Ontario Court of Justice
Date: February 11, 2025
Court File No.: 4810 998 23 10000784-00 (Toronto)
Between:
His Majesty the King
— and —
Justin Teng
Before Justice Block
Reasons for Judgment
Released on February 11, 2025
Counsel:
C. Kalantzis — counsel for the Crown
P. Lam and R. Pillay — counsel for the accused Justin Teng
BLOCK J.:
[1] The accused/applicant, Justin Teng, was charged with multiple counts alleging possession for the purpose of trafficking of controlled substances, possession of proceeds of crime, and breach of recognizance as a result of a search of his residence and vehicle pursuant to a warrant on January 15, 2023.
[2] The applicant applied to have the evidence excluded as a result of an alleged violation of his s. 8 Charter rights by the Toronto Police Service. In brief, the applicant argued that the warrant could not have reasonably been granted and that the gravity of the breach and the extensive infringement of Mr. Teng’s Charter-protected rights warranted exclusion.
[3] I earlier denied the application and, as the constitutional legitimacy of the search is the only issue before the court, Mr. Teng was found guilty of the breach and counts 3, 4, 8, 9, and 11 on the information before me.
[4] The trial proceeded in an efficient fashion. The evidence was uncontroversial. An agreed statement of fact was entered as Exhibit 1. As the affiant of the Information to Obtain (ITO) was not cross-examined, the attack on the warrant was an assault on its facial validity. A “Step Six” procedure resulted in the creation of a judicial summary. Together with the ITO, the judicial summary formed the basis of the argument conducted on the sufficiency of the warrant.
[5] The judicial summary was created in an ex parte and in camera discussion between the court and the Crown. This dialogue was captured in court on record. That record was sealed and is available for appellate review together with the complete court file. The portions of the redacted ITO referenced in the judicial summaries are preceded by the phrase “the issuing justice was advised that” or are enclosed in square brackets.
[6] The applicant’s argument before me can be condensed to the following points:
The validity of the warrant depends on the corroboration of the information supplied by the confidential source (C.S.) by the account of the 2021 search of the applicant’s premises.
The information supplied by the C.S. standing on its own did not support the issuance of the warrant. It was corroborated by anodyne facts accessible through public sources only and there is insufficient information to determine whether it was compelling or credible.
The results of the previous search of the applicant’s residence in 2021, as well as the charges that flowed from that search, should be excised from the grounds to obtain the warrant in issue before me, as that search was found to be in breach of the applicant’s s. 8 Charter rights at trial before my colleague Peeris J. in March 2024. In the absence of that material, it is contended the warrant could not reasonably have been issued.
The application of the Grant test requires the exclusion of the evidence obtained by the warranted search pursuant to s. 24(2) of the Charter.
The affiant lacked a subjective belief that the grounds to which he deposed would reveal evidence of the offences enumerated in the warrant.
[7] My task is neatly summarized by Justice Campbell in R. v. Boussoulas, 2014 ONSC 5542 at paragraph 37:
When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the warrant.
[8] In the following paragraphs I will initially review the contents of the redacted ITO and the judicial summaries. In reaching my decision, I must allude to the nature but not the detail of unredacted material.
[9] Appendix A lists the items to be searched for in the applicant’s residence.
[10] Appendix B lists the offence for which Mr. Teng was under investigation.
[11] Appendix C sets out the grounds for the affiant’s belief.
[12] Appendix D sets out both the information received from the C.S. and pertinent information about the C.S.
[13] Detective Constable Silvino Pinto sets out in Appendix C, paragraphs 4, 5, 6 that information from the C.S. has been received [within the past 90 days] that a male known as Justin Teng has been trafficking cocaine.
[14] Paragraph 7 indicated that the focus of the investigation was for 4709-1 Bloor St East and the associated storage locker C-193 and a 2011 grey Acura MDX VIN # 2HYND2H65BH005490.
[15] Paragraphs 9–19 describe the investigation carried on with respect to the applicant on January 14, 2023.
[16] Paragraph 9a indicated a check on Versadex for Justin Teng which indicated the residential address searched.
[17] Paragraph 9b indicated the substantial amounts of contraband narcotics and proceeds seized on a previous search of the applicant’s residence on September 16, 2021 at the same address.
[18] Paragraph 9c set out the charges faced by the applicant as a result of that search.
