ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-G1037

DATE: 2013/11/14

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ASHLEY WINDEBANK and MOHAMED MOHAMED

Accused Applicants

Kelly Reitsma, Melody Foerster, for the Federal Crown
James Bocking, for the Attorney General of Ontario
N. Calvinho, for the Accused Applicant Windebank
N. Weinstein, for the Co-Accused Applicant Mohamed

HEARD at Ottawa: October 23, 2013

REASONS FOR JUDGMENT

Kane J.

[1] The two accused each present an application to exclude from trial the evidence obtained by police in execution of a search warrant at the residence at 4-505 Prince Albert Street (the “Residence”) as the search and seizure violated s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) and should be excluded under s. 24 of the Charter.

[2] Each accused is charged with multiple offences under the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”) and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) including: possession of cocaine and crack cocaine for the purpose of trafficking, possession of proceeds of crime, namely Canadian currency over $5,000, several offences related to a .32 calibre firearm and two counts alleging breach by the accused Mr. Mohamed of terms of probation.

[3] The above charges arose as a result of a lengthy police investigation, code named “Project Ace”.

[4] On February 26, 2012, in support of an application for a search warrant pursuant to s. 11 of the CDSA and s. 487 of the Code, Detective Douglas Hill (“Hill”) swore an information to obtain (the “ITO”). The court granted the warrant requested which authorized a search of multiple dwellings including the Residence and numerous vehicles.

[5] Upon the search of the Residence pursuant to this warrant on February 27, 2012, police discovered drugs and a firearm.

[6] The accused attack the warrant issuance on the following grounds:

(1) The information provided by the confidential informants does not identify the female accused, nor her Residence, is vague and lacks detail.

(2) The affiant in the ITO failed to disclose whether the confidential informants were motivated to provide police information for consideration in relation to these charges in this case, or other reasons, or whether payment was exchanged.

(3) Given the above informational deficiencies in the ITO, the affiant failed to establish, absent impermissible speculation, that there were reasonable grounds to believe that evidence of an offence would be revealed by the search for which authorization was sought.

(4) The result of the above deficiencies is that it was impossible for the issuing justice to assess either the reliability of the evidence that underpinned the warrant or whether, absent speculation, it could reasonably be believed. Consequently, the search of the Residence contravened protection against unreasonable search under s. 8 of the Charter.

(5) It is submitted that the admission of the evidence seized would bring the administration of justice into disrepute and must be excluded under s. 24(2) of the Charter.

ITO’S STATEMENT OF BACKGROUND INFORMATION

[7] Hill as the affiant had been a member of the Ottawa Police force for some 10 years, the latest three of which had been with the drug unit of that police force. His experience included prior applications for several search warrants, undercover work including four purchases of drugs, and 20 occasions as cover for undercover operators in the purchase of drugs. Hill’s information in the ITO includes information he obtained from other police officers, from eight informants, review of several police data bases and the results of prior covert home entries in this investigation.

ACCUSED AND THE RESIDENCE

[8] The ITO states that the accused are unemployed and were in a relationship with one another.

[9] Mr. Mohamed was 27 years old and owned a grey 1998 Nissan.

[10] Mr. Mohamed had a criminal record consisting of failure to attend court in 2007, four counts of recognizance failure, possession of a prohibited drug for the purpose of trafficking under the CDSA, possession of a firearm and ammunition contrary to a probation order, and proceeds of crime under $5,000 in 2010. At the time of the surveillance, Mr. Mohamed had outstanding charges, including breach of recognizance, failing to stop for police and trespass.

[11] Mr. Mohamed told his probation officer that he resided at two residences: the Residence, being Ms. Windebank’s apartment to which he had a key, and 204 Des Pères Blancs Avenue in the City of Ottawa (“Res. #2”) where his family lived.

[12] The female accused was 23 years old. She had a criminal record consisting of trafficking in a controlled substance and breach of a conditional sentence in 2009. She had at the time of the ITO two outstanding charges of breach of probation terms. The Residence was her rented apartment.

