Court File and Parties

Court File No.: Brampton 14-12714 Date: 2016-10-05 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Johnson Nguyen

Before: Justice W.J. Blacklock

Heard on: June 17, August 26 and September 22, 2016

Reasons for Judgment released on: October 5, 2016

Counsel:

• H. Akin, for the Crown
• L. Shemesh, for the defendant Johnson Nguyen

Reasons for Judgment

BLACKLOCK J.:

Introduction

[1] I have before me Mr Johnson Nguyen. I am now dealing with an application to exclude evidence in the form of drugs seized by police during the course of their investigation into the accused's activities. These drugs were seized pursuant to the authority of a search warrant issued by a justice of the peace on the basis of an "information to obtain" (ITO) drafted by Cst. Murphy and submitted for the consideration of the justice of the peace by means of telewarrant in the very early morning hours of October 11, 2014, following surveillance conducted subsequent to 11:00 PM on October 10, 2014.

[2] It is alleged by the defence that the warrant is not sustainable as, after appropriate excision, there are no reasonable and probable grounds to support its issuance, and thus the search is said to be a breach of section 8 of the Charter of Rights and Freedoms. It is also argued on behalf of the defence that they have discharged their onus under section 24(2) of the Charter to justify the exclusion of the presumptively admissible fruits of the unconstitutional search, as it is said that the admission of this material would bring the administration of justice into disrepute in the circumstances of this case.

[3] The Crown's position is that no breach has been made out and the ITO, even after any proper editing, contains reliable material upon which the issuing justice could have rested a finding that the requisite grounds for the warrant were present. In the alternative, even if there is a breach of section 8 of the Charter the Crown says the drugs seized ought not to be excluded under section 24(2).

Procedural Framework

[4] In this case, in an effort to support the warrant, the Crown has had recourse to what is sometimes referred to as "step six" in the analysis called for by the Supreme Court of Canada in R. v. Garofoli. In accordance with the subsequent authorities that have addressed this procedure, a series of judicial summaries were provided to the defence in this case. In addition, the process of drafting the judicial summaries also led to the provision of additional Crown disclosure over and above the material provided by way of original disclosure, which included a Crown edited ITO. I also permitted cross-examination of the affiant in this case in certain areas.

[5] During the closing oral submissions the defence asked me to ignore the last disclosure provided by the Crown. This material was apparently provided after the evidence on the section 8 application was completed but prior to written submissions being filed. This disclosure was contained in Appendix A to the Crown's written submissions. I can indicate that I am prepared to proceed this way, as this additional disclosure does not impact on my views of any of the issues presented to me in this case, including the ability of the defence to avail itself of the right to make full answer and defence.

[6] I am satisfied that when all the material properly considered is taken together, along with the defence's ability to call evidence, as well as its ability to make submissions generally, hypothetically and in the alternative, they have been afforded the right to make full answer and defence in this matter, notwithstanding that there have been significant redactions made to the information to obtain in this case. Having come to that conclusion, the authorities are clear that I am to consider the validity of the search based on the ITO in its original form as presented to the issuing justice, subject to what I say below about judicial editing, and the evidence called on the section 8 application.

[7] In coming to grips with this case, I must say I have struggled to determine with clarity the entirety of the proper framework for analysis in this type of case.

[8] Certain things in that framework are now relatively clear to me, others remain less so.

Legal Framework for Warrant Review

[9] I will start this way. Our Court of Appeal has set out clearly a number of principles in R. v. Sadikov governing the issuance of CDSA warrants and these applications. The relevant passages can be found at para 83-89 and they read as follows:

The Standard for Issuance of Section 11 CDSA Warrants

[80] A justice to whom an ex parte application for a search warrant is made under s. 11(1) CDSA must be satisfied by the contents of the ITO that there are reasonable grounds to believe that:

i. a controlled substance or precursor in respect of which the CDSA has been contravened;

ii. anything in which a controlled substance is contained or concealed;

iii. offence-related property; or

iv. anything that will afford evidence in respect of a CDSA offence or a related proceeds crime

is in a place described in the warrant.

[81] The statutory standard – "reasonable grounds to believe" – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson, 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[82] The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; and Wilson, at para. 52.

The Standard for Warrant Review

[83] Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Sadikov.

[84] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is 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: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.

[85] The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43.

[86] Warrant review is an integral part – a first step – in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored: Ebanks, at para. 21. In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.

[87] Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review: Garofoli, at p. 1452; and Ebanks, at para. 20.

[88] It is no part of the reviewing judge's mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge's role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40.

[89] A final point. An appellate court owes deference to the findings of the reviewing judge in her assessment of the record as amplified on the review and her disposition of the s. 8 application. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge's decision: Ebanks, at para. 22; and R. v. Grant, 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal to S.C.C. refused, 150 C.C.C. (3d) vi.

