Court File and Parties

Ontario Court of Justice

Court File Nos.: Central East - Newmarket 4911-998-18-00525, 4911-998-18-06979

Date: 2019-05-09

Between:

Her Majesty the Queen

— and —

Greg Amponsah

Before: Justice A.A. Ghosh

Heard on: April 23, 2019

Reasons for Judgment released on: May 9, 2019

Counsel:

• J. Arvizu, counsel for the P.P.S.C.
• K. Hetherington, counsel for the applicant Mr. Amponsah

Reasons for Judgment

Overview

[1] Mr. Amponsah was tried before me for several drug trafficking-related charges involving heroin and other illicit substances, contrary to the Controlled Drugs and Substances Act (CDSA). The charges arose primarily out of the execution of a search warrant at the home of the defendant.

[2] Mr. Amponsah filed a Garofoli application pursuant to s.8 of the Charter, alleging that the information to obtain (ITO) sworn in support of the search warrant issued was deficient of reasonable grounds and violated his freedom against unreasonable search and seizure. His counsel applied to examine the police affiant who drafted the search warrant application and to exclude the results of the executed search warrant pursuant to s.24(2) of the Charter.

[3] The thrust of the Charter submission focused on the lack of reasonable grounds to support that any evidence would be specifically located in Mr. Amponsah's home, given the submitted absence of any evidence that drugs would be located there. The defence submitted that certain key passages in the ITO should be excised, as they materially misled the issuing justice, violating the "full, fair and frank" obligation imposed on officers applying for judicial authorization.

[4] Earlier in the proceedings, I granted leave to examine the affiant, the application itself and excluded the evidence with reasons to follow. My ruling informed the eventual resolution involving a guilty plea to possession for the purpose of trafficking of two ounces of packaged cannabis and my acceptance of the joint submission of a fine and forfeiture.

[5] These are the reasons in support of my findings regarding the application for Charter relief.

The Information to Obtain (ITO)

[6] A confidential human source (CHS) informed police of the following:

i. A male named "Andrew" was selling heroin that contained fentanyl.

ii. "Andrew" used a particular cell phone number to transact in illicit drugs.

iii. "Andrew" was a black male of a particular physical description.

iv. "Andrew" trafficked in controlled substances in Brampton.

[7] An undercover officer arranged to purchase 0.2 grams of heroin from "Andrew" using the phone number provided in the tip. "Andrew" asked the officer to arrive at the Shoppers Drug Mart plaza off of Bramalea Road in Brampton. "Andrew" was informed of the vehicle the undercover officer would be found in.

[8] The applicant soon entered the vehicle of the undercover officer and was immediately arrested for trafficking a controlled substance. No heroin was located. Mr. Amponsah had packaged marihuana on his person as well as the cell phone used to communicate with the undercover officer. The applicant's home, confirmed through a variety of means to be 49 Tobosa Trail, was 1.8 kilometres from the location of the arrest. Police sought and obtained a search warrant for 49 Tobosa Trail.

Evidence Seized from Search Warrant Execution at 49 Tobosa Trail

[9] Upon execution of the search warrant at the applicant's home at 49 Tobosa Trail, police seized: 448 grams of marihuana shake, 1.5 grams of heroin, 90 pills of Xanax, 13 pills of Morphine, 6 pills of OxyContin, and 1.2 grams of crack cocaine.

Analysis

Statutory Basis for Judicial Authorization to Search the Home

[10] The warrant to search 49 Tobosa Trail was issued pursuant to section 11(1) of the CDSA, which permits:

A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

Review of a Judicial Authorization: Legal Principles

[11] A section 8 Charter challenge to a judicial authorization can materialize in several ways. I will outline in summary form the principles applicable to this case. A warrant to search a place must be based on reasonable grounds that an offence has occurred and that there is evidence to be found there. The applicant conceded the reasonableness of grounds that he trafficked drugs. He resisted that there were reasonable grounds to believe evidence of trafficking would be found in his home.

[12] The reviewing judge does not consider the search warrant application afresh. Leave to cross-examine the affiant should be granted, as it was here, where there is a reasonable likelihood it will elicit evidence tending to undermine a precondition of the authorization. Whether it be discovered through cross-examination or other means, the reviewing court must then excise out any false or misleading information in the ITO. The Crown can apply to amplify the record on review to cure innocent errors or omissions in the ITO.

