Court of Appeal for Ontario

Date: 2025-03-17
Docket: COA-24-CR-0131
Coram: E.E. Gillese, P.J. Monahan, S. Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
Isaiah Todd (Applicant/Appellant)

Appearances:
Paul Aubin and Marianne Salih, for the appellant
Katie Doherty, for the respondent

Heard: March 12, 2025

On appeal from the conviction entered on July 19, 2023, by Justice Kofi N. Barnes of the Superior Court of Justice.

Reasons for Decision

Overview

[1] Following an unsuccessful s. 8 Charter application[^1] (the “Ruling”), the appellant pleaded no-contest to two counts: possession of a loaded firearm and possession of a firearm while prohibited by a Youth Criminal Justice Act, S.C. 2002, c. 1 order. He was sentenced to three and a half years in custody.

[2] The charges resulted from the execution of a search warrant by Peel Regional Police Service at a residence on Crenshaw Court (“Crenshaw”) in Brampton. At the Crenshaw residence, the police located a loaded silver/black semiautomatic Glock handgun under a cushion in the living room, tucked barrel down in the side of a loveseat. The firearm had an extended, transparent magazine (a prohibited device) containing multiple rounds of ammunition. One round was loaded in the chamber making the handgun ready to fire. At the time of the search, the appellant was serving a conditional sentence imposed for a second degree murder conviction he received as a youth. As part of that sentence, the appellant was subject to a lifetime weapons prohibition.

[3] On appeal, the appellant challenges the validity of the Ruling. He argues the reviewing judge erred in finding the information from the confidential informant (“CI”), on which the Information to Obtain (“ITO”) depended, compelling and corroborated. He also submits that the Crenshaw ITO failed to establish reasonable grounds to believe the firearm was at the Crenshaw residence. At the oral hearing of the appeal, he abandoned his subversion argument that had been raised for the first time on appeal.

[4] After hearing the appellant’s submissions, the court found it unnecessary to call on the Crown to respond and dismissed the appeal, with reasons to follow. These are the promised reasons.

Background

[5] Three warrants were issued in this matter: a tracker warrant for the appellant’s cell phone, a search warrant for Crenshaw, and a search warrant for two cell phones seized during the execution of the Crenshaw warrant. The ITOs for the tracker warrant and the Crenshaw search warrant both depended heavily on information provided by a CI who knew the appellant.

[6] On the appellant’s pre-trial motion, he argued the warrants were invalidly obtained because the CI information was not compelling, corroborated, or credible. As such, he contended his right to be free from unreasonable search and seizure protected by s. 8 of the Canadian Charter of Rights and Freedoms had been violated and the seized evidence should be excluded pursuant to s. 24(2).

[7] The Crown conceded that when properly amplified and excised, the redacted ITOs failed to provide a sufficient basis on which either warrant could have issued. As a result, it applied to use step 6 of the procedure contemplated in R. v. Garofoli, [1990] 2 S.C.R. 1421. It asked the court to consider as much of the redacted material in the ITO as was necessary to support the issuance of the tracking and search warrants.

[8] The reviewing judge gave lengthy and considered reasons in determining that the warrants could properly have issued and there was no s. 8 violation.

Analysis

[9] The appellant concedes that the reviewing judge correctly set out the applicable law governing her review of the warrants, including the CI information. However, the appellant submits that the reviewing judge mischaracterized the evidence in finding that the CI tip was compelling and in finding that the ITO established reasonable grounds to believe the firearm was at the Crenshaw residence.

[10] We reject these submissions.

[11] The reviewing judge considered all of the circumstances before concluding the CI tip was compelling. That conclusion was available to her on the record. The CI’s information was detailed, current, and based on personal knowledge. The CI knew the appellant well enough to describe him physically (appearance and age) and to identify him by his nickname (“Demon”). The CI had knowledge of the appellant’s cell phone number and how to contact “Demon” over social media. The police used information from social media to confirm that the person known as “Demon” was the appellant. While the CI’s specific means of knowledge that the appellant possessed a firearm was not fully disclosed due to concerns around revealing the CI’s identity, the CI did explain the means by which the CI knew the appellant possessed a firearm.

[12] Further, the reviewing judge acknowledged that the CI information did not expressly link the firearm to the Crenshaw residence. However, based on her evaluation of the entirety of the ITO, the reviewing judge was satisfied that the Crenshaw ITO set out information upon which the issuing judge could have been satisfied that the appellant was connected to a firearm and the appellant was connected to the Crenshaw residence. Together, these points disclosed the basis on which the issuing justice could have been satisfied that the item to be seized (the firearm) would be found at the place to be searched (the Crenshaw residence).

[13] The reviewing judge also provided a remedy to address the affiant’s failure to be full, fair, and frank regarding his beliefs about where the firearm would be found; she amplified the Crenshaw ITO to include the comments the affiant made in his ITO for the tracker warrant. She was satisfied there had been an evolution in the affiant’s thinking on where the gun could be found. This finding too was open to her on the record.

Disposition

[14] Accordingly, the appeal is dismissed.

“E.E. Gillese J.A.”
“P.J. Monahan J.A.”
“S. Gomery J.A.”

[^1]: The appellant’s Charter application, with reasons dated June 15, 2023, was decided by Justice Jennifer Woollcombe of the Superior Court of Justice: see R. v. Todd, 2023 ONSC 3496.