given his association to the residence. I say this for the following reasons.

[101] First, Mr. Hibbert’s association to the address is not strong. There is no evidence that he resided at, stayed overnight, or visited the residence on a daily basis. Police did not suggest that Mr. Hibbert resided there, as demonstrated by the fact that police believed that Mr. Hibbert resided at the Goreway and Newhaven addresses.

[102] Mr. Hibbert was observed visiting the residence on four occasions over a three-month period. On December 19, 2016, he was parked out front of the residence, and two unknown males exited the residence and got into his vehicle. He then returned at 4:30 p.m. He entered then exited the residence with a dog, retrieved something from his vehicle, and returned to the residence. He left the residence at 8:52 p.m. On February 12, 2017, Mr. Hibbert’s vehicle was observed parked at 3234 Victory Crescent. Mr. Khadeem Brown-Ramkissoon also provided information that Mr. Hibbert had attended at the house the evening prior to the shooting and the morning after the shooting. Mr. Hibbert was only observed entering the residence on one occasion.

[103] Second, Mr. Hibbert, was not present at the home at the time of the shooting. Mr. Khadeem Brown-Ramkissoon, who resides at 3234 Victory Street, advised that he was out with his close friend Demetre Brown (Mr. Hibbert) prior to the shooting. On amplification, this wording was amplified to state “earlier in the evening”. Mr. Hibbert was also observed near the residence, the day after the shooting, at approximately 11:00 a.m.

[104] Third, the affiant was cross-examined about the shooting, as the affiant stated that “investigators believe that a recent shooting that took place on February 25, 2017 was retaliation towards Demetre Hibbert.” The affiant’s belief that Mr. Hibbert was the target was not, in fact, supported by the officer in charge of the Victory Crescent shooting investigation, PC Paschalis. The affiant agreed that PC Paschalis did not have any suspects at the time of the shooting. PC Paschalis did not tell the affiant that it was gang retaliation or that Mr. Hibbert was the target. The affiant agreed in cross-examination that when he drafted the ITO, the police did not have a suspect into the shooting.

[105] Fourth, the ITO does not contain any information about the occupants of the residence or any connection the residence had to criminal activity to suggest that the shooting was in relation to the particular gang associated with Mr. Hibbert.

[106] Contrary to the submission of the Crown, I do not find the facts that both shootings were “brazen”, that Mr. Hibbert is friends with the occupants of the home, and that the shootings were three months apart as providing reliable grounds to believe that Mr. Hibbert was the target of the shooting without more information regarding the nature of the gang feud or the connection that the residence has to criminal activity.

[107] Based on the totality of the evidence, I find that it is was speculative on the affiant’s part to suggest to the issuing justice that Mr. Hibbert was the target of the shooting at Victory Crescent. It appears that the affiant came to the conclusion that Mr. Hibbert was the target on his own volition without any real basis.

[108] I also note that if I erred in excluding paragraph 20 of the ITO, which puts Khadeem Brown-Ramkissoon and Jahlani Brown-Ramkissoon in the company of Mr. Hibbert on December 22, 2017, this would not affect my decision that there is a lack of reasonable grounds to believe that Mr. Hibbert was the target of the Victory Crescent shooting. This information simply provides further information that Mr. Hibbert is friends with Khadeem Brown-Ramkissoon and Jahlani Brown Ramkissoon and that they live at 3234 Victory Crescent, Mississauga, and that Mr. Hibbert lives at the Goreway address.

c) Does the Fact that the Victim Group Knows that Mr. Hibbert is the Shooter Provide a Basis to Believe that He Would still Possess the Gun and Other Items?

[109] The affiant also relied upon his belief that the victim group knows that Mr. Hibbert is the shooter but are reluctant for police to be involved, and therefore, Mr. Hibbert had a heighted need to carry a gun on an ongoing basis.

[110] The applicants submit that no weight should be given to this belief, as it is equally believable that Mr. Hibbert would have gotten rid of the gun after the shooting. The applicants go further and submit that the affiant did not fulfill his duty to be full, fair and frank, as he did not include in his affidavit that a person involved in a shooting would be equally likely to get rid of the evidence.

