Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: October 16, 2024

BETWEEN: HIS MAJESTY THE KING — AND — PHI HO

Before: Justice Louise A. Botham

Ruling on Application to Exclude Evidence

Counsel: S. Egan and A. Shachter, for the Public Prosecution Service of Canada D. Leitch, Counsel for the Applicant Phi Ho

Endorsement

[1] The Applicant, Phi Ho had previously challenged the lawfulness of the search of 1501 Albion Road, Unit 238 in Toronto. I dismissed that application. He now challenges the lawfulness of the search of 10345 Keele Street in the City of Maple (StorageMart) and 106 Moody Drive in Kleinberg, Ontario (the Moody address) and a Mercedes associated with the Applicant as well as the issuance of five production warrants and three tracking warrants.

[2] The tracking warrants and production orders had led to the issuance of a general warrant to enter the StorageMart locker. The Applicant seeks an order excluding from the evidence led at this trial, any observations made of that locker and any items seized from the locker, the Moody address and the Mercedes.

[3] Although each application relied on a separate Information to Obtain (ITO) much of the material was the same. Each ITO relied on the same information from a confidential source. Surveillance had been conducted with respect to the Applicant as well as other targets of the investigation and those observations were set out in the original ITO and repeated in subsequent applications, although as additional observations occurred, they were also included.

[4] Each ITO had been edited by the Respondent. Initially the Respondent sought to support the issuance of the various orders on the basis of the edited ITOs. That position has changed and I am now being asked to consider the matter in the context of the information contained in the unredacted ITO’s.

[5] As a result, a Crown summary of the edits was prepared. An in-camera, ex-parte hearing was held during which I compared each unedited ITO with the edited ITO. Ultimately a judicial summary was prepared and given to the Applicant. After hearing submissions from the Applicant, further changes were made to the summary and the judicial summary was finalized.

[6] Counsel for the Applicant submits that one aspect of the summary is too void of detail to allow for a meaningful challenge. Specifically, “that the source provided details about a drug and firearm transaction of transaction(s) involving Koi. Specific details about the drug and/or firearm transaction(s) involving Koi are disclosed. These include types and amount of drugs and/or firearms trafficked by Koi.”

[7] The Applicant sought an approximate timeframe within which the alleged criminality had occurred. The Respondent declined to provide such a timeframe, claiming that to do so risked narrowing the pool of possible sources. It is submitted by the Applicant that I am therefore precluded from relying on the unredacted information supporting that summary. It is this aspect of the judicial summary that the Applicant most strongly urges lacks sufficient detail to allow myself to rely on the unredacted ITO when assessing the sufficiency of the ITO.

[8] I agree that in assessing the sufficiency of the ITO I am to consider whether the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions. In doing so I am directed to consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it and whether its nature is such that it was susceptible to being challenged in cross-examination. Where I believe that the accused is not sufficiently equipped to challenge certain redactions, then I am not to consider the redacted information.

[9] It is submitted that without a timeframe for the allegations the Applicant is not able to challenge the assertion of criminal activity. For example, it was submitted that it may be that the Applicant could provide evidence that he was not in the country or not in a position to have committed the acts alleged by the Affiant. Nothing has been put forward to suggest that the Applicant was out of the country at any time or that he was otherwise without opportunity to have acted in the manner described. I am not persuaded that an absence of a timeframe for these allegations precludes me from considering those redacted portions of the ITO or that such a timeframe is necessary for the Applicant to challenge the issuance of either the general warrant or the earlier orders.

[10] Having reviewed both the judicial summary and the unredacted ITO, I am satisfied that the Applicant is sufficiently informed of the nature of the excised material to challenge it in argument or by evidence. Significant detail has been provided by way of summary with respect to the nature of the information put before the issuing justice. As well, the ITO states that the alleged acts of criminality are said to have occurred in the Greater Toronto Area and describes Koi (said to be Mr. Ho) as acting as a main runner for the initial target Thai.

[11] Leave was granted to cross-examine the Affiant with respect to portions of the ITO prepared in support of the general warrant. Some of those portions were also present in prior ITOs. As a result of that cross-examination, it is appropriate that portions of each ITO be excised and that there be some amplification.

[12] The Affiant was cross-examined with respect to the assertion in that Tamim Baregzay was the owner of X Fresh Produce. On March 9, 2021, 38.8 kilograms of cocaine were seized in Philadelphia destined for delivery to X Fresh Produce. There was a controlled delivery of that cargo to X Fresh Produce located at 80 Jutland Road, Unit 13 in Etobicoke Ontario. That information was clearly included in the ITO to support the assertion that Tamim Baregzay was involved in the distribution of drugs.