Duty of Affiant and Errors in ITOs

[10] I would in addition observe that because an application for a search warrant is ex parte, affiants have a special obligation to make full, fair and frank disclosure regarding material matters to the issuing justice.

[11] It has been said, however, that it must also be born in mind in assessing an ITO that the officers drafting them are not legally trained draftsmen and, given the need to preserve evidence, an ITO can be prepared under real time pressures and without input from Crown counsel. As such, it may not be surprising that an ITO will contain certain errors and may not be couched in language that is as precise as expected in pleadings prepared by those who are legally trained and operating under more relaxed time constraints. See in that regard R v. Ngo, 2011 ONSC 6676, 2011 OJ No 5023 para 34-35 and R. v. Sanchez, 93 CCC (3rd) 357 at 364.

[12] As adverted to in Sadikov supra, it appears clear, on the all the authorities, that even a finding of actual fraud on the part of the affiant is not necessarily determinative of the type of review the applicant has sought before me on this application.

[13] This was made clear as early as the decision of the Supreme Court of Canada in R. v. Garofoli supra. At para 56 of Garofoli the court states:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. (emphasis added)

Bad Faith and Abuse of Process

[14] There are authorities decided subsequent to Garofoli, however, that make it clear that there is a narrow basis upon which a finding of bad faith on the part of the affiant can be itself an independent head to set aside a search warrant. This remedy is available when the court is satisfied that the dishonesty is "so subversive of the search warrant process" that the resulting warrant must be set aside "to protect the process and the preventative function it serves". It has been said that this branch of the test is in effect an application of notions akin to abuse of process. See in that regard R. v. Herdsman, 2012 ONCJ 739, O.J. No 5598 para 30-31, R. v. Vivar, 2009 ONCA 433, 2009 OJ No 2126 at para 2, R. v. Araujo supra para 54, and R. v. McLetchie, 2011 ONSC 1016 para 30-31.

[15] The Court of Appeal in R. v. Lahaie, [2010] 101 O.R. (3rd) 241, leave to appeal refused 2010 SCC No 371, held that the question of whether or not the hearing on the section 8 application revealed conduct that was abusive, in the sense that it was sufficiently subversive to the process of applying for the warrant, involved a "high hurdle" for the defence to overcome.

[16] As this branch of the test is rooted in concepts of abuse of process, it is clear to me that the onus to establish conduct that would turn the act of submitting the ITO into an abuse of process rests fully on the defence on the balance of probabilities. This means that they must establish not only the fact that there is erroneous information in the ITO, but that this erroneous information was a deliberate effort by the affiant to mislead the justice of the peace in issuing the warrant or involved other highly inappropriate conduct. Moreover, the applicant must satisfy the court on the balance of probabilities that the conduct is of a sufficient level of seriousness in the particular circumstances to be properly characterized as subversive to the whole process of applying for the warrant.

[17] It was never argued in this case that I should be satisfied that the police conduct in this case rose to that level. Rather, it was argued, as I understood it, that there were a series of errors in the ITO, and while the defence suggested that they were purposively misleading, it was certainly their position that whether I accepted that or not, given their nature, the proper remedy would be to excise whole paragraphs of the ITO that related to certain surveillance, or at least parts of paragraphs, and when that was done, no grounds could be said to exist for the warrant. It seemed to be part of the defence position that I could not use the evidence on the section 8 application to correct the erroneous information, as they were not errors committed in good faith nor were they minor or technical. It was also argued, in the alternative, that even if I could use the evidence on the section 8 hearing to correct the errors that have been established in this case, the evidence on the application made it clear that the surveillance evidence on the October 10 was so weak as to amount to virtually a nothing, and the grounds for the warrant needed to be assessed in that light.

[18] Had it been argued in this case, I can indicate that the defence would not have satisfied me that, in the circumstances here, that the affiant's conduct in filing this ITO was so egregious as to have subverted the whole process of applying for the warrant. I will now explain why.

Analysis of Alleged Errors in the ITO

Errors Regarding Prior History

[19] The errors which the defence pointed to in the areas other than the surveillance of October 10th, do not give me any real pause.

[20] There were complaints about the fact that the accused was referred in the ITO as having a past history associated with "trafficking" in drugs. It was also argued that the number and nature of police incidents in which the accused was associated with illegal substances was inaccurate. Off-setting the seriousness of these types of error, however, was the fact that the details of the police contacts were actually set out in the ITO. I am not satisfied that any error in these areas was deliberate. I am not satisfied that these errors represent anything more than errors which were the product of inattention and time pressures, as opposed to any conscious effort to purposefully paint the accused as more involved in the drug culture than was warranted. I also note that in assessing the weight to be put on this submission, it appears the officer could, if he had paid more attention to some of the paper work he had apparently printed off in putting the ITO together, in fact have painted a more serious picture in this regard than he did.

