Court File and Parties

Ontario Court of Justice

Date: November 25, 2020

Court File No.: Newmarket 19 09478

Between:

Her Majesty the Queen

— and —

Juan Chua & Richard Zhong

Before: Justice David S. Rose

Heard on: November 2 & 3, 2020

Reasons for Judgment released on: November 25, 2020

Counsel

Mr. J. Arvisu — counsel for the Crown

Ms. C. Szpulak — counsel for the accused Juan Chua

Mr. P. Lindsay — counsel for the accused Richard Zhong

Reasons for Judgment

Introduction

[1] Juan Chua is charged with Possession of Crystal Methamphetamine for the purpose of trafficking, as well as Possession of Property Obtained by Crime, namely $375.00. Mr. Chua brings an application sounding in s. 8 of the Charter of Rights and Freedoms to quash a search warrant and exclude evidence. His co-accused Richard Zhong is also charged with a drug offence and possession of property obtained crime but did not participate in this Application.

The Search Warrant

[2] The Toronto Police Service obtained a CDSA Warrant to enter and search 8 Asalin Way, Markham Ontario on November 10, 2018. The Warrant was obtained by the Telewarrant process. The Charter Challenge to the Warrant initially included a challenge to the Telewarrant process but that limb of the Application was abandoned in argument. The CDSA Warrant alleges in Appendix B that on 10th of November 2018 Juan Chua possessed Powder Cocaine, a Schedule 1 Substance under the CDSA.

[3] The CDSA Warrant relies on an Information to Obtain (ITO) from the Affiant DC Rajan Bhogal of the Toronto Police Service. That ITO is labelled Appendix C. It runs some 8 pages. The ITO relies on information from a Confidential Informant (CI), which is particularized in Appendix D. The ITO was at first redacted to hide the entirety of Appendix D. Mr. Arvisu then provided Crown summaries of the redacted Information and then lifted some of the redactions from the disclosure copy of Appendix D.

[4] The newly redacted Appendix D discloses that the reliability of the CI was discussed in several paragraphs, as was the motivation of the CI, the reliability of previous information, and compelling nature of the information provided by the confidential source. Notably, the newly redacted Appendix D discloses that:

• The CI knows "Jake Cee", who is really Juan Chua;
• Jake Cee lives at 8 Asalin Way, Markham;
• Jake Cee is a meth dealer who deals large amounts of crystal meth;
• The CI regularly purchases crystal meth from Jake Cee;
• Jake Cee deals at least an ounce up to a kilo of crystal meth;
• Jake Cee then sells the CI crystal meth;
• The CI purchased ….crystal meth….;
• Jake Cee gets friends to drive him around;
• The CI has seen Jake Cee in various different cars;
• The CI has purchased crystal methamphetamine from Jake Cee…;
• Jake Cee is well known in Toronto and Markham and known to have very good quality meth.

[5] The Crown then moved under Step 6 of R. v. Garofoli, [1990] 2 S.C.R. 1421, for judicial summaries of what is within the redacted portions of Appendix D, see also R. v. Reid 2016 ONCA 524. As Sopinka J found in Garofoli at par. 103:

103 6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that, if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[6] After an exchange of questions with the Crown which remain sealed in the Court file, I delivered the following Judicial Summary of the redacted portions of the ITO.

1. Appendix D does not disclose the name of the CI;
2. Appendix D discloses whether the CI has a criminal record for offences of dishonesty;
3. Appendix D discloses information previously provided to the police by the CI, and whether that information led to arrests and seizure of contraband;
4. Appendix D discloses the recency of the information obtained by the Confidential Informant and the location where the information was obtained;
5. Appendix D discloses the recency of the CI information provided about Jake Cee;
6. Appendix D discloses the number of times the CI has purchased the Crystal Methamphetamine from Jake Cee in paragraph 24.
7. Appendix D discloses a nexus between drug activities and the address of 8 Asalin Way.