[13] As to the accused, Hill alleges in the ITO that each of them has been observed as part of this investigation to be a party to several drug transactions.

[14] Police sought the subject warrant in relation to the Residence and (Res. #2), and Mr. Mohamed’s vehicle and the arrest of the accused. Hill states his belief that such residences are drug stash locations used by Mr. Mohamed.

[15] The portion of the warrant authorizing a search of Mr. Mohamed’s vehicle and Res. #2 is not challenged by the accused in this application. The challenge is directed at the authorization to search the Residence.

[16] The search warrant seeks authority to search for several identified prohibited drugs, drug paraphernalia, guns, ammunition, safes, communication devices currency and documents.

[17] Hill states his belief that the male accused was observed coming from and returning to the Residence and Res. #2 before and after alleged drug transactions.

[18] Hill alleges that Ms. Windebank was observed under surveillance coming from and returning to the Residence after participating in drug related transactions.

OMNIBUS SEARCH WARRANT

[19] The warrant sought is not limited to the accused. The ITO omnibus application requests search warrants of the homes and automobiles of other people, including:

(a) Two residences and an automobile of Mr. Fazeli. His criminal record included two convictions in 2006 of possession of prohibited drugs and several breaches of terms of recognizance.

(b) Two residences related to Mr. Bihi. His criminal record included two convictions of robbery in 2007 and one in 2009, fraud over, obstruction of a police officer and three breaches of terms of recognizance in 2011. Mr. Bihi it is stated on four occasions as part of this police surveillance sold crack cocaine to an undercover police officer from the automobile of Mr. Sheikhdoon.

(c) One residence and two automobiles of Mr. Sheikhdoon. His criminal record included convictions in 2010 for robbery, forcible confinement and possession of a weapon together with two convictions for failure to comply with conditions of his undertaking. This individual on three occasions accompanied Mr. Bihi in the latter’s above-mentioned sales of suspected crack cocaine to an undercover police officer.

(d) One residence in relation to Mr. Thibault.

(e) The surveillance actions of Ms. Metcalfe are relied upon in support of the requested warrant to search the above four automobiles of Messrs. Fazeli, Sheikhdoon and Mohamed. Ms. Metcalfe has a criminal record which included drug possession for the purposes of trafficking in 2008 and assault causing bodily harm in 2010. The ITO states that on several occasions she sold and attended with others in the sale of crack cocaine to undercover police officers.

[20] The warrants sought include a warrant to arrest Messrs. Fazeli and Thibault and Ms. Metcalfe as well as the two accused. Mr. Bihi apparently was arrested on a firearms charge after a pursuit by police on February 26, 2012.

[21] The principle sources of information presented in the ITO are police surveillance, judicially authorized covert entrance by police in suspects’ homes, vehicle tracking devices and information provided by eight confidential police informants.

[22] The ITO summarizes the informants and the information they provided police as follows:

Informer #1

In April 2010, this informer told police in April 2010 that Messrs. Fazeli, Sheikhdoon, Mohamed and two other named individuals are part of a street gang called the Bloods involved in the trafficking of crack cocaine in the Vanier and Overbrook areas of Ottawa. Mr. Fazeli is the leader of this group and deals cocaine at the kilogram level. The Bloods compete with another gang called the Crisps with much violence between the two gangs. [This and subsequent emphasis added.]

Classification:

Trusted, proven, coded and paid. Known to police for 4 years. Provided police in the past with information on known Ottawa drug dealers and firearm traffickers. No past information given to the officer in issue proved untrue. Prior information resulted in obtaining 7 Code warrants which led to the seizure of cocaine, crack cocaine, marihuana, firearms and the laying of criminal charges.