Errors Regarding Surveillance on October 10

[21] The allegation of erroneous material regarding the surveillance occurring on the 10th, however requires closer analysis. It also requires a closer look at the wording of the ITO.

[22] The ITO in this case is said to be an ITO for a telewarrant pursuant to section 11 of the Controlled Drugs and Substances Act. It is said to be the sworn information of Cst Tim Murphy. It is made up of a pre-printed form which has been filled out and sworn and attached are a number of appendices. Appendix C is said to contain the reasonable grounds to support the application. It then concludes by saying that the informant "states that all matters contained in the information are true to his knowledge and belief." Appendix C is attached and its first page contains an Introduction and concludes with the statement at the bottom of page one "I believe that the information contained in this affidavit is true". The balance of Appendix C is made up of information under the following headings: Investigative Databases, Background of the Investigation and Purpose of the Application, Grounds to Believe with subheadings Source One, Investigation, Reasonable Grounds to Believe the Offence Has Been Committed, Grounds to Believe that the Items to be Seized are at the Place To Be Searched, Grounds to Believe the Items to be Seized will afford Evidence of the Offence, Grounds to Believe it is Necessary to execute the Search Warrant at Night, Conclusion.

[23] In para 2 under the heading Background of the Investigation in the ITO asserts, "Police were doing observations of Nguyen's address and observed a male party exit the residence, walk to a plaza just south and get into a waiting vehicle and then exit."

[24] In paragraph 10, under the heading "Investigation" the ITO makes assertions in the same general area in the following terms, "I observed a male party exit 483 Pebblebrook Court and walk southbound towards the Rabba store. I observed the male get into the passenger seat of a grey Honda CRV that was idling with its headlights and brake lights on in the parking lot of Rabba. I drove to the area of the Rabba and observed the male get out of the passenger seat and depart."

[25] Under the heading "Reasonable Grounds to Believe the Offence has been Committed", the affiant asserts in paragraph 4, "During the very late hours of 10 October 2014 Police observed a male exit Nguyen's residence, get into the passenger seat of a motor vehicle that was occupied by a driver waiting at the Rabba then the male exited quickly." This paragraph is again re-asserted in identical terms in para 4 of the "Grounds to Believe the Items to be Seized at the Place to be Searched".

[26] It was argued by the defence that these statements had been established to contain erroneous material or were misleading. It was said that I should be satisfied that Cst. Murphy did not see anyone actually exit the target residence. Nor could he say the person was a male. He had not disclosed certain details of his surveillance which weakened it and he had not seen the "male" who was followed actually get out of the waiting vehicle and leave. I will deal with these matters one at a time.

Observation of Exit from Residence

[27] During the cross-examination of Cst. Murphy he agreed that he could not say he saw the person he followed on the 10th actually come out of 483 Pebblebrook. He also agreed from the witness box that he could not recall if he saw the person he followed on the 10th for the first time on the driveway of the target property or at the end of its driveway. His evidence was also that he could not recall if he could even see the driveway from his position. When pressed as to why he held the belief that the person came from that property the officer indicated he did not now recall any real specifics as to a precise placement of the individual involved when he was first observed. Given the distance in time we now are from his initial observations this does not necessarily surprise me.

[28] The officer also said, however, in his evidence that while the door to the residence was recessed and it could not be seen from his vantage point, he did have a view of the front area of the residence.

[29] The affiant stated that 483 Pebblebrook, the target residence, is only the third townhouse in from Kennedy Rd. It is a very short street with only a few houses located on solely the northerly side of the street. Cst. Murphy was parked across Kennedy Rd at the intersection of Kennedy and Candlestick. He was making his observations at about 11 PM and it was dark. There was no suggestion in his evidence that any vehicle arrived in the area around the time he became aware of the person's presence. He said he was about 100 meters away from the residence and from his vantage point so located, he testified that it appeared to him that the person came from the target property. He asserted that it was, in fact, this very perception that first drew his attention to the person in question. He also stated that he never saw this person west of the target property. He also asserted that he saw this person come out of Pebblebrook Court and onto the sidewalk running along Kennedy and proceed south towards a mall.

[30] I bear in mind in assessing this error and indeed all the alleged errors that this ITO was prepared under time pressure given the nature of the investigation and in the very early morning hours.