[13] In fact, Tamim Baregzay was not the owner of X Fresh. Source documents from Canadian Border Services Agency, which were reviewed by the Affiant prior to drafting the November 19, 2021, ITO, made it clear that Baregzay was not the owner of X Fresh Produce. The Affiant in cross-examination testified that notwithstanding those materials, he had maintained his belief of ownership because of information received from a CBSA Intelligence officer during an earlier briefing meeting. He further explained that he may have maintained that view because Tamim Baregzay’s father was listed as a co-owner of the company.

[14] The Respondent concedes that para 60(h) should be deleted as should the portion of para 111 of the November 19th ITO which states, “further investigation into Baregzay revealed he has been the owner/co-owner to four different produce import businesses in the last four years, where on two occasions there has been order seizures where a large quantity of illicit drugs have been located”.

[15] The Applicant submits that all references to the controlled delivery to X Fresh should be excised since they have no relevance to the investigation Project Warrior. The Applicant further submits that any references to 411 Horner being a drug hub should similarly be excised because without a connection between Baregzay and X Fresh, there is no basis to make that assertion.

[16] There is some connection between Tamim Baregzay and X Fresh to the extent that his father was one of three owners of the company. That connection is in my view sufficiently tenuous that all information relating to the 2021 controlled delivery in should be excised. I would therefore also excise all of paragraph 61.

[17] Tamim Baregzay was the owner of CSM Fresh Imports located at 411 Horner Avenue in Toronto. He became a person of interest, based not only on a misapprehension of his connection to X Fresh but also through surveillance which connected him to persons of interest in the investigation, namely Guillaume Thai, Phi Ho and Colin McLean-Lucas. Those observations were properly in the ITO. The Affiant’s use of the term drug hub to describe the area changes little and in my view, it would have been up to the issuing justice to determine what degree of weight she wished to place on that characterization.

[18] The Affiant was cross-examined with respect to observations relating to September 29, 2021. On that date, tracking data for the Applicant’s vehicle showed it staying at 411 Horner for approximately 10 hours. The inference drawn by the Affiant and suggested to the issuing justice was that the Applicant was present for that period of time cutting and packing drugs. The GPS for the Applicant’s phone showed the phone at times 1.4 or 1.6 km from the 411 Horner location. The officer explained that the GPS for the phone could only show a radius for its location, rather than a specific location such as would be generated by a tracking device. Those discrepancies in terms of the information generated by a GPS should have been included in any ITO referencing the September 29th observations, together with the officer’s explanation as to the limitations on the GPS.

[19] Similarly, the tracking device on the Applicant’s vehicle showed it remaining at his home for a period of time the next day. The assertion in the ITO was that it had not moved. However, the GPS for his phone showed the phone at times as far as 27 kilometers from the parked vehicle.

[20] The Affiant conceded that those discrepancies could not be accounted for by the notion of a GPS radius. The Respondent has conceded that any relevant ITO should be amplified to include a description of the GPS data and it should be made clear that although the Applicant’s vehicle remained at his home, the GPS showed that the phone was on the move.

[21] There was further cross-examination of the Affiant with respect to the events of July 14, 2021, at 411 Horner. It was asserted in the application for a general warrant that the Applicant had been observed in the company of Lucas and Thai, moving boxes from the rear of 411 Horner into their respective vehicles. The Affiant was not present for those observations. That information was not contained in the surveillance report for that day and had not been set out any previous ITO. However, it was the Affiant’s evidence that on November 7th, he had met with Detective Baker and was advised by him that the surveillance report was not accurate and that this observation should have been included. Having received that information, the Affiant included it in the November 20th Application for a General Warrant.

[22] I reviewed the surveillance report for July 14, 2021. There were five officers on the surveillance team. The purpose of the surveillance was to gather information on vehicles used, associates, places attended and lifestyle patterns. Photographs and videos were to be taken. Target (1) was Guillaume Thai. One of the addresses of interest was 3495 Gandhi Way in Mississauga. Collin McLean-Lucas was identified as one of the male parties attending that address and operating a black GMC AS37693. Observations of what occurred at that address were set out in the surveillance report. Photographs were also taken of the persons being observed. Surveillance was discontinued at 2005 and recommenced at 2100 at 411 Horner Blvd.

