COURT FILE NO.: CRIM J(P) 128/23 (Brampton) DATE: 2024-02-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – THAMILARASAN VELAUTHER

Counsel: Sarah Stackhouse, for the Crown/respondent Jassi Vamadevan, for the accused/applicant

HEARD: January 8-10, 2024 [1]

REASONS FOR JUDGMENT (public version) Rahman, J.

1. Introduction

1The accused/applicant, Thamilarasan Velauther, is charged in a six-count indictment with illegally possessing a firearm, a prohibited device, and property obtained by crime. He is also charged with possession for the purpose of trafficking cocaine and possessing a firearm in breach of a prohibition order. Peel Regional Police executed a search warrant at the applicant’s residence on December 1, 2022. They allegedly seized a loaded handgun, drugs, a scale, ammunition, and a large amount of cash. The applicant applies to exclude the evidence on the grounds that the police violated his s. 8 Charter rights.

2The applicant argues that this court should exercise its discretion to set aside the warrant because the affiant made misleading statements both in the information to obtain the search warrant (ITO), and during his testimony when he was cross-examined on this application. The applicant argues that the court should express its disapproval of the affiant’s conduct by exercising the residual discretion to set aside a warrant described by the Court of Appeal in R. v. Paryniuk, 2017 ONCA 87, at para. 69. Alternatively, he argues that even if the court does not set aside the warrant using this residual discretion, his application should still succeed because there were insufficient grounds to issue the warrant. The applicant argues that all information received from the confidential police informer should be excised because of misstatements that the affiant made about the verification of that information by the informer’s handler. The applicant also argues that there was no basis upon which an issuing justice could conclude that a firearm would be found in the applicant’s home.

3The Crown argues that there is no basis to set aside the warrant, either because of the affiant’s conduct, or because there were insufficient grounds. The Crown argues that any incorrect or misleading statements can be excised from the ITO. Any misleading or incorrect statements in the ITO do not constitute a subversion of the prior authorization process. The Crown says that there is no basis to excise all the information provided by the informer, and that only the incorrect information should be excised. The Crown argues that, even after excision, there are ample grounds to support the issuance of the warrant.

4For the reasons that follow, the application is dismissed. The incorrect and misleading statements in the ITO are insufficient to justify setting aside the warrant. The affiant’s testimony at the application hearing, though problematic, does not justify setting aside the warrant because it does not constitute subversion of the prior authorization process, and could not have helped the Crown in upholding the warrant. Moreover, even after excision of the false statements from the ITO, there is a basis on which the warrant could have issued. The warrant is valid. The applicant has not established a breach of his s. 8 Charter rights.

5Before explaining the court’s reasons for dismissing the application, I will explain how the application hearing unfolded. The court conducted a so-called “step 6” Garofoli hearing because the Crown applied to have the court consider privileged portions of the ITO that the defence could not see. Because I have considered privileged information in deciding to uphold the warrant, it is necessary to refer to privileged information in these reasons. Where I have referred to privileged information from the redacted parts of the ITO, I have indicated that sentences have been deleted. I have tried to keep this type of editing to a minimum so that it is clear why I have decided the application as I have. Consequently, there will be two versions of these reasons, one public, and one sealed. The sealed version will also be provided to the Crown. [2]

2. The application hearing

6Crown counsel provided a proposed judicial summary to the court and counsel at the outset of the hearing. That first summary went through some revisions after questions from the court during both the inter partes and ex parte [3] phases of the hearing. The fifth version of the proposed summary became the final judicial summary. At that point, I was satisfied that the Crown had justified the redactions. The information that remained redacted, or not summarized in detail, would have breached informer privilege because it would have narrowed the pool of people who could be the informer.

7After the final summary had been settled on, the court invited submissions from the applicant on whether there were any portions of the summary that were insufficient to allow the defence to appreciate the nature of the redacted material. The applicant initially took issue with three of the redacted areas. The third area was resolved after I proposed additional wording that the Crown agreed would not comprise informer privilege.

