Court File and Parties

Ontario Court of Justice

Date: February 18, 2020

Court File No.: Central East Region: Oshawa Court 17-34221

Between:

Her Majesty the Queen

— and —

Hugh Alexander Smith

Before: Justice Peter C. West

Oral Submissions Heard: January 31, 2020

Reasons for Judgment Released: February 18, 2020

Counsel

Mr. G. Raven — counsel for the Crown

Mr. F. Kazandji — counsel for the accused Hugh Smith

Judgment

WEST J.:

Introduction

[1] Hugh Smith is charged with possession for the purpose of trafficking in cocaine (2 counts), possession of marijuana, failure to comply with recognizance – curfew condition and failure to comply with recognizance – possession of drugs. These charges are alleged to have occurred on April 4, 2017. Mr. Smith elected trial in the Ontario Court of Justice and pleaded not guilty.

[2] Mr. Smith has had numerous counsel appearing for and representing him on these charges and one of those counsel, Paul Affleck, prepared and brought an application for leave to cross-examine the affiant who authored an information to obtain (ITO) on March 14, 2017 seeking a warrant to track a vehicle believed to be Hugh Smith's. In addition, a Garofoli application that the Durham Regional Police (DRPS) breached Mr. Smith's section 8 and 9 Charter rights was brought for an order to exclude evidence from his trial, pursuant to s. 24(2) of the Charter. Mr. Affleck was removed as counsel of record as a result of a breakdown in the solicitor/client relationship in October, 2019. New trial dates were set for February 24, 2020, with a pre-trial motion date of January 27, 2020. At that point Hugh Smith was unrepresented and his trial would proceed with or without counsel.

[3] The case management judge determined, after numerous judicial pre-trials with Mr. Smith and the Crown, Mr. Raven, that this was a case where the appointment of amicus should be considered by the trial judge. Mr. Raven filed materials, which submitted amicus was not necessary in this case and on December 9, 2019, the matter was brought before me to address this issue. As a result of the history of Mr. Smith's case it was my view this was an appropriate case for the appointment of amicus and Mr. Chris Hicks accepted this appointment.

[4] Sometime prior to January 27, 2020, Mr. F. Kazandji advised the Crown and the trial co-ordinator he had been retained by Hugh Smith to represent him on the Garofoli application. On January 27, 2020, I heard argument respecting the application for leave to cross-examine the affiant of the ITO for the tracking warrant. This application was dismissed in oral reasons on that date. Mr. Kazandji requested an adjournment to prepare affidavit evidence for the Garofoli application to exclude evidence, which was granted and the Garofoli application was adjourned to January 31, 2020. An additional Notice of Application was filed, together with an affidavit of Verona Smith, dated January 30, 2020. On January 31, 2020, I heard submissions respecting this application. I reserved judgment on the Garofoli application and advised I would provide written reasons to counsel no later than February 21, 2020, prior to the start of the trial.

[5] Mr. Kazandji advised he was not retained by Hugh Smith to represent him respecting an anticipated s. 11(b) Charter application or for the trial proper. I advised Mr. Kazandji if he filed the transcripts of the various occasions this matter had been spoken to in court and his s. 11(b) Notice of Application by 1 pm on February 21, 2020, I would address that application on February 24, 2020. The Crown would provide an oral response to Mr. Smith's application. If no application was filed the trial would start on February 24, 2020, given this was the third trial date in this matter and if Mr. Smith wanted to bring a s. 11(b) himself as an unrepresented defendant I would consider such an application and hear submissions at the end of the evidence.

