His Majesty The King v. Phi Ho, Quan Binh Ho, 2023 ONCJ 250

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 – Quan Binh 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.:

[1] The Applicant, Quan Binh Ho has applied for leave to cross-examine the Affiant and some sub-Affiants with respect to the warrant issued to search Albion Road.

[2] The Applicant submits that he should be able to cross-examine the Affiant with respect to his assertion in the ITO that Quan Binh Ho and Guillaume Thai are associated. At para. 16 he states that “the Applicant, Binh Ho is part of Thai’s drug operations” and para. 17, he asserts that “Binh Ho has conducted business for Thai, in his absence”. It is submitted that these assertions are without any factual support.

[3] I don’t disagree with the Respondent that this appears to be more of an investigative theory rather than a recitation of evidence. I would anticipate that an issuing justice, having read that assertion would then review the ITO to assess the sufficiency of the grounds for it. However, given that I am prepared to allow limited cross-examination of the Affiant, I am prepared to allow cross-examination on the factual basis for the assertions contained in paragraphs 16 and 17.

[4] The Applicant seeks leave to cross-examine the Affiant with respect to observations made on March 31, 2022. Most specifically the assertion that the Applicant is seen to attend a residence with Mr. Hasan and then to leave with a backpack, suggesting that he is removing drugs from the residence. It is asserted that the surveillance video and reports establish that the Applicant in fact entered the residence with a bag. The Applicant seeks to cross-examine the Affiant as to why that was not included in the ITO. Correcting the evidentiary record with respect to whether the Applicant had always been in possession of a backpack, might well reduce the cogency of the inferences sought to be drawn by the Affiant. It may also be relevant to an assessment of whether the Affiant has complied with his obligation to make full and frank disclosure. I am prepared to allow cross-examination of the Affiant on that issue. I am not prepared to allow cross-examination of the sub-Affiant, PC Elder.

[5] The Applicant’s brother, Quang Thai Ho, was surety for Phi Ho. That information was included in the ITO, as was the address associated to Quang Thai Ho namely 1501 -238 Albion Road, Etobicoke. A production order was obtained for the Albion address, showing that the apartment was registered to T Ho and that a parking spot had been leased by Thai Ho. That information was not included in the ITO.

[6] Surveillance, carried out on the Albion address, observed a male entering and exiting the building over a period of 7 days. The Applicant was identified in the ITO as being that male. That identification was based in part on a comparison of the Applicant’s arm tattoos which were on file with Hamilton Regional Police with the tattoos observed on the male in question.

[7] The Applicant asserts that that male could have been his brother, who is similar in build and appearance, including arm tattoos, and who was also associated with that address. The Applicant wishes to cross-examine PC Elder with respect to the basis upon which he identified the Applicant based on arm tattoos. The Applicant also seeks to cross-examine the Affiant as to whether or not there might have been confusion between the two brothers, given the evidence of physical similarity and why the information obtained through the production order was not included in the ITO.

[8] I am not prepared to allow cross-examination of PC Elder with respect to his comparison of the tattoos. The Applicant was entitled to rely on that comparison. However, I am prepared to allow cross-examination with respect to the Affiant’s knowledge with respect to the information obtained through the production order. I am also prepared to allow cross-examination of the Affiant with respect to the similarity in appearance between the two males, apparently connected to this address and why that information was not included in the ITO. I can see some relevance to these questions. Had the issuing justice been made aware of this information, it may be that less weight would have been put on the Affiant’s identification of the Applicant.

[9] The results of this cross-examination could detract from the connection between the Applicant and that address. It could also affect the sufficiency of the warrant, should it be established that the Affiant deliberately withheld information that there was another person associated to the apartment who was similar in appearance to the Applicant.

[10] The Applicant seeks leave to cross examine the Affiant about his characterization of five series of observations as consistent with drug trafficking. On May 19th the Applicant is observed to leave the Albion address with a brown cardboard box that he places into the passenger side of a vehicle, he enters the vehicle and leaves without the box. The Applicant seeks to cross-examine the Affiant with respect to the fact that the police surveillance photos do not show a such a box and to challenge the evidentiary basis for the Affiant’s assertion that the May 19th observations, support an inference that the Applicant was engaging in drug trafficking.

[11] On May 20, 2022, the Applicant is observed approaching a vehicle parked outside of the Albion address with something in his hand. He is said to have placed his hand into the vehicle’s passenger side window and leave without the item. The Applicant wishes to cross-examine the Affiant with respect to why he did not include in the ITO the surveillance officer’s acknowledgement that his view was partially obstructed. The Applicant seeks to cross-examine the Affiant and sub-Affiant with respect to the scope of the observations made and why no visual recording was made of this incident.

[12] On June 14, 2022, the Applicant is said to have left the Albion address with a red bag in his hand and to have approached Mr. Hassan’s vehicle and entered the back seat. The vehicle was followed to a nearby building, where the Applicant got out of the car with a red bag and a heavy box that was taken out of the trunk. The Applicant seeks leave to cross-examine the surveillance officer, DC Deston as to why no photographs had been taken and to cross-examine the Affiant with respect to the foundation for his opinion that what was observed was not consistent with a drug deal.

[13] On June 16, 2023, the Applicant was seen to remove a heavy item from Mr. Hassan’s truck along with a red bag. Both items are carried into the Albion address with a cart. Similar questions are sought to be posed to the Affiant and sub-Affiant.

[14] Except for the absence of the cardboard box on May 19th, I would note that in large part the Applicant does not dispute the accuracy of the observations made on these days. Rather, the challenge is to the cogency of the inferences sought by the Affiant, namely that these activities are consistent with drug trafficking.

[15] I am not prepared to allow cross-examination with respect to the ‘5 drug transactions’ set out in para. 31 to 38. I understand that the Applicant may well argue in submissions that the corroboration of the confidential information was limited. That argument is open to the Applicant without cross-examination. Similarly, the Applicant may challenge the reasonableness of the Affiant’s assertion that the conduct was consistent with drug trafficking based on the observations that were made. Cross-examination will not assist on this issue. The contradictory documentation can be filed. Argument can be made in submissions that those assertions are not supported by the observations. The ability to do that would not be enhanced by cross-examination.

[16] A tracking warrant was sought and obtained by DC Deston for a vehicle driven by Guillaume Thai. At the time, it would appear Mr. Thai was out of the country but that was not disclosed by the officer. Ultimately, even though Thai was an original target in the investigation, he was never arrested and no further warrants were sought with respect to him, when he returned to the county. The Applicant seeks leave to question the Affiant as to why this is and also why he did not disclose that a tracking warrant had been sought for someone who was out of the country.

[17] If I understand the Applicant’s submissions on this point, it may go to the reasonableness of relying on the reliability of the confidential information provided in this matter when ultimately two targets, Thai and Hassan never ended up being charged with anything. Again, that is an argument that can be made in submissions, I do not see how it is advanced through cross-examination.

Released: June 12, 2023

Justice Louise A. Botham