Court of Appeal for Ontario

Date: 2025-04-29
Docket: C69499
Coram: van Rensburg and Coroza JJ.A. and O’Marra J. (ad hoc)

Between:
His Majesty the King (Respondent)
and
Dexter Griffith (Appellant)

Appearances:
Paul Alexander, for the appellant
Brendan Gluckman, for the respondent

Heard: 2025-03-06

On appeal from the conviction entered on September 25, 2019 by Justice Irving W. André of the Superior Court of Justice, sitting with a jury.

O’Marra J. (ad hoc):

Overview

[1] The appellant was convicted by a jury of possession of cocaine for the purpose of trafficking. Pursuant to a search warrant, the police had seized 0.5 kilograms of cocaine and drug paraphernalia at a residence they claimed was connected to the appellant and his girlfriend.

[2] The appellant challenged the search warrant on a pre-trial application based on alleged breaches of s. 8 of the Charter. The police obtained the search warrant by submitting an omnibus Information to Obtain (“ITO”) for eight locations. One of these locations was the residence of the appellant’s girlfriend, Natasha Ruddock. The police obtained the warrant for this residence by asserting that the appellant lived with Ms. Ruddock. During the application, the appellant raised the following issues:

• The issuing judge was misled by the failure of the affiant to include material information in the ITO; and
• The search warrant could not reasonably have been issued because the ITO included unsourced conclusory statements.

[3] Justice Ricchetti (the “reviewing judge”) dismissed the Charter application: R. v. Griffith, 2018 ONSC 6950. Based on an expanded record supplemented by examination of the ITO’s affiant, he found that the warrant could properly have been issued. The appellant proceeded to trial and was convicted.

[4] On appeal, the appellant submits that the reviewing judge erred in relying on the expanded record to buttress an ITO that was misleading and inadequate on its face.

[5] For the reasons that follow, I find that there was a breach of s. 8 of the Charter but the evidence should not be excluded pursuant to s. 24(2).

The Investigation

[6] In the summer and fall of 2015, the police were investigating a number of persons for suspected drug dealing. The main targets were suspected of conspiracy to import and traffic in cocaine. Information from a confidential informant implicated the appellant in the conspiracy to move the drugs. Police surveillance was conducted on the appellant and others.

[7] Based on an omnibus ITO, the police were granted search warrants on September 30, 2015 for eight locations including the apartment of Ms. Ruddock on Rowntree Road (the “Rowntree residence”). The ITO asserted that the appellant lived there with Ms. Ruddock. The warrant was executed at the Rowntree residence on October 6, 2015. The cocaine and drug paraphernalia were seized inside.

[8] Based on surveillance and intercepted communications, the appellant does not dispute that there were reasonable grounds to believe he was involved in drug offences. The contentious issue is whether there were reasonable grounds to believe that there were drugs at the Rowntree residence connected to the appellant.

The ITO

[9] In the ITO, the police asserted that the appellant lived at the Rowntree residence with Ms. Ruddock. They asserted that she was his girlfriend and that they lived together there based on “information obtained from some intercepted calls”. There was no summary of the information from those calls that led the police to believe that the appellant and Ms. Ruddock were in a romantic relationship.

[10] A check of Ministry of Transport (“MTO”) records listed the address of Ms. Ruddock as the Rowntree residence. This information was included in the ITO.

[11] The ITO referred to surveillance on September 17, 2015 where the appellant and another target were observed along with an “unknown female” in what appeared to be a drug transaction. The three were in a vehicle that travelled to the Rowntree residence. The three persons went into the building but the surveillance could not see which unit they went to. The three persons later left the building and the female drove away separately.

[12] The ITO asserted that the appellant had been at the Rowntree residence on several occasions. However, the ITO only referred specifically to the September 17, 2015 incident and July 23, 2015 when the appellant was observed driving away from that address. There was no further information as to whether he was seen at the address with Ms. Ruddock or whether he was in the unit specified in the ITO. The affiant simply stated that the address was “identified as the residence of Dexter Griffith” and that “police surveillance units have placed him at that address”. There was no further explanation as to why the affiant believed the appellant lived there.

