Court File and Parties

ONTARIO COURT OF JUSTICE DATE: October 27, 2021 COURT FILE No.: Brampton 19-14346

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANVEER SINGH

Before: Justice Hafeez S. Amarshi Written reasons for judgment released on October 27, 2021

Counsel: T. Sarantis, counsel for the Crown M. Sodhi, counsel for the Defendant

H.S. Amarshi J.:

Ruling on Section 8 Charter Application: Search Warrant Sufficiency

A. Introduction

[1] Sanveer Singh is seeking exclusion as evidence a firearm and drugs that were seized when police executed a search warrant at his residence. He submits his rights under section 8 of the Charter were violated. Specifically, the Applicant alleges the information to obtain (ITO) did not establish a basis upon which the authorizing justice could have been satisfied that there were reasonable grounds to support the issuance of a search warrant.

[2] The search warrant relies substantially on information provided by a confidential informant (CI), and as a result, large portions of the ITO have been redacted in order to protect informant privilege.

[3] The Crown conceded that the redactions that have been applied to the search warrant rendered it unsupportable and applied that this Court rely on the unedited affidavit in assessing the sufficiency of the search warrant. See “Step 6” at R. v. Garofoli, [1990] 2 S.C.R. 1421.

[4] As part of this procedure, this Court drafted a judicial summary which outlines information relevant to assessing the sufficiency of the ITO via a summary of the nature of the deletions. Of note, as part of the “Step 6” review a number of redactions of the ITO were lifted. As this Court stated in a related decision, R. v. Singh, 2021 ONCJ 474, at para. 6, a ruling permitting the Step 6 review, “I found the initial redacted ITO as disclosed to the defence had been over-edited. This is not meant to be a criticism of the Crown but during a review of the ITO, which was conducted in camera, it was determined that some excisions could be lifted while maintaining informant privilege. This is not an unusual occurrence. For example, details that may been sensitive at the time the affidavit was drafted by police can over the passage of time be safely released.”

[5] In a written decision released March 29, 2021, I concluded that the judicial summary, along with the re-edited ITO and disclosure received by the defence allow the Applicant to meaningfully challenge the issuance of the warrant. Further, the defence had an opportunity to cross-examine the affiant, albeit on a narrow basis. I previously granted leave for the defence to cross-examine the affiant in one area related to Detective Constable Armagan Uckardes’ description in the ITO of what constitutes Mr. Singh’s “personal property.” Mr. Sodhi argued that description in the context of the warrant is intentionally misleading. In this case Mr. Sodhi proposed a number of areas for cross-examination. In one instance the Crown resolved a defence inquiry by providing further information. For the remaining areas, I determined that the proposed areas for cross-examination did not meet the threshold requirement for leave to be granted as set out by the court in R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343. Leave is only granted if a basis can be shown that the cross-examination would tend to discredit one of the preconditions for issuance of the warrant or demonstrate intent to mislead the issuing justice.

[6] In this decision I have referred to the informant using the masculine pronoun. This is for ease of reference and should not be taken as an indication that the source is in fact a male.

B. Applicable Principles

Search warrant review

[7] A search warrant that has been judicially authorized is presumed to be valid. The onus of establishing invalidity in a charter application rests upon the challenging party, in this case Mr. Singh. R. v. Sadikov, 2014 ONCA 72.

[8] The onus is not upon the Applicant to merely show that there were defects in the ITO; the Applicant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. R. v. Dionisi, 2012 ABCA 20.

[9] The standard of persuasion for the issuance of a warrant is reasonable grounds to believe. This standard is one of credibly-based probability and requires proof of reasonable probability or reasonable belief. It requires more than an experienced-based "hunch" or reasonable suspicion. R. v. Debartolo, 2018 ONSC 916, at para. 32 (ii). The determination of this standard does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach - it is necessarily a qualitative standard upon which reasonable people can differ in some cases. See R. v. Amare, 2014 ONSC 4119 at para. 83.

