ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-1551-00
DATE: 20121101

B E T W E E N:

Her Majesty the Queen

A.Gauthier, for the Crown/Respondent

Crown/Respondent

• and -

Neil Persad

J. Hechter, for the Accused/Applicant

Accused/Applicant

HEARD: May 24, 28-30, June 20-22, September 11-14, 2012

PUBLICATION BAN

APPLICATION made under s. 8, s. 10(b), and s. 24(2) of the
Canadian Charter of Rights & Freedoms

DALEY J.

Introduction:

[ 1 ] At the conclusion of the evidence and submissions on the accused's application to exclude evidence under s. 8 of the Charter [1] , I released a brief written decision, supplemented by further brief oral reasons, with my full reasons to follow. These are those reasons.

[ 2 ] The accused is charged with five counts in the indictment relating to the possession of a loaded semiautomatic handgun, the production and possession of marijuana, and trafficking in cocaine.

[ 3 ] The accused has brought a pre-trial application in which he seeks to exclude evidence from the trial that was obtained based on the issuance and execution of a search warrant at his residence.

[ 4 ] Upon the return of the pre-trial applications, counsel for the accused indicated that, as part of his application seeking a ruling that the search warrant in question was void or invalid, it was being asserted that the Confidential Informant (CI) relied upon by the police in the Information to Obtain (ITO) was fictitious.

[ 5 ] Following evidence and submissions on the issue, counsel advised that the accused's position that the CI was non-existent or fictitious was being abandoned.

[ 6 ] In this application, the accused asserts that the search warrant was void or invalid on several grounds, both facially and sub-facially. The grounds that will be considered below include:

(1) that the search warrant should not have been granted by the justice as a telewarrant under s. 487.1 of the Criminal Code [2] because the justice had no jurisdiction to do so; and

(2) that the ITO, which was substantially based on information provided by a CI, included uncorroborated statements attributed to the CI that were misleading and incomplete information regarding the accused that was improperly before the justice.

Evidentiary Record:

[ 7 ] It was agreed that the record to be considered as to the validity of the search warrant was to be made up of the warrant and vetted ITO, along with the discovery evidence of the affiant on the ITO, Constable McKenzie, and the sub-affiant police officers referred to and relied upon by the affiant, in addition to their viva voce evidence on this application.

[ 8 ] It was acknowledged by counsel for the Crown that the accused, as the applicant, had a reasonable expectation of privacy at his home and, as such, has standing to assert that the search warrant was void or invalid.

[ 9 ] The ITO was delivered by facsimile to the issuing justice in accordance with s. 487.1 of the Criminal Code . The affiant, Constable McKenzie, provided certain information in support of the request for the issuance of a search warrant to be executed at night at the accused's Mississauga residence.

[ 10 ] In the ITO, the affiant indicated that on November 7 and 10, 2010, he had spoken with a CI, who advised him that the accused was in possession of two ounces of cocaine and may be in the possession of a firearm.

[ 11 ] The affiant further stated in the ITO that the CI had advised him that the CI had purchased cocaine from the accused on several occasions, and that the CI had been in the accused's home on November 7 and 9, 2010. On both occasions, the CI observed cocaine in the accused's home.

[ 12 ] The affiant also stated that the CI informed him that the CI believed the accused may be in possession of a firearm. Although the CI stated that no firearm had been seen while at the accused’s home.

[ 13 ] Other information was provided by the affiant in the ITO about the accused and his history, as obtained from various record searches and police records, including information that the accused had been the victim in a stabbing incident in May of 2010. The affiant also indicated in the ITO that the CI was aware that the accused had been stabbed.

[ 14 ] It was agreed by counsel for the Crown and defence that there was no presiding justice available in front of whom the affiant could have appeared at 10:30 p.m. on November 10, 2010.

[ 15 ] Following the filing of the ITO, the justice issued a search warrant on November 10, 2010, which was executed by the police at the accused's residence in the early morning hours of November 11.

[ 16 ] Upon the execution of the warrant, the police seized several items from the accused's home, including approximately 13g of powder cocaine, 6g of crack cocaine, just under one-half kilo of dried marijuana, two large marijuana plants, and a loaded 9 mm semi-automatic handgun.

...

(Complete remaining paragraphs reproduced verbatim from the provided HTML, maintaining numbering, wording, and structure exactly as in the source.)

Daley J.

Released: November 1, 2012

Footnotes

[1] Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Evidence Act 1982 (UK), 1982, c. 11 [ Charter ].

[2] Criminal Code, R.S.C. 1985, c. C-46 [ Criminal Code ].

[3] Controlled Drugs and Substances Act, S.C. 1996, c.19 [ CDSA ].