ONTARIO COURT OF JUSTICE

CITATION: R. v. Ho, 2023 ONCJ 471

DATE: September 1, 2023

BETWEEN:

HIS MAJESTY THE KING

— AND —

PHI HO, QUAN BINH HO

Before Justice Louise A. Botham

Ruling on Application for Basi Hearing

S. Egan and A. Shachter …................ for the Public Prosecution Service of Canada

G. Pannu ………………….…………………………… Counsel for the Applicant Phi Ho

S. Shikhman ……………………………………Counsel for the Applicant Quan Binh Ho

BOTHAM J.:

[1] The Applicants Quan Binh Ho and Phi Ho challenge the lawfulness of the search of 1501 Albion Road, Unit 238 in Toronto. The search was conducted pursuant to a search warrant.

[2] Aspects of the ITO sworn in support of the search have been redacted to protect the identity of two sources referenced in the Albion Road ITO. A Judicial Summary has been prepared with respect to those redactions. The Respondent resists production of the actual content of the redacted material, claiming informant privilege.

[3] The Applicants challenge the Respondent’s assertion of privilege. Initially, the challenge was to the assertion of privilege relating to Confidential informant #2.

[4] The Applicants submitted that there was a realistic basis to believe that Source #2 was in fact a police agent. The Applicants sought a hearing into the issue. It was conceded that such a hearing would be both in camera and ex parte.

[5] The Respondent filed sealed materials with me to support the claim of privilege with respect to Source #2. I have reviewed those materials. I am satisfied that the Respondent’s claim of privilege is founded properly.

[6] The scope of the Applicants’ challenge with respect to the Respondent’s assertion of privilege has broadened to include the assertion of privilege relating to Source #1. It is asserted that Source #1 may have been acting at the direction of the police.

[7] On our last court appearance, the Respondent filed further sealed materials with me to support the claim of privilege with respect to Source #1.

[8] I have reviewed those materials. In the interest of ensuring that the Applicants’ concerns have been fully addressed, I wish to hear viva voce evidence with respect to the materials that I have been provided.

[9] An in camera, ex parte hearing is to be scheduled before me. Preferably that should occur before the next date scheduled for the pre-trial motions in this matter.

Released: September 1, 2023

Justice Louise A. Botham