ONTARIO COURT OF JUSTICE DATE: June 10, 2024 COURT FILE No.: Toronto 23-50000505

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— AND —

ABDULLAHI HASHI Applicant

Before Justice Patrice F. Band

Ruling on s. 8 Garofoli Application

Counsel: Mr. K. Assié............................................................................................... counsel for the Crown Mr. S. Rinas ...................................................................... counsel for the Applicant, Mr. Hashi

BAND J.:

I. Introduction

[1] Toronto Police officers obtained a warrant to search an apartment unit on Willowridge Road (the Willowridge building) where they believed Mr. Hashi lived, as well as a storage locker associated with it. The next day, they executed the warrant and searched the unit. Mr. Hashi’s mother and siblings were home, and he was in one of the bedrooms. In that bedroom, officers found a green Glock 22 .40 calibre semi-automatic handgun containing an overcapacity magazine loaded with 15 rounds of ammunition, a baggie containing two rounds of ammunition, a small amount of fentanyl and a bullet-proof vest. Having found what they were looking for, the officers did not attempt to search the storage locker. Mr. Hashi was arrested and charged accordingly. In this application, he challenged the validity of the warrant.

[2] The search warrant depended a great deal on information that police had obtained from two confidential sources (CS1 and CS2). Accordingly, the Information to Obtain (ITO) was heavily redacted. The ITO included descriptions of officers’ observations of video security footage from parts of the Willowridge building in which Mr. Hashi was believed to reside. As I will discuss further, while an officer made efforts to seize that footage from the Toronto Community Housing Corp. (TCHC), much of it was lost and could not be provided to the police.

[3] By the time the application began, Mr. Rinas had received additional disclosure and had had ongoing discussions with the Crown, Mr. Assié. This had the effect of focusing the scope of his application. On behalf of Mr. Hashi, Mr. Rinas made facial and sub-facial attacks on the warrant, arguing that it was invalid and should not have issued. As a result, he argued, the search of the residence violated Mr. Hashi’s s. 8 Charter rights and the seized contraband ought to be excluded from his trial. He also argued that the lost video footage violated Mr. Hashi’s right to make full answer and defence, contrary to s. 7, and that references to its contents ought to be excised from the ITO. In aid of that argument, Mr. Hashi sought leave to cross-examine DC Samip Pathak, a sub-affiant of the ITO who had tried to obtain the security footage. (The lost video footage is also the subject of a s. 7 claim on the trial proper.)

[4] On behalf of the Crown, Mr. Assié agreed that, as redacted, the warrant could not have issued and sought to rely on “Step 6” as described in R. v. Garofoli, [1990] 2 S.C.R. 1421. To that end, the Crown created draft judicial summaries of the redacted portions of the ITO. After a series of exchanges between Mr. Assié and me, which were held in camera, additional versions of the judicial summaries were created. Mr. Rinas was invited to make submissions and his comments led to some further changes. At the end of that procedure, Mr. Rinas conceded that the Judicial Summaries were sufficient to enable him to challenge the warrant.

[5] The Crown also conceded that Mr. Rinas was entitled to cross-examine DC Pathak on the issue of the lost video footage. After some minor changes were made to the ITO by way of amplification on consent, Mr. Rinas cross-examined PC Pathak. He confined his questions to the circumstances surrounding the loss of the video footage. Then, the parties presented their arguments on the Garofoli application.

[6] For the following reasons, the application is dismissed.

II. The Issues

[7] Based on the arguments as refined during oral submissions, the issues before me in this application are whether:

A. the warrant is invalid because reference to the “storage locker associated with” the apartment unit was not sufficiently accurate or precise (this is the facial attack);

B. the lost video security footage has prejudiced Mr. Hashi’s ability to make full answer and defence with respect to the warrant, such that the references to its contents should be excised from the ITO (this is part of the s. 7 claim); and

C. the warrant is invalid because it did not provide reasonable and probable grounds to search the unit; the particular focus of this claim is on the “three Cs” discussed in R. v. Debot, [1989] 2 S.C.R. 1140 (this is the sub-facial s. 8 claim).

