COURT FILE NO.: CR-18-0518 DATE: 20190830 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MARCO MARIC, GIOVANNI RAIMONDI, ETHAN ECKSTEIN, ABDUL SHAHIN, VARTEVAR ED BROUNSUZIAN and TANG HIEN QUANH Defendants
Counsel: Brendan Gluckman and Amanda Hauk, for the Crown Gary Grill, for the Defendant Marco Maric Greg Lafontaine and Carly Eastwood, for the Defendant Giovanni Raimondi Robert Yasskin, for the Defendant Ethan Eckstein Enzo Battigaglia, for the Defendant Abdul Shahin Peter Zaduk, for the Defendant Vartevar Ed Brounsuzian Leonard Hochberg, for the Defendant Tang Hien Quanh
HEARD: September 14, 17, 18, 20, 21, 25, 27, 28, October 1, 2, 3, 4, 5, 10, 11, 12, 15, 16, 17, 18, 19, 22, 26, 29, 31, November 1, 5, 6, 7, 8, 9, 13, 15, 16, 19, 21, 2018
Reasons for Judgment
Pre-Trial Charter Application of Ethan Eckstein
M. F. BROWN J.
Background
1Five of the six defendants on this indictment (Mr. Maric, Mr. Eckstein, Mr. Shahin, Mr. Brounsuzian, and Mr. Quanh) brought pre-trial Charter applications before me seeking exclusion of certain evidence at trial pursuant to s. 24(2) of the Charter. Four of the five accused, Mr. Maric, Mr. Eckstein, Mr. Shahin, and Mr. Brounsuzian, brought Garofoli [1] applications before me challenging the constitutionality of various searches and the interception of private communications conducted under the authority of various wiretap authorizations, general warrants, and search warrants.
2On November 20, 2018 I gave brief oral reasons dismissing the five defendants’ Charter applications. At that time, I held that I was not satisfied that the evidence sought to be excluded by the various defendants should be excluded under s. 24(2) of the Charter. As well, I indicated that in order not to delay matters, I would provide more detailed written reasons at a later date. These are those reasons.
3Previously, on June 26, 2019, I released my written reasons regarding Mr. Quanh’s pre-trial Charter application where I found there was no violation of his s. 9 Charter rights when he was arrested or his s. 8 Charter rights when the police searched Mr. Quanh incident to his arrest or subsequently obtained evidence from the search of a Toyota RAV4 motor vehicle. That decision is now reported at R. v. Quanh 2019 ONSC 3887.
4In this case, all four defendants who brought Garofoli applications challenged various authorizations and warrants on both a facial and sub-facial basis. I granted leave to the four defendants to cross-examine certain affiants and, in some cases, sub-affiants of the various warrants and authorizations. I also granted the “Step Six” Garofoli application of the Crown to permit me to rely upon certain information that had been redacted in the original warrants and authorizations despite the inability of the four defendants to access it. See R. v. Crevier, 2015 ONCA 619 at para. 2.
5All four Garofoli applications were heard together by me as pre-trial applications. In order to make my reasons more manageable I am releasing four separate judgments today regarding the Garofoli applications of Mr. Maric, Mr. Eckstein, Mr. Shahin, and Mr. Brounsuzian. I recognize that there will be some overlap in issues of fact and law given the submissions of counsel and the evidence admitted on the four applications. The citations for my reasons regarding the pre-trial Charter applications of the four defendants are: R. v. Maric, 2019 ONSC 4478; R. v. Eckstein, 2019 ONSC 4479; R. v. Shahin, 2019 ONSC 4480; and R. v. Brounsuzian, 2019 ONSC 4481. This judgment is in regard to Mr. Eckstein’s application.
Overview
6At the commencement of this pre-trial application, Ethan Eckstein (“the defendant”), stood charged on an indictment before me with two counts of conspiracy to traffic in cocaine, two counts of possession of cocaine for the purpose of trafficking and one count of trafficking in cocaine.
7On April 21, 2016, Officer Younan of the London police applied for and was granted a tracking warrant to track a 2008 GMC Acadia registered to the defendant. The police began to track the GMC Acadia on April 21, 2016. The defendant submits that the tracking warrant of April 21, 2016 was not authorized by law as it lacked both a facial and sub-facial basis to meet the requisite reasonable suspicion to believe that an offence had been, or was going to be, committed by the defendant and that relevant information could be obtained by tracking the defendant’s vehicle. The defendant therefore submits that the tracking of the GMC Acadia was a warrantless search and a violation of s. 8 of the Charter. The defendant seeks to exclude, on the basis of s. 24(2) of the Charter, the following evidence at trial:
a) All observations by the police of the defendant between April 21, 2016 and June 19, 2016 while the police were using the tracking device on the 2008 GMC Acadia, license plate BYKL 280, pursuant to the tracking warrant issued on April 21, 2016; and
b) Any evidence obtained as a result of the searches of 85 Queen’s Wharf Rd., unit 3802, Toronto, pursuant to the general warrant of May 3, 2016 and the search of 85 Queen’s Wharf Rd., unit 3802 on June 28, 2016 pursuant to a search warrant of June 27, 2016.
