Ontario Court of Justice

Date: April 29, 2019

Between:

Her Majesty the Queen

— and —

Kevin Tran

Before: Justice Louise A. Botham

Ruling on Section 8 Challenge to the DNA Warrant

Counsel:

• Christopher Greene & Ildiko Erdei for the Public Prosecution Service of Canada
• Gregory Lafontaine for the defendant Tran

BOTHAM J.:

[1] On October 23, 2017, a search warrant was executed at Unit 411, 235 Sherway Gardens Drive. A firearm with ammunition was found there. A second search warrant was executed at 2240 Lakeshore Boulevard West, Unit 1205. The Applicant was arrested at that address and found to be in possession of a key which could unlock Unit 411.

[2] On January 22, 2019 a warrant was issued for the seizure of a DNA sample from the Applicant. A copy of that Information to Obtain (ITO) has been filed as part of the Application record.

[3] The Applicant challenges the issuance of the warrant on the grounds that the ITO sets out inaccurate information, namely that:

(a) "Nguyen and Tran were observed engaging in activity consistent with the trafficking of controlled substances".

(b) On October 17, 2017, surveillance officers observed Kevin Tran, Thanh Nguyen and Linda Nguyen leaving 235 Sherway Gardens Drive, Unit 411 with a backpack and shoulder bag.

[4] One can only assume that the Affiant was relying on the surveillance evidence set out in the previous ITO used to apply for warrants to search the Sherway and Lakeshore locations. Certainly there is no suggestion that there was additional surveillance of either Nguyen or Tran which had not been referenced in that original ITO.

[5] A review of the initial ITO prepared in support of the warrants to search the Sherway and Lakeshore properties does not disclose any observation of Kevin Tran engaging in specific activity consistent with drug trafficking.

[6] Nor does the original ITO contain any reference to observing Mr. Tran exiting Unit 411, 235 Sherway Gardens Drive in October 2017.

[7] Those two aspects of the ITO should therefore be excised. However, even with those excisions, I am satisfied that there was a basis to authorize the seizure of the Applicant's DNA.

[8] Although the Applicant had not been observed entering or exiting Unit 411, he had been seen on CCTV footage using a fob associated with that unit to enter the building. He had also been observed leaving the underground parking lot of the building with Thanh Nguyen a suspected drug trafficker who was associated with Unit 411. As well, on October 23, 2017, he was in possession of a key to Unit 411.

[9] Earlier that day a firearm and bullets had been located in Unit 411. A DNA profile was obtained from the firearm. It was reasonable to think that the Applicant might have been in possession of that firearm, given the evidence of his association with the unit.

[10] I am satisfied that there was a basis to issue the warrant and the Applicant's application fails.

Justice Louise A. Botham