III. Law and Analysis

A. The facial attack re. the description of the storage locker

The arguments

[8] The description of the locations to be searched on the face of the warrant reads “ #101-44 Willowridge Road, Etobicoke, ON and storage locker associated with this unit. ” Mr. Rinas argued that the description of the storage locker was inadequate because it did not provide those who would rely on it – searching officers and third parties whose cooperation might be sought – an accurate enough description such that they would not have to look past the warrant (for instance, to the ITO) to know the limits of the location to be searched. He based his argument on the Ontario Court of Appeal’s decision in R. v. Ting, 2016 ONCA 57. In response to a question from me about whether the police could ask the building superintendent or staff for the location and identity of the “storage locker associated with [the] unit,” Mr. Rinas maintained that doing so in these circumstances would have run afoul of the parameters set out in Ting because this would have meant that they had been guided by their personal knowledge rather than the warrant.

[9] The Crown’s response was two-fold: first, the description of the storage locker was adequate; in the alternative, it can be severed from the warrant pursuant to R. v. Lachance, [1990] 2 SCJ 116, at para. 20.

[10] I asked Mr. Rinas for his thoughts about the fact that Ting does not refer to Lachance. He submitted that it is likely because the latter related to a wire-tap authorization.

The law

[11] In Ting, the Court explained that search warrants relate to specific things and places and that “an adequate description of the place to be searched is a fundamental component of a search warrant” (paras. 47-48). Without one,

the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called upon to execute the search would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching the premises (para. 49).

[12] An ambiguous warrant cannot serve these purposes, nor “can the subject of the warrant know whether the police are authorized to search the premises” (para. 60). That said, “what constitutes an adequate description will vary with the location to be searched and the circumstances of each case” (para. 51).

[13] In Ting, the building contained three residential units and the warrant targeted a different apartment and person than the one that was searched. The police learned that they were searching the wrong residence – a basement apartment – when they entered it. In fact, they did not know of its existence when they drafted the initial ITO. Once they learned of the confusion, they sought a second warrant to authorize them to (continue to) search the basement unit. The second warrant was no better, as it could have “equally signified any of the three residential units” (para. 57).

[14] There is a certain degree of formalism to this area of the law, and for good reason. However, as Nader Hasan et al. write in Search and Seizure (Toronto, Emond Publishing, 2021) at p. 117, “the formality of the law has its limits.” In their summary of R. v. Charles, 2010 QCCQ 9178, the authors explain that the technically imprecise address on the warrant “did not describe any other location, and the address was not so inaccurate or incomplete as to lead to any real confusion;” as such, no other location “could have been searched improperly as a result of the error” (ibid).

[15] In Lachance, when two paragraphs of the wire-tap authorization were read together, it “create(d) no limitation with respect to persons and places.” This was a clear instance of overbreadth; however, the Crown argued that if one of the paragraphs could be severed, the warrant would stand. The appellant argued that because one paragraph referred to the other, deleting the first would necessarily alter the meaning of the latter.

[16] Citing Grabowski v. The Queen, [1985] 2 SCR 434, the Court ruled that the question was whether the impugned paragraphs “must be read together or whether they can reasonably be read independently. If the clauses can be read independently, then only the offending clause need be severed” (para. 22).

[17] The authors of Search and Seizure, supra, suggest that wire-tap authorizations might be treated differently than search warrants because they contain numerous clauses. However, they note that R. v. Johnson & Franklin Wholesale Distributor Ltd., leave to appeal to SCC refused, [1971] SCRE ix., at p. 648, and other authorities have applied the Grabowski / Lachance rule to search warrants.