Position of the Parties

[6] The defence submitted in the original application (filed by counsel, Paul Affleck) that Durham Regional Police (DRPS) breached Mr. Smith's Charter rights under ss. 8 and 9 by tracking him because there was no reasonable suspicion to grant the warrant. The underlying basis of the application related to the assertion that the anonymous source did not, in fact, exist and further that Mr. Smith was not living at 1954 or 1952 Faylee Crescent in Pickering when this anonymous source said he was. In the additional application brought by Mr. Kazandji, only the allegation respecting the information provided by the anonymous source respecting Mr. Smith's residence was asserted. Mr. Kazandji was seeking exclusion of any evidence discovered by DRPS as a result of the tracking warrant being issued if the breaches were made out, pursuant to s. 24(2) of the Charter.

[7] It was the position of the Crown there was evidence uncovered through the police investigation respecting the anonymous source's information, which corroborated and confirmed, demonstrating the reliability of the anonymous source. As a result, there was more than sufficient information contained in the ITO to support reasonable grounds to suspect the tracking warrant would assist in the investigation and afford evidence relevant to the investigation of the offences of trafficking and possession for the purpose of trafficking.

Factual Background Disclosed in the Information to Obtain (ITO) the Search Warrant

[8] Sometime in December 2016, the Drug Enforcement Unit (DEU) of DRPS received information from an anonymous source in respect of a suspected drug trafficker within the City of Pickering. The specific date this information was provided was not indicated in the ITO.

[9] The anonymous source provided five pieces of information, which were set out in the ITO. The fifth piece of information was redacted, as was the entirety of Appendix A, which provided the issuing justice with information that was very detailed and was available to only a small group of people because of concerns the information would disclose the identity of this anonymous source. The affiant of the ITO, Detective William Graham, asserted in the ITO that he was unaware of the identity of the anonymous source and as a result the affiant disclosed in the ITO he was unable to judge the reliability of the source and the information provided was only being used as "a starting point for the investigation."

[10] At the outset of the ITO the affiant set out a synopsis of the information provided by the anonymous source relating to a person referred as "Antoine Smith":

a) is a male black 6'0" to 6'1", 150-160 pounds with a goatee;

b) resides in a semi-detached home located at 1954 Faylee Crescent, Pickering. Smith owned the residence at 1952 Faylee Crescent, Pickering, which is situated attached to 1954 Faylee Crescent, Pickering;

c) has access to a four door black Mercedes and a black Subaru Legacy. The black Mercedes is usually parked at 1954 Faylee Crescent and Smith most frequently operates the black Subaru.

d) is currently selling cocaine in the City of Toronto and the Region of Durham.

[11] After receiving this information DRPS commenced an investigation. A police database on 1952 Faylee and 1954 Faylee Crescent, Pickering revealed that Hugh Alexander Smith, born March 31, 1982, resided at 1952 Faylee and 1954 Faylee Crescent, Pickering.

[12] Further computer checks revealed in the RMS (records management system maintained by DRPS) that Hugh Smith was listed with 1952 Faylee and the RMS also listed him as residing at 1954 Faylee Crescent, Pickering.

[13] A Canadian Police Information Centre (CPIC) check indicated Hugh Smith was a non-white male, 6'0" tall and weighed 160 pounds and was on a recognizance of bail in respect of a number of offences alleged to have occurred on December 26, 2016, for forcible confinement, assault with a weapon, carrying a concealed weapon, possession of a firearm knowing its possession is unauthorized, pointing a firearm, unauthorized possession of a firearm in a car, and careless use of a firearm.

[14] D.C. Graham, the affiant, spoke with the OIC of the Toronto charges, D.C. Ryan Fardell, #10652 Toronto Police Service (TPS) and reviewed this police file and learned the victim of the offences was identified as Nathaniel Lockhart, born February 4, 1992. Mr. Lockhart was interviewed and provided a photo line-up. He identified Hugh Smith, born March 31, 1982, as the person responsible for the forcible confinement and firearms related offences. Mr. Lockhart also advised that Hugh Smith was known to him as "Antoine."

[15] On December 29, 2016, Hugh Smith was arrested by TPS in front of 1952 Faylee Crescent, Pickering. He was operating a black Subaru with Ontario licence BVYY 164. TPS located a quantity of drugs in the vehicle and sought a judicial authorization to search the vehicle.