Informer #2

In May of 2011, this informer told police that Mr. Fazeli supplies drugs and guns to “Tarzan”, “Mute”, “Chico”, “Kid” and “J-Money”. Detectives Houston and MacKillop advised that “Ace”, “Tarzan”, “Kid”, “Mute”, “Chico”, “J-Money”, “Quick”, and “Spades” are, to their knowledge, the street names of Adan Fazeli, Saed Sheikhdoon, Kyle Crawford, Mathieu Vaillant, Carlos Miranda-Mosquera, Jamal Jama, Christian Thibault and Mike Laurin, respectively.

Classification:

Trusted, proven, coded and paid. Known to police for 1 year. Provided police in the past with information on known Ottawa drug dealers and firearm traffickers. Information provided police on two occasions which resulted in each case to the seizure of firearms and the laying of criminal charges. No past information given to the officer in issue proved untrue.

Informer #3

In August of 2011, this informer told police that Saed, known on the street as “Tarzan”, a nickname identified by others as Saed Sheikhdoon, sells cocaine and crack cocaine at the ounce level supplied by “Ace” who deals cocaine at the kilogram level. A name of one of the purchasers of cocaine from Mr. Sheikhdoon was provided. Mr. Sheikhdoon has Mathieu Vaillant (street name “Mute”), working with him in these drug activities. This informer provided a make and colour of this suspect’s car (grey or silver Honda), driver’s license, telephone number and the street he lives on. “Tarzan” always has a gun on him and may have another at his home. He stated that “Tarzan” had gone to jail for a home invasion and stabbing. “Tarzan” lives in the Vanier area with his mother. Police were able to confirm from police records that Mr. Sheikhdoon’s 2010 conviction for robbery and possession of a weapon involved a home invasion and knife stabbing of a victim. A vehicle registration search against Mr. Sheikhdoon revealed that until August 2011, he owned a silver Nissan.

Classification:

Trusted. Known to police for 1 year. Provided police in the past with truthful information regarding confirmed Ottawa drug dealers. No past information given to the officer in issue proved untrue.

Informer #4

This informer told police in August 2011 that Mr. Fazeli was then the main supplier of cocaine in Vanier. His street name is “Ace”. Messrs. Mohamed and Sheikhdoon are the main cocaine distributors of Mr. Fazeli. Mr. Fazeli has provided handguns and cocaine to Messrs. Crawford, Vaillant and Laurin with the first 2 of these selling cocaine from 186 Hannah St. He identified the street names of Messrs. Frazeli, Sheikhdoon and Mr. Mohamed as “Ace”, “Tarzan” and “Shadow” respectively. Mr. Fazeli has a baby mother named Erin.

Classification:

Trusted, proven, coded and paid. Known to police for 4 years. Provided police in the past with information on known Ottawa drug dealers and firearm traffickers which police were able to corroborate as truthful. No past information given to the officer in issue proved untrue. Prior information provided resulted in obtaining 7 Code and CDSA search warrants which led to the seizure of cocaine, crack cocaine, marihuana, firearms and the laying of criminal charges.

Informer #5

This informer told police in October 2011 that “Ace” deals crack cocaine in Ottawa and is setting up a group of cocaine sellers in North Bay, Ontario. “Ace” is the principal vendor of cocaine in Vanier. The principal runners of cocaine for “Ace” are Messrs. Mohamed and Sheikhdoon. “Shadow” known to police as Mr. Mohamed use to live in Res. #2. “Tarzan”, known to police as Mr. Sheikhdoon, lives in the Vanier area with his mother.

Classification:

Trusted, proven, coded and paid. Informer #5 was known to police for 4 years. He had provided police in the past with information on known Ottawa drug dealers and firearm traffickers which police have been able to corroborate as truthful. No past information given to the officer in issue proved untrue. Prior information resulted in obtaining 10 CDSA and Code warrants which led to the seizure of cocaine, crack cocaine, marihuana, firearms and the laying of criminal charges.

Informer #6

In January 2012, this informer told police that Erin Smith sells cocaine for “Ace” from her home where she has a safe containing a large quantity of money.