Ruling

[18] I respectfully disagree with Mr. Rinas’s argument for two reasons. This warrant is different from the one at issue in Ting. It refers to a storage locker that is “associated with” a precisely identified unit, and not to any other location. It could not cause confusion in the minds of officers as to the scope of their powers or leave subjects in doubt about the validity of the warrant. This, of course, presupposes that the searching officers would be permitted to ask the building superintendent or staff to identify the locker. Ting itself confirms their ability do so. At para. 59, the Court refers to those who rely on search warrants, “including police officers who are executing it and third parties whose cooperation is sought.”

[19] Second, if I am wrong about that, the impugned clause is severable. It is, in fact, a second authorization in the same warrant. It incorporates “the unit” by reference; however, the two parts are not so interwoven as to be incapable of being separated and read independently. To paraphrase Lachance at para. 23, if the offending part is removed, the meaning of the first part remains abundantly clear.

B. The lost TCHC video security footage

The facts

[20] DC Pathak testified that he had been detailed to go to the TCHC’s West office to view video footage of the Willowridge building. He described the office as an “operational building” where special constables parade before being dispatched to various properties. It also houses workstations where one can view video security footage of all the buildings. He had been there several times before.

[21] In this case, he went on January 24, 2023 and spoke to SC Morgan, who gave him access. He viewed footage from January 22, 23 and 24 and took notes while doing so. He also watched live cameras as the surveillance team was set up in the area of the Willowridge building. He told DC Danson, the ITO affiant, what he had seen. Before leaving, he asked SC Morgan for the specific camera footage that he had watched, as well as what DC Danson had watched earlier.

[22] In his experience, if the TCHC staff can download the footage right away, they will do so. Sometimes, one has to fill in a form. If they are busy, they will provide it later. Sometimes they fill out the form, as the special constable did in this case. Footage is only kept for 14 days, after which it is lost. DC Pathak had not had trouble obtaining footage in the past.

[23] In this case, he called the TCHC on February 6 to ask if the footage was ready for him. His evidence was that it had been his first opportunity to do so given his work and days off. The response was that it had not been downloaded yet. He asked them to do so as soon as possible, given the 14-day retention period. He knew that footage from January 19-22 would no longer be available. He later went to pick up what they had been able to download onto a DVD and provided it to DC Danson. He did not recall looking at the DVD to see what it contained.

[24] Much of the video footage from January 19, 20, 23 and 24 that is described in the ITO was lost. Some video footage from January 24, which was not referenced in the ITO, was obtained and disclosed. It shows the lower part of a male leaving unit 101 of the Willowridge building. He is wearing black shoes, dark pants and a gray t-shirt.

[25] Based on his cross-examination, Mr. Rinas asked me to reject DC Pathak’s evidence that he had requested the footage on January 24. The cross-examination generated the following information:

• DC Pathak had not been specifically tasked, and had no notes of being tasked, to seize the footage;
• DC Pathak did not note that he had requested of SC Morgan that the footage be preserved;
• He could not recall if SC Morgan was a man or a woman; and
• He took no steps to ensure that the form had been filled out properly.

[26] DC Pathak explained that he did not need to be told to seize the footage. When he attends to view video at the TCHC, seizing it is part and parcel of the task. I accept that explanation as truthful. It also accords with common sense in this case, given that DC Pathak was involved in the investigation and understood the relevance of the footage. While it is surprising that he did not make a note of having requested the footage from SC Morgan, I do not find that his failure to do so affected his credibility or reliability. Nor did the fact that he could not recall SC Morgan’s sex or gender, given the routine nature of the interaction. I also accepted his evidence about the process, and that he had never had any trouble obtaining footage before. SC Morgan was a special constable whose duties included dealing with such requests using an in-house form. In these circumstances, I am not troubled by the fact that DC Pathak did not double-check SC Morgan’s work.

[27] I believed DC Pathak and accepted his evidence as true.

The arguments

[28] Mr. Rinas argues that the loss of the video security footage amounts to unacceptable negligence that has prejudiced Mr. Hashi’s right to make full answer and defence in relation to the warrant. By way of remedy, Mr. Rinas sought excision of the descriptions of the contents of the lost video footage from the ITO. In the alternative, he would seek a sentence reduction if Mr. Hashi were to be found guilty. He relied extensively on Goldstein J.’s decision in R. v. St. Clair, 2020 ONSC 2251, which was upheld on appeal at 2023 ONCA 266 (C.A.), and Nakatsuru J.’s decision in R. v. Downes, 2022 ONSC 4308.