8The defendant submits that Officer Younan, as the affiant of the ITO (Information to Obtain) filed in support of the tracking warrant, had a duty to be full, frank and fair in the ITO. However, the defendant submits that the ITO is vague, misleading, exaggerated and contains false information that needs to be excised from the ITO. The defendant submits that, to obtain the tracking warrant, Officer Younan left out certain exculpatory facts and tailored certain existing facts in the ITO to make the ITO appear more favourable to Officer Younan’s position. The defendant submits that all of the errors and omissions, looked at cumulatively in the ITO, show that Officer Younan was not being full, frank and fair, rendering the entire ITO unreliable as a basis upon which to authorize the warrant. In addition, the defendant submits that the ITO is also deficient in its reliance on a confidential informant whose information was neither compelling, credible nor corroborated by the police investigation.
9As indicated earlier, I granted the Crown’s “Step Six” Garofoli application in regard to certain redacted portions of the ITO of Officer Younan dated April 21, 2016, in support of a tracking warrant of April 21, 2016, that the Crown sought to rely upon in this Garofoli application. See Exhibit KK(6). As required by Crevier, at paragraphs 88 and 90, in objectively assessing the ITO in this case, I have taken into account that the defendant could not see the redacted portions of the ITO and directly challenge them.
A. Tracking Warrant of April 21, 2016
(a) Errors, Omissions and Misleading Statements in the ITO
10The defendant raises several examples where he submits Officer Younan failed to be full, frank and fair in the ITO. I will deal with each submission in order.
(i) Source of Knowledge
11At page 1, in his introduction in the ITO, Officer Younan states that he has personal knowledge of the facts described in the warrant. The defendant submits that this is misleading. In looking at the factual items in the ITO, the defendant submits that the information relied upon by Officer Younan is entirely from other officers. His only personal knowledge of the facts is from reading a sworn affidavit and surveillance logs, and from being given information from other officers. The defendant submits that this sets up a misleading narrative that Officer Younan knows more about what is going on in the investigation than he really does.
12Officer Younan testified that his knowledge was gained through reading and reviewing various reports. He considered his knowledge firsthand in terms of reviewing the documents. He testified he was not involved in actual surveillance, but it would be apparent from reading the ITO that his knowledge was secondhand. Officer Younan never suggested that he was involved in actual police surveillance. In my view, Officer Younan was acting in good faith. As he testified, through reading the ITO, it becomes apparent that his knowledge is secondhand. There was no attempt to mislead the issuing justice. Officer Younan understood his source of knowledge to be personal insofar as he personally read or reviewed the reports. In my view, this is a minor, technical drafting error as contemplated in R. v. Araujo, 2000 SCC 65 at para. 59 and may be amplified on review. I agree with the Crown’s submissions that for clarity, the word “personal” should be excised from page 1 of the ITO where Officer Younan states that he had personal knowledge of the facts described in the tracking warrant.
(ii) Primary investigator
13At paragraph 6 in the ITO, Officer Younan states that he is the primary investigator in this investigation and later states in paragraph 11 that he began an investigation into the defendant. The defendant submits that this was inaccurate. The defendant submits that Officer Younan testified that he compiled information from other officers and never conducted an investigation. The defendant submits that Officer Younan was only a compiler of information. He just wrote the ITO. The defendant submits that the warrant is based on the fact that Officer Younan was the primary investigator when in fact he was not. The defendant submits that Officer Younan continued his misleading narrative which started with him saying that he had personal knowledge of the facts.
14In my view, Officer Younan’s statement that he was the primary investigator and that he began the investigation into the defendant was not inaccurate. He testified that he started the investigation of the relationship between the defendant and Mr. Maric due to their suspected participation in cocaine trafficking. He was aware of ongoing investigations in relation to this and he took it upon himself to investigate how the defendant fit into this circle. He testified that an investigation does not necessarily have to be in the field to constitute an investigation. Reviewing documents, putting them together, and coming to the conclusion that there are reasonable grounds to suspect is, in his opinion, a form of investigation. He testified that he believed he was the primary investigator in the sense that he was investigating the involvement of the defendant in the drug trafficking network. He was the handler for CHS [2] #1 and received information from the confidential informant. I accept the evidence of Officer Younan and find that he was acting in good faith when making these statements. He was not trying to mislead the issuing justice. The statements themselves are not inaccurate and do not require excision.
(iii) The year the investigation began
15At paragraph 11 of the ITO, Officer Younan states he began an investigation into the defendant in the year 2016 and onward. The defendant submits that Officer Younan was being purposefully vague even though there was no need to be, as a more specific time period could have been subsequently redacted from the ITO. The defendant submits that this further shows that Officer Younan’s claims of being the primary investigator and having begun the investigation are false.
16In my view, the defendant has not established that Officer Younan’s statement that he began his investigation in 2016 is factually inaccurate. Officer Younan testified that sometime in 2016 he received confidential human source information. The judicial summary of the redacted Appendix CHS #1 of the ITO at Exhibit GGG(1) indicates that specific date(s) in 2016 that CHS #1 provided information to the handler is disclosed. Officer Younan testified that he was intentionally vague when he was writing the ITO. When asked why he needed to be intentionally vague when he could have had the information redacted, he said that he was not vague in the contents of the redacted tearaway appendix. Officer Younan stated that, in the tearaway appendix, he was very specific in terms of what exactly the confidential informant’s information was, and that this information was available to the issuing justice. He said the way he drafts his warrants is to have what he describes as a tearaway appendix that can simplify the redaction process. He said what one sees in the main body of the ITO was intentionally vague because the tearaway appendix, which was redacted, also included information which formed part of his grounds to believe and was very specific as to what the source information was. I accept the evidence of Officer Younan. He was not attempting to mislead the issuing justice. There is no reason to excise any information in regard to this issue.