[111] I am not prepared to find that the affiant was not fulfilling his duty to be full, fair, and frank by not including the fact that some persons involved in shootings would dispose of guns. That was not his belief as it related to Mr. Hibbert, and he provided his reasons for believing that Mr. Hibbert would still be in possession of the gun.

[112] It is not my role in reviewing the warrant to determine what inference should be drawn, but rather to consider whether the information contained in the ITO provided reliable and credible grounds to believe that Mr. Hibbert would still be in possession of the evidence of the offence, including the gun, three months later.

[113] I do not dispute that it is a reasonable inference that the victim group knows that Mr. Hibbert is the shooter and are reluctant to have police involved, based on the information contained in the ITO, including the fact that the victim of the shooting chose to go to a hospital in Toronto when the shooting took place in Mississauga.

[114] The difficulty I have with this assertion is that with the passage of time, the reasonableness of the inference diminishes, particularly as there is no evidence in the ITO of Mr. Hibbert’s continued involvement in any gang feud. I do not find that this factor provides a compelling basis to believe that Mr. Hibbert would still possess the gun from the shooting some three months later.

[115] The Crown submitted that one could infer that Mr. Hibbert would keep the items including the gun because he knew there was little risk of the victims going to the police and that he would be caught. She submits that the fact that he continued to drive the BMW that is alleged to have been used in the shooting further supports this inference that he would keep the items.

[116] I do not find that because this was a bold daytime shooting and the victim group would be reluctant to report the matter to the police, there are reasonable grounds to believe that Mr. Hibbert would retain the evidence of the offence as a basis to issue the warrant. There must be more to support this inference. Otherwise, anytime there was a shooting in broad daylight involving an alleged gang member, the suspect would become a “walking search warrant”, as the police could issue a warrant anytime, so long as the location was sufficiently associated to the accused.

[117] In addition, the ITO in this case does not set out the affiant’s belief that Mr. Hibbert is in possession of the evidence because of the circumstances of the shooting, and as a result, the issuing justice was not asked to draw this inference. Nor can it be said that this is a common-sense inference in this case. This inference is undermined by the fact that Ms. Lewis, who was in the car at the time of the shooting, provided information to police. The fact that the victim group likely knows the shooter does not provide compelling credible evidence to support an inference that Mr. Hibbert would have the evidence of the offence in his BMW more than three months later because he would believe the victims would not go to the police.

d) What Use can be Made of the Evidence of the Satchel?

[118] The fact that Mr. Hibbert was seen carrying a satchel on December 9 and 13, 2016 does not provide reasonable grounds to believe that Mr. Hibbert would be in possession of the gun in March 2017.

[119] The ITO noted that Mr. Hibbert was “recently” seen carrying a satchel on December 9 and 13, 2016, weeks after the shooting. The affiant stated that “in his experience, satchels are used as a means for individuals, particularly those involved in crime, to carry their guns allowing the gun to be easily accessed if needed and to avoid the gun being detected”. I permitted cross-examination on this statement. The affiant testified about an investigation he was involved in where he believed the gun was transported in a satchel. He also explained that where the satchel is worn across the body as opposed to just holding it, further suggests that the satchel contains a gun, as the gun would be easily accessible. He also admitted, however, that persons will often carry other items in a satchel.

[120] The Crown submits that the fact that he may have been carrying the gun in a satchel more than seven days after the shooting provides some evidence that he would have kept possession of the gun, as he was not caught by that point. I do not find this submission very compelling, given that Mr. Hibbert was never observed with the satchel after December 2016.

[121] I also do not agree with Mr. Hibbert’s counsel’s submission that the affiant was intentionally trying to mislead the issuing justice when he stated that Mr. Hibbert was “recently” seen carrying a satchel. That statement referred back to the paragraphs that specified the dates on which this observation was made. I do, however, find that the use of the word “recently” is sloppy and was likely the result of the fact that the affiant relying on the January ITO was simply updating it, as it would have been recent in January 2017 when the original ITO was drafted.

Conclusion

[122] When all of the information contained in the ITO is viewed cumulatively, there is a lack of credible and reliable evidence to believe that Mr. Hibbert would be in possession of the gun and the ammunition some three months after the shooting in his BMW such that the warrant could have been issued. With respect to the clothing, there is even less compelling evidence to believe that he would have the clothing in the BMW, as it is not a place he resided, nor was there a suggestion that he required those clothes for his protection.