[23] The surveillance report reports that the Black GMC was parked there, as was the vehicle associated to the Applicant. Detective Baker’s call sign is set out next to that observation. The Applicant’s BMW was described as pulling out and into the convenience store parking lot across the street from 411 Horner. That observation was made by the Affiant. The next observation recorded comes from Detective Baker. That observation states, “PV1 away EB on Horner- GMC WB on Horner. PV1 makes u-turn now WB Horner following GMC. Further surveillance occurs away from 411 Horner. AT 23:15 observations are discontinued.”

[24] I have set out the contents of the surveillance report because it does seem odd that Detective Baker, part of a surveillance team tasked with gathering information on associates and presumably on activities consistent with drug trafficking, would omit all observations of what is now said to have occurred at 411 Horner.

[25] I am skeptical that those observations were actually made. I have looked at Detective Baker’s notes for that day. According to his notes all observations are to be found in the surveillance notes. One would have thought in signing off on that report that the absence of what was potentially a significant observation would have been noted and remedied.

[26] Given the unusual circumstances in which this information came to the attention of the Affiant, the issuing justice should have been aware of those details when determining the weight to be put on that observation. At page 27 of the General Warrant ITO the Affiant states,

Note: on July 14, 2021, investigators observed all three Thai, Ho and McLean-Lucas at the rear of CSM Fresh Imports Inc, moving items and storing packages into their vehicles.

[27] There should be an amplification to the ITO explaining that this information had not been included in previous requests for authorizations because the Affiant only learned of this observation on November 7, 2021, when he was advised by Detective Baker that the July 14, 2021, surveillance report was incorrect and that there was no other record of this observation.

[28] The Affiant agreed that earlier ITO’s had referenced the fact that the Applicant had driven to a nearby convenience store and upon leaving the store gotten into an Audi but also agreed that had been an error and he had meant to say the Applicant had returned to his BMW. Clearly that should be amended in each ITO where it occurred.

[29] The Affiant was cross-examined with respect to his summary of observations made on September 15, 2021, where the Applicant was seen to enter a building on Jane Street with bags that appeared heavy. Other underlying documentation referenced boxes, not bags. That should be amended by including the actual surveillance report.

[30] The Affiant was cross-examined with respect to another observation from September 15, 2021, where the Applicant was said to have left Vaping Koi with one arm held stiffly against his body. The Affiant had characterized this as consistent with someone having a gun. The video footage of that incident was very blurry. It was suggested that the Affiant should have included that fact as well in the ITO or the actual footage. Whether or not the video footage of the incident was blurry, adds nothing to the cogency of the observation. Ultimately it would be up to the issuing justice to assess the weight to be put on that observation and the Affiant’s conclusion.

[31] Ultimately, the Applicant makes two arguments. It is submitted that these flaws generated unlawfully obtained observations and information and that those details should therefore be excised from the final ITO for a general warrant. It is submitted that when the excised and amplified record is considered, there are not sufficient grounds to support the issuance of a general warrant to enter the StorageMart locker. It is further submitted that many if not all of these flaws resulted from carelessness and a disregard by the Affiant of his obligation to make full and frank disclosure. It is submitted that even if I should find that the ITO as amended could support the issuance of any or all of the warrants, the drafting errors acknowledged by the Affiant rose to a level of recklessness with respect to his duty to be full, frank and fair so as to subvert the judicial application process.

[32] I will deal with the issue of whether the Affiant had so subverted the judicial application process as to warrant a quashing of some or all of the warrants at the end of my decision.

[33] I have considered the challenge to the various judicial authorizations in the context of the amended Informations to Obtain as well as the redacted information, now before me as a result of the Crown’s Step 6 Application.

[34] In the course of an investigation into Guillaume Thai, the Applicant came to the attention of the police when he attended Vaping Koi, a business said to be operated by Mr. Thai. Through a series of checks on a vehicle that he had been seen to operate, the police were able to identify the male observed at Vaping Koi as Mr. Phi Ho.

[35] On June 14, 2021, the Applicant was observed driving to the rear of Vaping Koi. Mr. Thai was seen to enter his car and they drove to a vacant parking lot and then the police lost sight of the vehicle. On July 14, 2021, the Applicant’s vehicle had been observed parked at 411 Horner when Mr. Thai was present at that location, although the two men were not observed together. On July 25, 2021, the Applicant was observed entering and exiting Vaping Koi with an item in his hand which he placed in the convertible section of his car.

[36] On August 12, 2021, the police obtained a tracking warrant for the vehicles associated with the Applicant. No challenge has been mounted to the issuance of that warrant.