[10] A justice issuing a search warrant must have reasonable grounds to believe that an offence has been committed. The material in support of the warrant must raise a reasonable probability of discovering evidence of the crime at the place of the proposed search. R. v. Brown, 2021 ONCA 119.

[11] It is well-established that the issue for a reviewing court is not whether it would have issued the search warrant but whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds for the warrant. In R. v. Garofoli, [1990] 2 S.C.R. 1421, Sopinka J. summarized the standard of review, at p. 1452: 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.

[12] The affiant has an obligation to make full, fair and frank disclosure of all material facts, favourable or not. R. v. Araujo, 2000 SCC 65, at paras. 46-47. The affiant must not conceal or omit material facts or exaggerate the information on which he or she relies. R. v. Morelli, 2010 SCC 8, at para. 102.

[13] Essential features of the Garofoli application are excision and amplification. R. v. Paryniuk, 2017 ONCA 87, at para. 46. Erroneous, irrelevant and misleading is excised from the ITO and disregarded. The central consideration on the review of a search warrant therefore is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. R. v. Nguyen, 2011 ONCA 465, at para. 57.

Information from confidential sources

[14] The Supreme Court in R. v. Debot, [1989] 2 S.C.R. 1140, outlined the principles to be applied where a search warrant is based largely on information from a confidential informant, as is the case in this trial. At paragraph 53 Wilson J. stated:

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?

[15] The court further explains that each of these factors do not form a separate test and that it is the “totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors. R. v. Debot, [1989] 2 S.C.R. 1140, at para. 53.

[16] The ITO therefore must include both details about the informant’s reliability and details to assess what makes the tip compelling to satisfy the Debot factors. R. v. Crevier, 2015 ONCA 619, at para. 68. Further, the ITO must contain information about police efforts to corroborate the informer’s information.

C. Analysis – the Sufficiency of the ITO

Background

[17] Police began investigating the Applicant after a shooting that occurred on a patio in a Mississauga plaza. [The timing of the shooting is sensitive in the context of how the ITO as a whole is drafted. Therefore, the date of the incident is replaced by a date range - specifically the shooting occurred within 60 days of July 4, 2019, which is the date the search warrant was granted by a Justice of the Peace.]

[18] Many of the details related to this shooting, although not the fact of the shooting, have been redacted in the ITO. The details of the plaza shooting could not be adequately summarized without piercing confidential informant privilege and therefore I have not relied upon those details in assessing the sufficiency of this warrant.

[19] The shooting however is the starting point in the narrative that informs subsequent police activity in this case. It is obvious from the search warrant, regardless of the nature of the redactions, that as a result of the plaza shooting, police began conducting surveillance of Sanveer Singh. To be clear the ITO as edited does not reveal any connection between the Applicant and the plaza shooting.

[20] Police receive information from a confidential source related to the possession of two firearms by Mr. Singh. In addition, the tipster provides a number of details about the Applicant. In the subsequent police investigation, Mr. Singh is observed by an officer exiting a residence at 496 Mallorytown Ave. in Mississauga. Police records check confirm this is his residence. He is further observed driving a green Pontiac. Police believe a black Honda ATR is also associated to the Applicant.

[21] On July 4, 2019, a search warrant is granted by Justice of the Peace Fisher-Grant for the Mississauga residence and two vehicles.

[22] The next morning police execute a search warrant at 496 Mallorytown Ave. and locate a loaded semi-automatic handgun and 145 grams of cocaine that were observed by police to be tossed from a second-floor window of the residence during the search warrant execution.

Debot Analysis

The information was compelling

(i) First-hand observation and detailed

[23] A review of the search warrant reveals that the source information in this case is largely first-hand observation. As the Court of Appeal noted in R. v. Markiewicz, 2014 ONCA 455, first-hand information and direct observations make the information more compelling. It enhances the quality of the information and tends to exclude the possibility that the informant was merely relaying rumour or gossip.