F. Are there Reasonable Grounds to Believe that Evidence of the Shooting Would be Located at the Newhaven Residence?

[123] There was also a lack of reasonable grounds to believe that evidence would be found at the Newhaven residence, for the same reasons that there was a lack of reasonable grounds to believe that evidence of the shooting would be found in the BMW. As such, there is no basis upon which the warrant could have been issued.

[124] Counsel for Ms. Williams raised several additional arguments that apply particularly to the Newhaven address. I will address these issues briefly.

[125] Ms. William’s counsel submits that there was not reasonable grounds to connect Mr. Hibbert to the Newhaven residence, and therefore there was no credible basis to believe that evidence of the offence would be located at that address.

[126] In considering Mr. Hibbert’s connection to Ms. Williams’ Newhaven residence, one must also consider Mr. Hibbert’s connection to Ms. Williams’ previous address. Ms. Williams first resided at 3533 Derry Road East, unit 109C, Mississauga. There are several pieces of evidence that associates Mr. Hibbert to the Derry Road address and Ms. Williams. That evidence includes:

• Security footage shows that on December 2, 2016, Mr. Hibbert’s BMW was observed entering the north parking lot at 3533 Derry Road, at approximately 3:32 p.m. On the same date at approximately 4:13 p.m., Mr. Hibbert was observed leaving the north parking lot. This is directly prior to the shooting.
• On December 9, 2016, Mr. Hibbert was seen entering the west entrance of the building wearing a satchel at approximately 6:12 p.m.
• On December 16, 2016, Mr. Hibbert was seen arriving at 2:47 p.m. He travelled to the north side of the building at 2:57 p.m., when he was seen leaving the parking lot. At approximately 6:44 p.m., he returned and parked again on the north side of the building and remained at the building until 7:22 p.m., when he drove out of the parking lot. The applicant points out that there was no observation that he entered the residence at this time.
• On December 19, 2016, Mr. Hibbert was seen arriving at 3533 Derry Road at 3:31 p.m., where he parked on the north side of the building. He was observed entering the building and left the building at approximately 3:38 p.m. He later returned at 8:58 p.m. and left again at approximately 9:05 p.m.
• Information provided by Shawn Kitty, who was the building superintendent of 3533 Derry Road East, included that: a) Demetre Hibbert has been staying in apartment 109C of 3533 Derry Road East and Shawn was familiar him. b) Shawn knows Mr. Hibbert drives a silver BMW bearing Ontario plate number BZLK 466 and knows him to park his vehicle on the north side of the building. Shawn provided a photo of the vehicle licence plate to confirm this information. c) Apartment 109C was registered to Raquel Williams, a female that Mr. Hibbert had been staying with. Raquel registered as a tenant in the apartment less than two months ago. d) He advised that apartment 109C is in the northwest area of the building. The north parking lot is the closest parking. The west exit door faces the north parking lot and provides access to the building hallway for apartment 109C. e) Fobs are used to enter the building and all fob activity is stored on a computer. The fob database may be slightly off-time, but not by more than five minutes. Mr. Kitty provided the fob records for unit 109C.
• The fob activity for the fob issued to apartment 109C was consistent with surveillance of Mr. Hibbert attending the building: a) On December 16, 2016, at 14:45:41 the fob was used to enter the west exit. b) On December 16, 2016, at 18:35:33, 18:43:10, and 19:03:24, the fob was used to enter the west exit. c) On December 19, 2016, at 15:30:17, the fob was used to enter the west exit. d) On December 19, 2016, the fob was used at 20:57:16 and 20:57:23 to enter the west exit.
• The occupants of apartment 109C moved out, and there has been no fob activity since December 28, 2016.

[127] Ms. Williams’ counsel submits that no weight should be given to the information contained in the ITO from Mr. Kitty because he gives a bald statement that Mr. Hibbert was staying at the Derry Road apartment. It is submitted that there is no information as to how long Mr. Kitty was the superintendent and how familiar he was with the residential requirement. I disagree. Mr. Kitty was the superintendent of the building; it was his responsibility to keep an eye on the building, and he was familiar with Mr. Hibbert and his vehicle. In addition, Mr. Kitty’s evidence that Mr. Hibbert was staying at the apartment was partially corroborated by surveillance and the information obtained from the fobs.