[13] The reviewing court then must finally determine, based on the record after amplification and excision, whether or not the warrant could have issued based on any remaining information deemed reliable. Determining whether or not a particular judicial authorization violated an applicant's s.8 Charter right engages a contextual analysis, bearing in mind the totality of the circumstances.

Leave to Cross-Examine the Affiant

[14] Leave of the court must be obtained in order for the applicant to have the affiant cross-examined. Leave should be granted by the court when the judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence.

[15] In order to obtain leave to cross-examine, the applicant must establish a "reasonable likelihood" that cross-examination will elicit testimony "tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establishing that there was no basis upon which the authorization could have been granted." R. v. Garofoli, paragraphs 88-89.

[16] I granted leave to cross-examine the affiant in specifically circumscribed areas that I determined would tend to discredit the existence of reasonable grounds to specifically search 49 Tobosa Trail. A tip from a confidential source sparked the investigation, but the applicant's name and address were not provided. No surveillance was conducted of Mr. Amponsah or of 49 Tobosa Trail prior to the applicant's arrest and the ensuing application to search the home.

[17] These preliminary observations permeate my finding that there was a reasonable likelihood that cross-examination regarding specifically alleged misrepresentations in the ITO would tend to establish transgressions of the "full, fair and frank" requirement, and to undermine the reasonableness of any grounds to search the home. The grounds to search the home were facially thin to begin with.

[18] Consequently, I granted the applicant leave to cross-examine the affiant in the following areas:

i. Misrepresentation of outstanding drug trafficking-related charges: The ITO incorrectly stated that the applicant was facing outstanding charges for possession of a controlled substance for the purpose of trafficking.

ii. Reasonableness of the affiant's belief of the presence of heroin at the time of arrest: The drug transaction with the undercover officer was ostensibly for a small amount of heroin. Despite the affiant's expressed belief that the applicant brought and likely discarded the heroin upon arrest, an extensive search in the confined vicinity of the arrest did not result in the location of any heroin or related packaging.

iii. Reasonableness of the officer's belief that the applicant brought drugs from his 49 Tobosa Trail to the drug transaction: The transaction with the undercover officer was to occur in the officer's car, which was parked in the lot of a strip mall. The applicant appeared to walk over to the undercover officer's car. The reasonableness of the affiant's belief that the applicant walked to the transaction from 49 Tobosa Trail with drugs in tow was facially vulnerable to scrutiny.

Excision from ITO of any Reference to Outstanding Charge

[19] Paragraph 23 of the ITO asserted that the applicant was "currently before the courts… for Possession for the Purpose …" and that he "has not been convicted of any criminal offences".

[20] The affiant conceded during cross-examination that he erred in including any reference to an outstanding charge involving drug trafficking. The applicant in fact was only charged with simple possession of a controlled substance. This charge had already been withdrawn at the time the ITO was sworn. The affiant could not have reasonably known about the withdrawal as he relied on a current CPIC inquiry that had not been updated to reflect the status of the charge.

[21] The reference to an outstanding trafficking charge could only leave the issuing justice with the misleading impression that the police had independently reasonable grounds to believe that Mr. Amponsah was trafficking in controlled substances. Given that the actual charge of simple possession was in fact withdrawn at the time the ITO was sworn, and bearing in mind the primary misrepresentation, it is necessary to excise any reference to an outstanding charge.

[22] I agree with the affiant and the Crown that the reference to outstanding charges did not form part of the listed grounds to search the home. I also agree that, on its own, this error could not have undermined the issuance of the warrant.

Excision from ITO of any Reference to Heroin Being Discarded Upon Arrest

[23] Paragraph 31 of the ITO read: "I was personally at the scene and believe that during arrest AMPONSAH discarded the .2 grams of heroin in the parking lot. It was snowing and the ground was wet and partially snow covered. In my experience, .2 grams of heroin is a very small quantity of drugs and could easily be discarded in the wet and snowy parking lot during an arrest and not recovered. Officers did search the area where AMPONSAH was arrested but were unable to recover the heroin."

[24] Cross-examination of the affiant revealed a number of troubling concerns arising out of this passage that directly undermined its veracity and the ultimate issuance of the warrant. The applicant was arrested right inside of the undercover officer's vehicle by a second officer. He was taken out of the vehicle and went to the ground. The affiant during cross-examination described that Mr. Amponsah was acting strangely during arrest by going to the ground, laying on his stomach and clenching both hands up to his chest. The affiant inferred from this that the applicant was concealing something.