[31] While it may not be accurate to assert as a plain fact that the affiant saw with his own eyes a person actually "exit" the target residence I am not satisfied that the officer did not hold the belief when he drafted the ITO that on the basis of what he saw that he had in effect "observed" the person "exit" the residence. While viewed in isolation, the language used in the passages set out in paragraphs 23 to 25 above regarding "observing" a male "exit" as a plainly apparent fact instead of articulating it more clearly as a belief or perception and the precise basis upon which the belief or perception rested can be argued to have a misleading quality to it I could not be satisfied that this more likely than not reflects an intentional effort on the part of the officer at the time he submitted the ITO to mislead the justice in issuing the warrant or other inappropriate behaviour of a level requiring me to set aside this warrant.

[32] The defence argued at one point that I should be skeptical that anyone left the residence or that Cst. Murphy believed a person had exited this address on the basis of the interview the affiant conducted of the accused after the search warrant was issued. It was pointed out that the officer asked the accused during that interview if he had left his home the night of the surveillance and when the accused denied it the officer let the matter go without further probing. On the other hand, the officer's interview of the accused is far from an aggressive one generally. In addition, the fact that the officer asked this question can also be seen as supporting the fact that he in fact had reason to believe that someone had left the residence that night at the time he interviewed the accused and thus can be seen as supportive of the officer's evidence. In addition it is also apparent from the overall flow of these events that something was significant enough to the officer to make him willing to abandon his observation point on that residence. Something also led him to focus on Mr Pavio's car. I certainly am not satisfied that what the officer has said as to why he followed the investigative course he did in this case is not true.

Identification of Gender

[33] Next the affiant also indicated from the witness box during his cross-examination that he could not be "100% certain" that the person who was seen was in fact a "male". He noted he had placed the word male in his notes in brackets and in retrospect it might have been better to describe the "male" as a "person".

[34] It is argued that the reference to a male in the ITO is misleading. It said to have been advanced as a statement that the person was plainly as a matter of fact a male. It is not at all clear to me, however, from the evidence before me on this application that the officer did not in fact hold a real measure of belief at the time he drafted the ITO that the person he saw was a male so as to cause him to make the assertion he did. He may now feel that, to use his words, it "might have been better" for him to have used language that was not capable of being seen as an assertion that the person's gender was a plainly apparent fact.

[35] The affiant did, however, record the word "male" in the notes he made at the time although he placed the word in brackets. While asserting this matter in language that viewed in isolation could be seen as an assertion of a plainly apparent fact could be argued to be potentially misleading, I am not satisfied that this reflects more likely than not an intention, existent at the time of the drafting, of the ITO to actually mislead the issuing justice as to what the affiant then believed or amounted to other conduct that was so inappropriate as to require me to set aside this warrant. I am also bolstered in my views here by the fact that in the entire context of this ITO I do not see the person's gender is particularly germane to the warrant's validity.

Observation of Exit from Vehicle

[36] The third area where it is alleged that the ITO is erroneous or misleading is the assertion that the officer observed the person he was conducting surveillance on walk towards the Rabba, get into the passenger's seat of a waiting vehicle and to quickly exit it.

[37] In the box, the affiant gave evidence that confirmed he saw the person who had appeared to him to come from the area of 483 Pebblebrook, proceed south on Kennedy. The officer said he then moved from his observation point and had to travel north a short distance and do a U-turn around a median. He testified that as he passed the entrance to the Rabba off Kennedy, he saw a person wearing dark clothing, who he believed to be the same person he had seen coming from the area of 483 Pebblebrook, and move towards the Rabba lot get into the passenger's side of a waiting car. This car had its head lights and brake lights on. He agreed that it was dark and the time to observe the person as he passed was quick. He stated that the only thing he had put in his notes or that he now recalled in terms of characteristics that helped identify him was the dark clothing. He also stated, however, that he had done his best to make observations while driving safely and there was no other pedestrian traffic or other vehicles in the area. He testified that he believed a drug deal was about to be done and he did not want to "jump the gun" so he continued on down Kennedy to Eglinton made a turn and entered the Rabba lot from Eglinton. He testified that this was a short distance and after he had entered the lot he could see that the person on the passenger's side was gone and the car which had been waiting was leaving. He followed the vehicle for a period of time and then stopped the vehicle some distance from the mall. The driver, Mr Pavio, then made utterances which suggested he had just purchased what the officer believed to be marijuana. Mr Pavio did not, however, want to say anything else. The officer testified that he had never actually seen with his own eyes the passenger who he believed had come from the area of 483 Pebblebrook exit the vehicle and leave the lot but he in effect asserted that he held the belief that this is what had happened. I took it he held this belief as he had seen the passenger to be gone after the short drive down Kennedy and after the officer had entered into the Rabba lot from Eglinton.

[38] This body of evidence it is asserted suggests that there are other misleading matters in the above excerpted paragraphs of the ITO.