8I ruled that the summary for paragraphs 10(b) and 10(c) of the ITO were insufficient to permit the applicant to appreciate the nature of the deletions because it would be impossible for him to make meaningful submissions about the redacted information. There was no limit to the information that could have been included in those paragraphs, and it would have been impossible for the applicant to have made submissions based on hypotheticals, even in the alternative. As for the other disputed paragraph, under the heading “Compelling Nature of the Information,” I found that the summary was sufficient to permit the applicant to appreciate the nature of the deletion. The applicant could make alternative submissions respecting the nature of the relationship between the informer and the applicant.

9After settling on the judicial summary, the applicant brought an application to cross-examine the affiant. He sought to cross-examine the affiant on the use of boiler plate language throughout the ITO. Specifically, the applicant wanted to cross-examine the affiant on why the affiant included an “affiant note” saying that he was not relying on the information in the confidential appendix and how he could have subjectively believed he had grounds without the informer information. Second, he sought to cross-examine the affiant about two blanks left in the confidential appendix. The affiant left a blank after a sentence that said the informer handler had reviewed the confidential appendix. He also left a blank after a sentence that said that the informer had been cautioned. Crown counsel did not oppose cross-examination on these areas.

10The applicant also wanted to cross-examine the affiant on the date the handler communicated the information. This date had been left blank. Crown counsel opposed cross-examination in this area. The judicial summary only stated that the information had been communicated within 90 days. Crown counsel submitted that if the date had been filled in, the summary would simply have said that the issuing justice was aware of the day the informer communicated the information to the handler and would not have specified the day the handler communicated the information to the applicant. I agreed with Crown counsel that cross-examination on this area could have revealed privileged information and did not permit cross-examination on this area.

11I permitted cross-examination on the affiant’s use of boilerplate and leaving blanks regarding whether the informer had been cautioned, and whether the informer’s handler had reviewed the draft confidential appendix. The applicant also cross-examined the affiant on the first, refused warrant application, and the affiant’s assertion in that ITO that he was not relying on the informer’s tip as part of his grounds.

12I now turn to the cross-examination of the affiant.

3. The affiant’s testimony

3.1. Cross-examination of the affiant

13I will deal first with the last area of cross-examination mentioned above – the language that the affiant had included in the ITO about his reliance on the informer’s information. Some background about the warrant applications in this case is necessary to understand his testimony on this topic.

14The affiant’s first warrant application was made on November 29, 2022. The ITO for that application was virtually identical to the ITO for the warrant that was ultimately granted and is the subject of this application. The one major difference between the first and second warrant applications was that the affiant stated in the first application that he was not relying at all on any information provided by the confidential informer. That information was contained in a so-called “tear away” confidential appendix (identified as Appendix D). The following text appeared in bold print in the first ITO under the heading “Reasonable Grounds to Believe an Offence Has Been Committed”:

(Affiant note: I am not relying on the information supplied by the confidential source to support my grounds for belief. None of the information affects the sufficiency of my grounds, and none of the confidential source information detracts from my grounds. In order to meet my obligation to provide full, frank and fair disclosure, I have provided details of this information for the reviewing Justice. The details of this information are listed in Appendix ‘D’ of this application.)

15The justice of the peace to whom this application was submitted refused the application on the same day. The justice of the peace gave the following reasons for her refusal:

Insufficient Information in Appendix C, the ITO itself, (If appendix D was redacted), to conclude that an offence has or will be committed. Satisfied that the location to be searched belongs to or is in control of the individual named.

16After the application was refused, the affiant applied for the warrant a second time (the same day). This time, the “affiant note” said the opposite of what it had said the first time. Again, under the same heading as before the affiant included the affiant note. It now said the following:

(Affiant note: I am relying heavily on the information supplied by the confidential source to support my grounds for belief. In order to meet my obligations to provide full, frank and fair disclosure, I have provided the details of this information for the reviewing Justice. The details of this information are listed in Appendix ‘D’ of this application).