[19] Paragraph 10 detailed the investigation carried out by the police on January 14, 2023 with respect to the residential address searched. It was learned that Mr. Teng was the tenant, he had an assigned parking spot P3 C41, that Mr. Teng had no vehicle registered and the unit had an assigned storage locker C-193.
[20] Paragraph 11 described the measures taken by the affiant to perform surveillance of the applicant’s unit. It was discovered that there was no video surveillance on his floor, that the floor was quiet and configured in the shape of the letter “H”.
[21] Paragraph 12 related the affiant’s attendance on floor P3 where he observed a Grey Acura MDX licence plate BZSJ670, VIN # 2HYND2H65BH005490 in the parking spot registered to the applicant’s unit.
[22] Paragraph 13. The affiant checked on the MTO database and determined that:
a. The plate doesn’t belong on any vehicle,
b. The owner of the plate is one Kevin Little,
c. The plate was removed from a grey 2011 Acura MDX, VIN # 2HYND2H65BH005490 on May 24, 2022.
[23] Paragraph 14 revealed the substance of the affiant’s MTO check on the applicant:
a. His current address was 4709-1 Bloor St East,
b. The grey 2011 Acura MDX, VIN # 2HYND2H65BH005490 referenced above is registered to the applicant.
[24] Paragraph 15 sets out the results of further MTO checks on the grey 2011 Acura, referenced above, conducted by the affiant:
a. Mr. Teng owns this vehicle,
b. Kevin Little was the previous owner.
[25] The affiant then concluded that Mr. Teng kept Mr. Little’s plates on the Acura, an obvious conclusion, in my view.
[26] In Paragraph 16, the affiant offered his assessment that the opportunity for the police to make observations was limited because of concern that the target or others in the building might be alerted to the investigation.
[27] Paragraph 17 contains the judicial summary that [Teng’s drug dealing modus operandi including where sells drugs].
[28] Paragraph 18 contains the affiant’s evidence that the 47th floor of the target’s building has no video surveillance and that the floor is “small and tight”. It also reflects the affiant’s assessment that police are limited to direct observations of Mr. Teng’s unit.
[29] Paragraph 19 contains the affiant’s evidence that the stairwell does not provide an observation point for unit 4709.
[30] Paragraphs 20 through 25 contain the affiant’s grounds for belief that the items listed in Appendix A, once seized in the targeted residence, will provide evidence of the charges listed.
[31] Paragraph 26 provides the grounds to believe that the items are at the search location:
a. The C.S. advised Mr. Teng lives at 4709-1 Bloor St E.
b. The judicial summary advises that the C.S. buys cocaine from Mr. Teng and indicates that the issuing justice was advised of the frequency and location of the purchases.
c. The judicial summary indicates that the issuing justice was advised of the length of time that the C.S. had been buying cocaine from Mr. Teng.
d. The judicial summary indicates that the issuing justice was advised of the modus operandi of Mr. Teng’s drug dealing and location of sale.
e. The judicial summary indicates that the issuing justice was advised of the specific date that the C.S. bought cocaine from Mr. Teng and observations of cocaine then made.
[32] Paragraph 27 references the affiant’s information and basis for belief that the grey Acura MDX VIN# 2HYND2H65BH0055490 is an appropriate search target:
a. The C.S. advice is judicially summarized as [Teng drives a grey Acura].
b. Teng was the registered owner of this vehicle as of May 24, 2022.
c. The affiant advised that he attended Mr. Teng’s registered parking spot, P3 C41 on January 14, 2023 and there observed a grey Acura MDX license plate # BZSJ 670.
d. The license plate indicated above does not belong to Mr. Teng. It did belong to the previous owner of that vehicle.
e. The affiant provides his experience that vehicles in underground parking lots are often used to stash drugs and that the use of a plate not registered to the target may be a device to frustrate police investigation.
f. The affiant asserts that large quantities of drugs are commonly kept in vehicles by dealers and in this case would protect Mr. Teng from having as much of his product stolen by other criminals.