[7] Mr. Chua argued that the Judicial Summary provided was inadequate and asked me to revisit the above 7 paragraphs with a view to providing more information. After reviewing the unredacted Appendix D I rejected that request.

Garofoli Challenge – The Law

[8] The law in this area is settled. There is no shortage of appellate jurisprudence to guide the way.

[9] When a trial judge is asked to quash a search warrant because of a violation of the accused's rights under s. 8 of the Charter the trial judge may not impose his or her own view on whether the warrant should have been issued. Rather the question to be asked is whether the issuing judge could – not would – have issued the warrant. The reviewing judge does not substitute his or her own view for that of the issuing judge. Again, Garofoli (supra) provides the test:

68 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.

See also R. v. Sadikov 2014 ONCA 72 at par. 84.

[10] The Garofoli review is therefore not a re-hearing of the initial ex parte application because the reviewing judge does not stand in the same place and function as the issuing justice, see R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992 at par. 51, or more recently R. v. Reid 2016 ONCA 524 at par. 73. The context of the impugned warrant is important, and the review must consider the lawfulness of the warrant based on a totality of the circumstances, see Araujo (supra) at par. 54. Reliability of the information before the issuing justice is always in issue. As Watt JA said in Reid at par. 74:

…the test or standard is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued, Araujo at par. 54

Test for Issuance

[11] It is axiomatic that a warrant under s. 11 of the CDSA must meet the test for issuance of reasonable grounds to believe. It is the same test as the one for conventional warrants under the Criminal Code, which is also expressed as a credibly based probability, see Hunter v. Southam, [1984] 2 S.C.R. 145, R. v. Debot [1982] 2 S.C.R. 1140.

[12] Reasonable grounds to believe has both a subjective and objective component. The affiant must believe the existence of the requisite grounds, and that belief must be objectively reasonable. As Justice Di Luca summarized in R. v. Coluccio 2019 ONSC 4559 at par. 28:

… The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.) at p. 250. An officer is entitled to rely on training and experience in assessing grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 (Ont. C.A.) at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.) at p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 (Ont. C.A.) at para. 48. The obligation to make full, fair and frank disclosure is heightened by the exparte nature of search warrant proceedings; see United States v. Friedland, [1996] O.J. No. 4399 (Ont. Gen. Div.) per Sharpe J. (as he then was).

Confidential Informants

[13] The police may rely on the information from confidential informants to justify a warrant search, or furnish their grounds for seeking a search warrant. Use of confidential informants engages judicial scrutiny commonly known as the three Cs – compelling, credible, and corroboration, see R. v. Kohut 2020 ONSC 6213 at par 20. In R. v. Debot, [1989] 2 S.C.R. 1140, Wilson J. said, in her concurring opinion:

60 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[14] A helpful summary of the particulars of the 3 Cs is found in R. v. Weber 2019 ONSC 5050 at par. 40, where Leach J. said:

i. Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient [1].

ii. In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds and justify a warrantless search), reliability of a "tip" is to be assessed by recourse to "the totality of the circumstances". Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two [2].

iii. In determining whether such information is "compelling", courts have regard to considerations such as: whether the information is current [3]; whether it goes beyond "mere rumour or gossip", and/or "bald conclusory statements", to provide specific information and details; and the informant's source of knowledge or basis for his or her assertions, (with first-hand or direct knowledge of the relevant facts being more compelling). The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant's information is diminished by an absence of any sense as to how the informant acquired his or her information. [4] A tip can be compelling even if it contains some inaccuracies. [5]

iv. In determining whether such information is "credible", courts have regard to considerations such as: whether the informant is anonymous or known and identified, (which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police); the basis on which the informant provides information, (with first-hand knowledge being more credible); whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether the informant is an "untried" and "untested" source, or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past. [6]

v. In determining whether such information is "corroborated", courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant's tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater. [7]

vi. Reputation alone will never provide reasonable grounds, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, (in which case its veracity cannot be assumed). [8]