(iv) Police surveillance of the defendant and Mr. Maric
17At paragraph 8 of the ITO, Officer Younan states that police surveillance has shown that the defendant had been present and involved in the sale of cocaine with Mr. Maric. The defendant submits that no physical observations were made of the defendant or Mr. Maric as a result of confidential information. As a result, Officer Younan could only be referring to the incident of November 19, 2015 referred to in paragraph 13 of the ITO. The defendant submits this is highly misleading on the crucial issue of whether reasonable suspicion existed because there is no information provided in the ITO that the defendant was involved in the sale of any drugs. The defendant submits that, as of April 21, 2016, there was no information provided in the ITO that showed that the defendant had been present or involved with anyone in the sale of cocaine.
18Officer Younan testified that this statement is in reference to the November 19, 2015 observations of Officer Pavoni at paragraph 13 of the ITO. The information in paragraph 13 of the ITO is a factual recitation of the observations in the affidavit of Officer Pavoni. At paragraph 13 of the ITO, Officer Younan explains why, based on his experience, he believed this was a drug transaction. He testified that he also relied on the statement of Officer Pavoni in the affidavit, who indicated that he believed it was a drug transaction. In my view, this statement is not misleading or erroneous and does not require excision.
(v) Date Affidavit Reviewed
19At paragraph 13 of the ITO, Officer Younan states that on April 10, 2016 he read a sworn affidavit of Officer Pavoni. The affidavit of Officer Pavoni was sworn on April 11, 2016. The defendant submits that Officer Younan testified to reviewing the affidavit on April 10, 2016 and never suggested that the date was a typographical error. There are no notes suggesting any other date. The defendant submits that it is not possible that Officer Younan could have reviewed the sworn document one day prior to it being sworn.
20Officer Younan testified that he believed he reviewed the sworn affidavit on April 10, 2016. In my view, Officer Younan was honestly mistaken about the date. In my view, he either reviewed the unsworn ITO on April 10, 2016 or the sworn ITO on April 11, 2016. In either event, the source of the information was the affidavit of Officer Pavoni of April 11, 2016. Officer Younan testified that it was the source of the information. I accept his evidence in that regard. In my view, this was a good faith error in drafting and may be amplified by substituting the current “April 10, 2016” in the ITO for the words “April 10, 2016 or April 11, 2016”.
(vi) Black Backpack
21At paragraph 13(c) of the ITO, Officer Younan states that when the defendant entered Mr. Maric’s Mercedes on November 19, 2015 he was not holding anything in his hands. The defendant submits that Officer Younan misled the issuing justice with this information. The defendant submits that the notes from Officer Pavoni never mentioned what, if anything, the defendant had in his hands before entering the vehicle. Officer Pavoni’s notes only mentioned that the defendant entered the vehicle and left with a black backpack. The defendant submits that the sworn affidavit of Office Pavoni states that the defendant entered the vehicle and left with a black backpack. There is nothing about whether or not the defendant had anything in his hands when he entered the vehicle. The defendant submits that Officer Younan added this information about the defendant being empty handed and then relied on it to show that a drug transaction took place. The defendant submits this is a gross overstatement and an attempt to put the information in the best possible light in order to get the tracking warrant signed.
22Officer Younan testified that it was a reasonable inference to write that the defendant had nothing in his hands when he entered Mr. Maric’s Mercedes. In my view, that is a reasonable inference for Officer Younan to have drawn. Specifically, that when the defendant entered the Mercedes he was not holding a black backpack or anything in his hands. Officer Younan’s summary is accurate when compared with the affidavit of Officer Pavoni. It was not erroneous or misleading and does not require excision.
(vii) Checker Limousine
23At paragraph 13(e) of the ITO, Officer Younan states that, after leaving Mr. Maric’s Mercedes, the defendant entered a waiting Checker Limousine. In the affidavit of Officer Pavoni he stated that the defendant entered a waiting checker cab when he exited Mr. Maric’s Mercedes. The defendant submits that, by changing the word “cab” to “limousine”, Officer Younan exaggerated the means and lifestyle of the defendant. The defendant submits that this is misleading as it makes it seem that the defendant had a lavish lifestyle which would make it more likely that it may be funded through illegal means, such as selling drugs.
24Officer Younan testified that Checker Limousine is the proper name for the taxi company that is known in the London jurisdiction where the warrant was issued. He testified he was not trying to comment on the defendant’s lifestyle. I accept his evidence. In my view, this statement is not misleading or erroneous. It does not require excision.
(viii) Mr. Shahin and Mr. Maric are known kilogram level cocaine dealers
25At paragraph 14(a) of the ITO, Officer Younan states that on December 31, 2015, the London police conducted surveillance on a known kilogram level cocaine dealer named Abdul Shahin. Later, at paragraph 14(h), Officer Younan states that known kilogram level cocaine dealer Mr. Maric arrived at a restaurant with a black male later identified as the defendant. The defendant submits that the description of Mr. Maric and Mr. Shahin as kilogram level cocaine dealers relates to observations from surveillance of the defendant having lunch with both Mr. Maric and Mr. Shahin on December 31, 2015. The defendant submits that no criminal records of Mr. Shahin or Mr. Maric were ever shown to the issuing justice. If they had been, submits the defendant, they would have shown that neither Mr. Maric nor Mr. Shahin had criminal records relating to drugs.