Charter Challenge at Trial

[13] The appellant made a facial and sub-facial challenge to the warrant and submitted that the affiant of the ITO failed to provide material information that effectively misled the issuing judge. The police had the following information that was not included in the ITO:

• The appellant’s registered address at the time of the search warrant was in Ajax.
• Surveillance in July 2015 at 2 Eva Court appeared to show that the appellant lived there.

[14] To counter the appellant’s argument of material non-disclosure, the Crown elicited in examination of the affiant further information that was known to the affiant when the ITO was submitted. On cross-examination, defence counsel elicited additional information. The information that came out from the affiant’s examination in chief, cross-examination, and re-examination included the following:

• The police observed the appellant gaining access to a “security gatehouse” at the Rowntree residence.
• The police no longer observed the appellant living at the two other addresses after July 2015.
• Surveillance reports indicated that the appellant co-habited with Ms. Ruddock at the prior address on Eva Road.
• On June 18, 2015, Ms. Ruddock was seen to depart the Eva Road address and drive the appellant’s vehicle to pick up her children.
• On June 19, 2015, Ms. Ruddock was seen to depart the Eva Road address and drive the appellant’s vehicle to an apartment building to pick up her children.
• On June 23, 2015, the police observed the appellant and Ms. Ruddock depart the Eva Road address in his vehicle and pick up her children before returning to the Eva Road address.
• On June 24, 2015, the police observed the appellant and Ms. Ruddock depart from 2 Eva Road together.
• On July 7, 2015, the police saw the appellant enter the Rowntree residence after stopping at the “security gatehouse”. He later drove away from that address.
• On July 8, 2015, the police saw the appellant and Ms. Ruddock attend together at the emergency department of Toronto General Hospital. They were later seen to leave together, make a series of stops, pick up a child at school and return to the Eva Road address.
• On July 9, 2015, the police saw the appellant and Ms. Ruddock together as they drove away from the Eva Road address.
• On July 10, 2015, the police saw Ms. Ruddock drive away from the Eva Road address.
• On July 23, 2015, the appellant and Ms. Ruddock were observed in the area of the Rowntree residence.
• On September 17, 2015, the police observed the appellant, Ms. Ruddock and another target involved in an apparent drug transaction.
• On July 13 or 14, 2015, Ms. Ruddock changed her registered address with MTO to the Rowntree residence.

[15] The Crown did not apply to amplify the information in the ITO. The word “amplification” was not mentioned by counsel or the reviewing judge. The reviewing judge did not call on the Crown for submissions before the Charter application was dismissed. However, the Charter ruling was based largely on information elicited during the examination of the affiant that was not contained in the ITO.

[16] In his ruling, the reviewing judge reasonably held that having one residence does not exclude having a second residence. Thus, the failure to refer to the locations other than the Rowntree residence did not vitiate the validity of the warrant. In paragraph 46 of the ruling, he referred to “considerable additional credible and reliable evidence uncovered by the police (as set out in the ITO)”. Unfortunately, significant portions of the evidence he pointed to were not in the ITO but had been elicited during the affiant’s examination.

Analysis

[17] The crux of the appellant’s argument is that the reviewing judge erred by amplifying the record with “after-the-fact” evidence that was not placed before the issuing justice. For its part, the Crown submits that the reviewing judge rightly relied on the amplified record to dismiss the Charter application.

[18] In my view, respectfully, the reviewing judge erred in his analysis. Resort to amplification of the contents of an ITO is available where there are minor, technical errors made by the affiant in good faith: R. v. Araujo, 2000 SCC 65, para 59; R. v. Morelli, 2010 SCC 8, para 41; R. v. Booth, 2019 ONCA 970, para 59; R. v. Tran, 2024 ONCA 542, para 30.

[19] The focus on amplification in this appeal is on whether the police had information at the time they applied for the search warrant but failed to communicate it due to a failure in drafting. While amplification is not restricted to correcting mechanical or typographical errors but extends to failures to communicate what was known by the affiant as a result of want of drafting skill, see R. v. Duncan, 2021 ONCA 673, paras 14-16 and R. v. Nguyen, 2023 ONCA 291, para 32, it is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so. To permit this would turn the authorization process into a sham: Booth, para 66 citing Morelli, para 42 and Araujo, para 59.