[15] In written submissions the Crown took the position that, while the ITO clearly sought a CDSA Warrant to search for Crystal Methamphetamine, the fact that Appendix B listed Possession of Powdered Cocaine as the specific offence under Schedule 1 of the CDSA was immaterial, referring to R. v. Cunsolo 2008 CarswellOnt 5743 at par. 135 (S.C.). The defence argued, in its written submissions, that the particularization of powdered cocaine in Appendix B required more than merely identification of a similar offence. The argument goes on to say that misidentification of the substance in Appendix B is equivalent to an out and out omission of the offence in Appendix B. In other words, close is not enough.

[16] The offence listed in the Search Warrant must be stated with reasonable particularity. A bald or generic description is inadequate. The reader of the warrant must be able to understand the nature of the offence for which the warrant is sought, see Cunsolo (supra) at par. 135(5).

Findings

[17] With these principles in mind I make the following findings.

[18] The CI tip disclosed first hand information to the police about the CI purchasing Crystal Methamphetamine from Mr. Chua. The information, seen in the unredacted portions of the ITO and Appendix D, confirms both the purchase and other ancillary information about Mr. Chua. The CI Information includes the name of Mr. Chua, as well as his nickname, a physical description of him, his address and some elements of Mr. Chua's drug selling activities.

[19] While I cannot reveal what is in the unredacted portions of the ITO and Appendix D, it suffices to say that the issuing justice was apprised of the recency of the information, and where the information was obtained. The issuing Justice was aware of the number of times that the CI purchased Crystal Meth from Jake Cee. The issuing justice was also apprised of a nexus between drug activities and 8 Asalin Way. The issuing justice easily had compelling information upon which to issue the search warrant.

[20] The issuing justice was also apprised of whether the CI had a criminal record for offences of dishonesty as well as information previously provided to the police and whether that information led to arrests and seizures of contraband. The credibility of the CI was apparent to the issuing justice on the face of the information, and the issuing justice could have determined the CI sufficient credible to rely on the CI information as the basis for a search warrant.

[21] The information provided by the CI was corroborated to some limited degree by police surveillance. This is outlined in the ITO paragraph titled "Sureillance" (sic), where the affiant discusses going to 8 Asalin Way in Markham, which is the address provided by the CI. When he got to 8 Asalin Way he found two motor vehicles, registered to persons with the surname Chua. The surveillance lasted only 10 minutes because the geography of 8 Asalin Way made covert surveillance difficult. Surveillance therefore tended to corroborate the name Chua being tied to 8 Asalin Way.

[22] Corroboration also included the criminal record for Juan Chua, which included entries for drugs. In 2015 Mr. Chua served a jail sentence for the crime of Possession of a Schedule 1 substance for the purpose of trafficking. He also had a previous entry in 2013 for simple possession of a Schedule 1 substance, but the criminal record went beyond confirming that Mr. Chua had fairly recent criminal convictions for serious drug charges. It also had an entry in 2017 for Failing to Stop at the Scene of an Accident, which resulted in a 3 year driving prohibition. That prohibition would have been in effect in November of 2018. The police independently confirmed that Mr. Chua had an expired driver's licence. This tends to confirm the CI information that Mr. Chua "gets friends to drive him around", and has been seen by the CI in various different cars. That is consistent with Mr. Chua's criminal record. The corroboration of the CI tip is not extensive, but it was present and furnished a basis on which the issuing justice could confirm that the CI information was corroborated independently.

[23] In sum, the issuing justice could have issued the search warrant based on the information provided. In this case the information provided by the CI, as corroborated by the police was sufficient to furnish reasonable grounds to believe that drugs would be found at 8 Asalin Way. This limb of the Charter Application is dismissed. I would not quash the warrant.