[39] The first matter is not so much an erroneous statement in the ITO as it is a failure to set out fully how the officer made his observations of the person in question as he moved down Kennedy Rd and got into the vehicle the officer ultimately monitored. These details may have been thought not to been significant to the officer at the time and he may have been trying to be concise but this can be seen as a failure to make full fair and frank disclosure and thus be misleading.

[40] In addition, while the excerpts set out above could, for the most part, be read as potentially being accurate, as in a sense the officer did make observations which were consistent with the passenger exiting and departing the vehicle quickly, they are erroneous and misleading to the extent that they indicate that the officer actually saw this later activity in any way with his own eyes.

[41] I am not satisfied however that these additional inaccuracies were more likely than not the product of a deliberate effort to mislead the justice or amount to other inappropriate conduct that is seriousness enough to be subversive to the warrant process.

[42] As I mentioned earlier, there certainly was something that took the officer's attention to Mr Pavio's car that night. The thing that makes real sense, given the officer's focus that night, was the officer's belief that the person in question had come from the area of 483 Pebblebrook Court and had walked to and got into the car that he then began to monitor and follow. Again the lack of certain detail in his evidence before me can certainly be seen as a product of the passage of time. The officer, in my view, had a basis, given his surveillance and observations, to believe it was the same person who had come from the area of 483 Pebblebrook who got into the waiting car on the passenger side. He also had every basis to assert that, within a very short time, that person was gone, which in turn clearly supported the assertion that the person had exited quickly and left the scene.

[43] The most misleading paragraph on this front is, in my view, paragraph 10 under the heading "Investigation" but the error it contains may well be due to something as simple as failing to pay enough attention to verb tense at that point. Moreover, once the officer has a basis to believe that the person who came from the area of 483 Pebblebrook got into the waiting car and then left quickly, there is little if any point to consciously fabricating the fact that he had actually also seen the person exit the car and leave as this is a matter that in the entire context of this warrant is of little import. This would in turn seem to make it quite unlikely that the officer would feel the need to consciously fabricate this or have a desire to mislead the justice on that count.

[44] As adverted to earlier, it was part of the defence submissions to me that the officer had consciously overstated his observations to mislead the justice into thinking that it was the Applicant who had trafficked drugs that night. I do not accept the submission that it has been shown to be more likely than not the case that the officer in preparing the ITO in the form he did felt he was, at that time, misleading the justice considering the warrant at all for all the reasons I have set out above. In addition I would add that, in my view, there would be little need to do so. When the entirety of the ITO is considered, the inference, at least at the investigative stage when the ITO was drafted, that the accused did just that remained a robust one even on the true state of affairs.

[45] I find then that I am not satisfied that there is anything considered individually or cumulatively in the affiant's conduct here that is so subversive to the process that the warrant should be set aside on that basis alone.

Excision of Erroneous Material

[46] That, however, is not the end of the matter. As pointed out in Sadikov supra, I have a duty to excise "erroneous" material in the ITO. On the question of "excision", it matters not that the material was a deliberate attempt to mislead the justice in considering the application for the warrant. If it is "erroneous", it must be removed. This was made clear in R. v. Araujo et al, 2000 SCC 65, 2000 149 CCC 3d 449 para 56-58. I have no right, however, to excise information which is not "erroneous". See R. v. Ebanks, 2009 ONCA 851, R. v. Jaser and Esseghaier, 2014 ONSC 6052 para 70-71. I am satisfied that the onus to establish the erroneous quality of the information rests on the defence on the balance of probabilities.

[47] In addition, if the officer has failed to make full, fair and frank disclosure, additional material called on the application may be resorted to certainly by the accused to fill in the gaps that the affiant has omitted. An example of this is R. v. Morelli, 2010 SCC 8, 2010 1 SCR 253 para 59-60.

[48] I must say that I am not fully satisfied when the ITO is read in its entirety that the specific references to "observing" a "male" "exit" the residence have been established as more likely than not to be truly "erroneous". I am not satisfied that this is not what the officer in good faith believed had happened in front of him at the time or that the ITO viewed in its totality should be seen as, in reality, asserting more than that. Nor am I satisfied that this is not what in effect happened.

[49] In case I am wrong in that view and these passages should be viewed as "erroneous" for purposes of applying the remedy of excision as they have a certain misleading quality to them being seen, in isolation, as assertions of plainly seen fact I will go on to consider the ITO on that basis.

[50] Taking this approach then, any reference to the word "exit" as applied to the target residence should be deleted. The use of the word "male" in reference to the person coming from the area of the residence would also be deleted.