17During an exchange with counsel during his application to cross-examine the affiant on his inclusion of these opposing paragraphs in the ITOs, I told applicant’s counsel [4] that the inclusion of the paragraph in the first ITO appeared to be a forward-looking attempt by the affiant to obviate the need for a step 6 hearing. It appeared that the affiant was disavowing reliance on informer information as part of his grounds so that, should the warrant be challenged, there would be no need to rely on any of the information in the confidential appendix. Crown counsel had a different view of the reason for its inclusion. Crown counsel believed that the affiant may have been working from a precedent and simply left the passage in by accident. It turned out we were both wrong.

18It would be an understatement to say that the affiant’s explanation for including the affiant note in the first application was puzzling. He testified that his inclusion of the affiant note in the first ITO was a mistake. When pressed about how that passage made its way into the ITO, and whether he had cut and pasted it, he testified that he typed it in word for word. He did not cut and paste it from anywhere. Respectfully, the affiant’s testimony on this point strains credulity. It seems as likely that he typed that passage himself as it is that he typed the definitions that appear in paragraph 4 of the ITO word for word. It is not clear why the affiant insisted that he typed this passage himself. There were other innocuous, plausible explanations for this paragraph that had crossed my mind, and Crown counsel’s. Why the affiant came up with an incredulous reason for including that paragraph is unclear. One possibility is that, when confronted with this mistake, the affiant did not appreciate why such a paragraph would appear in an ITO and simply tried to cover up his ignorance. I will address whether this problematic testimony has any consequence later in these reasons.

19There was a second area of cross-examination that yielded helpful information for the applicant. The affiant revealed during cross-examination that statements within the ITO were false.

20The affiant used a pre-printed form to input most of the information provided by the informer. It appears that this pre-printed form was meant to be a checklist of sorts to ensure that affiants turn their minds to the various attributes of the informer and their information that are pertinent to a warrant application. Unfortunately, the affiant did not bother to take care to ensure that the pre-printed portions of the form were accurate. It was the two areas on which the applicant had been granted leave to cross-examine that proved to be problematic.

21First, the pre-printed part of the appendix says the following:

the confidential informer has been cautioned that they must not knowingly provide false information and that doing so many [sic] constitute an offence, and the confidential informer may be charged for knowingly providing false information.

22The affiant acknowledged that he did not have a note that the informer’s handler had cautioned the informer, and he could not be sure that it happened.

23The second incorrect statement in the pre-printed part of the confidential appendix related to the informer handler’s review of the appendix. Under the heading “Confirmation” the following text appears:

The handler for this confidential informer reviewed the draft contents of my Appendix in relation to this confidential informer [long blank to be filled in] then confirmed that my completed version of this Appendix is accurate and true.

24When he was initially confronted about whether this paragraph was true, the affiant kept explaining that the handler was present and telling the affiant the information as he was typing it into the ITO. When applicant’s counsel pointed out to the affiant that the issuing justice would not have known that this was simply part of a pre-printed form, and that the statement was incorrect, the affiant’s response was that he did not know whether the issuing justice would know whether it was a pre-printed form, and he was just using the form he had been given.

25I will explain the effect that these misstatements have on the applicant’s challenge to the warrant, below.

4. Attack on the ITO

4.1. Residual discretion to set aside the warrant

26The applicant argues that this court should exercise its residual discretion to set aside the warrant in this case, because of the false statements in the ITO and the affiant’s incredible testimony about the affiant note in the first ITO. The applicant also argues that the amount of boilerplate language that the affiant used in the ITO is problematic and is another reason to set the warrant aside. The affiant’s use of boilerplate demonstrates more than carelessness and amounts to negligence. Further, the affiant’s failure to make full, fair, and frank disclosure in the confidential appendix is troubling. The affiant would have known that the appendix would not be disclosed in its entirety, so his failure to be candid in it is even more troubling.

27Crown counsel acknowledges that the affiant’s drafting was sloppy, but she points out that courts do not hold affiants to a standard of perfection. The Crown says that the affiant’s conduct does not rise to the type of misconduct that would justify setting aside the warrant. The Crown says that the proper remedy to deal with the false information is excision.

28In Paryniuk, the Court of Appeal recognized (at para. 69) that a reviewing judge retains a discretion to set aside a search warrant “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.”