Appendix B

[24] Lastly, as regards the defence argument that Appendix B insufficiently, or incorrectly describes the offence, I would also reject that argument. Considered as a whole the search warrant clearly seeks to permit the police to investigate the offence of Possession of Crystal Methamphetamine. That is an offence under the Controlled Drugs and Substances Act. The substance is within Schedule 1 of the CDSA. That Appendix B particularized the offence as cocaine is not a fatal defect. Appendix B alleges the correct statute, and schedule which criminalizes possession of crystal methamphetamine. It has the wrong drug. There could be no mistake in the mind of anyone reading that warrant that the offence being investigated was a CDSA possession offence under Schedule 1. Moreover, Appendix A to the Search warrant particularizes the items sought as including Crystal Methamphetamine, and drug paraphernalia. Search for those items is entirely reasonable given the ITO. There is no Charter violation in the particularization of Cocaine in Appendix B.

[25] Even if the particularization in Appendix B were a Charter violation, I would have no difficulty in finding it to be a minor, technical breach at the less serious end of the scale. The police did get a warrant, and there is no evidence of bad faith on their part. At its highest the particularization in Appendix B is a drafting error, or possibly an instance of cutting and pasting past search warrant language. While the impact on Mr. Chua was to have his residence searched, which is quite serious, the offence of Possession of Crystal Methamphetamine is extremely serious. That drug is highly addictive and ruinous to those who take it. Crystal Methamphetamine poses a great danger to public health, which is why its possession is forbidden by the CDSA. The public has a very great interest in a Crystal Methamphetamine trial being heard on its merits. On balance I would not have excluded the drug seizure from this trial if it were a Charter violation.

[26] For these reasons the Charter Motion is dismissed. The Motion was well prepared and well argued by both Ms. Szpulak and Mr. Arvisu.

Released: November 25, 2020

Signed: Justice Rose

Footnotes

[1] R. v. Garofoli, supra, at paragraph 68.

[2] See R. v. Debot, supra, at paragraph 53; and R. v. Garofoli, at paragraph 68.

[3] Consideration should be given to the currency or "freshness" of information because the focus is on whether there were reasonable grounds to believe that facts probably rather than possibly existed. Reliance on "extremely outdated" information may, (depending on the nature of the particular information), undermine the reasonableness of such an inference or belief. See R. v. Turcotte (1987), 39 C.C.C. (3d) 193 (Sask. C.A.); R. v. Jamieson (1989), 48 C.C.C. (3d) 287 (N.S. C.A.); R. v. Colby, [1999] S.J. No. 915 (Sask. Q.B.); and R. v. Chen, 2007 ONCJ 177, [2007] O.J. No. 1572 (Ont. C.J.).

[4] See: R. v. Debot, supra, at paragraph 54; R. v. Garofoli, supra, at paragraph 68; R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.), at p.490; R. v. Sutherland (2000), 150 C.C.C. (3d) 231 (Ont. C.A.); R. v. Zammit (1993), 81 C.C.C. (3d) 112 (Ont. C.A.), at pp.120-121; and R. v. Amare [2014 CarswellOnt 15447 (Ont. S.C.J.)], supra, at paragraph 84(2).

[5] See R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.), at p. 123.

[6] See: R. v. Debot, supra, at paragraphs 54 and 59; and R. v. Amare, supra, at paragraphs 8-9 and 84(3). In the absence of any caution as to possible adverse consequences of providing false information, the practical effect of a promise or receipt of consideration in exchange for providing information to police might be motivation to embellish or fabricate. However, the incentive to speculate or manipulate truth is offset by indications of downside risk and legal consequences for doing so. See R. v. Bernabe, [2014] O.J. No. 5617 (Ont. C.J.), at paragraph 24.

[7] See R. v. Debot, supra, at paragraph 63; R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (Alta. C.A.), at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66 (S.C.C.), at paragraph 2; and R. v. Amare, supra, at paragraph 84(4).

[8] See R. v. Debot, supra, at paragraphs 56-58 and 63.