[51] In addition, I can say that I am satisfied that the reference in paragraph 10 under the heading Investigation which states that the officer observed "the male get out of the passenger's seat and depart is erroneous. It may be a difference of degree but I see this as different than the use of the term "exit" in relation to the residence. There the officer on the evidence before me was present and actually saw actions that could lead him to believe he had "observed" an "exit". Here on his evidence he was not actually present to see any action that he could interpret as that. He only saw the results of such an action. In the same vein, under the heading "Background" of the Investigation" in the second paragraph, the use of the words "then exit" in the possible context of an actual "observation" I am satisfied is erroneous and that phrase will also be deleted. The word "briefly" which occurs at this point in the ITO will however remain as its use is not erroneous or misleading. It is arguable that once these two corrections are made the content of paragraph 4 under the heading "Reasonable Grounds to Believe the Offence Has Been Committed" is accurate. The same can be said for the last reference referred to above regarding the person exiting the car quickly under the heading Grounds to Believe that the Items to be Seized are at the Place to be searched. In case I am wrong in that, I am prepared, however, to proceed to analyze this case on the basis that the phrase "then the male exited quickly" appearing in both places should be deleted.

[52] In addition I would, in Appendix D, delete the reference to "5" as the occurrence referred to in paragraph 4 (b) under the heading Investigation does not reveal any clear basis to put and the accused in possession of marijuana on that occasion. Finally I will also delete the phrase "or trafficking in either". Although some of the occurrences in this case may have been headed "trafficking" it appears that in none of them was the accused so charged. He was, as is set out in the ITO, only actually charged with possession for the purpose of trafficking.

Amplification and Correction of the ITO

[53] I must now decide whether or not it is appropriate for me to have recourse to the record before me on the section 8 application to fill any gaps created by any of these excisions.

[54] None of the deletions I have set out above require me to consider making corrections other than the deletion of the word "exit" when referable to the target residence. While the deletion of the word "male" make certain passages in the ITO unintelligible others are not as they continue to contain a reference to the word "party". I believe I must, in light of the comments in Sadikov supra at para 82, consider the ITO as a whole in applying the Garofoli test and as a result there is no need for any corrective action in this area.

[55] I believe I should consider whether or not to add correcting information in the areas in which I have deleted the word exit in relation to the residence. If those paragraphs are left as is after the excision of the word exit they become unintelligible throughout the ITO. Is it appropriate for me to add any correcting material in this area?

[56] This raises certain issues that I do not see as clearly addressed in the authorities.

[57] As mentioned in Sadikov supra para 85 if the erroneous material has been inserted to deliberately mislead the justice, no correction can be made. See also McLetchie supra para 33.

[58] One issue that has not, to my knowledge, been clearly addressed is who the onus in this regard rests on. One view would be that, this being a warranted search, presumed to be valid, the onus should be on the defence to establish all important elements going into the breach. Sadikov talks for example of erroneous statements not necessarily being enough "to ground a "finding" of bad faith let alone to set aside the warrant". This suggests to me a necessity to make a "finding" which in turn suggests an onus on the accused. In addition, if the correcting function of the reviewing court is confined in all circumstances to minor technical matters this allocation of the burden may make more sense.

[59] On the other hand, the approach might be here that, the defence having established the erroneousness of the material in question, and given the importance of the notion of prior judicial approval, the onus should be on the Crown in some fashion to satisfy me that it is more likely than not that the relevant error was made in good faith as a preliminary hurdle to opening any door to any form of correction. Certainly there are courts whose reasons appear to treat the matter that way although without expressly considering the issue. See for example McLetchie supra para 34.

[60] In this case, I am prepared to assume without deciding that the onus is on the Crown to satisfy me that it is more likely than not that the error as to describing the "exit" of the residence is a good faith error.

[61] I find again, for all the considerations discussed above in paragraphs 26-45 and in particular at paragraphs 26-33, that I am satisfied of this notwithstanding that I am now treating the onus in this regard as being on the Crown.

[62] I find the authorities to be confusing on what I see as the next issue. Some of them suggest that any correction to the ITO which in any way has the effect of assisting the Crown is "amplification". As a result, only errors which the court is satisfied can be characterized as "minor" or "technical" can be corrected, even if they are made in good faith. Another approach is reflected in the reasons of Mr Justice Code in Jaser supra. His reasons suggest to me that if the error is made in good faith, if it can be characterized as a failure to make full fair and frank disclosure, if the correction flows out of evidence led by the defence in an effort to weaken the ITO and if the correction does not have the effect of strengthening the grounds in the warrant as presented to the justice, then the correction can potentially be made whether "minor" or "technical" or not. Justice Code suggests as I read him that true "amplification" should only be seen as arising when the Crown had adduced evidence on the section 8 application in an attempt to add matters that were actually omitted from the ITO. In those instances the Crown is clearly limited to addressing only "minor" or "technical" matters.