[29] Mr. Rinas submitted that the loss of the video footage was the result of unacceptable negligence on DC Pathak’s part primarily because he did not follow up between January 24 and February 6 or take it upon himself to find out what had gone wrong after the fact. Also, he should have filled in the form himself and taken better notes of his interaction with SC Morgan. The nature and importance of the evidence is also a factor.

[30] Excision is the appropriate remedy because the video footage, said to depict Mr. Hashi coming and going from unit 101 and other parts of the Willowridge building. It is “connective tissue” that goes to corroboration of the CS’s information, and therefore the existence of reasonable and probable grounds, and he is unable to test it.

[31] The Crown conceded that the lost evidence was relevant and disclosable. However, he maintained that its loss was not the result of unacceptable negligence and that DC Pathak had taken reasonable steps to preserve it. That DC Pathak did not tell DC Danson about the loss or investigate the reasons for it is immaterial, particularly since it came to light after the warrant had issued. He also argued that the descriptions of the footage in the ITO should not be excised because the loss did not prejudice Mr. Hashi’s ability to test the warrant, unlike the facts of St. Clair and Downes, supra. In the alternative, he argued that the appropriate remedy would be to grant Mr. Rinas leave to cross-examine PC Pathak further and/or other officers.

The law

[32] In Downes, supra, Nakatsuru J. explained the legal principles surrounding lost evidence:

[32] … Where the applicant shows that disclosable evidence has been lost or destroyed, a breach of s. 7 will be found unless the Crown provides a satisfactory explanation for that loss. The Crown may do so by establishing that the evidence was not destroyed or lost by unacceptable negligence, or that reasonable steps were taken to preserve the evidence, bearing in mind the perceived relevance of the evidence at the time it was lost or destroyed. As the relevance of the evidence increases, the degree of care required in preserving the evidence increases. Conversely, as relevance decreases, the required degree of care is reduced.

[33] In addition, failure to preserve and disclose evidence may also be an abuse of process, for instance, if the evidence was destroyed deliberately or was the result of gross negligence: R. v. Bero (2000), 151 C.C.C. (3d) 545 (C.A.) at paras. 38-39.

[34] Even if the Crown has shown no unacceptable negligence resulting in the loss of evidence, in an extraordinary case, s. 7 may still be violated if the loss is so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial: Janeiro, at para. 109.

[35] An accused bringing a Garofoli application has the right to make full answer and defence, although the right must be assessed in context and the analysis is different from the trial stage: R. v. Crevier, 2015 ONCA 619, at paras. 52-60.

[36] Whether a remedy should be granted and if so what that remedy should be, turns on the prejudice to full answer and defence caused by the breach. It does not suffice to establish simply that the missing evidence might help the defence. In determining the degree of prejudice caused by the lost evidence, all other evidence available to the defence to fill the gap should be considered: R. v. Atwima, 2022 ONCA 268, at paras. 101-103. [1]

[33] In R. v. Janeiro, 2022 ONCA 118, cited by Nakatsuru J., the Court of Appeal wrote that unacceptable negligence “is negligence that goes beyond mere negligence” (para. 107). In St. Clair, supra, the Ontario Court of Appeal explained that “remedies under s. 24(1) are flexible and contextual,” and that the range of available remedies “must remain very broad and flexible in response to the particular circumstances of a given case.”

[34] The facts of Downes and St. Clair are very different from what happened in this case. In Downes, an officer was found to have deliberately failed to request footage from certain days. He also knew that there were issues with the CCTV and did not take notes of important investigative steps he said that he had performed. The impugned footage was extremely important; some of it was said to show activity the police believed to be “drug related” (para. 41). Not only was the defence unable to impeach the officer on the lost videos, but he was found to have subverted the judicial authorization process. The evidence was wilfully, deliberately and grossly misleading, and his testimony was not believed.