[20] In R. v. Jaser, 2014 ONSC 6052, paras 78-81, Code J. helpfully reviewed the authorities and cast doubt on whether the Crown in such a situation could rely on an expanded record filed by an applicant in order to strengthen the affiant’s grounds.

[21] It is also problematic that there was no request by the Crown on the application for consideration of an amplified record. In any case where the Crown anticipates applying for consideration of an amplified record, they should declare it early on so it can be properly replied to, considered, and ruled on.

[22] In this case, the reviewing judge properly considered the expanded record in assessing whether the issuing judge was misled. His ruling that the ITO was not misleading is reasonable and unassailable on appeal. However, the reviewing judge was in error in relying on the expanded record to bolster the grounds in the ITO. This error is plainly seen in paragraph 46 of the reviewing judge’s reasons where he rebutted defence counsel’s submission that material facts were omitted from the ITO:

However, there is considerable additional credible and reliable evidence uncovered by the police (as set out in the ITO):

a) Mr. Griffith was seen going to the Rowntree Road apartments on July 7, 2015. He was able to gain access to the apartment building after stopping at the “security gatehouse”. The obvious inference is that he has a connection with this location and was permitted access;

b) The latter surveillance on July 20, and 21 2015 did not show Mr. Griffith as connected to the 2 Eva Court address. No subsequent surveillance (on any of the suspects) showed a connection between Mr. Griffith or Ms. Ruddock and the Eva Court address;

c) A MTO search for Ms. Ruddock in early June showed her change of address to 611-3 Rowntree Road (the Searched Premises) as her residence. Given that Mr. Griffith and Ms. Ruddock were living together and continued to be seen together, it would be reasonable to infer that Mr. Griffith was also living at 611-3 Rowntree Road after this change of address;

d) Mr. Griffith was seen at the 3 Rowntree Road address on July 23, 2015; and

e) Mr. Griffith and Ms. Ruddock (along with Mr. Martelly) were seen entering the 3 Rowntree Road building on September 17, 2015, immediately after they conducted a drug purchase transaction. [Emphasis added]

[23] Only part of subparagraph (c) (the MTO search), and (d) and (e) were included in the ITO. The remaining evidence was garnered during the examination of the affiant, after the search warrant had been issued. Without this additional information, on its face, the ITO did not provide an adequate basis upon which the warrant could issue. As a result, there was a breach of s. 8.

[24] However, the fact that the failure to include the further information was not misleading, and in fact would bolster the grounds, has implications for the analysis under s. 24(2) of the Charter.

Section 24(2) of the Charter

[25] Since there was a breach of s. 8 of the Charter, this court must consider the three lines of inquiry set out in R. v. Grant, 2009 SCC 32 afresh.

(1) Seriousness of the Charter infringing conduct

[26] The seriousness of the breach in these circumstances would be at the lowest end and favour inclusion of the evidence. The police reasonably believed that they acted on a valid search warrant. There was no wilful disregard of the appellant’s Charter rights. The reviewing judge’s factual finding that there was no bad faith is owed deference. Further, the issuing judge would not have been misled if the information that was known to the affiant but not included in the ITO had been included. On appeal, counsel for the appellant reasonably conceded that the further information in fact would have provided reasonable grounds for the warrant.

(2) Impact on the appellant’s Charter-protected interests

[27] The impact on the appellant favours exclusion. The search warrant was executed in a residence where the appellant had a very high expectation of privacy: R. v. Silveira, para 140. The impact on his Charter-protected interests was serious.

(3) Society’s interest in the adjudication of the case on its merits

[28] The third factor favours inclusion of the evidence. Inside the appellant’s residence, the police discovered cell phones, digital scales, a brown plastic vacuum sealed bag with cocaine, and some crack cocaine. This evidence was highly reliable and critical to the Crown’s case.

(4) Balancing the factors

[29] Balancing all the factors, the appellant has failed to show that admission of the evidence would bring the administration of justice into disrepute. The evidence was properly admissible.

Disposition

[30] Accordingly, for these reasons I would dismiss the appeal.

Released: 2025-04-29

“K.M.v.R.”

“B.P. O’Marra (ad hoc)”

“I agree. K. van Rensburg J.A.”

“I agree. S. Coroza J.A.”