[24] In this case the CI provides details about two firearms in the possession of the Applicant. This information is found at paragraph 17 and page 37 & 38 of the ITO and these passages should be read together. The details read as follows:

(i) That the firearm has a camouflage grip on the hand. That the colour is brown. (ii) That the Applicant has a second firearm. That the gun is silver and black. (iii) That Sanveer Singh is in possession of ammunition. (iv) That the Applicant is in possession of a large quantity of cocaine.

[25] The tipster provided additional details about the firearms, which have been redacted and subject to a summary. The information about the firearms are sufficiently detailed and elevates the CI’s information beyond a generic description of a firearm.

(ii) Nature of the firearm possession

[26] In addition, although the precise information is redacted and summarized, the informant reveals the nature of the possession, specifically the circumstances under which the firearm was possessed by the Applicant. This is a significant detail in the informant’s tip to police.

(iii) Recency of the information

[27] The timeline of the CI observation(s) of the firearms is revealed in the ITO. This observation as indicated in the judicial summary takes place within 60 days of the search warrant being granted on July 4, 2019. The specific timing of the observation(s) are redacted because that detail would identify or tend to identify the tipster.

[28] I deemed the recency or timing of the information from the CI as recent and current and not stale-dated. The timeliness of the CI tip enhanced the compelling nature of the information.

The tip was sufficiently corroborated

[29] Corroboration refers to any supporting information uncovered by the police investigation. A number of details provided by the informant were confirmed by police record checks and surveillance.

i) Connection between the Applicant and 496 Mallorytown Ave.

[30] The CI identifies the Applicant as living on Mallorytown. [The CI does not provide a street number.] CPIC and PARIS record checks conducted by the affiant show Mr. Singh resides at 496 Mallorytown Ave. in Mississauga with other individuals.

[31] In addition, police conducted surveillance of 496 Mallorytown Ave. Within 60 days of July 4, 2019, the applicant is observed exiting the home and entering a green Pontiac parked in the driveway. [A specific date was included in a ruling released October 6, 2021. However, that date was when the affiant reviewed the notes of a surveillance officer and not the date of the surveillance. The paragraph was subsequently amended, and the specific date deleted. Both the date of the surveillance and the date the affiant reviewed the surveillance officer’s notes are within 60 days of July 4, 2019.] Police take surveillance photos of Mr. Singh immediately outside of the residence which are included in the ITO. He is observed by police to be driving the green Pontiac.

[32] The affiant included details of a police report in the search warrant. The report discloses that on July 1, 2019, Thanh Nguyen contacted police to report being involved in a collision with a Honda Accord. Sanveer Singh was identified as the driver. A police officer attended 496 Mallorytown and arrested the Applicant at the residence that same day. Mr. Singh was charged for failing to remain at the scene of an accident.

ii) Additional details of the informant’s tip that are corroborated

[33] CPIC and NICHE record checks confirm that there are a number of individuals that reside at 496 Mallorytown, including a male with the same last name, three years older than the Applicant. This is supportive of a detail in the informant’s tip, that the Applicant has an older brother. [I appreciate this is not conclusive of a sibling relationship, although this information is highly suggestive that the male close in age to Mr. Singh, living in the same home, sharing the same last name, is the Applicant’s older brother. The “Singh” last name, however, is a common surname and that detail standing alone would not be compelling.]

iii) Outstanding charge

[34] The CI provided a detail to police included in the ITO that Mr. Singh, “took off from the police” when they tried to arrest him. This is corroborated by a CPIC check which discloses the Applicant has an outstanding criminal code charge for flight from police. This constitutes relatively strong corroboration of a unique detail about the Applicant. It is not information that could be considered commonplace and therefore widely known and easily ascertainable. See R. v. Farrugia, 2012 ONCJ 830.