[35] In St. Clair, supra, the police could not explain how or why they lost video footage that they had seized. Goldstein J. agreed that a part of the contents of the video footage that was described in the ITO as depicting the accused “exhibiting the characteristics of an armed person” should be excised (para. 40). This is because that evidence was not only very important, but conclusory in nature and the defence was not able to test it. However, because there had been a timeline and still photos taken from the videos, the balance of the descriptions was not excised.

Ruling

[36] The lost evidence in this case is important, because it connects Mr. Hashi to the target property and provides corroboration of the CS information. Of course, it should have been preserved. But it is nothing like the items in Downes and St. Clair, which involved conclusions or opinions pointing to criminal activity which were of a compendious nature that was impossible to challenge without the source material on which they were said to have been based. In this case, the ITO lays out detailed descriptions of what is said to be visible in the lost footage in chronological sequence, right down to the minute, from different camera locations or angles. Also, it must be remembered that this is a pre-trial motion, and not the trial, and Mr. Rinas is in possession of full disclosure which includes the notes of the involved officers and some video footage from the building.

[37] Unlike in Downes, DC Pathak requested all the relevant footage and, unlike in St. Clair, he never received it. DC Pathak’s delegation of the task of downloading the footage to SC Morgan was not an abdication of his responsibility (Cf. Downes, supra, at para. 90). This was not a security guard or ordinary citizen, but a special constable working in an institution that regularly cooperates with the Toronto police and in some ways resembles a law enforcement service. It was not negligent of DC Pathak to delegate such a routine administrative task to SC Morgan; nor did not calling until February 6 amount to a failure to take reasonable steps to preserve the evidence. In these circumstances, while it would have been more prudent to follow up before the 14-day period had elapsed, it was not unreasonable for DC Pathak to rely on the TCHC to do what he had justifiably asked them to do. The steps he took were reasonably commensurate with the importance of the evidence. There was no evidence of bad faith, nor was any alleged.

[38] Mr. Rinas has not demonstrated that the lost evidence has prejudiced Mr. Hashi’s ability to challenge the assertions made in the ITO. I say this for two principal reasons. First and foremost, the ITO, which contains a detailed chronological description of the video footage, does not exist in a vacuum, but rather in the context of full disclosure, which includes some video footage of the Willowridge building. Second, Mr. Rinas declined my suggestion that he be allowed to conduct further or additional cross-examinations. In doing so, he indicated that he and the Crown agreed that the officers would not be shaken as to what happened to or on the video footage. That may be so, but cross-examination can be very effective and informative even where one might expect an officer to take an immutable stance on certain issues. Downes is a perfect example; see also R. v. Ricketts, 2023 ONCJ 360, a matter over which I presided.

[39] What is more, the range of remedies available under s. 24(1) is broad, flexible and contextual. In my view, they need not be singular. Rather, in the appropriate case, remedies can be sought in a cascading fashion. Certainly, there will be cases in which a remedy such as leave to cross-examine an officer will be demonstrably inadequate from the get-go. Likewise, there will be cases, like St. Clair, where excision will be the only appropriate remedy. But in some cases, cross-examination should be attempted. If it is unsuccessful, additional remedies can be sought. In this case, I find that Mr. Rinas’s decision not to attempt to conduct further cross-examinations told against the prejudice he alleged.

[40] For these reasons, I find that the loss of the video footage did not violate Mr. Hashi’s s. 7 right to make full answer and defence in the context of the Garofoli application.

C. The Three “Cs”

The law

[41] The governing principles set out by the Court of Appeal in R. v. Crevier, 2015 ONCA 619 at paras. 62-90, include the following:

• A search warrant is presumptively valid, and the challenging party bears the onus of demonstrating, on a balance of probabilities, that it should not have issued.
• A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.
• Where, as here, the grounds for the warrant originate from information provided by a CI, the reliability of the informer and the information must be assessed by reference to the “three Cs” discussed in R. v. Debot, [1989] 2 S.C.R. 1140: the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.