Classification:

Trusted, proven, coded and paid. Informer was known to police for 2 years. Provided police in the past with information on known Ottawa drug dealers and firearm traffickers which police have been able to corroborate as truthful information. No past information given to the officer in issue proved untrue. Prior information resulted in obtaining 6 Code and CDSA warrants which led to the seizure of cocaine, crack cocaine, marihuana, firearms and the laying of criminal charges.

Informer #7

This informer told police in January, 2012 that a tall skinny Somali male with dreads tight to his head has taken over the Vanier Crack cocaine business of another male recently arrested. He provided the telephone number and vehicle description and plate number of this Somali male. The vehicle was determined to be registered in the name of Mr. Sheikhdoon.

Classification:

Trusted and coded. Known to police for 1 year. Provided police in the past with information on known Ottawa drug dealers and firearm traffickers. Prior information resulted in the arrest of one person and the seizure of crack cocaine. Has never provided either officer with information which turned out to be untrue.

Informer #8

This informer told police in February, 2012 that “Ace”, who is the leader, ”Quick”, “Kidd”, “Mute”, “Wolf”, “Spades”, “Tarzan” and “Shadow” were then distributing crack cocaine and guns in Vanier and have been taking over the houses of drug users in order to sell drugs. Within the previous seven days, “Ace and “Quick” had each been observed possessing guns.

Classification:

Trusted and coded. Known to police for 4 months. Provided police in the past with information on confirmed Ottawa drug traffickers. No past information given to the officer in issue proved untrue. No motive to fabricate information.

[23] Police confidentially disclosed to the judge issuing this warrant information as to the criminal record of the above informers.

[24] There is some cross-corroboration between the above informants which provided some supporting credibility to the informants, as follows:

(1) Identity of “street names” used by Messrs. Fazeli, Sheikhdoon, Mohamed and Vaillant. (Informers 1, 2, 3, 4, 5, 6 and 8) This is further confirmed by the stated knowledge of two Ottawa police officers to the affiant of the ITO.

(2) Mr. Fazeli heads up and is the supplier of a group of people including Mr. Sheikhdoon, who traffic cocaine, crack cocaine and and/or guns in Vanier. (Informers 1, 2, 3, 4, 5, 6 and 8)

(3) Mr. Sheikhdoon and Mr. Mohamed are runners, dealers of cocaine, crack cocaine and/or guns for Mr. Fazeli. (Informers 1, 4, 5 and 8)

(4) Mr. Fazeli is involved with a woman by the name of Erin. (Informers 4 and 5) Police identify Erin as Erin Smith, the girlfriend of Mr. Fazeli.

[25] Pursuant to prior legal authorization, police covertly entered the residence of Mr. Fazeli at 1-58 Cousineau Street on February 15, 16, 18 and 21, 2012 and found the following:

(1) On February 15, 2012: 130 grams of suspected crack cocaine with a $26,000 street value;

(2) 28 grams of suspected crystal meth with a street value of value of $3,000;

(3) Fifty .32 caliber rounds of ammunition and twelve 9 mm rounds of ammunition;

(4) On February 16, 2012: three of the five suspected bags of crack cocaine observed on February 15 were not present;

(5) The suspected crystal meth located on February 15 was again present;

(6) One hundred 80 mg Oxycontin tablets with a street value of $4,000;

(7) $45,000 Canadian currency;

(8) On February 18, 2012: less than a gram of cocaine;

(9) The same bag of crystal meth;

(10) One hundred 80 mg of Oxycontin;

(11) Some $10,000 cash;

(12) On February 21, 2012: 47 grams of crack cocaine with a value of $9,400;

(13) 28 grams of crystal meth with a value of $3,384;

(14) 642 pills of 80 gm. Oxycontin with a value of some $25,600;

(15) Six 25 mg Fentanyl patches; and

(16) Six $1,000 bundles of cash.