[37] It was asserted by the Affiant that the Applicant was part of Guillaume Thai’s drug network. A confidential source had told police that Mr. Thai was currently trafficking controlled drugs in Peel Region. The informant had also provided information about the Applicant, specifically that he was a main runner for Thai as well as details about a drug and or firearm transaction or transactions involving the Applicant. Although the informant had used the name Koi, he had been shown a photo of the Applicant and identified him as Koi.

[38] On September 2, 2021, a production order for video surveillance was issued for StorageMart in Maple, Ontario. Police had followed the Applicant to that location on September 1, 2021, and observed him approach the keypad area in his vehicle to access the secured gate of StorageMart. The video surveillance was sought to establish the frequency with which Mr. Ho frequented the location. On September 8, 2021, a tracking warrant was sought with respect to the Applicant’s phone to assist in monitoring his movements.

[39] I am satisfied there was a basis for the issuing justice to find that there were reasonable grounds to believe that the video surveillance sought would afford evidence of drug trafficking.

[40] The confidential source information was detailed and compelling. The judicial summary states that the issuing justice was aware of the basis for the source’s knowledge and any factors supporting or detracting from the source’s reliability. The issuing justice was also aware of the connection between the source and both Guillaume Thai and the Applicant and the basis for the source’s knowledge of both men’s criminal activities.

[41] Police observations of the Applicant and Guillaume Thai corroborated the assertion that the two men knew each other, and that the Applicant frequented the business operated by Thai. It was reasonable to believe that the Applicant might well resort to a storage locker to store contraband and that the obtaining of video surveillance to investigate his connection to the locker might well advance the investigation. The issuing justice had grounds to issue the production order. For the same reasons, I am satisfied that there was a basis to issue a tracking warrant for the Applicant’s phone.

[42] For the reasons already stated I am satisfied that there was a basis for the issuing justices to have granted the various judicial authorizations sought leading up to the November general warrant. That basis was only bolstered by the fact that vehicle tracking data for the Applicant’s BMW and Mercedes showed the Applicant continuing to attend StorageMart during September and October 2021.

[43] A general warrant to search the StorageMart locker was issued on November 20, 2021, by Justice Caponecchia. The police observations, that I have already referenced were repeated in the ITO as well as the same confidential source information which had been provided earlier. Even on the amended record before me, I am satisfied that there would still have been a basis for the issuing justice to find that there were reasonable grounds to believe that evidence of drug trafficking would be found in the StorageMart locker.

[44] As I have already said, the confidential source information was detailed and compelling. It came from a carded confidential informant who had provided what was believed to be credible information in the past. As set out in the judicial summary, detailed information was provided about a drug and or firearm transaction or transactions involving the Applicant, including types and amounts of drugs and or firearms trafficking by him. The Applicant was described as a main runner for Guillaume Thai. The assertion of a connection between the Applicant and Guillaume Thai had been corroborated by further police observations.

[45] On September 15, 2021, the Applicant was observed to visit Vaping Koi and then return home for 10 minutes before driving to the StorageMart where he was seen to take an object out of his car and place it in the unit. He was then observed at 118 Balliol Street in Toronto where he picked up a male and they drove a short distance before returning to the Balliol address where the male got out of the car.

[46] On September 28, 2021, video surveillance showed the Applicant arriving at Vaping Koi at 3:49 p.m. He and another male entered the premises and 4 minutes later, he was observed leaving the premise holding a black bulky bag which he was said to have placed either in the compartment of his soft top roof or in his trunk and then drive away.

[47] It may be that an alternate innocent explanation existed for all or some of the behaviour observed but that was for the issuing justice to determine. The inference of drug dealing was also available on the observed behaviour.

[48] There was a clear connection between the Applicant and the StorageMart. He was the registered renter of locker 2312. Tracking data showed him attending StorageMart on numerous occasions as did CCTV video footage from that location. There was evidence that he often accessed it after attending Vaping Koi. It was reasonable to believe that he was accessing the locker to store drugs.

[49] The challenge to the warrant to search Moody Drive and the Mercedes vehicle was largely made through written submissions.

[50] On June 18, 2022, an application was made for a warrant to search 106 Moody Drive and a Mercedes associated to the Applicant. There was information connecting the Applicant to the Moody Drive address and the Mercedes. He had been observed at that address on numerous occasions and had previously advised the police that he would be moving to that address. He was associated with the Mercedes and was known to drive it.