[128] I also disagree that the information obtained from the fobs should be given no weight in the ITO. This was a piece of circumstantial evidence that supported the inference that Mr. Hibbert was using the fob to enter the building. Contrary to the suggestion of the affiant, the ITO does not ask the reader to infer that Mr. Hibbert was using the fob numerous times a day. It simply states that the fob was used numerous times on a daily basis, primarily through the west exit. This would support the inference that the west exit was the one used primarily to enter the apartment.

[129] The ITO also contains information that Ms. Williams moved from 3433 Derry Road East to the Newhaven address, and that Mr. Hibbert was associated to this address as well. This evidence includes:

• Ms. Williams was registered as living at the Newhaven address, building #8. She was listed as moving to this address on November 24, 2016.
• On March 3, 2017, at approximately 7:30 a.m., Mr. Hibbert’s silver BMW was observed in the parking lot between buildings #6 and #8. The vehicle was covered with a light dusting of snow that had recently fallen through the night, indicating that it was parked there all night.
• At approximately 9:26 a.m., a vehicle registered to Ms. Williams was located parked near building #8.
• At approximately 9:31 a.m., Mr. Hibbert was observed exiting building #8 and entering his BMW. He was carrying folded-up clothing.
• On March 4, 2017, at approximately 1:05 a.m. Mr. Hibbert’s BMW was parked in the west visitor’s parking lot of the Newhaven Manor housing complex between building #6 and #8.
• On March 4, 2017, at approximately 7:16 a.m., Mr. Hibbert’s vehicle was still observed in the same parking spot.
• On March 5, 2017, at approximately 7:53 a.m., Mr. Hibbert’s vehicle was observed parked in the same area of the Newhaven Manor housing complex.
• Again, on March 6, 2017, at approximately 12:15 a.m., Mr. Hibbert’s vehicle was observed parked in the same area of the Newhaven Manor housing complex.
• Mr. Khadeem Brown-Ramkissoon stated that Mr. Hibbert lives with his girlfriend in Brampton.

[130] When the evidence that associates Mr. Hibbert to both Ms. Williams’ residences is considered, there was credible and reliable evidence to provide a sufficient nexus to believe that Mr. Hibbert was closely associated to the Newhaven address at the time of the execution of the warrant on March 10, 2017. Mr. Hibbert had been at the residence from March 3 to 6 and appeared to have stayed overnight, given the time that the vehicle was observed at the building. On this basis, one could infer that he would have personal items at the Newhaven address.

[131] As previously noted, however, the warrant fails with respect to the Newhaven address because there was not a sufficient basis to believe that some three months later that evidence related to the offence would be found at the address. There was no additional evidence to support the continued possession of the items connected to that address. For example, there was no evidence that Mr. Hibbert was ever observed carrying a gun or satchel out of the Newhaven address. There was no evidence of a gun being associated to that address, no evidence of any criminal activity, and no evidence that any gang members resided there that could provide an inference that Mr. Hibbert would be in continued possession of the gun and other items at the time of the search.

[132] Ms. Williams’ counsel also submits that no weight should be given to the conclusory statement that “people entrenched in gang culture will often use family residences, or girlfriends’ residences to hide weapons so they will be easily accessible and hidden from rival gang members and police.” She submits that there is no evidence that Ms. Williams was Mr. Hibbert’s girlfriend, and it is a generalization to assume how gang members will behave.

[133] Crown counsel agrees that little weight should be given to such conclusory statements, but submits that there was a basis to believe that the items would be at the Newhaven address given Mr. Hibbert’s connection to the address.

[134] Counsel for Ms. Williams also submits that the use of the term “girlfriend” for the first time in the March 9 ITO was intended to create the impression of a greater connection between Mr. Hibbert and Ms. Williams than actually existed. The Crown submits that the fact that this word was not included in the early ITOs was an oversight, and that there was a basis to infer that she was his girlfriend.