[26] The results of these four covert entries in the home of Mr. Fazeli strongly support the issuance of the warrant for his arrest and the search of his home(s) and automobile. Those same results also strongly add credibility as to information provided by informers 1, 2, 3, 4, 5, 6 and 8, as to Mr. Fazeli’s large scale involvement in the trafficking of drugs and his possession of quantities of ammunition, which normally is used in guns.

[27] The accused submit that the result of these covert entries does not link either of them to drug trafficking or possession and provides no reasonable grounds to search the Residence. Notwithstanding the truthfulness of information from the informers as to Mr. Fazeli, the accused suggest they are being untruthful or inaccurate as to Mr. Mohamed.

[28] This argument only has merit if one considers the results of these covert entries but ignores the information of the informants about Mr. Mohamed. This silo approach is contrary to jurisprudence.

SURVEILLANCE

[29] Police, as part of this investigation, performed some 73 surveillances of the suspects between November, 2011 and February, 2012. Nineteen of those surveillances were of the accused. The other occasions of surveillance referred to in the ITO were of Messrs. Fazeli, Seikhdoon, Thibault, Mohamed and Bihi and Ms. Metcalfe. Those occasions of surveillance include the presence of other identified and unidentified individuals including the accused Windebank.

[30] Surveillance of Mr. Fazeli was carried out between November 24, 2011 and February 23, 2012. Surveillance records numerous people attending the residence(s) of Mr. Fazeli on several occasions and then leaving that residence thereafter with what appeared to be packages under their arms. Attendees to the residence of Mr. Fazeli include Erin Smith, Mr. Sheikhdoon, Mr. Mohamed, Mr. Thibault, Mr. Vaillant and numerous unidentified males and females. Many of those individuals enter and then leave that residence a few minutes later. Attendances in that residence by Mr. Mohamed occurred on November 26, 2011.

[31] Surveillance records car door to car door, short “meetings” between Mr. Mohamed and Mr. Fazeli on January 19, 2012.

[32] Mr. Fazeli’s apartment on Cousineau St. was considered suspicious by the landlord. This was a second residential location of Mr. Fazeli. The apartment on Cousineau Street was rented in December, 2011 according to the landlord. The windows were then covered with garbage bags. Mr. Fazeli paid the first six months rent in advance, namely $4,700 in cash, mostly by twenty dollar bills. The landlord stated the residence was seldom occupied.

[33] Target profiles of the suspects in the ITO indicate that the following are unemployed with no known source of income, namely: Messrs Fazeli, Sheikhdoon, Mohamed, Bihi, and Thibault, as well as Ms. Windebank and Ms. Metcalfe. The activities recorded during the surveillance include many instances during the day and the evening.

[34] Mr. Fazeli drove to and remained several days in North Bay until his return to Ottawa on February 9, 2012. He then on February 10, 2012 drove to Sudbury with Mr. Thibault where he remained for several days. See informer #5’s reference to Mr. Fazeli setting up a drug distribution network in North Bay.

[35] Police on numerous occasions observed Mr. Fazeli carrying packages to and from his vehicle and to one of his apartments. Police record numerous persons attending his apartment and his vehicle and then departing after a few minutes or less. The vehicle encounters include males reaching into the window or door of Mr. Fazeli’s car and receiving or giving something to Mr. Fazeli. On some of these occasions, Mr. Bihi is present with Mr. Fazeli.

[36] Police observed Mr. Thibault carry a black bag and then travel to Mr. Fazeli’s apartment on February 16, 2012. Police on this same date observed Mr. Fazeli carry a similar bag into his Cousineau Street apartment. Several hours later, police found a black bag containing $45,000 in Mr. Fazeli’s Cousineau Street apartment.

[37] Surveillance results of Mr. Fazeli and Mr. Sheikhdoon, and the covert examination of and what was found in Mr. Fazeli’s apartment on the four occasions, strongly support the issuance of the search warrants against the residences and vehicles of Mr. Fazeli and Mr. Sheikhdoon. Those same sources of information in addition corroborate and lend credibility as to the drug activity and its scale, and the directing role of Mr. Fazeli among a group of males in that drug activity as alleged by several of the above informants.