29I cannot agree with the applicant that the affiant’s conduct amounts to the subversion described in Paryniuk.

30Although it is tempting to send a message to the police that carelessness or negligence will not be tolerated, I cannot conclude in this case that the affiant’s misstatements were anything more than the result of negligence. They were not deliberate or fraudulent misrepresentations. Respectfully, my impression is that the affiant simply did not know what he was doing. He was not sophisticated enough to have been able to mislead the court. He very quickly owned up to the misstatements and did not even seem to appreciate their significance. When pressed on whether the handler had reviewed a draft confidential appendix, he repeatedly answered that the handler was present as the affiant typed the information into the ITO. I do not even think he turned his mind to the fact that the pre-printed portions of the appendix formed part of the ITO. Like a school student making an excuse, he seemed to blame the form. These comments should not be taken as excusing the affiant’s conduct or suggesting that this kind of negligence is acceptable or excusable. Institutionally, the police must ensure that officers who apply for investigative orders are properly trained to carry out their duties. And individually, an officer who applies for an investigative order must ensure that nothing about it will mislead the judicial officer being asked to authorize it. As I said, it is tempting to send a message to the police, but that is not the court’s role here. The affiant here was negligent, but I cannot find his misstatements were intentionally misleading such that they amounted to a subversion of the prior authorization process.

31As for the affiant’s insistence that he typed the affiant’s note in the first ITO word for word, although it is not believable, I am not satisfied that is the kind of subversion (assuming it was subversive) that the Court of Appeal meant to capture in Paryniuk. First, it did not occur during the prior authorization process but during review. Second, there was simply nothing about his answer about having typed the affiant note word for word that could have subverted the process. To the extent that this was deception it could not have undermined either the prior authorization process or the review process. If the affiant believed he had enough grounds without the informer’s tip in the first warrant application, he would have come to the wrong legal conclusion. There was really nothing for him to cover up with the incredible answers he gave. Again, it is not this court’s job during warrant review to punish an affiant for giving incredible testimony on an issue that was not of consequence.

32Finally, the fact that the affiant used a great deal of boilerplate language cannot lead to setting aside the warrant. The applicant is correct that courts have repeatedly expressed disapproval of excessive boilerplate language in ITOs. But the mere use of boilerplate language does not amount to a subversion of the pre-authorization process. Where the boilerplate language is false or misleading, the remedy is to excise that language on the warrant review. Relying on boilerplate is not, on its own, the kind of conduct that can be considered subversive of the process.

33The proper remedy for the affiant’s misstatements here is excision. The caselaw recognizes that errors, fraud, and misleading disclosure are cause for excision. Were they automatic cause for setting aside warrants there would be no remedy of excision, and every case in which the police made false statements would result in setting aside the warrants: see R. v. Sadikov, 2014 ONCA 72, at para. 87.

34Before turning to the issue of how much information should be excised, I will address two other assertions in the ITO that were raised by the applicant as being problematic. Both relate to inaccurate statements made by the informer about the applicant. The applicant’s submissions on these inaccuracies were general in nature because the specific information that the informer was wrong about remains redacted. The inaccuracies were described in general terms only in the judicial summary. Neither discrepancy is of consequence. Regarding the first discrepancy, the affiant provided his opinion about the reason for the discrepancy. There was nothing inappropriate about him doing so and I find it was an acceptable explanation. Regarding the second discrepancy, although it was not pointed out by the affiant, it did not have to be because it was apparent from the information in Appendix C. The issuing justice would have noticed this discrepancy and, even if she did not, it is of little consequence. Below, I explain these conclusions in more detail.

1. [Paragraph deleted]
2. [Paragraph deleted]

35I will next turn to the question of how much information should be excised.

4.2. What information should be excised?

36The applicant argues that it is not enough to just excise the false sentences from the ITO – i.e. those passages I have excerpted above. Rather, the applicant argues that, because the affiant’s statements respecting the informer were false, the court should excise all information received from the informer.