iv) Associates

[35] The source provided details about an associate of Mr. Singh. The specific information has been redacted. Police were able to confirm non-criminal details about the associate via various database checks. This corroboration alone is not particularly compelling, but this information is not to be viewed in isolation. What it does demonstrate is that independent police inquiries confirm information that the CI has provided specific to the Applicant. It is the cumulative effect of police corroboration that is impactful.

v) Criminal conduct is not corroborated

[36] I appreciate that the police do not corroborate any criminal conduct on the part of the Applicant. However, this is not a necessary pre-requisite to the issuance of a search warrant. Information of a crime itself being committed does not have to be confirmed by police. In R. v. Lewis, 1998 107 OAC 46, Doherty J. remarks, “I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.” As the Alberta Court of Appeal stated in R. v. Caissey, 2007 ABCA 380, affirmed R. v. Caissey, [2008] 3 S.C.R. 451, “The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity.”

[37] Mr. Sodhi argues that the level of police corroboration was lacking in this case, specifically there are no observations connecting a firearm to the Applicant. However, in R v. Crevier, 2015 ONCA 619, at para. 109, Rouleau J.A. observed that unlawful possession of a firearm in a person's home is difficult to corroborate through surveillance. Further, from a public safety perspective, “It could be irresponsible for police to wait until independent investigation alone provides the sufficient grounds for a search when they already have the requisite reasonable and probable grounds based on compelling and reliable information from a confidential informer. Delaying a search in such circumstances would allow an illegal handgun to remain at large and pose a threat to the community.”

[38] In Crevier, police surveillance was conducted over the course of a few hours. The police did not observe the Appellant at the apartment or observe any activity that suggested criminality. The search warrant was ultimately upheld based on the assessment that the other two Debot factors compensated for the limited amount of corroboration.

[39] Unlike Crevier, I would not characterize this as a case of limited corroboration. Police are able through a combination of records check and physical surveillance corroborate the CI’s information in a number of areas. The level of corroboration connecting the Applicant to 496 Mallorytown Ave. is particularly strong for instance.

The source was credible

[40] As explained by Code J. in R. v. Greaves Bissearsingh, 2014 ONSC 4900, the term "credibility" captures considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police.

[41] Details about the CI are contained in “Appendix D” of the ITO. For obvious reasons most of the paragraphs in this section are redacted. Based on a judicial summary of this section and the portions that remain unredacted, the following is known about the CI: The source is known to police. He is a registered source working with a police “handler.” In other words, he is not a first-time informant unknown to police, which could detract from an overall assessment of the informant’s credibility. It is revealed in the ITO that the CI has provided information to police in the past which has led to an arrest. There is a level of specificity contained in the ITO about the nature of the previous case and the results of the police investigation. The ITO reveals how long the CI has been working with police, specifically the CI has provided information to police for more than five years. Of note, the CI has previously provided information in the past resulting in the recovery of firearms. In R. v. Brown, 2021 ONCA 119, at para. 50, the Court of Appeal observed that source information previously provided leading to the seizure of a firearm, the very criminality being investigated by police in Brown, speaks to the CI’s reliability. Further, the motivation of the confidential source in providing this information to police is disclosed, indicating self-interest. Only one motivation is referenced. [Judicial Summary dated March 12, 2021, at para. 33.]

[42] The ITO reveals whether or not the confidential source is engaged in criminal activity and familiar with the criminal milieu.

[43] In addition, the ITO contains additional information in which to assess the credibility of the informant. In a section entitled “Addendum” in the judicial summary the following information about the source is disclosed in the ITO: [Ibid, at page 9.]

(i) Whether or not the confidential source has a criminal record was disclosed to the issuing justice. (ii) Whether or not the confidential source has been convicted of acts of dishonesty and/or breaches of court orders was disclosed to the issuing justice. (iii) Whether or not the confidential source has outstanding criminal charges before the courts was disclosed to the issuing justice. (iv) Whether or not the information provided by the confidential source to police is first-hand or hearsay is obvious in most instances.