[63] It certainly can be argued that paragraph 85 in Sadikov supra is authority for the proposition that all aspects of the reviewing court's corrective function are confined to errors that are considered to be minor or technical, although this does not appear to have been a clear issue in the case. Justice Code does refer to Sadikov in paragraph 41 of Jaser supra and he does not seem to feel that anything in Sadikov forecloses the analysis I have attempted to describe above.

[64] In the context of this case, I again fortunately do not have to decide this issue. I am satisfied that the difference between seeing the person actually "exit" the target residence and in seeing a person appearing to come from the area of that residence on foot, at this hour, in the circumstances described, is not particularly significant in the overall context of this warrant application and as a result it can properly be seen as "minor". I would note this change does not strengthen the grounds as originally presented to the issuing justice. If I am wrong to characterize this change as minor then I would assuming it to be open to me in law adopted Justice Code's analysis in Jaser supra and still would have been prepared to make this correction. As a result, I would substitute for the word "exit" in relation to the residence the phrase, "who appeared to come from the area of".

[65] I believe I certainly can fill the gaps attendant on the affiant's failure to make a more detailed reference to the surveillance on the person coming from the area of the target residence and going to the waiting car. This is something I would be doing on behalf of the defence. This is clearly akin to the course taken in R. v. Morelli supra, wherein the Supreme Court was prepared to consider a number of factors omitted by the affiant that made the inference that the accused in that case was in possession of child pornography more sinister. I can say then that I am prepared to consider, as part of my review in this matter, the body of evidence lead on the application that I heard and have attempted to summarize in para 37 above as part of my review of this warrant. As I read Morelli, supra this is in effect how the Supreme Court approached taking the additional factors that had been omitted in that case into account.

Assessment of Reasonable Grounds

[66] In light of those conclusions then, it is time to assess whether or not there were grounds upon which the justice could have issued this warrant.

[67] As briefly adverted to earlier, our Court of Appeal has recognized that the issuing justice is to consider the ITO as a whole and approach the issue as to whether or not it contains the necessary grounds in a "common sense, practical and non-technical way". R. v. Sadikov supra para 82.

[68] I remind myself that the test I am to apply in the review of this warrant does not involve a standard of correctness. In other words, I am not here to determine whether or not I would have issued this warrant. The standard that has been developed is whether or not there is reliable evidence that might be reasonably believed on which the warrant, could,-- not, would, be issued. R. v. Sadikov supra para 84.

[69] I also bear in mind that the standard of "reasonable grounds to believe" is, in fact, a relatively low standard of certainty. It is clearly a lower standard than proof "beyond a reasonable doubt" or "proof on the balance of probabilities". It has also been authoritatively said, in fact, to be even a lower standard than a "prima facie" case. It is no more than a "reasonably based probability".

[70] Reasonable grounds do not require a finding that the reasonably based probability rises to a level of probability that is more likely than not true. Sadikov supra says the inference of the commission of an offence and that evidence will be found must imply be "reasonable".

Informer Information and the "Three Cs" Test

[71] While even the standard of a "prima facie" case generally has nothing to do with assessing reliability or credibility or the weight to be attached to evidence, in the area of confidential informants the courts have taken a different approach.

[72] Whether or not an ITO that rests on the material provided by a confidential informant can be considered to be sufficient to meet the standard of reasonable grounds depends, in the words of Martin J.A., on the "totality of the circumstances".

[73] Martin JA, in his so typically clear and pointed way, described the types of factors that a court might consider in assessing whether or not information from a confidential informant amounted to reasonable grounds in R. v. Debot, (1986) 30 ccc (3rd) 207 at 209. There he stated:

Highly relevant to whether information supplied by an informer constitutes reasonable grounds … are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

[Emphasis added]

[74] As Justice Green in R. v. Bernabe, 2014 OJ No 5617 notes at paragraph 16 'the totality of the circumstances' test as described by Martin JA has in essence been adopted by the Supreme Court of Canada and has been said by them to involve at least three concerns. Was the information compelling? Was it credible? Was it corroborated?

[75] Because in the final analysis, the question of whether or not information from a confidential informant amounts to reasonable grounds to believe depends on the "totality of the circumstances", it is settled that deficiencies in certain areas of what has come to be known as the "three C's" can be made up by reference to strengths in the others.

[76] Justice Green went on in Bernabe supra at para 16 to state:

The "three Cs" -- "compelling", "credible" and "corroborated" -- have since become the legal shorthand for review of the constitutional sufficiency of searches founded on informer tips. As helpfully explained by Code, J. in R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892, at para. 35:

It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to any supporting information uncovered by the police investigation. [Emphasis added]

[77] It has also been said that a reviewing court must be mindful in assessing the question of whether or not the corrected ITO contains information leaving it open to a justice of the peace to find that reasonable grounds exist that both the issuing justice and the affiant are entitled to draw reasonable inferences. Regina v Ngo supra para 35.