[16] On January 3, 2017, a search warrant was executed by TPS on the black Subaru BVYY 164. Officers found 194.8 grams of cocaine, 77.3 grams of marijuana, 27.5 grams of ketamine, 16.7 grams of hashish-cannabis resin and 55.7 grams of heroin.

[17] A Ministry of Transportation (MTO) check revealed Hugh Smith was a licensed driver with an address of 234 Pellat Avenue, Toronto. DRPS conducted land registry check of 1952 Faylee and 1954 Faylee Crescent, Pickering and found that 1952 Faylee Crescent is registered to Courtney Davis and Verona Smith and 1954 Faylee Crescent, Pickering is registered to Jasmine Hyacinth Maitland and Hugh Alexander Smith.

[18] DRPS conducted surveillance of 1952 and 1954 Faylee over a number of days in February and March 2017. D.C. Graham spoke to the DEU central note taker on each of the days surveillance was conducted on these residences and reviewed those notes.

[19] On February 24, 2017, DRPS surveillance officers observed the black Subaru licence BVYY 164 in the driveway of 1954 Faylee Crescent. A white rental van and a black Mercedes were observed in the driveway of 1952 Faylee Crescent. At 10:20 am an unknown male black wearing a black sweater with a white emblem on the back and black track pants with white stripes down the side entered the black Subaru. The driver of the Subaru travelled at high rates of speed while making several lane changes and failing to stop for red lights. At 12:02 pm, the black Subaru returned to 1954 Faylee and D.C. Brown took video of the male operating the vehicle and believed the driver to be Hugh Smith.

[20] On February 27, 2017, DRPS surveillance officers conducted surveillance on 1954 Faylee Crescent. The black Subaru and black Mercedes were parked in the driveway in front of 1954 Faylee. At 9:15 am, the black Subaru left that address and drove to 1360 Kingston Road. Hugh Smith exited the vehicle and entered the food fair wearing a black coat. He returned to the car two minutes later and reattended 1954 Faylee. At 11:09 am, a black Infinity licence BYKP 638 entered into driveway of 1952 Faylee and an unknown female entered this address. At 11:48 am, an unknown black male entered the black Infinity and left the area at a high rate of speed. The Infinity returned to 1952 Faylee four minutes later and Hugh Smith exited the driver side and entered this residence.

[21] On the same date at 2:26 pm, an unknown male black exited 1954 Faylee and entered the black Subaru. The black Subaru left the area and ran a red light in the area of Altona Road. The black Subaru attended a plaza at 300 Kingston where a female exited the vehicle. Approximately 19 minutes later the Subaru returned to 1954 Faylee Crescent and Hugh Smith is observed walking towards the residence.

[22] On March 1, 2017, at 3:34 pm, the black Subaru attended 1952 Faylee and Hugh Smith is observed driving at that time. Six minutes later the black Subaru is moved to the road. At 3:47 pm, Hugh Smith exited the black Subaru wearing a black jacket, white hoody, carrying a white weighted plastic bag and entered 1954 Faylee Crescent.

[23] On March 2, 2017, at 7:24 pm, Hugh Smith entered the driveway of 1954 Faylee driving the black Subaru. Smith entered 1954 Faylee Crescent and was not observed for the rest of the surveillance.

[24] On March 7, 2017, the black Subaru being driven by Hugh Smith was travelling east on Glenanna Road. The Subaru entered the Hub mall at 1360 Kingston Road and parked. Hugh Smith exited the vehicle and entered the Pickering food fair. One minute later Smith exited the food fair and entered the black Subaru. He failed to stop for a red light exiting plaza and was misplaced. At 2:02 pm, the black Subaru returned to the area of 1954 Faylee and parked on the street. Hugh Smith exited the Subaru and attended 1954.