[135] I do not think that much turns on whether or not Ms. Williams is Mr. Hibbert’s girlfriend. Regardless of the label attached to their relationship, the police had reasonable grounds to believe that Ms. Williams was closely associated to Mr. Hibbert over an extended period of time – more than four months – and that just prior to the execution of the warrant, he was staying at her residence overnight on a continual basis.

[136] Of greater concern is the generalized statement that people “entrenched in gang culture will often stay and use family members or girlfriends’ residences to hide weapons so they will be easily accessible and hidden from rival gang members and police” as a basis to obtain the warrant to enter her residence.

[137] This is a broad generalization. It is not clear what “entrenched in gang culture” encompasses. The affiant testified that he meant members of gangs or persons associated with gangs, so the class of people is not clearly defined. The language is conclusory in that it assumes that all of those people entrenched in gang culture will use their family’s and girlfriend’s residences to hide weapons. There are two problems with this statement as it relates to this ITO. First, there is no evidence to support the claim that this general inference applies to a class of offender such as gang members. There is also very limited evidence that Mr. Hibbert falls into this category of offenders that would act this way. In addition, there is no evidence, aside from the fact that Mr. Hibbert stayed at the residence, to suggest that the items would be located there. There is no evidence that this residence is associated with criminal activity, that the gun was ever seen at any residence of Ms. Williams, or that she is associated to criminal activity. As such, no weight should be attached to this conclusory statement in considering if there were grounds to believe that evidence of the offence would be at the location: see Morelli, at paras. 72-73, 78; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at paras. 7-13, 26; and R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at para. 47.

[138] When all of the evidence in the ITO, as well as the excisions and amplifications, is considered, there was no reliable and credible evidence to believe that the evidence related to the offence would be found at the Newhaven address such that the warrant could have been issued. Ms. Williams s. 8 Charter rights were breached.

Issue #2: Was the Conduct of the Police Subversive Such that the Warrant Should be set Aside?

[139] It is not disputed that a trial judge has a residual discretion to set aside a properly-issued search warrant where the conduct of the police has been subversive of the pre-authorization process: see Paryniuk, at para. 66. While I have found that the warrant could not have been issued, I will nonetheless briefly address this issue given the submissions of counsel.

[140] The applicants, in particular counsel for Mr. Hibbert, made submissions that the affiant attempted to mislead the issuing justice throughout the ITO. He submits that the affiant tried to create an artificial sense of urgency by suggesting there was an ongoing gang feud, including the Victory Crescent shooting in February 2017, and by suggesting that Mr. Hibbert “recently” had a satchel from which it could be inferred that he had the gun. Counsel also submits that the affiant was misleading by using the term “a gun” instead of “the gun” and by misstating information to support the inference that Mr. Hibbert was the shooter. In addition, the applicants submit that the failure to include possible names of the shooter provided by Ms. Lewis was intentionally misleading. There was also the illegal traffic stop.

[141] Crown counsel concedes that the search warrant was not perfect, but submits that there is no basis to find a deliberate attempt to mislead the issuing justice.

[142] There are certainly some errors in the ITO, and some of them are sloppy, including the use of “recent” in describing when Mr. Hibbert was last seen with the satchel and the statement that Ms. Lewis attended at the address of the shooter and saw his vehicle there when that was not, in fact, the case. Despite the errors, I am not satisfied that the errors were made deliberately or intended to subvert the authorization process. The affiant set out his grounds for believing that there was an ongoing gang feud, and I found them insufficient. I do not find that the conduct of the police was such that if the warrant was otherwise valid, it should be set aside.

CONCLUSION

[143] For the reasons stated above, I find that there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that Mr. Hibbert was involved in the shooting on December 2, 2016. There was not, however, credible and reliable evidence to permit a justice to conclude that evidence of the offence would be found in the BMW and at the Newhaven address some three months after the shooting such that the warrant could have been issued. In coming to the conclusion that the warrant could not have been issued, I have considered all of the information contained in the ITO, aside from what was excised, as well as the amplifications. The end result is that both Mr. Hibbert’s and Ms. Williams’ s. 8 Charter rights have been violated.

Dennison J.

Released: May 28, 2019