ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Aboukhamis, 2015 ONSC 2860

COURT FILE NO.: 11571

DATE: 2015/05/06

BETWEEN:

Her Majesty the Queen

Laura Tripp, for the Respondent

Respondent

• and -

Tarek Aboukhamis

Jack Hardy, for the Applicant

Applicant

HEARD: April 29, 2015

Grace J.

REASONS FOR DECISION

A. Introduction

1Acting on a warrant issued pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (the “CDSA”), members of the London Police Service (“LPS”) searched Unit 5-1430 Jalna Boulevard, London, Ontario (the “residence”) on February 27, 2013.

2Inside the residence police found a marijuana cigarette, a small digital scale with cocaine residue and two clear plastic bags. Another clear plastic bag containing approximately fourteen grams of cocaine was found in the backyard buried in snow.

3Mr. Aboukhamis was charged with two counts: possession of marijuana and possession of cocaine for the purposes of trafficking contrary to ss. 4(1) and 5(2) respectively of the CDSA.

4The defendant alleges a violation of his right under s. 8 of the Charter of Rights and Freedoms (“Charter”) to be secure against unreasonable search or seizure. He submits that the evidence should be excluded because, having regard to all the circumstances, its admission would bring the administration of justice into disrepute: Charter, s. 24(2).

5A warrant to search a place for and if found, to seize certain things may be issued by a justice pursuant to s. 11(1) of the CDSA on application made without notice. However, the statutory preconditions must be fulfilled.

6Information on oath must satisfy the justice that there are reasonable grounds to believe that the place in question contains a controlled substance, anything in which a controlled substance may be contained or concealed, offence-related property or anything that will afford evidence of an offence under or contravention of the CDSA or specified sections of the Criminal Code.

[7] In this case, a s. 11 CDSA warrant was issued based on an information to obtain sworn by Detective Constable Micah Bourdeau of the LPS on February 27, 2013 (the “ITO”).

8An edited version of the ITO was supplied by the Crown to the defence and to this court. The Crown relies on the redacted ITO on this application. The Crown also relies on brief oral testimony given by the affiant.

9The defendant submits that the redacted version did not meet the standard s. 11(1) of the CDSA establishes. The defence also argued that D-C Bourdeau’s oral testimony was not proper amplification evidence or alternatively, that it was insufficient to cure the deficiencies in the record.

B. The Warrant and section 8 of the Charter

i. The Legal Principles

10The applicable legal principles are often cited and not in dispute.

11The warrant is presumptively valid. The defendant bears the onus of establishing an infringement of his Charter protected rights: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at para. 21.

12Since an application under s. 11 of the CDSA is brought without notice, the affiant is obliged to make full, frank and fair disclosure of all material facts: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 49; R. v. Nguyen, 2011 ONCA 465 at para. 48.

13Where the affiant fails to discharge their duty to fully and frankly disclose material facts, evidence introduced during the review may be used by the reviewing judge “to fill the gaps in the original ITO”: R. v. Morelli, supra at para. 60. The reviewing judge would then be in a position to determine the application based on the record that should have been before the issuing justice.

14A reviewing judge may consider amplification evidence. However, it may only be introduced for a limited purpose. As Fish J. wrote in R. v. Morelli, supra at paras. 42 and 43:

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement” (Araujo, at para. 59).¹

Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith made” such errors (para. 59). In all cases, the focus is on “the information available to the police at the time of the application” rather than information that the police acquired after the original application was made (para. 59).

15Where the affiant relies on information received from a confidential informant (“CI”), its sufficiency is based on whether the tip is compelling, credible and confirmed: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 60. It is the totality of the assessment that governs. Strengths in one area may compensate for weaknesses in another: R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.).

16The ITO need not be unblemished. That standard is too high. Alleged defects such as non-disclosure or misstatements are relevant but not determinative: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at para. 56.

17The question is whether the ITO, read as a whole and despite its imperfections, raises a credibly-based probability that the search will lead to the discovery of one or more of the items mentioned in s. 11 of the CDSA: R. v. Nguyen, supra at para. 58; R. v. Debot, supra at para. 60; R. v. Garofoli, supra at para. 56; R. v. Ngo, 2011 ONSC 6676 (S.C.J.) at para. 34.

18The reviewing judge should not interfere if the record presented to the authorizing justice, as amplified on review, leads to the conclusion that there was a basis for the issuance of the warrant: R. v. Garofoli, supra at para. 56; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 61; R. v. Morelli, supra at para. 39.

ii. Analysis and Conclusion

19To the extent set forth in the Crown edited ITO, the information provided by or relating to the CI was as follows:

i. The CI was and continued to be involved in the drug culture;

ii. Although the precise number of years was redacted, the CI had been providing the police with information for some time;

iii. Numerous search warrants had been issued on the faith of information provided by the CI and illegal drugs, weapons and currency had been seized as a result;

iv. The defendant’s street name was “Nato”. Nato had showed the CI crack cocaine in October, 2011;

v. The CI had purchased crack cocaine from a friend of the defendant in December, 2011. The friend’s surname was Saqallah;

vi. In August, 2012, the CI informed D-C Bourdeau that the defendant always had crack, lived in a complex on Jalna Boulevard near Meg Drive and drove a gold Honda CRV or similar vehicle;

vii. The CI purchased cocaine from the defendant in February, 2012,² October, 2012 and February, 2013.³ The location of the transactions was not set forth in the redacted ITO.

20On the return of the application, D-C Bourdeau testified that the ITO disclosed the fact that the CI had a criminal record and that it did not include convictions for offences involving dishonesty. He acknowledged that the ITO did not set out the full criminal record of the CI.