[42] The Debot criteria were usefully explained in R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 at para. 35 (S.C.J.), where Justice Code wrote:

It appears from Wilson J.’s reasons in Debot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to supporting information uncovered by the police investigation.

[43] The test that I must apply was reiterated by Justice Watt in R. v. Sadikov, 2014 ONCA 72, at para. 84:

The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.

[44] The standard, also defined as “credibly-based probability,” exceeds suspicion but falls short of a balance of probabilities: ibid, at paras. 81-82. It requires more than an experience-based “hunch” or reasonable suspicion. If the issuing justice “could” have issued the warrant, the application must be dismissed. I must take into account the fact that authorizing justices, like triers of fact at trial, are entitled to draw reasonable inferences from the contents of the ITO: see Sadikov, supra, at paras. 81-82, citing R. v. Vu, 2013 SCC 60 at para. 16, among others.

[45] I must take a common-sense and holistic approach to this task: see R. v. Herta, 2018 ONCA 927, [2018] O.J. No. 6429 at para. 21 (C.A.). The analysis should be on “the whole of the document, not a limited focus upon an isolated passage or paragraph” or “a line-by-line, word-by-word dissection”: see R. v. Cunsolo [2008] O.J. No. 3754, at para. 135 (2).

Brief summary of the relevant parts of the ITO

[46] Police received information from two independent CSs that Mr. Hashi was in possession of a handgun that he kept for protection, having been the victim of a shooting in the past. Both describe the gun and indicate how they obtained that knowledge. Both also told police that Mr. Hashi keeps it in a satchel or side bag. (I will refer only to a satchel for the sake of simplicity). Both identified Mr. Hashi from a photo. Both told police that Mr. Hashi lives in the Willowridge building. Police database checks listed his address as the target unit.

[47] The video security footage of January 19, 20, 22, 23 and 24 that DCs Pathak and Danson viewed shows Mr. Hashi leaving and returning to the unit on numerous occasions throughout the day and night. It also depicts him accessing various parts of the building including the lobby, the garbage area and different stairwells. At no time is it indicated that Mr. Hashi is carrying a satchel.

The arguments

[48] Mr. Rinas assisted me in my task of assessing the quality of the CS information by drawing my attention to important lines of inquiry. Whether or not the information was compelling can be a function of its recency, its level of detail and the source’s means of knowledge. He also pointed to an aspect of the Judicial Summary that caused him concern (p. 41, para. 22(f), which relates to the satchel). With respect to the CS’s history as informers, he argued that the absence of an indication as to whether any prosecutions were successful would be a concern, citing R. v. Rocha, 2012 ONCA 707, 2012 O.J. No. 4991 at paras. 19-20 (C.A.) and subsequent cases that have cited it. [2] I will refer to this as the Rocha issue.

[49] Likewise, Mr. Rinas assisted me in approaching the question of credibility. For instance, the ITO fails to mention the conditions under which the CSs would get any benefit, if indeed that was their motivation. If they stood to benefit regardless of outcome, that would detract from their credibility. While acknowledging that being part of the criminal subculture is a relevant aspect of a CS’s credibility and reliability, Mr. Rinas rightly flagged the fact that the affiant did not indicate the dates and sentences of any findings of guilt or convictions. Recency matters, as does the nature of any findings of guilt or convictions.

[50] With respect to corroboration, Mr. Rinas submitted that there is a key connection between the satchel and the handgun. The fact the police did not see Mr. Hashi carrying a satchel on the days of video footage that they reviewed represents a significant lack of corroboration.

[51] Mr. Rinas also pointed to things said to be corroborated that are notorious, such as the fact that Mr. Hashi had been shot in an event one CS described as “the biggest shooting in Willowridge where three people were shot and one killed.” He also submitted that Mr. Hashi’s identity, residence and history of being a shooting victim are commonplace details.