26The defendant submits that this information is misleading as there is no information provided in the ITO that suggests that Mr. Shahin is a known drug dealer. There is no information provided in the ITO that Mr. Maric was a known drug dealer other than from the confidential informant which, the defendant submits, could be true or not. The defendant submits that Officer Younan’s description of Mr. Shahin and Mr. Maric was misleading because it attempted to convey the description as a fact that everyone knows. The descriptions also attempted to imply that, because Mr. Shahin and Mr. Maric were known drug dealers, it was more likely that the defendant was a drug dealer too.
27At paragraph 12(a) of the ITO, Officer Younan states that the confidential informant provided information that Mr. Maric is a high level, kilogram cocaine dealer. The defendant has not established that this information is false or misleading. Excision is not required in these circumstances. Nor has the defendant demonstrated that the information regarding Mr. Shahin is false or misleading. Excision is not required in these circumstances either. That being said, the Crown submits that in the absence of supporting information in regard to Mr. Shahin, the reference to Mr. Shahin should be given no weight in the review of the tracking warrant. I agree with that submission and place no weight on the reference to Mr. Shahin in my review of the tracking warrant.
(ix) Short duration of the meeting and busy parking lot
28The defendant submits that there were erroneous statements in paragraph 13 of the ITO. Specifically, Officer Younan states at page 7 that the meeting between the defendant and Mr. Maric was of a short duration and that the meeting took place in a busy parking lot. The defendant submits that Officer Pavoni’s affidavit of April 11, 2016 does not indicate how long the meeting between Mr. Maric and the defendant was. The defendant submits that, prior to Officer Pavoni showing up, there is no way of knowing how long Mr. Maric and the defendant were there.
29Officer Younan testified that he was speaking about the meeting in Mr. Maric’s vehicle when he was referring to the meeting being of a short duration. He was referring to nothing more. He testified that, while it is a possibility that both Mr. Maric and the defendant could have been in the Boston Pizza before they met in the vehicle, he was simply referencing the time frame in which the two met in Mr. Maric’s vehicle.
30I accept Officer Younan’s evidence in this regard. There is nothing erroneous or misleading about his statement. No excision is required. Also, in terms of the reference to a busy parking lot, that statement was not erroneous or misleading. In addition to Mr. Maric’s vehicle, which had moved to the front of the Boston Pizza at approximately 12:40 p.m. that afternoon, there was a waiting Checker Limousine which then left the parking lot. No excision is required.
(x) November 19, 2015
31In paragraph 13 of the ITO, Officer Younan stated, in referring to the affidavit of Officer Pavoni of April 11, 2016, that Officer Pavoni was at the Boston Pizza on November 19, 2016. That is clearly a typographical error as noted by Officer Younan in his testimony. The correct date is November 19, 2015 which is consistent with paragraph 6 of the affidavit of Officer Pavoni of April 11, 2016. This was a good faith error. There was no attempt to mislead the issuing justice. This is an appropriate case for amplification. The date should be changed to November 19, 2015.
(xi) Ethan Allan Eckstein
32In paragraph 12(b) and (c) of the ITO, Officer Younan states the confidential informant provided the following information:
b) Marco Maric utilizes a male named Ethan Allen ECKSTEIN to deal his cocaine for him;
c) Ethan Allen ECKSTEIN is a cocaine dealer who delivers cocaine for Marco Maric to other cocaine dealers.
33In an amended version of the judicial summary (JJJ(1)) of the redacted ITO, it is disclosed that the confidential source does not refer to “Ethan Allan Eckstein” in the ITO. Officer Younan also testified that the confidential source did not give him the name Ethan Allan Eckstein. The name “Allan” is spelled “Allen” at paragraphs 12(b) and 12(c). Office Younan was not cross-examined on this point at the Garofoli hearing.
34The statements at paragraphs 12(b) and (c) in the ITO are not correct because it is clear that the confidential informant did not provide the name “Ethan Allan Eckstein” to Officer Younan. That being said, in my view this error was made in good faith. Officer Younan was not trying to mislead the issuing justice. I accept his explanation of the discrepancy. He testified that, as a result of information that the confidential source provided him, specifically a name, he knew from investigative steps he took that the confidential source was referring to Ethan Allan Eckstein. He said that the information he received, specifically the name given by the confidential source, led him to conclude, based on other checks, that the confidential source was talking about Ethan Allan Eckstein.
35I also accept Officer Younan’s evidence that the reason that he had the name “Ellan Allan Eckstein” at the top of his handler notes was because, as noted, the name given by the confidential source led him to conclude based on other checks he did that the confidential source was talking about Ethan Allan Eckstein. He said that before he starts writing about an individual or individuals the source is talking about, he is making his own notation on who is being referred to. The name Ethan Allan Eckstein came into his source notes because he was using that name as his own reference guide as to who was being spoken about.
36Officer Younan also agreed that looking at paragraph 12 in isolation would lead one to ask why the name Ethan Allan Eckstein is there if the confidential informant did not provide that name. However, as Officer Younan explained, when you look at the totality of the ITO and what the issuing justice was privy to, the issuing justice would have known how Officer Younan came to know that the name was Ethan Allan Eckstein. Officer Younan also testified that he stated in paragraph 12(d), right after the references in paragraphs 12(b) and (c), “Please review ‘Tearaway Appendix A’ for all information provided by Confidential Human Source #1”.
37When it was suggested to Officer Younan that he did not know who Officer Pavoni saw on November 19, 2015, Officer Younan explained that, based on the totality of his investigation, it was obvious the man was Ethan Allan Eckstein. He testified that he wrote Ethan Allan Eckstein because of what he read and came across in his investigation.