[33] Appendix D provides a summary of the information provided by the C.S. including features that support the reliability of the C.S. and features that may negatively affect the reliability of the C.S. Much of this information was redacted. The summaries of redacted clauses reflect the nature, although not the detail, of the redactions. Some of these summaries have been already indicated in preceding paragraphs of this judgment:
a. The C.S. in this investigation is registered with the Toronto Police Service.
b. Their information was provided in confidence. They want to remain anonymous. The C.S. fears for their safety if their identity was revealed.
c. The C.S. learned the information through first-hand observations.
d. The C.S. provided recent, detailed and compelling information on the suspect.
e. The details of the information have been corroborated.
f. The C.S. is immersed in the drug subculture.
g. The issuing justice was advised whether the C.S. is before the courts.
h. The C.S. has provided information to the police in the past which was acted on and proven accurate and true 2 to 5 times in the last 4 years. [The number of times the C.S. has provided information to the police, the year(s) in which that information was provided and the details of the results including the nature and quantity of the drugs seized and whether arrests took place].
i. [Whether the C.S. has been charged in the past]
j. [Whether the C.S. has criminal record] The C.S. has no convictions for perjury, fraud or other crimes of dishonesty.
k. [The motivation of the C.S. to provide information] The C.S. has been warned regarding the legal consequences of providing the police with false information.
l. Pertinent information regarding Teng provided by the C.S. including:
a. [when the C.S. provided the information to the police]
b. That Mr. Teng is dealing in cocaine.
c. Mr. Teng lives at 4709-1 Bloor St E.
d. [The C.S. purchases of cocaine from Mr. Teng including frequency, duration of their purchasing association and location of the purchases, quantity of purchase and price, the specific date of the purchase, observations made by the C.S. at the time of the purchase and modus operandi.]
e. Description of Mr. Teng as male, Asian and chubby.
Discussion
Application of the Debot test
[34] I am guided in my analysis of the sufficiency of the ITO by the seminal case of R. v. Debot, [1989] 2 S.C.R. 1140. I am instructed that the information supplied by a C.S. that forms the basis for a search warrant application must be compelling, credible and corroborated. The information supplied is to be assessed on its totality; weaknesses in one area may be compensated by strengths in others.
The weight to be given redacted material
[35] I do not accept the applicant’s contention the ratio in R. v. Crevier, 2015 ONCA 619 is that redacted material has reduced weight because it cannot be directly challenged. At paragraph 88, Crevier does require me to
“consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given those portions … the reviewing judge should 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 be challenged by cross-examination or otherwise.” Crevier, supra, at paragraph 88.
[36] In examining the redacted portions, I turned my mind to the nature of the information, and considered whether the weight of the material would survive determined cross-examination.
The subjective belief of the affiant
[37] I disagree with the contention that the excision of the 2021 search results from the ITO would undermine affiant’s subjective belief that there were reasonable and probable grounds to find that cocaine in amounts consistent with trafficking would be found in Teng’s residence. The affiant’s statement in the ITO of their personal belief in reasonable and probable grounds stands unless undermined in cross-examination. As we know, an application to cross-examine the affiant was not pursued.
Was the information compelling?
[38] I disagree with the applicant’s submission that the information supplied by the C.S. is incapable of supporting the issuance of the search warrant without the corroboration provided by the 2021 search. In my view the information supplied by the C.S. in this matter is extremely compelling, not just because of its recency but also because of the detailed first-hand observations recounted. The details of recency and the observations were available to the issuing justice. I am instructed by the court of appeal in R. v. Rocha, 2012 ONCA 707, para. 18 that
“An informer's personal, detailed and recent observations of drug trafficking may be considered compelling.”
The information supplied certainly fits that description.
The credibility of the C.S.
[39] The evidence of the credibility of the C.S. is powerful.
[40] The immersion of the C.S. in the drug subculture requires the exercise of caution. An inhabitant of this world may be induced to tell tales in order to attract payment or to exact revenge or eliminate a competitor. No doubt this is the reason that investigators require results in order to provide payment. Familiarity with this milieu means that the observations made by the C.S. are informed by personal knowledge of the complexities of the drug trade. A stranger to this world might find it difficult to gain introduction to the dealer and would be likely be unfamiliar with the tools and customs of the trade.
[41] This C.S. supplied accurate information to the police on multiple occasions within the past several years. The detail of this information was presented to the issuing justice. These efforts produced measurable positive results. The C.S. was registered with the Toronto Police Service. The C.S. had been warned of the criminal liability consequences of supplying false information to the police. Assistance of this nature is frequently induced by financial compensation or other motivation that may seem distasteful. Regardless of the motive of the C.S., this form of cooperation with the police is not usually the product of altruism.
[42] The issuing justice was provided with the criminal antecedents of the C.S. as well as current information regarding any ongoing matters before the courts.
Corroboration
[43] The police supplied such corroboration as was reasonably procurable in the circumstances. The Crown has conceded that the level of corroboration may have been inadequate with a less compelling tip.