[38] Ms. Metcalfe sold crack cocaine to undercover police officers during this investigation on one occasion.

[39] The above conclusion as to these two males is not diminished by the accused’s arguments that in relation to the informants, the ITO fails to disclose:

(1) How much money did police pay to the informers, when and for what reason? Police must be careful not to reveal too much information and risk identifying the informant. They were either paid a little or a lot of money, once, or several times. Independent of that, the information provided by the informants as to the drug activity of Mr. Fazeli was correct and supports their credibility.

(2) Did the information from informers leading to the seizure of drugs or guns in the past, lead to successful criminal prosecutions? There are many reasons why charges may not be laid and if laid, are subsequently withdrawn or unsuccessfully prosecuted at trial. This is not a strong argument. More importantly, as against Mr. Fazeli, the informant’s information to police has been proven to be correct.

(3) The accused argue that the information received from the informants is dated in some cases and cannot therefore be relied upon. This argument related to Mr. Fazeli has been disproven by the then current four covert searches of his residence in February, 2012, and the surveillance of him.

[40] The result of the above therefore is that the informant’s information of Mr. Fazeli’s illegal drug activity, alone and with others, has been confirmed or is highly supported by independent covert entries into his apartment, police surveillance of his activity and police vehicle tracking devices. The informant’s information to police regarding this suspect has largely proven accurate. The question remains: was the information from those sources sufficiently reliable and credible regarding Mr. Mohamed?

SURVEILLANCE DISCLOSES MULTIPLE BRIEF ENCOUNTERS

[41] Surveillance disclosed in the ITO reveals multiple short meetings or encounters between the subjects of the investigation and other individuals. These brief encounters require closer examination. Are they indicative of occasional short encounters between two people which are commonplace in everyone’s life or do they support a reasonable belief or suspicion of criminal drug trafficking transactions?

[42] The frequency, location and form of many of these meetings could lead a judge to reasonably believe that many of these brief encounters, based on all of the evidence, support a reasonable belief that these are drug trafficking activities and that warrants to examine the residences and vehicles of the suspect is justifiable.

[43] I refer for example to the following police surveillance of Mr. Fazeli which, combined with the covert entry results in his apartment and the informers’ allegations, lend support to police allegations that these or some of them are drug related:

(a) January 19, 2012

(b) January 25, 2012 – 4:39 p.m.

(c) January 27, 2012 – 1:21 p.m.

(d) February 4, 2012 – 6:36 p.m.

(e) February 16, 2012 – 3:10, 3:15

THIBAULT

[44] Similar encounters referred to in the ITO involving this suspect record similar brief encounters, including the following:

(a) December 14, 2011

(b) February 7, 2012

(c) February 16, 2012

SHEIKHDOON

[45] ITO surveillance of this individual include similar brief encounters:

(a) November 9, 2011

(b) November 15, 2011

(c) November 18, 2011

(d) December 15, 2011

(e) December 16, 2011

(f) December 18, 2011 – involving a gun

(g) January 7, 2012

(h) January 31, 2012

(i) February 15, 2012

(j) February 22, 2012

BIHI

[46] Surveillance of this suspect referred to in the ITO includes the following similar occurrences:

(a) January 12, 18 and 24, 2012 – Bihi on these dates is believed to have suspected crack cocaine on four occasions to an undercover policeman. Sheikhdoon was believed to have been in attendance in his car at the time of each of these sales.

(b) February 1, 2012

(c) February 10, 2012

(d) February 15, 2012

[47] Surveillance of the above individual records his regular attendance with Mr. Fazeli and their short attendances at one of Mr. Fazeli’s two residences, including the Cousineau Street apartment where the quantities of prohibited drugs and ammunition were stored.

[48] The above surveillance of these suspects in brief encounters with other individuals, if considered in isolation, are susceptible of activities which may be non drug-related. Considering those encounters however within the context of all of the evidence, may support reasonable grounds for believing that at least some of these encounters involved the trafficking of prohibited substances.