38I accept the evidence of Officer Younan in this regard. In my view, there was no intention to mislead the issuing justice in his reference to Ethan Allan Eckstein in the ITO. In my view, this is a minor, good faith drafting error where amplification is appropriate. See Araujo at para. 59. I would amend the ITO to conform to the evidence at the Garofoli hearing. I would add the following two sentences after paragraph 12(c) of the ITO: “The confidential informant did not give the affiant the name Ethan Allan Eckstein. The information he received from the confidential informant, specifically the name given to the affiant by the confidential informant, led the affiant to conclude based on other checks, that the confidential informant was talking about Ethan Allan Eckstein”.
(b) Reasonable Grounds for the Issuance of the Tracking Warrant
39I now turn to whether the ITO as excised and/or amplified in accordance with the previous discussion, disclosed the requisite reasonable grounds for the tracking warrant to issue. I will begin my analysis with a brief review of some general legal principles regarding tracking warrants of vehicles under s. 492.1(1) of the Criminal Code and the standard and scope of review on a Garofoli hearing.
(i) Tracking Warrant - s. 492.1(1) of the Criminal Code
40The requisite standard for issuance of a vehicle tracking warrant issued under s. 492.1(1) of the Criminal Code is that the police have a reasonable suspicion that an offence has been or will be committed and that relevant information can be obtained by means of a vehicle tracking warrant. See R. v. Grandison, 2017 BCSC 1067 at para. 75.
41While “reasonable grounds to suspect” and “reasonable and probable grounds to believe” must both be grounded in objective facts, reasonable suspicion is a lower standard, as it is engaged with reasonable possibility, rather than probability of crime. See R. v. Chehil, 2013 SCC 49 at para. 27.
42Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality and not a probability of doing so. See Chehil at para. 32.
43Reasonable suspicion must be assessed against the totality of the circumstances. Characteristics that apply broadly to innocent people cannot, on their own, support a finding of reasonable suspicion, although they may take on some value when they form part of a constellation of factors. Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. The court is looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end. See R. v. McKenzie, 2013 SCC 50 at para. 72.
44Assessing whether a particular constellation of facts gives rise to a reasonable suspicion must not devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training, and experience of the investigating officer. See McKenzie at para. 73.
(ii) The Standard and Scope of Review on a Garofoli Hearing
45Challenges to the validity of a warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The validity of the warrant must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant. See R. v. Morelli, 2010 SCC 8 at paras. 40-41; R. v. Sadikov, 2014 ONCA 72 at paras. 37-38; Crevier at para. 74; and Araujo, at para. 57.
46The central consideration in the review of a warrant is whether, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. See R. v. Nguyen, 2011 ONCA 465 at para. 57.
47Like the issuing justice, the reviewing justice is entitled to draw reasonable inferences from the contents of the ITO. That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent, is of no moment. The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. See R. v. Nero, 2016 ONCA 160 at para. 71.
48When the information to support the warrant comes from a confidential informant, the totality of the circumstances inquiry focuses on three questions. Does the material before the reviewing judge demonstrate that the confidential informant’s information was compelling? Does the material demonstrate that the confidential informant was credible? And, finally, does the material demonstrate that the confidential informant’s information was corroborated by a reliable, independent source? See R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53; R. v. Shivrattan, 2017 ONCA 23 at para. 27.
49The first question addresses the quality of the confidential informant's information. For example, did the informant purport to have first-hand knowledge of events or was the informant reporting what he or she had been told by others? The second question examines the confidential informant's credibility. For example, does the informant have a long record which includes crimes of dishonesty, or does he or she have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the confidential informant that offers some assurance that the informant provided accurate information. The answers to each of these questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the confidential informant's credibility: See Crevier at paras. 107-108; Shivrattan at para. 28.
(iii) Analysis
50As noted earlier, the defendant submits that it is clear from looking at the ITO that Officer Younan did not include facts that were unfavourable to his position and that the ITO was written in a non-objective fashion. The defendant submits that the issuing justice could not have granted the tracking warrant with these offending portions excised. The defendant submits that the entire ITO was an unreliable basis upon which to authorize the warrant.
51In my view, Officer Younan was full, frank and fair in the information he provided in the ITO to the issuing justice. As I explained earlier, whatever errors that Officer Younan made in drafting the ITO were made in good faith and were not intended to mislead the issuing justice. Warrant review requires a contextual analysis. Inaccuracies in an ITO, on their own, are not a sufficient basis to ground a finding of bad faith or intent to mislead, much less to provide a basis on which to set aside a warrant. See Sadikov at para. 87.
52I recognize that, given the ex parte nature of the proceedings before the issuing justice, the affiant is required to include all material facts and is not permitted to pick and choose among relevant facts to achieve the desired outcome. See Araujo at paras. 46-47. However, that is not what happened in this case. Applicants for a warrant have the obligation not to commit the error of material non-disclosure. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time. See Nguyen at para. 51. In my view, the impugned omissions of fact that the defendant claims occurred in this case were immaterial or not omissions at all. As has been recognized by the Court of Appeal for Ontario, the review of the record is not a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences. See Nero at para. 68.
53For the reasons that I have just explained, except for some amplifications in the ITO I have referenced, I do not see merit in the defendant’s submissions regarding the requested excisions in the ITO. I must go on to consider whether, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could have issued. See Nguyen at para. 57.