[44] The results of the 2021 search, referenced in paragraphs 9b and 9c of the ITO, were excluded from evidence pursuant to Charter s. 24(2) at the trial in March 2024 by my colleague Peeris J. When the search warrant at issue before me was authorized in January 2023, that judicial assessment was 14 months in the future.
[45] The affiant in the case before me had a good faith basis to relate the 2021 occurrence to the issuing justice. In my view the facts related in paragraphs 9b, 9c and 26j were properly included in the ITO to corroborate Teng’s involvement in the drug trade. In this respect see the dissent of Nordheimer J.A. in R. v. James, 2019 O.J. 1825, para 57, where Justice Nordheimer commented:
“Prior criminal activity — including prior involvement in the drug trade — is a relevant factor in determining whether there are reasonable and probable grounds for a search.”
His lordship’s dissent was the basis for the Supreme Court of Canada reversal of the earlier decision of the ONCA by the SCC at 2019 S.C.J. 52. See also R. v. Ribble, 2021 ONCA 897.
[46] I have not considered the prior warrant in considering the corroboration of the warrant before me. However, I think it important to observe that police cannot be faulted for including a report of a relatively recent, judicially authorized successful search of the target in the ITO when judicial quality control had not yet spoken.
[47] The applicant argues that there is a complete absence of corroboration. He points to the absence of surveillance. He argues that, in effect, the speed of the investigation is a weakness.
[48] It is correct that the police acted quickly on January 14, 2023. The affiant conducted his investigation on the 14th. The warrant was authorized on that date and executed on the next day. Given the compelling quality of the information supplied by the C.S., I do not think that the investigation was deformed by haste.
[49] I doubt that the passage of time would have improved corroboration through surveillance given the modus operandi described in the unredacted ITO and available for consideration by the issuing justice. Corroboration was limited by the location of the target residence. Paragraphs 16-19 of the ITO are relevant to the issue of corroboration of the target. The ITO offered the affiant’s assessment that the location of the target was not susceptible to surveillance. There was no video surveillance installed on that floor. The suggestion inherent in the ITO was that the tight configuration of the hallway on the 47th floor made discreet observations impossible.
[50] I have presided over multiple cases involving surveillance and searches in modern condominiums. These cases often present challenges to police observation of suspected crime that are not present in the surveillance of detached homes. The hallway of a condominium is not the equivalent of a public street, either in physical layout or privacy rights.
[51] I cannot find anything improbable, contradictory or unlikely in the affiant’s account of the issues affecting potential surveillance at this location. In the absence of cross-examination of the affiant or the presentation of contrary extrinsic evidence, his account stands unchallenged.
[52] The applicant argues that high-rise condominiums have security desks, surveillance cameras, elevator cameras, entry fobs and that the data revealing the entry and movements of persons in the building would have been available to the police through general warrant. Their contention is that the absence of these materials and the excision of the information regarding the September 2021 search means that there is effectively no corroboration.
[53] The corroboration in this matter was limited by the character of the premises investigated.
[54] I disagree that, in the circumstances of this investigation, anodyne or publicly available information was shallow or empty corroboration. The C.S. supplied a name and a physical description of the suspect, a crime, a residence and a vehicle. The affiant corroborated those details.
[55] The name and the address of the applicant provided by the C.S. was corroborated by building security, through an MTO check and through Versadex.
[56] The C.S. advised the police of the colour and model of Mr. Teng’s vehicle. The location of the applicant’s parking spot and locker was provided by building security. The affiant observed the grey Acura in the appropriate parking spot. He then confirmed the VIN number, ownership and ownership history of the vehicle on the MTO database. It is some confirmation of the applicant’s criminality that the license plate belonged to the prior owner and is not currently registered to the Acura. As the transfer had taken place some 8 months before, it would have been an unlikely innocent oversight. Coupled with the additional reported information, it is consistent with an effort to frustrate police investigation.
[57] Further corroboration was provided by the comparison of the description of the target provided by the C.S. to the police file photograph of Mr. Teng.
Conclusion
[58] The issuing justice reasonably granted the warrant. The powerful compelling nature of the firsthand observations by a seasoned and tested C.S. were corroborated in a meaningful way by the police investigation.
[59] If I have erred in my determination of the validity of the warrant, in my view any state misconduct was minimal. The police received judicial authorization and there is no suggestion that the affiant misled the issuing justice. The public interest in admitting real evidence of serious criminality requires its admission.
Released: February 11, 2025
Justice M. Block