[44] The issuing justice was provided with sufficient and detailed information to assess the credibility of the CI and would have been aware that the source was motivated by self-interest and may or may not have a criminal background. It is not surprising that an informant in these circumstances would potentially have criminal antecedents and seek reward for his information. These attributes alone are not fatal to the informant’s credibility and must be considered in totality when assessing the information that is known about the CI at the time the ITO is drafted and the circumstances upon which that information is provided to police.

[45] Further, I have taken into account omissions contained in the ITO that potentially undermine the credibility of the informant. They are summarized in the judicial summary as the following: [Ibid, at pages 9-10.]

This ITO does not contain:

(i) Any reference that the confidential source was made aware that he/she has an obligation to tell the truth. (ii) Any reference that the confidential source was made aware of any consequences for not providing truthful information. (iii) Any reference that police conveyed to the confidential source that information that he/she provided be deemed fruitful in order to receive a benefit(s).

[46] Although these omissions negatively impact an assessment of the CI’s credibility, I have determined there is a sufficiently strong basis for the issuing justice to conclude the source was credible. Moreover, these omissions would have been readily apparent to the issuing justice.

[47] In sum, the tip in this case was provided by a CI that has a previous history of providing police with information. He is a registered informant, known to police. In R. v. Choi, 2013 ONSC 291, at para. 34, MacDonnell J. observed there are circumstances tending to provide some degree of comfort with respect to an informant’s credibility. Specifically, that the CI was registered with the Toronto Police Service and he was dealt with by a handler. This in contrast to an anonymous tipster. There is some measure of reliability as the ITO discloses the CI has provided information to police in the past leading to an arrest. Further, the source has provided information leading to the seizure of firearms in the past.

D. Defence submissions on the sufficiency of the ITO

[48] Mr. Sodhi made fulsome submissions in support of his argument that the ITO does not contain sufficient grounds to justify its issuance. Mr. Sodhi points to several alleged deficiencies in the ITO. I will address the most significant defence arguments.

The connection between the firearm and the places to be searched

[49] The defence argues the ITO discloses no basis to believe that evidence of the firearm offence would be located at 496 Mallorytown. Mr. Sodhi submits that the affiant provided vague and conclusory statements in the ITO untethered to any credible evidence that could lead the issuing justice to conclude there would be evidence of a firearm at the Applicant’s home. In support, Mr. Sodhi relies on R. v. Herta, 2018 ONCA 927, which he argues is similar to the case at hand. In Herta, the Court of Appeal found there was insufficient corroborative evidence to warrant the affiant’s belief that the target was in possession of a firearm at the residence. Writing for the court, Fairburn JJ.A. concluded the only information that could support the reasonable grounds connecting the firearm to the residence rested on the CI’s information that the target was in a dispute and would not go anywhere without the gun. This was deemed to be conclusory and not compelling.

[50] I have considered Herta, and the parallels as suggested by the defence are not particularly strong. First, in Herta the Crown did not seek to rely on the unedited affidavit in defence of the of the search warrant, despite the ITO being largely based on source information. The Court noted that as a result the trial judge was at a distinct disadvantage and was called upon to determine, on the basis of a reduced record, whether the search warrant could have issued. That is not the case in this matter, where the Crown sought and was permitted to rely on the entirety of the ITO in support of the issuance of the search warrant, following the Step 6 procedure set out in R. v. Garofoli.

[51] Secondly, the Court concluded that the ITO was drafted in such a way as to have the potential of leaving the issuing justice with the impression that the target lived at the residence which was incorrect. There is no such misrepresentation in this case and it is clear that the Applicant resides at 496 Mallorytown.

[52] In this case the CI information is central to the grounds for belief, specifically that there is a credibly-based probability that there is evidence respecting the commission of an offence in the location to be searched.

