Court File and Parties

Ontario Court of Justice

Date: 2017-11-24

Court File No.: Newmarket 15-0479

Between:

Her Majesty the Queen

— and —

Mahyar Dadollahi-Sarab

Ruling on s.8 Garofoli Application

Heard: November 22-23, 2017

Delivered: November 24, 2017

Counsel:

Mr. Javier Arvizu — counsel for the Crown/Respondent

Mr. Benjamin Goldman — counsel for the Applicant

KENKEL J.:

Introduction

[1] Mr. Dadollahi-Sarab is charged with nine drug offences arising from a search warrant executed at his residence. The defendant submits that the warrant should not have been issued and the search breached his s.8 Charter right to be free from unreasonable search and seizure. A s.8 challenge to a warranted search is commonly referred to as a Garofoli application after the Supreme Court of Canada case that set the procedure for constitutional review of warrants and wiretaps. See: R v Garofoli, [1990] SCJ No 115. The defendant concedes that the address searched was his residence and he therefore has standing to bring this application.

[2] In this case the warrant review is not limited to the validity of the warrant on its face. The Crown does not seek to rely upon the portion of the Information to Obtain (ITO) that refers to confidential informant information. There is added information on consent marked as Exhibit D that refers to one surveillance observation not mentioned in the ITO that the defence submits is relevant to the characterization of conversations by the affiant. There is also a prior ITO in relation to a parallel homicide investigation marked as Exhibit A.

[3] The defence notes that there was a homicide investigation involving a number of parties including this accused that pre-dated this warrant application. The defence submits that this CDSA warrant was a mere tactic or ruse to gain entry into the accused's resident to install listening devices in relation to the homicide investigation. Relying on Brown v Durham Regional Police Force, [1998] OJ No 5274 (CA) at para 25, the defence submits that where the police rely on a statutory power simply as a ruse or pretext, the statute can provide no lawful authority for their actions. In the alternative, the defence submits that the evidence on this review does not show sufficient grounds for the warrant to have been issued.

[4] The Crown submits that the warrant meets the statutory test under s.11 on the record on this application. The fact that the police may have had a second purpose or motivation for obtaining the warrant is only relevant if the resulting ITO is insufficient. The test in Garofoli remains the only test to be applied.

The Warrant

[5] The warrant issued June 23, 2015 was based on the following information:

• Mr. Dadollahi-Sarab was under investigation in relation to a homicide
• Wiretap surveillance had been authorized and was active in relation to the accused's phone and the phone of his common-law partner
• The wiretap surveillance showed the accused speaking in coded language which appeared to refer to drug transactions
• Physical surveillance of the accused and his partner had been conducted on 9 days
• The physical surveillance conducted at different times on different days did not show the accused attending any regular employment. Surveillance did show the accused and his partner engaged in numerous short meetings which the affiant believed was consistent with drug trafficking.
• The accused had a prior conviction for possession of a scheduled substance for the purpose of trafficking in 2005
• The affiant believed that the items listed (cocaine, debt lists etc.) would be found at the accused's residence

[6] In the ITO the affiant also disclosed that if the CDSA warrant were granted the officers would use that opportunity to covertly install listening devices that had already been authorized pursuant to the homicide investigation.

The Search

[7] When the search warrant was executed officers seized the following items from the accused's residence:

• $11,080 CDN
• $270 USD
• 90 grams of cocaine
• 255 grams of opium
• ½ lb of marijuana
• 3 vials of cannabis resin
• 200 oxycodone pills
• 120 hydromorphone pills

The Garofoli Test

[8] The search warrant is presumed valid. The burden to prove invalidity falls on the applicant on the balance of probabilities – R v Sadikov, 2014 ONCA 72 at para 83.

[9] The legal test applied at this stage asks whether there was sufficient credible and reliable evidence to permit the Justice of the Peace to find that there were reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place – R v Morelli, 2010 SCC 8 at para 40. The court must determine whether there was reliable evidence that might reasonably be believed on which the warrant could – not would – have issued – Sadikov at para 84.