[52] The Crown argued that the issuing justice was made aware of the recency, level of detail and means of knowledge relating to the source information. While he argued that sources are typically not rewarded unless their information bears out, he submitted that their track record makes up for concerns about this. As for the Rocha issue, he argued that because search warrants are about things and locations, the issue is whether or not the police found what they were told they would find.

[53] As to the satchel, the Crown argued that it is important to look at exactly what the CSs said about it. Also, it ought not to be seen as a calling card. Context matters. Here, police saw Mr. Hashi moving about in the building. As Mr. Assié put it, “the satchel is only as important as the locations of the observations.”

[54] Mr. Assié argued that the corroboration is sufficient in this case as Mr. Hashi’s identity is not the central issue. Instead, the real question was his connection, if any, to the building and unit that he was linked to in police databases. He also pointed out that it is a rare case in which police can be expected to corroborate the very criminality at issue.

[55] Lastly, he submitted that the warrant could stand even if the descriptions of the video security footage were excised.

Analysis and ruling

The source information was compelling

[56] The source information was very compelling as a function of its level of detail, recency and the means by which the sources obtained their knowledge, all of which was before the issuing justice. The justice was also told of the CS’s motivations. Because of the sensitive nature of CS information, I must be careful how I present my thoughts. I have chosen to do so by issuing two versions of my Reasons. One in which references are redacted, and the other, which will be held under seal, in which they are shaded.

[57] What makes the information compelling includes the following:

• CS1’s information was given on January xx, 2023 (p. 38, para. 13));
• CS1’s information xxxxxx xxx xxxxxxxxxx xxxxxxxxxx (p. 36, para. 5);
• CS1 told police that they xxx xxx xxx xx xxxxxxx xx, xxxx xx x xxxxxxx xxx xx xxx xxxx xx xxx xxxxxxxxxxx xxxxxxxxx, xxxx xxx. xxxxx xxxxxxx xxxx xxx xxxxxxx xxx xxxxxxx xxxxxxxxx xxxx xxx xx xxx xxxxe xx xxx xxx xxx xxxxxx xxx xxxxx xxxxx (p. 38, para. 13(k));
• CS1 told police that the gun is a large xxxxxx xxxx xxxxx xx xxxxxx (p. 38, para. 13(f));
• CS1 told police that xxxx xxx xxx firearm xxxxxxx xxxxx (p. 38, para. 13(j));
• CS1 told police that Mr. Hashi regularly keeps the gun with him (p. 38, para. 13(c));
• CS1 told police that Mr. Hashi “will usually keep the gun in his satchel” (p. 38, para. 13(d));
• CS1 told the police that Mr. Hashi lives on the first floor of the building with his family (p. 38, para. 13(h));
• CS2’s information was given on January xx, 2023 (p. 40, para. 22);
• CS2’s information “xxxxx xxxx xxxxxxxxxx xxxxxxxxx” (p. 39, para. 15);
• CS2 xxx xxx xxxxxxx xx xxxxxxxx “xxxxx x xxxxx xxx x xxxx xxx” (p. 40, para. 22(b));
• CS2 xxxxxxxxx xxx xxxxxxx xx xx xxxxx xxxxx xx, xxxxxxxx xxxxxn” (p. 40, para. 22(c))
• CS2 said that “xxxxx xxxxxx xx xxx xxx xxx” (p. 41, para. 22(d));
• CS2 told police that he “keeps it in his side bag and keeps it on him” (p. 41, para. 22(e));
• CS2 told police that the side bag xx xxxxx xxx xxxx xxxx xxx xxx xxxx xx xxx xxxxx xxxxx xxx xxx xxxx xxx (p. 41, para. 22(f)); and
• CS2 told police that Mr. Hashi lives at 44 Willowridge xx xxx xxxxx xxxxx xxxx xxx xxxxxx xxx xxxxx xx xxxx xxxxxxxx (p. 41, paras. 22(h) and (k));

The CSs were credible and reliable

[58] The ITO provided the issuing justice with a description of the CS’s track records, criminal records and charges before the court, if any. From that and other aspects of the ITO, including corroborating information, the issuing justice was able to assess their credibility. While it would have been better to know when the findings of guilt or convictions had been entered, the issuing justice was in a position to assess their impact on credibility, if any.