37I cannot agree with the applicant that all the informer information should be excised. Rather, I agree with the Crown that only the wrong information should be excluded. As the Court of Appeal observed in R. v. Ebanks, 2009 ONCA 851, at paras 28, “there is no authority for a reviewing judge to exclude correct information.” The applicant did not suggest, nor is there any basis to find, that the informer did not provide the information set out in Appendix D. Nor is this a case like R. v. Hall, 2016 ONCA 13, at para. 50 where there was a suggestion that the source of the information (either the informer or the handler) was unreliable. As I will explain, the proper approach is to excise the incorrect statements and consider whether the incorrect statements would have impacted the issuance of the warrant.

4.3. Sufficiency of grounds

38The applicant argues that the informer’s credibility is not sufficient to satisfy the reasonable grounds requirement. The applicant says that the informer was seeking some form of benefit in exchange for his information and therefore had some motivation to be dishonest, to exaggerate, or to “play fast and loose with the truth.” In addition, this is not a case where the informer was cautioned about the consequences for providing false information. The informer’s information was not corroborated on any material points. Rather, the corroboration consisted only of background checks. Moreover, the police did not include information that the informer had provided information in the past which the police had not acted on it. The applicant says this could have presented a misleading impression to the issuing justice that the informer had a perfect record.

39The applicant also argues that there is insufficient information to support a credibly-based probability that there was a firearm in the applicant’s residence. The applicant contends that there must be case-specific evidence that the applicant had a firearm in his residence. It is not enough if there is simply information that an accused possessed a gun at some point. In support of this proposition, the applicant relies on the Court of Appeal’s decision in R. v. Herta, 2018 ONCA 927, at para. 48. In Herta, the court disagreed that “the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future.” To the same effect, the applicant also relies on this court’s decisions in R. v. Coluccio, 2019 ONSC 4559, at paras. 61 and 73-79 and R. v. Ali Farah, 2020 ONSC 7157, at paras 27 and 72-73. In both of those cases, the court concluded that there was insufficient information to support grounds to believe that a firearm would be found in a residence, based on the accused’s possession of it at some point outside the residence.

40Finally, the applicant points to the fact that the affiant included two contrary statements in the ITO respecting how firearms are handled. The applicant says that the affiant said that, on the one hand someone in possession of a firearm would be more likely to hold onto it, but at the same time would be likely to sell firearms to increase their status. The applicant takes issue with the following passages as examples of the affiant simply saying whatever he can to obtain a warrant in this case:

During my time as an investigator into firearm(s) offences, I have come to understand are not [sic] a commodity like drugs, money or stolen property. Firearms are not consumable like drugs are. Firearms are not easily bought and sold within the criminal subculture like property obtained by crime for profit. Persons in possession of firearms have them in order to sell them or to increase their status and the respect firearms bring from others. Persons will also have firearms in order to protect themselves from violence brought on by other people involved in the criminal subculture. Firearms owners tend to retain their firearms for long periods of time. They are a commodity that is hidden from others, but readily available in case one needs to use it. If a firearm is well maintained and hidden from others that would take it from the possessor, it can serve its function for many years. Therefore it would be reasonable for VELAUTHER to still be in possession of the firearm.

In my experience, I am aware that individuals who are in possession of illegal firearm(s) will carry these firearm(s) om their person at all times to protect themselves against being robbed, or to intimidate individuals involved in criminality or members of the community. I believe VELAUTHER currently has control of this illegal firearm(s).

41The Crown argues that even after the false information is excised from the ITO, there remain grounds on which a warrant could have issued. The Crown argues that the informer’s information is credible, compelling, and corroborated, with credibility being the strongest of the “three Cs.” Relying on the Court of Appeal’s decision in R. v. Kalonji, 2022 ONCA 415, the Crown contends that there is sufficient information to support the grounds for finding a firearm at the applicant’s residence.

42I agree with the Crown that even after excising the false statements, there remains a basis on which the issuing justice could have issued the warrant.