[25] The affiant conceded that no officer observed Mr. Amponsah to throw, consume, or drop anything surrounding the time of his arrest. No heroin, packaged or otherwise, was observed by any officer. Extensive searches of the defendant, the confined area of the arrest and the undercover officer's vehicle did not reveal any heroin or related packaging. The affiant conceded that it was unlikely that the applicant had discarded the heroin before entering the vehicle, as he was arrested in possession of packaged cannabis.

[26] In this context, it was materially misleading to submit to the issuing justice that "the .2 grams of heroin" was, in fact, brought to the meeting with the undercover officer. I did not find plausible the affiant's testimony positing the possibility that the applicant had brought with him unpackaged heroin that was easily discarded and lost in the snow. The drug is of some value on the street, even at this quantity, and the transacted amount was too precise a weight to lend any credence to this prospect. That proposition was speculative.

[27] Beyond the coded language of the transaction, there was no reasonable basis for the officer's expressed belief in the ITO that the applicant brought heroin to the transaction and discarded it. This makes the conclusory observation that the officers were "unable to recover the heroin" all the more misleading.

[28] Read as a whole, this passage could only have materially misled the issuing justice to believe that heroin was actually brought to the transaction and then discarded. Consequently, it is necessary to excise paragraph 31 in its entirety.

Excision from ITO that the Applicant Walked to Transaction from Home

[29] Paragraph 33 of the ITO read: "AMPONSAH'S residence is only 1.8 kilometres away from where he arranged to sell the .2 grams of heroin to the UCO. He also arrived on foot to meet the UCO from the direction of his residence. It is reasonable to believe AMPONSAH would have drugs stored at (his) residence which is a short distance away from where he arranged to sell the drugs this evening."

[30] The affiant testified that the CHS did not disclose the address of the suspect or that any evidence would be found in the suspect's home. Given that the "Step 6" Garofoli procedure was not pursued, which would have permitted me to consider the entirety of the unredacted ITO, I can only consider the ITO as redacted and amplified. It appears that the affiant only discovered that Mr. Amponsah was the suspect "Andrew" upon arrest. I accept that the affiant held a reasonable belief that 49 Tobosa Trail in Brampton was Mr. Amponsah's home, based upon a CPIC query, a seized driver's licence and the applicant's own admission.

[31] I mention the affiant's factual ignorance of the suspect's actual identity and his address only because to some extent it frames the context by which I must assess the reasonableness of his belief that the applicant walked to the transaction from 49 Tobosa Trail. In the moment, the affiant had no idea where this person came from.

[32] The affiant fairly conceded during cross-examination that he observed the suspect walking very briefly on Bramalea Road from a certain direction before walking onto the parking lot and into the undercover officer's vehicle. He also conceded that he could not say where that person was coming from, although he believed later that it was from the direction of 49 Tobosa Trail.

[33] The affiant acknowledged that there are multiple circuitous paths by which one could walk from that address to the parking lot in question. He admitted it was possible the applicant arrived by vehicle and was either dropped off or chose not to park in the lot where the transaction was to occur.

[34] The affiant testified that the applicant arrived at the transaction some 35 minutes after the meeting was arranged, leaving available the proffered inference that the applicant walked to the transaction from his home. To accept this as a reasonable potential inference, even in assessing grounds, engages speculation in light of the affiant's testimony that the applicant may well have been either dropped off or have driven there and parked outside of the lot.

[35] Ultimately, all that can be made in support of grounds from the limited observations of the applicant preceding his attendance in the vehicle of the undercover officer is the following:

i. The transaction with the undercover officer was to take place in a parking lot 1.8 kilometres away from the applicant's home.

ii. The applicant entered the parking lot on foot and then entered the undercover officer's vehicle.

[36] Considering these findings and observations, it is necessary to excise from paragraph 33 the sentence: "He also arrived on foot to meet the UCO from the direction of his residence".

Analysis: Charter S.8 – Could the Warrant Have Issued, Post-Excision?

[37] In determining whether or not a judicial authorization violated an applicant's s.8 Charter freedom from unreasonable search and seizure, the reviewing judge does not stand in the place of the issuing justice. "If, based on the record which was before the authorizing judge as amplified on the review, the… authorizing judge could have granted the authorization", the reviewing judge 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" issuance: R. v. Garofoli, paragraphs 67-68.