[10] In this case that test is applied to the record as amplified on review with the added observation on May 7th, and the prior ITO, and with the confidential informant information excised. The existence of misleading evidence, new evidence or the secondary purpose referred to by the defence are all relevant, but only as to whether there continues to be any basis for the decision of the authorizing Justice of the Peace – R v Garofoli, [1990] SCJ No 115 at para 56.

Reasonable Grounds for the CDSA Warrant

[11] This warrant was granted pursuant to s.11 of the Controlled Drugs and Substances Act, SC 1996 c 19 (CDSA). Section 11 requires that there be "reasonable grounds to believe" that a controlled substance or offence related property will be found at a place. The phrase "reasonable grounds to believe" does not require proof on the balance of probabilities. The statutory and constitutional standard is one of credibly-based probability – R v Sadikov, 2014 ONCA 72 at para 81.

[12] The defence submits that the evidence on this review shows the foundation for the warrant was simply innocent observations that were deemed consistent with drug trafficking only because of the affiant's presumption in that regard.

[13] The affiant referred to four dates on which the accused or his partner met with a person at a plaza nearby the accused's residence – May 4th 2015, May 6th, May 7th, and June 11th. One meeting on June 12th with the same person occurred at the side of a road. All meetings involved very brief interactions at the accused's vehicle. Another meeting with a different person was observed on June 11th at the same plaza also involving a brief interaction at the accused's vehicle.

[14] On May 7th the accused drove to the same plaza and met with an unidentified male. The unidentified man got into the accused's SUV, they drove to the back of the plaza and then two minutes later the accused dropped off the man at the front of the plaza and left. Although the police could not confirm the identity of the other driver, the vehicle is registered to a person with recent convictions for possessing CDSA Schedule I and Schedule II substances.

[15] On June 12th, police observed the accused in a driveway in Vaughan. A man standing in the driveway walked over to the accused and placed his hand inside the SUV window for a "short moment." The accused's hand motions appeared as if he were counting money. The meeting was brief. On the evening of June 12th the accused met with an unknown party in a store parking lot. The two parties met at their vehicles for less than 4 minutes then both left the parking lot. The accused met with another unknown male that evening in another store plaza parking lot. The parties stayed by their vehicles, met for one minute then both left the plaza.

[16] As the defence notes, the surveillance officers did not observe drugs or money exchanging hands during these meetings. The defence submits that absent direct observation of drug and money exchanges the meetings cannot add anything to the grounds for a warrant. The experienced drug officer explained why he drew inferences related to drug trafficking from the meeting observations. Frequent, brief vehicle meetings with various persons in plazas where neither party does business in the plaza and both leave immediately after are consistent with the officer's experience with drug traffickers who commonly use their vehicles in plazas and open areas known to them to shield their trafficking. The rapid departure of both parties after the meeting was also consistent with the typical circumstances of a drug exchange.

[17] I disagree with the defence that the fact that there is no direct observation of drugs and money being exchanged means that the surveillance evidence in this case is without value. It's common experience that most people attend shopping plazas to go to stores, restaurants or other businesses at that plaza. When people drive to a location to meet someone else it's not typical that both parties would leave after only a brief meeting. The circumstances of these numerous meetings with various individuals observed over a few days are highly unusual. While it might be possible to imagine scenarios other than drug trafficking as inferred by the officer, that is not the test. The affiant's experience with drug investigations reasonably explained why he drew the inference that these meetings were consistent with and evidence of drug trafficking. The evidence on this application as a whole shows that the officer's inference was reasonable.

[18] The affiant also relied upon information from the accused's intercepted communications. On June 23rd the accused exchanged text messages with a person who said they were at "pizza now" and asking for the accused to "come now". Mr. Dadollahi-Sarab asked the person if they had, "280 right?" They discussed meeting at a plaza. Later that person asked the accused to "shoot me 1 till then" as they wouldn't have their paycheque until the next day. The accused said he didn't do "spots" and threatened to block that person's number from his phone.

[19] On the afternoon of June 23rd the accused spoke with another person asking about "hardwood." The person asked the accused if he was "around for the usual cash up?" They arranged to meet. The meeting was observed by surveillance officers. The accused and his partner left their residence and picked up a female at another residence. They drove to a nearby plaza, the female went into a variety store, came back to the accused's SUV and was driven home. The entire meeting took 4 minutes. In further interceptions from that same number after the meeting, the person complained to Mr. Dadollahi-Sarab that they had "cooked back" about "50 percent" in total and only got a ".76 loss." They asked the accused for "0.5" to make up for the loss. The accused said he would not make up the loss.