54Regarding the tracking warrant, the affiant relies on information from confidential informant CHS #1. As noted earlier, when the information to support a warrant comes from a confidential informant, the totality of the circumstances inquiry focus on three questions as set out previously: Does the material before the reviewing judge demonstrate that the confidential informant’s information was compelling? Does the material demonstrate that the confidential informant was credible? And, does the material demonstrate that the confidential informant’s information was corroborated by a reliable, independent source? See Debot at para. 53; Shivrattan at para. 27.
55The defendant submits that the information provided by the confidential informant was not compelling, credible, or corroborated by police investigation. On the totality of the circumstances, the defendant submits that the warrant was not properly issued. The defendant submits that all Officer Younan had was a name and that more than a name is required to lawfully track a motor vehicle. The defendant submits that Officer Younan assumed the name he received from the confidential informant was the same person as the defendant. The defendant submits that there was no description of the male person given by the confidential informant and that Officer Younan never spoke to Officer Pavoni about a description of the defendant. The defendant submits that nothing was ever done to determine if the confidential informant and Officer Pavoni were talking about the same person. The defendant submits that, instead of conducting surveillance on the defendant after the police received the confidential informant’s information, the police tried to get a tracking warrant right away. The police had no more than a hunch that the defendant was involved. The defendant submits that this does not rise to the level of reasonable suspicion.
56It may be useful to start by considering separately each question and the evidence pertaining to them, before addressing whether in the totality of the circumstances the tracking warrant was properly issued.
a. Was the Confidential Informant’s Information compelling?
57The ITO of April 21, 2016 indicates that CHS #1 provided the following information: 1) Marco Maric is a high level, kilogram dealer 2) Marko Maric utilizes a male named Ethan Allen Eckstein to deal his cocaine for him 3) Ethan Allen Eckstein is a cocaine dealer who delivers cocaine for Marco Maric to other cocaine dealers. As a result of the amplification of the ITO, there is also information that CHS #1 did not give the affiant the name Ethan Allan Eckstein. The information that the affiant received from the confidential informant, specifically the name given to the affiant by the confidential informant, led the affiant to conclude based on other checks, that the confidential informant was talking about Ethan Allan Eckstein.
58The judicial summary of the redacted Appendix CHS #1 for the tracking warrant ITO of April 21, 2016 at Exhibit GGG(1) indicates the following information was provided by the CHS #1: 1) specific date(s) in 2016 CHS #1 provided information to the handler is disclosed 2) in relation to certain information, the source of CHS #1’s knowledge is disclosed 3) in relation to certain information, the source of CHS #1’s knowledge is firsthand 4) specific information about a known associate of Maric is disclosed-this information is in reference to drug trafficking 5) additional information concerning Maric’s drug dealing is disclosed 6) additional information concerning Ethan Eckstein, including the fact that Maric utilizes Eckstein to deal and deliver his cocaine to other dealers is disclosed and 7) the name by which CHS #1 knows Ethan Eckstein is disclosed. On balance and considered as whole, I am satisfied that the material in the ITO demonstrates that CHS #1’s information was compelling.
b. Was the Confidential Informant Credible?
59As set out in Exhibit GGG(1), the confidential informant CHS #1 is known to the police. Officer Younan was the handler for CHS #1. This provides some degree of comfort with respect to the confidential informant’s credibility in the sense that he or she was not an anonymous informant. See R. v. Choi, 2013 ONSC 291 at para. 34. As set out at Exhibit GGG(1), CHS #1 has provided information to the handler in the past which has led to seizures of scheduled substances, firearm(s) and currency. On the occasions that CHS #1 has provided information to the police, it has been corroborated and found to be reliable. The motivation for CHS #1 providing information to the police is provided, including whether or not compensation or consideration was sought or arranged. CHS #1 has been cautioned about providing false or misleading information. It is disclosed whether or not CHS #1 has a criminal record and/or past or present criminal charges and the nature of any criminal conviction or charge is provided. CHS #1 is immersed in the drug subculture, which is relevant to his or her character. On balance and considered as a whole, I am satisfied that the material in the ITO demonstrates that CHS #1 was credible.
c. Was the Confidential Informant’s Information Corroborated?
60As set out in the ITO, on November 19, 2015, London police made observations of the defendant and Mr. Maric which, based on the experience of Officer Younan, he considered to be a drug transaction between the defendant and Mr. Maric. As well, the judicial summary of the redacted ITO at Exhibit GGG(2) provides additional information on the investigative steps taken in 2016 as a result of confidential informant information that relates to the corroboration of the confidential informant’s information that the defendant was a cocaine dealer and Mr. Maric was a cocaine dealer. These investigative steps did not include physical observations of the defendant or Mr. Maric.
61In my view, the investigative steps taken in 2016 relating to the corroboration of CHS #1’s information provided some, albeit not particularly strong, evidence of corroboration. However, to constitute corroboration of a source’s allegations of criminal conduct it is not necessary that what is offered relate specifically to the criminality of the allegation. See R. v. Lewis (1998), 38 O.R. (3d) 540 (C.A.) at para. 22. The courts have made it clear that corroboration of otherwise innocent details can serve to enhance the overall reliability of the informant. See R. v. Caissey, 2007 ABCA 380, aff’d 2008 SCC 65. At the same time, it is important to keep in mind that the confirmation of innocuous, general information is only of limited value in this analysis. Such information could be easily gathered by anyone familiar with the target of the investigation and provides no confirmation that the target has been engaged in the criminal activities alleged. See R. v. Zammit (1993), 81 C.C.C. (3d) 112 (Ont. C.A.) at paras. 117 and 121. The question is whether the corroboration strengthens a belief in the credibility or reliability of the confidential informant. Whether it does is to be determined on a consideration of the totality of the circumstances.