[25] On March 8, 2017, at 6:42 am, the black Subaru was not observed at 1952 or 1954 Faylee. At 2:47 pm, the black Subaru parked on Faylee Crescent, Hugh Smith exited the vehicle and attended 1954 Faylee Crescent.

[26] On the same date, at 7:52 pm, Hugh Smith entered the black Subaru and travelled toward Highway 401. He travelled westbound on Highway 401 at a high rate of speed, making several lane changes at which time he was misplaced.

[27] As a result of the preceding information set out in the ITO, D.C. Graham sought a tracking warrant with respect to the black Subaru, licence BVYY 164, which was authorized on March 14, 2017. D.C. Graham in the ITO asserted he had reasonable grounds to suspect Hugh Smith is trafficking in a controlled substance while operating the black Subaru, licence BVYY 164 and he believed the use of a trafficking device will assist in the investigation by locating him during surveillance. He was requesting a tracking warrant for a period of 60 days.

Analysis

General Principles Relating to Review of ITO

[28] The defence brought an application under ss. 8 and 24(2) of the Charter alleging Mr. Smith's Charter rights were violated as the grounds in the ITO were insufficient to justify the issuance of the tracking warrant. As with any s. 8 and s. 24(2) Charter application, the reviewing court is not to stand in the place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al. 2011 ONCA 693, at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-274.

[29] A Charter review is not a de novo hearing. The issue is whether the issuing judge could have issued the warrant on the basis of the sworn ITO. In R. v. Morelli, 2010 SCC 8, the Supreme Court held at para. 40:

…The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

Of course, in this case the test is reasonable grounds to suspect, which as I will discuss below is a much lower evidentiary burden than reasonable and probable grounds.

[30] A search warrant is obtained ex parte so an affiant must provide "full, frank and fair" disclosure of the relevant facts to the issuing Justice of the Peace.

[31] Justice Hill, in R. v. Ngo, 2011 ONSC 6676, at para. 34, has summarized various instructive guidelines to be applied by courts engaged in reviewing the constitutionality of an ITO:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45 (aff'd, 2011 SCC 32).

(2) "[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application": R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant, 132 C.C.C. (3d) 531, at 543 (leave to appeal refused [1999] S.C.C.A. No. 168, 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536, at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558, at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General), 2 B.C.A.C. 73, at 79.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Re Lubell and the Queen, 11 C.C.C. (2d) 188, at p. 190; R. v. Durling, 2006 NSCA 124, 214 C.C.C. (3d) 49, at para. 19; R. v. Sanchez, 93 C.C.C. (3d) 357, at p. 364; Re Chapman and the Queen, 6 C.C.C. (3d) 296, at p. 297.

(5) It will not be surprising that an ITO will have some flaws – "[f]ew applications are perfect": R. v. Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": C.B.C. v. A.-G. for New Brunswick, 67 C.C.C. (3d) 544, at p. 562; R. v. Araujo, 2000 SCC 65, at p. 470; R. v. Ling, 2009 BCCA 70, 241 C.C.C. (3d) 409, at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

[32] The tracking warrant was authorized under s. 492.1(1) of the Criminal Code, which provides:

A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking by means of a tracking device. [Emphasis added]

[33] A tracking warrant under s. 492.1(1) authorizes conduct by state authorities that amounts to a search and seizure and as such is subject to the reasonableness requirement imposed by s. 8 of the Canadian Charter of Rights and Freedoms. The requirement of reasonable grounds to suspect that an offence has been or will be committed is a far lower evidentiary burden than reasonable and probable grounds. Reasonable and probable grounds requires a reasonable belief, while the reasonable grounds to suspect requires only a reasonable suspicion about the commission of an offence.

[34] A "reasonable suspicion" that an individual has possibly been involved in crime must be supported by factual elements adduced in evidence that permit independent judicial assessment. Therefore, a sincerely held subjective belief is insufficient to support a reasonable suspicion, R. v. Kang-Brown, 2008 SCC 18, at para. 75. "Reasonable suspicion" requires only that the belief that an offence has been or will be committed be one of a number of possible conclusions based on the totality of the supporting facts, not a probability, as required by the higher reasonable grounds to believe standard: R. v. Kang-Brown, at paras 21, 25, 75 and 76.