[38] The central submission of the applicant was that the ITO, after redaction, amplification and excision, could not support reasonable grounds that evidence of drug trafficking would be found at 49 Tobosa Trail, in Brampton. This is the home of the applicant. I accepted the applicant's submission.

[39] The CHS tip, as redacted and amplified, did not contribute to any grounds that evidence could be found at 49 Tobosa Trail or at the home of the drug trafficker named "Andrew". Consequently, I will not embark on a Debot analysis regarding whether or not the tip was sufficiently "credible", "compelling" and "corroborated" to support reasonable grounds.

[40] After excision and amplification, the only support in the ITO that evidence would be located at 49 Tobosa Trail was the following:

i. That the applicant transacted in controlled substances with an undercover officer;

ii. That the location where the transaction was to be completed was 1.8 kilometres from the applicant's home.

[41] The affiant's approach to drafting the ITO impermissibly relied on the assumption that evidence of trafficking would be found in the home of Mr. Amponsah primarily due to the fact that his arrest for trafficking occurred nearby. This is dangerous and contravenes the s.8 Charter jurisprudence directing that judicially authorized state ingress into one's home, a place attracting heightened privacy interests, must be approached with particular care, bearing in mind the reasonable grounds standard: R. v. Sutherland.

[42] Given the dearth of grounds, it is difficult to ignore that some of the traditional investigatory "work-up" in support of a residential search warrant was absent here, such as surveillance, arrests of buyers leaving the address, or a specific and corroborated tip that evidence would be located at the address. This observation is not determinative, but I have also found the issuing justice was misled in three areas, two of which materially contributed to the success of the application.

[43] There is no presumptive location as to where drug traffickers store their product. Lockers. Stash houses. Vehicles. Homes. The fact that the transaction was to occur almost two kilometres from the home is insufficient to support judicially authorized entry into the home. The warrant as excised could not have issued. The applicant's s.8 Charter freedom from unreasonable search and seizure was violated.

Charter Remedy

Section 24(2)

[44] In determining whether or not to exclude the evidence seized from the applicant's home, pursuant to section 24(2) of the Charter, I must balance the effect of admission of the evidence on societal confidence in our system. In doing so, I am required to balance the seriousness of the state-infringing conduct, the impact of the breaches on Charter-protected interests of the accused, and the societal interest in adjudication on the merits: R. v. Grant.

Seriousness of the Violations

[45] Section 8 violations where evidence is obtained in the absence of reasonable grounds are generally serious. Here, the warrant was issued for the applicant's family home, a place that receives heightened protection in our Charter jurisprudence. I find that the affiant acted in good faith. He acknowledged this was one of his earliest warrant applications and that he would have approached it differently by the time he testified.

[46] Good faith, however, cannot excuse serious Charter violations. The issuing justice was misled. The affiant incorrectly alleged an outstanding trafficking charge, which was in fact a withdrawn charge of simple possession. There was no reasonable basis for the affiant's expressed belief that heroin was brought to the transaction and discarded upon arrest. There was also no reasonable basis to believe that the applicant walked to the transaction from his home some two kilometres away and thus must have stored drugs there. This collection of excised passages in the ITO materially misled the issuing justice. The violation was serious.

Impact of any Breaches on Charter-Protected Interests

[47] Under this branch, it is of some significance that the violation of the applicant's s.8 right occurred in furtherance of state intrusion into his home. There was no urgency to obtain entry and the application, in my view, was brought precipitously without any meaningful surveillance conducted on the target or his home. The impact on the applicant's privacy interest was significant.

Societal Interest in Adjudication on the Merits

[48] There is a compelling societal interest in having drug trafficking offences determined on their merits. Heroin is a particularly insidious drug, and the spectre of fentanyl in this case heightens the societal interest in holding traffickers of these drugs held accountable. People continue to die from the consumption of these controlled substances.

Balancing the Grant Factors

[49] In balancing the Grant factors, I note the direction from our Court of Appeal in R. v. McGuffie, that where the Charter violation and the impact on the applicant's Charter protected interests are both serious, the societal interest in adjudication on the merits will rarely support evidentiary admission.

[50] There is a compelling societal need to prosecute drug traffickers, and, given the consensual nature of the crime, they are notoriously difficult to investigate. However, the violation was serious, the multiple excised passages materially misled the issuing justice, and it resulted in the search of the applicant's home without reasonable grounds. In balancing the three factors, it was necessary to exclude the evidence. The application was granted.

Released: May 9, 2019

Signed: Justice A.A. Ghosh