[53] In a previous ruling, R. v. Singh, 2021 ONCJ 474, I was satisfied with the adequacy of the judicial summary. In other words, I was satisfied the judicial summary provided to the defence, combined with the redacted ITO, was sufficient to ensure the Applicant was in a position to meaningfully challenge the issuance of the search warrant.

[54] Having reviewed the entirety of the ITO and upon application of the Debot principles I am satisfied that the issuing justice had an adequate basis to conclude that there would be evidence at the home address of the Applicant. Specifically, I concluded the informant tip was reasonably detailed and compelling, that the CI was credible, and that there was sufficient corroboration in this police investigation connecting Mr. Singh to the Mallorytown residence.

Connection between the vehicles to be searched and the Applicant

[55] The defence submits the link between Mr. Singh and the two vehicles to be searched as specified in the ITO is tenuous. [Mr. Sodhi concedes little turns on the inclusion of the green Pontiac in the places to be searched. The Pontiac is not located by police when the search warrant is executed on July 5, 2019, and no search of the vehicle takes place. No evidence was seized from the Honda ATR. A finding that the ITO lacked adequate grounds to search the two vehicles, however, would have impacted an overall assessment of the sufficiency of the search warrant.] I do not concur. The Applicant is sufficiently linked to the green Pontiac because he is observed by police entering the vehicle from his residence and then driving.

[56] The Honda ATR is connected to Mr. Singh because he is alleged to have been driving that vehicle on July 1, 2019, when he is arrested by police for failing to remain at the scene of an accident. The search warrant is executed four days later. [The police report refers to the vehicle as a Honda Accord. The vehicle specified in the ITO is a Honda ATR. This is a model of a Honda Accord. It is obvious the police were referring to the same vehicle given that the licence number, CFZS131, is referenced for both the Honda Accord and the Honda ATR.]

The manner in which the ITO was drafted

[57] Mr. Sodhi argues that the affiant drafted in the ITO in an intentionally misleading manner in order to give a “false impression” that the Applicant is directly connected to the plaza shooting. The edited ITO establishes no concrete link and therefore the defence submits this inference made it more likely that the issuing justice would grant a search warrant.

[58] He points to page 17 of the ITO in which a grey 2017 Honda UCL is referenced. Based on witness statements reviewed by the affiant and summarized in the ITO, an occupant of that Honda discharged a firearm striking the victim in the back.

[59] Police subsequently locate the Honda UCL and execute a search warrant (to be clear that judicial authorization was granted prior to the current ITO). Those details are disclosed in the ITO. The affiant states at page 17 of the ITO that, “Located inside the vehicle was personal property associated to SINGH.” [Page 17, ITO.] However, at page 23, the “personal property” is disclosed to be a “Sunny D” drink container containing a fingerprint associated to the Applicant. A fingerprint belonging to a second male is lifted from the exterior of the front passenger window.

[60] The defence was granted leave to cross-examine Officer Uckardes on this issue. The officer testified that in choosing those words he was not trying to suggest a more significant connection to the vehicle than a used drink container. He disagreed that “personal property” is more apt to describe a wallet or driver’s licence but he conceded he could have phrased the ITO differently.

[61] I agree with Mr. Sodhi, the description of the drink bottle in this manner is misleading given the context. It suggests a more substantial connection to the Honda associated with the plaza shooting than factually exists.

[62] That said, I did not conclude the affiant deliberately intended to mislead the issuing justice. I accepted his evidence that his intention was to associate an item in the vehicle to Mr. Singh.

[63] In addition, the issuing justice would have become aware after reviewing the totality of ITO, that the “personal property” in question was a drink container. If those additional details were omitted from the ITO, I may have come to a different conclusion about the affiant’s intentions.

[64] In the end given that the ITO as disclosed to the defence shows no connection between the Applicant and the plaza shooting, the fact that his fingerprint is found in the Honda UCL is an irrelevant factor. It is to be excised.