43A trial judge reviewing an investigative order works “within a narrow jurisdictional compass”: Ebanks, at para. 20. A trial judge reviewing an ITO must decide whether there is “sufficient credible and reliable evidence to permit a 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 search”: Sadikov, at para. 84. In doing so the court must take a “common-sense and holistic approach”: Herta, at para. 21. In conducting this assessment, the reviewing judge does not consider information that must be excised but does consider material information that has been omitted. As the Supreme Court explained in R. v. Araujo, 200 SCC 65, at para. 57 (quoting Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.)):

[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue. [Emphasis in the original]

44Because the ITO in this case is based on information provided by a confidential informer, this court’s review of whether there is sufficient credible and reliable evidence must consider the so-called “three Cs” referred to in R. v. Debot, [1989] 2 S.C.R. 1140. Both the issuing justice and the reviewing court consider the credibility of the informer, whether the tip is compelling, and whether the tip is corroborated. The informer’s information need not provide a strong case on all three of these criteria. Reasonable grounds must be assessed against the totality of circumstances. Weakness in one area may be compensated for by strength in another: Debot, at p. 1168.

45A reviewing judge considering the credibility of an informer will consider the informer’s motivation for providing the tip; the informer’s criminal history; and any history of providing information to the police: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para 35. In determining whether a tip is compelling, a court considers whether the tip “has the characteristics that lead to the conclusion that it is reliable”: R. v. Meecham, 2018 ONSC 7033, at para 18. A tip that is detailed, based on first-hand observations that are reasonably current will be considered compelling: Greaves-Bissesarsingh, at para. 40. Corroboration or confirmation of the tip does not require confirmation of the suspect’s criminality, and corroboration of innocent details can enhance the overall credibility of the source. As the Court of Appeal recently observed in R. v. Jones, 2023 ONCA 106, at para 20:

For evidence to be corroborative, at least in this context, it does not need to conclusively prove criminal activity, nor does it need to confirm every detail. What matters is that the independent information conforms sufficiently to what one would have anticipated based on the informant’s information, such that “the possibility of innocent coincidence is removed” [citations omitted]

46As for the informer’s tip, I am satisfied that the credibility of the informer combined with the compelling nature of the tip makes up for any lack of corroboration.

47The informer’s credibility here is certainly not perfect. The fact that the informer had provided information in the past year that had proven reliable enhances their credibility. [Two sentences deleted] I am not satisfied that the affiant’s failure to mention a second occasion on which the affiant had provided information would have impacted the issuing justice’s assessment. The fact that the police did not act on the information because it was insufficient is a neutral fact. It neither adds nor subtracts to the informer’s credibility. Similarly, the fact that the informer was not cautioned about the consequences of providing false information is of less significance given the fact that they were a known, registered informer. Even if the issuing justice had known that the informer had not been cautioned, I am not satisfied that would have affected the issuance of the warrant. Further, although the fact that the informer was motivated by a form of consideration negatively impacts their credibility, it does not undermine it. [Two sentences deleted]

48As for the tip, I agree with the Crown that it is compelling. The following characteristics relate to the assessment of whether the tip is compelling:

1. [Sentence deleted]
2. [Sentence deleted]
3. [Sentence deleted]
4. [Two sentences deleted]
5. [Sentence deleted]
6. The informer knew that the applicant had been released from jail recently (they said it was about six months before, it was actually about four months) and what the applicant had been in jail for, and he gave a generally accurate physical description of the applicant. The informer also knew where the applicant was originally from.

49One other significant consideration in this case that does not relate to the informer’s tip is the applicant’s criminal record. The applicant has a serious criminal record. It involves two separate firearms offences for which he was sentenced in October 2019. The applicant had recently been released from prison and was on parole for these firearms offences. The issuing justice would properly have considered the applicant’s related convictions. In other words, the informer was not supplying information on someone unknown to police. To the contrary, the tip related to someone with a relatively recent history of gun possession.

50Further, I cannot accept the applicant’s submission that there was an insufficient basis to support finding a firearm in the applicant’s residence.