62In my view, the police observations of Mr. Maric and the defendant on November 19, 2015 and the investigative steps taken by the police in 2016, add some credibility and reliability to the information provided by CHS #1. On balance and considered as a whole, I am satisfied that the material in the ITO demonstrates that CHS #1’s information was corroborated to some extent by the police.
63Because information relied upon in the ITO emanated from a confidential informant, I must carefully consider whether the information was compelling, whether the confidential informant was credible, and whether the information the confidential informant provided was corroborated by a reliable, independent source. As noted in Debot at para. 53, these are not separate tests. Weaknesses with respect to one may be compensated by strengths in relation to the others. In this case, the material before me demonstrates that the information of CHS #1 was compelling, credible, and corroborated to some extent by police investigation. After considering the totality of the circumstances set forth in the ITO, I am satisfied that the information provided by CHS #1 was relevant and reliable and properly taken into account by the issuing justice in determining whether the tracking warrant should issue. See R. v. Wiley (1994), 84 C.C.C. (3d) 161 at p. 170.
64The tracking warrant in this case is presumptively valid. The onus is on the defendant to establish that the information relied upon to obtain the tracking warrant did not provide a basis upon which the issuing justice could have concluded that there were reasonable grounds for its issuance. In my view, the defendant has not met his onus on this application regarding the tracking warrant.
65In my view, in all the circumstances, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there was a basis upon which the issuing justice could have been satisfied that there were reasonable grounds to suspect that the offence of possession of cocaine for the purposes of trafficking had been or would be committed and that relevant information could be obtained by means of a vehicle tracking warrant. The combined force of the circumstantial evidence in the ITO provided a sufficient basis upon which the issuing justice could be satisfied the tracking warrant should issue. The tracking warrant was valid.
66Accordingly, I find that there has been no breach of the defendant’s s. 8 Charter rights in the tracking of the 2008 GMC Acadia vehicle pursuant to the tracking warrant of April 21, 2016.
(c) Searches of 85 Queen’s Wharf Rd., Unit 3802
67In addition, as I indicated in my oral reasons of November 20, 2018, I am also of the view that there was no violation of Mr. Eckstein’s s. 8 Charter rights in the police obtaining evidence as a result of the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 and the search of 85 Queen’s Wharf Rd., unit 3802 on June 28, 2016 pursuant to the search warrant of June 27, 2016.
68I say this because I am of the view that the defendant had no reasonable expectation of privacy in 85 Queen’s Wharf Rd., unit 3802. The defendant submitted in this case that he did have a reasonable expectation of privacy in 85 Queen’s Wharf Rd., unit 3802. However, I agree with the Crown’s position in regard to this issue, that at its highest, as in R. v. Edwards, [1996] 1 S.C.R. 128, on the record before me on the Garofoli hearing, the defendant was nothing more than an exceptionally privileged guest in the unit. This situation was different from that of Mr. Shahin where in that case, there was some evidence of a tenancy arrangement between Mr. Shahin and Ms. Jarvis in that Mr. Shahin was paying Ms. Jarvis for the use of the apartment.
69In coming to the conclusion that the defendant did not have a reasonable expectation of privacy in 85 Queen’s Wharf Rd., unit 3802, I have considered the non-exclusive criteria set out in Edwards at para. 45. In this case, there was no direct evidence of a subjective expectation of privacy by the defendant. However, at the subjective stage of the test for establishing a reasonable expectation of privacy, the question is whether the defendant had or is presumed to have had an expectation of privacy. This is a low hurdle to overcome and for the purposes of the inquiry, I am prepared to presume that the defendant had such a subjective expectation of privacy. See R. v. Patrick, 2009 SCC 17 at para. 37.
70A person’s subjective belief in an expectation of privacy in a particular case must, however, be objectively reasonable. On the record before me, and in the circumstances of this case, I find that there was no objective basis for the existence of a reasonable expectation of privacy on the part of the defendant in relation to 85 Queen’s Wharf Rd., unit 3802. On the totality of the circumstances before me, taking into account the factors set out in Edwards, I am of the view that the defendant did not have a reasonable expectation of privacy in 85 Queen’s Wharf Rd., unit 3802. Section 8 was therefore not engaged and there was no violation of the defendant’s s. 8 Charter rights. He had no standing to challenge the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 or the search of June 28, 2016 pursuant to the search warrant of June 27, 2016.
Should the Evidence be Excluded Under S. 24(2) of the Charter?
71As I indicated in my oral reasons of November 20, 2018, even if I was wrong and there was a violation of the defendant’s s. 8 Charter rights, in all the circumstances, I was not satisfied that 1) the evidence obtained from tracking the vehicle pursuant to the tracking warrant of April 21, 2016 or 2) the evidence obtained from the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 and the search warrant of June 27, 2016, should be excluded under s. 24(2) of the Charter. As counsel addressed s. 24(2) in their submissions and I indicated that even if a s. 8 Charter breach occurred, I would not have excluded the evidence under s. 24(2), I will give my reasons regarding the s. 24(2) issue.
72The proper considerations under s. 24(2) of the Charter were established in R. v. Grant, 2009 SCC 32 at paras. 72-82. In determining whether evidence should be excluded under s. 24(2), the court considers (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the defendant’s Charter-protected interests, and (iii) society’s interest in an adjudication of the case on the merits. This requires the court to assess and balance the effect of admitting the evidence in light of these three factors. The party seeking to exclude the evidence bears the burden of proving its exclusion is required. See R. v. Fearon, 2014 SCC 77 at para. 89.