Application to This Case

[78] Bearing all these principles in mind, I can say that I am satisfied that the ITO as I have edited it still contains reliable material upon which a justice could have issued a warrant in this case.

[79] Is the informant credible? The informant, as defence counsel points out, is not a previously tested and proven reliable source. This means that special attention must be paid to confirmation of his information and the nature of his information. Having said that, the justice had information regarding the record or lack thereof and information as to the nature of the consideration involved. I do not want to discuss this in detail given the nature of the informer privilege. These matters however give the justice tools to consider the credibility of the informant and permit me to assess this factor in terms of the ultimate test I must apply. In addition, I would note this informant was known to the officer to some degree. He was not an simply "anonymous tipster".

[80] Is the information provided by the informant compelling? I am, on this feature of the case, again restricted in my ability to explain fully my assessment of this factor given the informer privilege. Having said that, I find the informant's information in this case to be compelling. In this regard, I have considered, in particular, under the heading "Grounds to Believe" paragraphs 1 c d f g h I j k l m n. These paragraphs all show knowledge of the accused's dealings and personal information. There is a basis upon which it would be open to the justice to conclude that significant portions of this information was based on first-hand information as opposed to secondary sources. The timing of the informant's dealing or dealings with the accused is, to some degree, described in a way that makes the information more compelling. The information is clearly based on more than rumor or gossip. In short, in my view the informant's information scores high on the compelling front.

[81] Is the informant's information adequately corroborated? The authorities in this area suggest that, in assessing the corroboration component of the "all the circumstances test", the issuing justice should take into account that corroboration of generally known facts will get relatively little weight.

[82] On the other hand, it has been said that it is not necessary to corroborate the informant by observing the target commit an actual offence, as such an occurrence is considered to be to require too much of law enforcement in a context in which timeliness remains important.

[83] In my view, the ITO shows that the officers were able to confirm a large number of matters. Some of these might be considered to be generally know, and thus to be entitled to little weight but the justice would be entitled to conclude that not all of them fit into this category. Again I feel constrained in referring to particular items or discussing the content of that confirmation given the informer privilege issues in this case. It seems to me that significant portions of the items contained in paragraph 1 were confirmed by the investigation as is evidenced under the heading "Investigation" paragraphs 2-10 and in Appendix D. I say this considering paragraph 10, as corrected by me on this application, and even in light of the Morelli-like material I was prepared to consider.

[84] In all those circumstances, when I consider the totality of the ITO as corrected on review, and in light of the evidence on the section 8 application, which it is appropriate for me to consider, I am satisfied that there were reliable grounds upon which the justice could have issued this warrant. As a result, there is no breach of section 8, in my view.

Amplification Evidence

[85] In light of my conclusion that the authorities were in fact in possession of what I see as grounds to support the issuance of the warrant in this case, I find I do not need to address the Crown's application to adduce amplification evidence on the questions of whether or not the informant was cautioned about the consequences of lying to the police, or regarding the reading of paragraphs l and m together. I will add however that in the final analysis I have now concluded that it would be open to the justice to read paragraphs 1 (l) and (m) together, given the direction in Sadikov, to read the ITO as a whole and in a common sense way. I say this apart from any application for amplification brought by the Crown. I will also state that even if I was wrong in that it would not change my analysis of this case in any respect.

Section 24(2) Analysis

[86] Turning then to section 24(2) of the Charter even assuming at the moment I was wrong in my conclusion that the correction of the word "exit" in relation to the residence was open to me as this was not a "minor" correction and even if this meant that the ITO itself did not contain any material upon which the ITO could properly have been issued, (which I should add I am not necessarily satisfied of), there would still be a question of whether or not the evidence in this case should be excluded. Given that I was satisfied that this was a good faith error and given that the affiant in fact had what to me are clear grounds to obtain the warrant in this case these features mitigate the seriousness of the breach significantly. See Regina v Jaser supra para 82-84. Regina v McLetchie supra para 39-45.

[87] I agree the Charter interests of the accused affected here are very significant indeed. We are dealing with a search of the home in the early morning hours. This pushes towards exclusion of the evidence.

[88] On the other hand, in considering the third line of inquiry relating to the societal interest in a determination on the merits, I would observe that the evidence found is reliable and real. The accused is in no way being conscripted even physically. The evidence is central to a determination on the merits.

[89] When I consider the three areas of inquiry that I must in totality, I find I am not satisfied, given the nature of the error I am discussing, that the administration of justice would be bought into disrepute by the admission of the evidence in question.

Released: October 5, 2016

Signed: Justice W.J. Blacklock