[51] The same information already referenced with respect to the earlier ITOs was provided to the issuing justice. In addition, the justice was advised of the events of the previous day which had led to a significant seizure of drugs from the Albion Road address and the Applicant’s arrest at that location. The issuing justice was also advised that on November 27, 2021, investigators had seized a significant quantity of suspected drugs from the Applicant’s storage unit, pursuant to the November 2021 General Warrant.

[52] The Applicant challenges the Affiant’s characterization in the Moody Drive ITO of some of the Applicant’s behaviour as drug related activity. Arguably that characterization attracts greater cogency when coupled with the events of the previous day as well as the narcotics seized from StorageMart locker in November. Certainly, it could be argued that there may well have been an innocent explanation for some of those observations. But all of that is immaterial when assessing whether either of these warrants could have been issued. Given the connection between the Applicant and the Moody address and the Mercedes, a search warrant for either location could easily have been issued by virtue of the previous day’s arrest. The results of the November 2021 seizure only strengthened the grounds to believe that the Applicant would be storing drugs, currency or drug paraphernalia at either his residence or in his vehicle.

[53] Lawful issuance of a warrant requires reasonable grounds to believe an offence is being committed and that evidence of that offence will be found in a certain location. The warrants are presumptively valid. The Applicant bears the onus of establishing that the redacted ITO does not provide a basis upon which the authorizing justice could have found there were reasonable grounds for its issuance.

[54] The test for me is whether there is any basis, upon a review of the redacted ITO, that the authorizing justice could have been satisfied that the relevant conditions to issuing an authorization or warrant existed. R. v. Crevier, 2015 ONCA 619, 2015 O.J. No 5109, para 64.

[55] I am satisfied that there was a basis to issue all the judicial authorizations at issue in this application and that the seizures at issue were lawful. The Application to exclude from evidence the result of those seizures fails.

[56] The Applicant submits, largely through written argument, that there was blatant dishonesty with respect to the information included in the ITO as it relates to the Affiant’s opinions as to observations that are consistent with drug trafficking, and that the Court ought to use its residual discretion to invalidate the warrant to dissociate itself from the conduct of the Affiant.

[57] It is not uncommon for certain conduct, in the context of a drug investigation, to be characterized as being consistent with drug trafficking where that conduct, could potentially also be consistent with an innocent explanation. That fact that either inference might be available, in my view does not risk undermining the integrity of the pre-authorization process.

[58] I have also considered the impact of the drafting errors identified through cross examination.

[59] The errors relating to Tamim Baregzay are concerning. The Affiant failed to demonstrate the level of concern for accuracy that one expects in such an application. However, the misinformation relating to Baregzay’s played no role in the case put forward for the issuance of the authorizations that I am reviewing. It was the Affiant’s relationship with Guillaume Thai and the information provided by the confidential source, as well as on going police surveillance that supported the issuance of the various authorizations.

[60] The other area of concern from my perspective would be the November 2021 amendments to the observations from July 14, 2021, provided by Detective Baker. I am skeptical that such observations would not have been included in the original surveillance report, had they been made. I certainly believe that the November 2021 ITO should have included the context in which those observations came to form part of the record. However, given the Affiant’s evidence on this issue, specifically that he was approached by Detective Baker who believed the surveillance report was inaccurate and he accepted what Detective Baker had to say, I have no basis to find that there was ‘blatant dishonesty’ on the part of either officer. It may well be that Detective Baker was honestly mistaken in his recollection.

[61] I also think it relevant to my analysis to consider the significance of the July 14, 2021, observation in the context of the issuance of the warrant. The initial target of this investigation was Guillaume Thai. Information was received connecting the Applicant to Thai’s alleged criminality. He was observed to meet with Thai and engage in behaviour consistent with drug dealing and storage of drugs. That all existed even without the July 14, 2021, observations. The issuance of any of the warrants did not require the July 14, 2021, observations provided by Detective Baker.

[62] I have considered Justice Watt’s decision in R. v. Paryniuk, 2017 ONCA 87. I accept that I have discretion to invalidate a seeming valid warrant when it is obtained in a manner that is subversive of the prior judicial authorization process. However, I do not think that this is such a case. Even on a cumulative assessment of the errors identified during this hearing, I am not satisfied that there is a factual basis to find that the police conduct subverted or corrupted the pre-authorization process or risked undermining the integrity of the pre-authorization process.

[63] The application to invalidate any or all of the judicial orders issued in this matter similarly fails and the product of those searches are admissible at this trial.

Released: October 16, 2024 Justice Louise A. Botham