[35] In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, Karakatsanis J., discussed the legal principles relating to these questions for the unanimous Court. A reasonable suspicion "must be grounded in objectively discernible facts, which can then be subjected to judicial scrutiny." She reiterated at para. 32, that "reasonable suspicion need not be the only inference that can be drawn from a particular constellation", and that "factors which give rise to a reasonable suspicion may also support completely innocent explanations". This is acceptable, as the reasonable suspicion standard addresses the "possibility of uncovering criminality, and not the probability of doing so" as is the case for a reasonable belief.

Principles Applied to this Case

[36] The defence argued that Hugh Smith was not residing at 1954 Faylee Crescent, Pickering until after his arrest and release on bail on the Toronto charges on December 29, 2016. In support of this defence counsel provided the affidavit of Verona Smith, Hugh Smith's mother and the co-owner of 1952 Faylee Crescent, Pickering. Mr. Kazandji submitted because D.C. Graham did not indicate the dates when he conducted his searches of databases, for example the RMS check, which showed that Hugh Smith resided at both 1952 and 1954 Faylee Crescent and the affidavit of Verona Smith established Hugh Smith did not reside at either address until January 6, 2017, the ITO could not be relied upon by the issuing justice of the peace. In my view the fact Mr. Smith was not living fulltime at 1952 Faylee Crescent until January 6, 2017, is inconsequential, as it is the totality of the facts disclosed in the ITO which must be examined to determine if there are reasonable grounds to suspect that an offence has been or will be committed.

[37] Whether Hugh Smith was living at a specific address before December 29, 2016, is of no consequence and misunderstands the standard reasonable grounds to suspect. The issue is whether there are reasonable grounds to suspect Hugh Smith is possibly involved in the criminal activity of trafficking in drugs or possessing drugs for the purpose of trafficking. In R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 71, Moldaver J., for the majority, held reasonable suspicion must be assessed against the totality of the circumstances. He emphasized, at para. 73, that assessing whether a particular constellation of facts gives rise to a reasonable suspicion should be governed by common sense, flexibility and practical, everyday experience applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. The question is: "Are the facts objectively indicative of the possibility of criminal behaviour in light of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end" (at para. 72).

[38] The defence did not persist in the allegation that there was no anonymous source, which in my view amounted to an allegation of a deliberate attempt by D.C. Graham to lie to and mislead the authorizing justice by providing false information in his ITO. No support for such a serious and stark allegation against a police officer was produced at this Garofoli hearing. This was the purported basis to support the application to cross-examine the affiant, which I dismissed given the lack of evidence presented supporting it and because of the fact that most, if not all, of the information provided by the anonymous source was corroborated and confirmed. Further, a significant assertion in the ITO in my view was D.C. Graham's indication that because the anonymous source was unfamiliar to him and he could not judge the anonymous source's reliability, the information was "only being used as a starting point for the investigation." In other words, the anonymous source could very well be incorrect as to one or two pieces of the information provided, however the ITO would only reflect and rely on information obtained and determined from the police information that was put forward as being reliable.

[39] The totality of the facts and information gathered by the DRPS during the investigation of Hugh Smith were set out in the ITO and included the following:

a) Hugh Smith is a part owner of 1954 Faylee Crescent, Pickering and he was connected to 1952 Faylee Crescent, which is a semi-detached house with 1954 Faylee and is co-owned by his mother, Verona Smith. This was found upon a computer check of the Records Management System, which is maintained by DRPS for the use of DRPS officers. Further, Verona Smith in her affidavit, filed by the defence, resided at 1952 Faylee and she indicated their family was close and everyone visited that address because she had an open door policy, which leads to the reasonable inference Hugh Smith attended her residence on occasion;