[20] The officer inferred from all of the evidence that the term "hardwood" referred to crack cocaine as the term "hard" refers to the rock-like structure of crack. "Cash up" is a term used in the drug trade to refer to paying for drugs "up front." Reference to the "usual" indicated the person was a repeat customer. The term "spots" is a term used in the drug trade to refer to selling drugs on credit. The term "280" likely refers to $280 which is in the current price range for an "eight ball" (3.5 grams or 1/8th of an ounce) of cocaine in this area.

[21] The defence submits that the May 7th surveillance notes that were not included in the ITO other than by reference to further innocuous observations substantially changes the inferences reasonably available from the use of the word "hardwood." On May 7th surveillance officers observed the accused's partner Ms. Rahbary to leave their residence carrying a white and black grocery bag. She got into the SUV and the accused put a large duffel bag with an apparently heavy item in the back seat. Ms. Rahbary left and drove to a residential area by a shopping plaza. She circled numerous side streets then picked up an unknown male and dropped him off at the same location a short time later. When he was dropped off he was carrying the white and black grocery bag. The male then went to the driver's side rear seat and removed an orange and white power saw used to cut concrete.

[22] The observations referred to by the defence on May 7th do not reasonably render the affiant officer's inferences unreasonable on the whole of the evidence. The inference that Mr. Dadollahi-Sarab was simply in the construction business given the reference to "hardwood" in one conversation and the transfer of a saw on another occasion is only available when those two facts are considered in isolation. Considering the evidence on this application as a whole, including the unusual and frequent brief meetings at vehicles, the use of drug trade terms including "spots", "cash up" and "cooked back" and references to product loss, requests for product loan and reimbursement I find the affiant's conclusion in the ITO was reasonable and there was reliable evidence upon which the learned Justice of the Peace could have issued the warrant.

The CDSA Warrant as a Ruse

[23] The affiant was candid about the fact of the ongoing homicide investigation in relation to Mr. Dadollahi-Sarab and about his plan to use the CDSA warrant if granted as an opportunity to place covert surveillance devices in the accused's residence. The police had an order authorizing the covert placement of the devices in the accused's home but given the irregular schedule of the accused and his partner they had not found a time for surreptitious entry.

[24] The defence submits that the fact the police had another purpose in obtaining the CDSA warrant shows this warrant was a ruse as referred to in Brown at paragraph 25. The affiant's statements in both ITO's show that the entry to the accused's residence was the primary purpose. The defence submits that the officer's candour about the proposed second purpose is "shocking." Use of the CDSA search powers as a pretext to enter a home and install surveillance devices is plainly illegal and the authorizing Justice of the Peace should not have granted the warrant. The Federal Crown submits there was a legitimate dual purpose identified in the warrant, this is not a Garofoli issue and the warrant was otherwise properly issued.

[25] The cases cited by the defence concern the use of traffic vehicle stop provisions in provincial law for what were alleged to be broad and otherwise unfounded criminal investigations – R v Brown, R v Humphrey, 2011 ONSC 3024 at para 88, R v Gayle, 2015 ONCJ 575. The possible unfairness to the accused discussed in those cases is not present here where the police had learned through another investigation that the accused was likely trafficking in drugs. They engaged in a second parallel investigation based on the evidence referred to in the June 23rd ITO which led to the charges before the court. The presence of a "dual purpose" at the time the affiant applied for the warrant did not invalidate the resort to s.11 of the CDSA – R v Sandhu, 2011 ONCA 124. This applies even where the other purpose is the more important purpose in the eyes of the officer – Sandhu at para 62. I find the circumstances including the reference to the second purpose set out in the June 23rd ITO did not disclose a s.8 breach such that the authorizing Justice of the Peace should have declined to issue the warrant.

Conclusion

[26] I find that the applicant has failed to prove the breach alleged on the balance of probabilities. The application is dismissed.

Delivered: November 24, 2017

Justice Joseph F. Kenkel