SURVEILLANCE OF MR. MOHAMED AND MS. WINDEBANK

[49] Again, if these occasions of surveillance are individually considered in isolation, each individual instance does not support a reasonable belief that Mr. Mohamed is trafficking prohibited drugs. His activity as recorded however, when viewed in relation to his association with Fazeli and the above evidence, permits a reasonable belief that these encounters, or at least some of them, are trafficking in prohibited substances.

[50] The surveillance of Mr. Mohamed and Ms. Windebank recorded in the ITO include the following:

(a) November 4, 2011 – Mr. Mohamed drove with Ms. Windebank to an address at 5:19 p.m. Sheikhdoon exited the address and handed an unknown item to Mr. Mohamed who then drove away.

(b) November 9, 2011 – Mr. Mohamed left the residence and drove to a shopping center where he stopped. Two minutes later, a male approached Mr. Mohamed and got into Mr. Mohamed’s vehicle. One minute later, the male exited Mr. Mohamed’s car and placed an unidentified object into his pocket. Later that day, another male known to police as a crack user came to the side of Mr. Mohamed’s car and spoke to the suspect for approximately one minute and then walked away.

(c) November 16, 2011 – Mr. Mohamed left the Residence and drove to another location with an unidentified female. Mr. Mohamed stopped the car, the unknown female exited his car, walked to and spoke for one minute to a male on a bicycle and then re-entered Mr. Mohamed’s car and then drove away. Approximately two hours later, Mr. Mohamed and the unknown female left the Residence and drove together to a food store. A male on a bicycle attended the driver’s side of Mr. Mohamed’s car, spoke for a few seconds and then departed.

(d) November 17, 2011 – Mr. Mohamed departed from the Residence via a taxi and drove to the same above food store. Mr. Mohamed entered and then exited the store, and met a white male. The two men then got into a car. Ten seconds later, Mr. Mohamed exited this car, re-entered his taxi and departed. Approximately one hour later, Mr. Mohamed and Ms. Windebank exited the Residence, picked up another female and drove to an address. Ms. Windebank and the second female exited the car and entered the building. Ms. Windebank exited the building five minutes later, placed some money in her back pocket, then got in the car with Mr. Mohamed and left the site.

(e) November 26, 2011 – Mr. Mohamed on two occasions went to and entered the residence of Fazeli. On the second of these occasions, Mr. Mohamed departed together with Fazeli.

(f) December 13, 2011 – Mr. Mohamed left the Residence with an unknown female and drove to an address. The female entered the address, stayed there four minutes and then departed with Mr. Mohamed. Some ten minutes later, Mr. Mohamed and this female stopped their car in a parking lot of a Tim Horton’s store. A male came and sat in the back of their car for one minute and then left.

(g) January 19, 2012 – Mr. Mohamed and Fazeli have a three minute driver’s door to driver’s door discussion at a Catherine Street location.

(h) February 2, 2012 – Mr. Mohamed drove to a store, entered and exited the store and then spoke to the driver of a car parked beside his car. Mr. Mohamed placed his hands inside the window of the other car with an unidentified object in his hand, shook hands with the driver and then departed. This encounter with the other driver lasted approximately two minutes.

(i) Mohamed attended the residence of Sheikhdoon. Later that day, Mr. Mohamed drove with Ms. Windebank to an address and stopped whereupon a male approached Mr. Mohamed’s window and then walked away within two minutes. This couple then drove to and stopped in a parking lot and had a driver’s door to driver’s door encounter lasting one minute whereupon the two vehicles departed with Mr. Mohamed and Ms. Windebank returning to the Residence.

(j) February 23, 2012 – A white male arrived by taxi at the Residence and knocked on the Residence window. Another male then exited the building with a gym bag. The two males entered the taxi and then drove to and entered Res. #2. Later that evening, Sheikhdoon came and entered that residence, staying approximately 30 minutes.

