Court File and Parties

Ontario Court of Justice Date: June 12, 2023

Between: His Majesty The King

— And —

Phi Ho, Quan Binh Ho

Before: Justice Louise A. Botham

Ruling on Leave to Cross-Examine – Phi Ho

Counsel: S. Egan and A. Shachter ……………. for the Public Prosecution Service of Canada G. Pannu ……………….……………………………… Counsel for the Applicant Phi Ho B. Smith ……………..……………………..… Counsel for the Applicant Quan Binh Ho

BOTHAM J.:

Ruling on Leave to Cross-Examine – Phi Ho

[1] The Applicant, Phi Ho has sought leave to cross-examine two Affiants, DC Deston and DC Seville.

[2] The Applicant seeks leave to cross-examine DC Deston with respect to the ITO prepared for the issuance of the August 12, 2021 tracking warrant. The Applicant wishes to cross-examine the officer with respect to his assertion that the Applicant was using multiple vehicles to conduct drug transactions when he was only observed to use the second vehicle once. He seeks leave to cross-examine the Affiant on his assertion that a tracking warrant was necessary for surveillance of the Applicant because of the nature of his driving habits and that it would allow scrutiny of the Applicant’s movements 24 hours a day. He also seeks leave to cross-examine the Affiant on his assertion that a meeting observed at 626 Burmanthorpe Road was consistent with drug trafficking.

[3] I see no basis to grant leave to cross-examine on any of these issues. The challenge to the assertion that the Applicant was using multiple vehicles and that the meeting at 626 Burmanthorpe Road was consistent with drug trafficking relate to the facial validity of the warrant and do not support an order to cross-examine. I agree with the Respondent that there is no investigative necessity pre-condition for the issuance of a tracking warrant and therefore a challenge to those assertions would not assist me in any of the matters that I need to consider.

[4] The Applicant also seeks leave to cross-examine DC Deston with respect to the ITO prepared for the general warrant, issued on November 20, 2021. In that warrant, DC Deston asserted that Tamim Bareazay was the owner of Xfresh Produce ii and Global Food Limits, when he was not. The Applicant seeks leave to cross-examine DC Deston “on the inaccuracies that ultimately had him removed from his role of Affiant” (para. 18 of Applicant’s factum). Leave to cross-examine DC Seville on this point was not expressly requested in the written materials. However, if I understand the Applicant’s argument on this point, it may be that he is seeking leave to also cross-examine DC Seville on this point.

[5] The misinformation identifying Tamim Bareazay as owner of Xfresh Produce ii and Global Foods Imports had been included in the ITO for the general warrant on Storage Mart issued on November 20, 2021. Also included in the ITO was the fact that on March 13, 2021, controlled delivery of 38.8 kilos of cocaine had been made to that address.

[6] There was never any connection asserted between the Applicant and that address or business. It was asserted that the Applicant was seen to frequent another food distribution company on Horner Avenue owned by Mr. Bareazay. It was asserted that Guillaume Thai also attended that location on a regular basis. It was the fact that the Applicant frequently attended at Storage Mart, after attending at the Horner Avenue address that formed one of the grounds for seeking the general warrant.

[7] I do not accept that cross-examination of DC Deston as to why he incorrectly believed that Xfresh Produce ii was also owned by Tamim Bareazay would assist in my review of the sufficiency of the grounds to issue the general warrant to search his storage locker. If in fact the Applicant seeks to cross-examine either Affiant to ascertain if there were more significant incidents of misinformation in the earlier Informations to Obtain than disclosed and that was why DC Deston was removed, I do not see how that could be characterized as anything but highly speculative and I am not prepared to allow cross-examination on that basis either.

[8] On June 18, 2022, a telewarrant was issued to search 106 Moody Drive, 10346 Keele Street and the Applicant’s vehicle, a Mercedes. In that ITO, prepared by DC Seville, it is asserted at para. 14 that “the first confidential informant provided information that both Guillaume Thai and the Applicant were involved in trafficking - controlled substances and firearms”. This was in direct contrast to the ITO for the November 2021 general warrant for the storage area where the Affiant, DC Deston asserted that investigators did not identify the Applicant until August 3, 2021.

[9] It is submitted that if in fact the CI had provided such information, it would not have taken that amount of time to identify the Applicant as his identity would have been known at the beginning of the investigation.

[10] If the assertion by DC Seville was inaccurate, then its inclusion might be relevant to issues of recklessness or bad faith. However, that does not appear to be the case. The judicial summary prepared as of April 13, 2023, with respect to appendix D, para. 17 (a) states that on a subsequent meeting with the CI, another person was identified. That person was to be referred to subsequently as Ho. The timing of that disclosure and the details of criminal activity provided are redacted but summarized in the judicial summary.

[11] Given that summary I see no basis to believe or suspect that DC Seville’s assertion is inaccurate. It should be noted as well that DC Seville simply asserted that the first CI provided information identifying Mr. Guillaume Thai and the Applicant as being involved in trafficking controlled substances and firearms. There was no assertion that the information concerning the Applicant, had been provided at the same time as that relating to Thai.

[12] Given the additional information produced through the judicial summary, I see no basis to allow cross-examination on this issue either and the Application for Leave to Cross-Examine is dismissed.

Released: June 12, 2023 Justice Louise A. Botham