[59] The Rocha issue stems from the following passages:

19 I agree with the trial judge, that the information concerning the credibility of the informer was weak. I say this primarily because of the awkward wording of the ITO. The critical paragraph in the ITO is this:

The SOURCE in this matter is a registered human asset of the Toronto Police Service for over two years. The information they provided is of such detail, timing and geographic specifics that it goes beyond mere chance and/or coincidence. In some cases the information has been corroborated, by Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has no convictions for Perjury or Public Mischief. The SOURCE previously provided information to police that has led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property. The SOURCE acknowledges that they will face criminal charges for making false reports to police regarding information on past, present and future investigations. The SOURCE understands that there [sic] assistance is only "eyes and ears" and they are not to participate in any criminal activity whatsoever as a Confidential Source.

20 It seems that the affiant is attempting to convey the idea that information from the informer has led to the finding of contraband but this assertion is confused with the assertion that the informer's information has merely led to the laying of charges. Also the phrase, "In some cases the information has been corroborated, by Handlers or Investigators forming Reasonable Grounds to Believe" is confusing. The fact that police officers have formed reasonable grounds is not the kind of corroboration required to confirm the reliability of a confidential informer. That said, there is some indication of credibility of the informer.

[60] It has been argued that in the context of describing a CS’s reliability, it is a failure for an affiant not to indicate whether convictions resulted from the information received. In my view, that is an overstatement of what was said in Rocha. It is true that providing reasonable grounds to arrest someone does little to confirm the reliability of a CS. However, in my view, a history of providing information about contraband that police were then able to locate goes much farther. In this case, the degree to which the sources had such a track record was before the issuing justice.

[61] It is worth noting here that the CS’s information was mutually corroborating on important details (compare p. 38, para 13(f) with p. 40, para. 22(c); also compare p. 38, para. 13(c) and (d) with p. 41, para. 22(e)), and also that some of their information was corroborated by police (xxxx xxx xxxxx xxxxx xx xxx xxxxx xxxxx).

[62] In light of the foregoing, the lack of an explanation as to any pre-conditions attached to any benefits the CSs may have sought is of little concern.

There was corroboration

[63] The observations that the officers made of the video footage give rise to a very strong inference that Mr. Hashi lived in the unit. xx xxxxxx, xxxx xxxx xxxxxxxxxxx xxx xxx xx xxxx xxxxxxxx. The fact that they did not see Mr. Hashi with a satchel is clear in the ITO. In my view, the issuing justice was entitled to give it little weight. First, CS1 used words like “usually” and “regularly” when referring to Mr. Hashi’s use of the satchel. Second, I agree with the Crown that the context matters. It is not surprising that Mr. Hashi would go to different parts of the building either without the firearm or without the satchel. It is not something that should be allowed to rise to the level of a necessary calling card or modus operandi, particularly when the issue is whether there were sufficient grounds to believe that evidence would be found in the unit.

[64] In any event, the strengths in the compelling nature of the source information and their credibility and reliability (xxxxxxxxxxxx xxx, xxxxx xxxxx xxxxxx xx xxxx xxxxxxxxxxx) make up for any weaknesses in corroboration in this case.

IV. Conclusion

[65] For these reasons, I find that the ITO contained credible and reliable evidence that might reasonably be believed and on the basis of which the warrant could have issued.

[66] The application is therefore dismissed.

Released: June 10, 2024

Justice Patrice F. Band

[1] I have removed some internal alternative case citations for the sake of brevity.

[2] [2] R. v. Bernabe, 2014 ONCJ 628 at para. 33 and R. v. Bullen, 2016 ONSC 7684 at para. 19h.