51I cannot accept the applicant’s assertion that there had to be some specific evidence that the applicant had possessed the firearm in his residence. The applicant’s reliance on Herta is misplaced. As the Court of Appeal recently explained in Kalonji, Herta does not stand for the proposition that there must be some direct evidence that the target of a search warrant actually possessed the firearm the police are searching for in their home. In Herta, the court held that it was not reasonable to infer that a firearm would be located at any place that the target of the search went to. Indeed, the court said that, if the address to be searched had been the target’s residence, it may have supported a reasonable inference that the target would keep his gun there. As George J.A. explained in Kalonji:

[21] In the end, I agree with the appellant that the trial judge misapplied Herta to the facts of this case. Of note, she appears to have ignored these crucial passages from Herta, in which Fairburn J.A. (as she then was) noted that the address searched was not the residence of Derek Callahan, the person said to possess a gun, and that if the address had been his residence it might have given rise to a reasonable inference that Callahan would keep his rifle there:

1670 Clover Avenue was not the “residence of Derek Callahan”. It was the residence of [Mr. Herta]. The correct wording could have been easily placed on the face of the warrant. This is not just about technicalities. If 1670 Clover Avenue had in fact been Callahan’s residence, it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place. That inference falls away when the true state of facts is known.

The question is not whether there was an adequate description of the place to be searched. The question is whether the issuing justice might have been misled into thinking that Callahan lived there. She may have been and may have drawn the wrong inference that Callahan would keep his firearm at his own residence. That error may have contributed to the search warrant issuing in circumstances where it could not. [Emphasis from Kalonji]

52Another significant difference between Herta and the case at bar is that the ITO in Herta did not even disclose who lived at the target residence. In the case at bar, there was a solid basis to find that the applicant lived at the target residence (I did not understand the applicant to dispute this).

53I also do not read the affiant’s statements respecting possession of firearms as being inconsistent. The thrust of the affiant’s statements about his experience with people who possess firearms is that they tend to hold on to them and keep them for self-defence. The affiant included one sentence that said that people in possession of guns also have them to sell them or to increase their status. That sentence on its own does not suggest that people in possession of guns will be anxious to get rid of the guns quickly. The sentence certainly makes the passage read awkwardly. But without the affiant’s statement of the habits of gun-toting criminals, there was a common sense inference available to the issuing justice that people possess guns for self-defence and that, unlike a commodity like drugs [5], they are not possessed only for the purpose of sale. There was no information that the applicant was engaged in the sale of guns. Though the sentence about selling guns is somewhat confusing in the context of the rest of the paragraph, I cannot find that it detracted from the grounds to believe that the applicant would likely maintain possession of a firearm for a significant period of time.

54Finally, I will address the effect of excising the sentence about the handler having review the draft confidential appendix. I am not satisfied that the absence of this information would have impacted the issuance of the warrant. Many ITOs simply include a recitation of information that an affiant has received from a handler without any indication that the handler has reviewed or verified that information in a draft ITO. While it is obviously a better practice to have a handler conduct such a review, the lack of such a review does not render the information less accurate. I am not satisfied that the lack of review was of any consequence here.

5. Conclusion

55The affiant’s conduct here was problematic. But despite the concerns I have expressed, there is no basis to set aside the warrant. The affiant’s conduct did not subvert the prior authorization process. Further, even after excising false statements from the ITO, there remains a basis on which the warrant could have issued. The applicant has failed to establish that the warrant should be set aside. There is no s. 8 violation. It is not necessary to consider the exclusionary inquiry under s. 24(2). The application is dismissed.

Rahman, J. Released: February 29, 2024

Footnotes

1I heard this application as a case management judge under s. 551.3 of the Criminal Code.

2This approach of producing two sets of reasons, with one sealed and also provided to the Crown, was followed in R. v. Woo, 2017 ONSC 7655, at para 14 and R. v. Matthew, 2022 ONCJ 300, at para. 14.

3The applicant consented to the court conducting the later phase of the hearing ex parte and in camera to allow the court to make more fulsome inquiries of Crown counsel. This procedure did yield a more detailed and accurate summary than had been provided earlier.

4As it turned out, with too much certainty.

5In context, it seems that affiant is referring to large quantities of drugs, as opposed to smaller amounts for personal use.