b) After December 29, 2016, Hugh Smith was living at 1952 Faylee Crescent according to the affidavit of Verona Smith because of his bail conditions and as indicated above, he was observed coming out of and going into the 1954 Faylee address on five (5) occasions and one occasion he left 1952 Faylee and returned to 1954 Faylee between February 24, 2017 and March 8, 2017;

c) CPIC records indicate Hugh Smith is 6'0" in height and 161 pounds, which was the description provided by the anonymous source;

d) On December 26, 2016, Hugh Smith was charged with forcible confinement and firearms offences in respect of Nathaniel Lockhart, who told police knew Hugh Smith as "Antoine", which was the name the anonymous source advised the person living at 1954 Faylee Crescent went by. D.C. Graham asserted in the ITO he believed Hugh Smith was the same person as Antoine Smith;

e) On December 29, 2016, Hugh Smith was arrested by Toronto Police in front of 1952 Faylee Crescent, Pickering operating a black Subaru, licence BVYY 164, officers found a quantity of drugs in the vehicle, and on January 3, 2017, a search warrant was obtained to search the Subaru and 194.8 grams of cocaine, and 55.7 grams of heroin were located in the vehicle, as well as other drugs. The anonymous source told police Hugh Smith or "Antoine" Smith was selling cocaine in Toronto and the Region of Durham;

f) The anonymous source advised police that Hugh Smith had access to a black Mercedes, which was usually parked at 1954 Faylee Crescent a black Subaru Legacy, which he most frequently operated. The surveillance over six (6) days observed Hugh Smith operating the black Subaru on each occasion, which was the information provided by the anonymous source – Hugh Smith drove the black Subaru the most frequently; and

g) When Hugh Smith was observed leaving 1954 Faylee Crescent in the black Subaru he would operate the vehicle at a high rate of speed, changing lanes and running red lights, such that on many of the occasions police officers were conducting surveillance his vehicle was lost by those officers, which in my view leads to a reasonable inference Hugh Smith was trying to avoid being followed.

[40] It may well be accurate that Hugh Smith was not actually residing at 1952 or 1954 Faylee Crescent until his release from custody on bail in January 6, 2017. DRPS RMS records revealed and listed Hugh Smith as residing at both of those addresses. The date of this computer check was not set out in the ITO but certainly Hugh Smith was residing in one or both of these residences after January 6, 2017. Further, on the six occasions Hugh Smith was surveilled by DRPS he was observed leaving and returning on five of those occasions from 1954 Faylee Crescent and on one occasion he was observed leaving 1952 Faylee Crescent and returning to 1954 Faylee Crescent.

[41] It is my view all of the anonymous source's information was confirmed and corroborated by the DRPS investigation, including the assertion that Hugh or Antoine Smith was selling cocaine in Toronto and the Region of Durham. He was arrested by Toronto Police Service (TPS) on December 29, 2016, and the search incidental to arrest revealed drugs on his person and some drugs in plain view within the black Subaru, such that TPS obtained a search warrant to search the black Subaru, BVYY 164. Hugh Smith had a record for fail to comply with recognizance and the surveillance officers observed him leaving his residence not in the company of his surety during his curfew, which was a breach of his bail on the TPS charges. Further, on the majority of the six occasions Mr. Smith was under police surveillance, his driving was erratic and designed to prevent him from being followed by anyone. All of this information provided in the ITO supported the reasonable conclusion that there was a reasonable possibility that Hugh Smith was involved in the selling of cocaine and by putting a tracking device on his vehicle, the black Subaru, this would assist the police in collecting evidence in respect of their ongoing investigation. In my view the issuing justice had more than sufficient facts and information to find the ITO reflected reasonable grounds to suspect Hugh Smith had been or would in the future be involved in the selling of cocaine and other drugs. As a result the application to quash the authorization of the trafficking warrant is dismissed.

Released: February 18, 2020

Signed: Justice Peter C. West