73I will now address s. 24(2) in regard to the evidence obtained from the tracking warrant in the event there was a breach of the defendant’s s. 8 Charter rights.
(a) The Seriousness of the Charter – Infringing State Conduct
74Dealing with the first factor, the seriousness of the Charter-infringing state conduct, this factor focuses on the actions of the police. The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. See R. v. Paterson, 2017 SCC 15 at para. 43. The court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to disassociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See Grant, at paras. 72-75; R. v. Taylor, 2014 SCC 50 at para. 39.
75Dealing with the first Grant factor, I am of the view that Officer Younan was acting in good faith. He did not intend to mislead the issuing justice. He reasonably believed he had the requisite grounds to track the defendant’s motor vehicle. The police sought prior judicial approval and received it before they tracked the motor vehicle. If there was any violation of the defendant’s s. 8 Charter rights, the gravity of the Charter-infringing conduct was at the low end of the continuum. This first Grant factor favours admission of the evidence.
(b) The Impact of the Charter Breach on the Defendant’s Charter-Protected Interests
76As to the impact of any Charter violation on the defendant’s Charter-protected interests, the second factor of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the defendant. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See Grant at paras. 76-78.
77Dealing with the second Grant factor, as Justice Cory said in R. v. Wise, [1992] 1 S.C.R. 527 at para. 19, the use of a tracking device is only minimally intrusive and constitutes an invasion into a “lessened privacy interest.” This is the rationale for the lower standard of reasonable suspicion. That being said, if there was a breach of s. 8, it represents a violation of the defendant’s privacy interests, albeit in a minimally intrusive way. I do not view this as a serious violation of the defendant’s privacy interests but one, nevertheless, that would support the exclusion of evidence under the second Grant factor.
(c) Society’s Interest in the Adjudication of the Case on the Merits
78Under the third factor in Grant, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See Grant, at paras. 79-84.
79The third factor acknowledges that the public has a keen interest in seeing cases adjudicated on their merits. With regard to this factor, the court looks to the truth-seeking function of the criminal trial and the impact of admitting or excluding the impugned evidence on the trial. A breach that undermines the reliability of evidence will point toward exclusion because the admission of unreliable evidence cannot enhance truth seeking. On the other hand, excluding reliable evidence that is key to the prosecution’s case is a relevant consideration militating against exclusion. See R. v. Spencer, 2014 SCC 43 at para. 80; Taylor at para. 38.
80As to the third Grant factor, the police observations of the defendant while using the tracking warrant were reliable evidence. Society has a strong interest in a trial on the merits. The tracking data was an important investigative tool which allowed the police to ascertain key information pertaining to the defendant’s whereabouts. This led to further investigative steps being taken. Without this information, there would be significant gaps in the evidence. Exclusion of the evidence would have serious implications for the Crown’s case. The third Grant factor favours admission of the evidence.
(d) Overall Balancing
81The trial judge must consider each of the Grant factors and determine whether, having regard to all the circumstances, the admission of the evidence obtained as a result of the Charter breach would bring the administration of justice into disrepute. There is no overarching rule that governs how to balance these three factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed to encapsulate considerations of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of decision tree. See Grant at paras. 85-86.
82Balancing the three factors under Grant, I am of the view that in all the circumstances, the admission at trial of the evidence obtained from the tracking of the 2008 GMC Acadia vehicle would not bring the administration of justice into disrepute.
83In terms of the defendant’s submissions that the evidence from the searches of 85 Queen’s Wharf Rd., unit 3802 should be excluded, I will not repeat my analysis for s. 24(2) that I provided in regard to Mr. Maric and the evidence obtained in the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 and the search warrant of June 27, 2016. For the reasons I expressed regarding Mr. Maric, I am of the view that, if there was a breach of the defendant’s s. 8 Charter rights, balancing the three factors under Grant, the admission of the above noted evidence from the searches at 85 Queen’s Wharf Rd., unit 3802 at the trial of the defendant would not bring the administration of justice into disrepute. Moreover, in the defendant’s case, the impact of the searches on his Charter-protected interests was attenuated given the uncertainty of his privacy interest in unit 3802.
Conclusion
84For all these reasons, I am of the view that the tracking warrant of April 21, 2016 was valid. Accordingly, there was no violation of the defendant’s s. 8 Charter rights in the police tracking of the 2008 GMC Acadia motor vehicle. Nor was there a violation of the defendant’s s. 8 Charter rights as a result of any of the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 or pursuant to the search warrant of June 27, 2016. However, even if I am wrong and there was a violation of the defendant’s s. 8 Charter rights in the police tracking of the motor vehicle or in the searches of 85 Queen’s Wharf Rd. pursuant to the general warrant of May 3, 2016 or the search warrant of June 27, 2016, I am of the view that the admission at trial of the evidence obtained from the searches or from the tracking of the vehicle would not bring the administration of justice into disrepute.
85The defendant’s application under s. 24(2) of the Charter to exclude the evidence of all police observations obtained from using the tracking device on the 2008 GMC Acadia motor vehicle and any evidence obtained as a result of the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016 and the search of 85 Queen’s Wharf Rd., unit 3802 on June 28, 2016 pursuant to the search warrant of June 27, 2016 is dismissed.
M. F. Brown J.
Released: August 30, 2019
Footnotes:
[1] See R. v. Garofoli, [1990] 2 S.C.R. 1421. [2] Confidential Human Source