[65] In further support of his argument that Cst. Uckardes drafted the supporting affidavit in a misleading manner, he references a discrepancy in the location of the Honda UCL during police surveillance. The Affiant initially describes police locating the Honda UCL on Mallorytown Ave. However, the ITO later specifies the vehicle is found on a roadway at Kettleby Court, south of Camden Circle. This in the Mallorytown area, but not on the street of the target address. The initial description is inaccurate and is to be excised.

Deficiencies in the ITO

[66] The ITO in this case was highly repetitive and as a result unnecessarily long. Repetition does not make a search warrant stronger but detracts from the document’s organization. The ITO does not include any page numbers and the affiant was inconsistent in his use of paragraph numbers. This is a poor practice. Page numbers were digitally inserted by the Crown in the edited version of the ITO.

[67] The affiant includes reference to Mr. Singh’s driving record. It has marginal relevance and is to be excised.

[68] There are obvious errors in the ITO. For example, at page 17 (c), the affiant states there are five parties associated with the 496 Mallorytown Ave. but proceeds to list only four people.

[69] In another instance, the ITO discloses a search warrant that was previously granted but not executed. Some of those details have been redacted because the timing is deemed sensitive. I will therefore keep my comments general in nature. [Details of the unexecuted search warrant are summarized at page 9, para. 4 of the Judicial Summary.] Details about this unexecuted search warrant are contained in two different paragraphs in the ITO. However, a material detail contained in one paragraph differs from detail(s) in a subsequent paragraph although both paragraphs refer to the same search warrant. When both paragraphs are read together it is obvious that the information contained in one paragraph is incorrect.

[70] I did not conclude that this error was purposeful, but it reflects some carelessness on the part of the affiant and suggests lack of attention to detail during the drafting process. I am mindful of Blair J.A.’s comments in R. v. Nguyen, 2011 ONCA 465, at para. 57:

Police conduct is clearly relevant to that consideration. However, the 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. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.

[71] It is unrealistic to expect a search warrant be perfectively drafted. In assessing the ITO for sufficiency, the trial judge is required to take a “common-sense and holistic approach” in review of the whole document. R. v. Herta, 2018 ONCA 927, at para. 21. What is required is that the affiant set out the facts in the affidavit truthfully, fully and plainly. R. v. Araujo, 2000 SCC 65, at para. 46.

E. Conclusion

[72] Although the defence identified a number of flaws in the ITO, [For example, Mr. Sodhi further argued the manner in which the ITO is drafted is unclear and could lead to confusion that the grey Honda UCL and black Honda ATR are the same vehicles referenced in the ITO. I do not agree with that submission. There are different VIN numbers identified in the ITO for each vehicle. The grey UCL is registered to a numbered company. The vehicles are different colours.] I did not conclude this was a case where the conduct of the police had been subversive of the pre-authorization process that would warrant an exercise of my residual discretion as the trial judge to set aside what is otherwise a valid search warrant. This may occur where an officer's failure to make full and frank disclosure amounts to "deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like." The standard to invoke that discretion is high and must be exercised having regard for the totality of the circumstances. See R. v. Paryniuk, 2017 ONCA 87, at para. 69. Neither did I conclude the affidavit was drafted in a deliberately misleading manner.

[73] Based on a totality of the circumstances and after excising erroneous and misleading statements in this ITO there remains a sufficient basis in which the search warrant could have been issued. I have also disregarded for the purposes of this search warrant review sentences and at times paragraphs that could not be meaningfully summarized because concerns related to identifying the CI could not be mitigated. These sections are specifically identified in the judicial summary and cannot be relied upon to uphold the warrant. See Crevier, 2015 ONCA 619, at para. 87.

[74] The application to set aside the search warrant and exclude evidence seized from 496 Mallorytown Ave. is dismissed. As a result of this conclusion, it is unnecessary to undertake a section 24(2) Charter analysis.

[75] There were aspects of this Charter motion that were complex, and I want to thank both counsel for their helpful submissions and the courteous manner in which this litigation was conducted.

H.S. Amarshi J.