(k) February 24, 2012 – Ms. Windebank took a taxi to a location and then stopped. A male came to her taxi window, talked and then entered the back seat of the taxi with Ms. Windebank. The male exited the taxi one or two minutes later and departed. Ms. Windebank then proceeded to another address in the taxi. Within one hour of the above, Mr. Mohamed drove from the Residence to and entered Res. #2 for one minute and then drove to an address which he entered and then departed four minutes later and returned to Res. #2.

[51] I disagree with counsel for Ms. Windebank that whether reasonable grounds existed to issue the warrant regarding the Residence must be considered and decided by examining the surveillance of Ms. Windebank and the Residence in a silo. It is true that a separate determination must be made whether the warrant should include a residence of each individual suspect. The Supreme Court is clear as to the high level of privacy under the Charter attaching to one’s residence. Independent of her actions however, Ms. Windebank was sharing the Residence with Mr. Mohamed who had a key and resided there part of the time. The Residence is impacted by the actions of Mr. Mohamed and the confirmed reliability of the information from the informers, which include drug-related allegations involving Mr. Mohamed. The court, in considering whether to grant the warrant requests, must consider all of the information in the ITO and the totality of the circumstances. (R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, and R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at paras. 60 and 70.)

[52] While the individual surveillance of the accused may individually be susceptible of other interpretations, it was reasonable, given the similar patterns of other suspects as noted and the other evidence, that some of those above-mentioned brief encounters with other individuals were reasonably believed to be drug related. It was not unreasonable to conclude that evidence of drugs or related equipment would be located at the Residence and/or Res. #2.

[53] Ms. Windebank’s application herein amounts to a request that the court, in considering whether there are reasonable probable grounds as to the Residence, ignore: a) the reliability of the informers regarding Fazeli as confirmed by the covert entries; b) the information from the informers as to Mr. Mohamed’s drug trafficking association with Fazeli; c) the fact that Mr. Mohamed resided part of the time in the Residence; and d) the surveillance activity regarding Mr. Mohamed. As stated, that approach is not supported in law.

[54] It is noted that Ms. Windebank’s application is dated September 20, 2012. Mr. Mohamed’s three-page application is dated October 15, 2013, eight days before this hearing.

[55] The relevant legal principles as applied to the facts in this case are as follows:

(1) This reviewing court must examine the evidence before the issuing judge in detail.

(2) The warrant as issued does not appear overly broad. Mr. Mohamed had access to and resided partially in the Residence. He came from and returned to the Residence after a number of brief encounters with others which in number reasonably exceed chance encounters with friends or family. The shortness of these encounters, on some occasions no longer than a minute or two at a car window or inside a parked car and on occasion the departure of the individual with something in their hand, is not unreasonably supportive of a drug transaction. (R. v. Araujo, 2000 SCC 65; [2000] 2 S.C.R. 992 at para. 29.)

(3) What was found, the quantity thereof in Fazeli’s residence on four occasions, thereby confirmed the information from the Informers and is supplemented by the observed relationship between Fazeli and Sheikhdoon with Mr. Mohamed. This is objective evidence. That objective evidence coupled with the participation of those three individuals and others in these brief car window or back seat encounters in parking lots constitute reasonable and probable grounds upon which a reasonable person could conclude that Mr. Mohamed was a frequent trafficker of prohibited drugs. R. v Bush, 2010 ONCA 554; 101 O.R. (3d) 641, paras. 37 and 38.

(4) This court’s review is not to be conducted as a hearing de novo. The question is whether there was any basis upon which the issuing judge could be satisfied that the pre-conditions to authorization existed. If, on any basis, the issuing judge could have been satisfied on the evidence and concluded that a warrant should issue, the challenge under s. 8 of the Charter should be dismissed. The reviewing court may not substitute its view of the evidence to that of the reviewing judge. R. v. Garofoli, supra, paras. 54-56 and 68.

(5) An in