21The results of the police investigation were also set out in the ITO. D-C Bourdeau deposed to the following:

i. Having joined the LPS almost ten years earlier and been a member of the Guns and Drugs Section for almost four years, he was familiar with the methods by which illegal drugs are packaged and sold;

ii. On February 19, 2013, D-C Bourdeau observed a beige Honda Odyssey van (the “Odyssey”) with Ontario plate BPSB 126 in the parking lot at 1430 Jalna Boulevard and determined that it was registered to Mr. Saqallah. Mr. Saqallah was shown as residing elsewhere in London;

iii. D-C Bourdeau observed the defendant driving the Odyssey that day. At the time, the defendant was alone and eastbound on Jalna Boulevard. At an unspecified time, the Odyssey pulled into the parking lot of a Tim Horton’s at the corner of Wellington and Exeter Roads. By that time, an unknown person was in the front passenger seat. That person exited the van and walked away. The Odyssey left the parking lot and drove northbound on Wellington Road. D-C Bourdeau opined that “this was a drug transaction”;⁴

iv. On February 25 and 26, 2013, D-C Bourdeau conducted various computer searches. He was able to confirm that the defendant’s street name was “Nato”. His address was shown as being 5-1430 Jalna Boulevard. Murad Aboukhamis was the registered owner of the unit. He was said to be an “associate” of the defendant;

v. D-C Bourdeau learned that the defendant and Mr. Saqallah were jointly charged with possession of cocaine for the purpose of trafficking in 2001 following an investigation and the issuance and execution of a search warrant. Nine grams of crack cocaine were located at and seized from the address where Mr. Aboukhamis then resided;

vi. D-C Bourdeau also learned that in 2007 another police officer received information from a confidential source that the defendant was actively dealing cocaine from his home on Tecumseh and from two motor vehicles;

vii. D-C Bourdeau further learned that the defendant had a lengthy criminal record that included a conviction for possession of a Schedule I CDSA substance for the purpose of trafficking. The ITO did not specify the date of any conviction;

viii. D-C Bourdeau also learned from those searches that the Odyssey was stopped by other officers earlier in February, 2013. At the time, the vehicle was being driven by a person who identified himself as a cousin of Mr. Saqallah. The defendant was seated in the front passenger seat;

ix. On February 26, 2013, D-C Bourdeau conducted surveillance at 1430 Jalna Boulevard. He observed the Odyssey leaving the parking lot at 3:12 p.m. and three minutes later was able to verify that the defendant was driving the vehicle. Mr. Aboukhamis was alone;

x. At 3:28 p.m., he observed the Odyssey pulling into a parking lot of an apartment building at 304 Oxford Street West. A female was standing in the parking lot. The affiant saw her run to the open front passenger window. She reached in and then ran to the apartment building. The interaction lasted approximately 5-10 seconds. D-C Bourdeau expressed the opinion that a drug transaction had been completed;⁵

xi. At 3:48 p.m., another police officer observed the Odyssey pull into the driveway of 163 King Edward Drive. After 25-30 seconds the van was observed reversing out of the driveway. It then left the area. D-C Bourdeau expressed the opinion that a drug transaction had been completed.⁶

22The summary of the redacted ITO evidences its weakness insofar as the residence is concerned. The CI provided compelling information that the defendant sold cocaine. However, there is nothing in the redacted ITO which suggests the residence played a role in any transaction in which the CI and defendant participated. As noted, in August, 2012, the CI was only able to provide an approximate location of where the defendant lived.

23Even if the CI had provided information that suggested some link between Mr. Aboukhamis’ alleged activities and the residence, credibility remained an issue. Drugs, weapons and currency had been seized on the faith of information provided by the CI. However, the ITO did not say whether charges had been laid, let alone whether convictions had been obtained.

24The CI’s complete criminal record was not set forth in the ITO. That information should have been supplied: R. v. Rocha, supra at paras. 19-20 and 33. The affiant testified that he was not aware of that requirement until later.

25An independent police investigation was conducted based on the information the CI provided. It seems to have commenced in February, 2013. The results were underwhelming.

26Some information was obtained using computerized searches. The results included alleged criminal activity in 2001 and 2007. That information was old. Dates on which Mr. Aboukhamis was convicted of criminal offences were not specified.

27Surveillance was conducted on February 19 and 26, 2013. The affiant opined that the defendant had been involved in three drug transactions based on observations made on those dates.

28Only in the case of 304 Oxford Street was there any apparent factual support. As mentioned, a woman was waiting when the Odyssey pulled into that address on February 26, 2013. She rushed up to an open passenger window, reached inside and then ran toward an apartment building. Five to ten seconds passed. Although no exchange was seen, I accept that the interaction was highly suspicious.

29Earlier the affiant had recorded observations made on February 19, 2013 at a Tim Horton’s at Wellington and Exeter Roads.

30The entirety of the description follows:

On February 19, 2013, approximately 5 minutes after leaving the parking lot of 1430 Jalna Boulevard, I observed the gold [sic] Honda Odyssey minivan bearing Ontario licence plate BPSB126 travelling east on Jalna Boulevard driven by Tarek Aboukhamis. There were no other occupants in the vehicle. I conducted mobile surveillance on the Honda Odyssey. I observed the Honday [sic] Odyssey attend the parking lot of the Tim Horton’s at Wellington Road South and Exeter Road. Upon entering the parking lot I observed an unknown person exit the front passenger seat of the Honda Odyssey, shut the door, and walk away. The Honda Odyssey then exited the parking lot of the Tim Horton’s and travelled northbound on Wellington Road South.

a. [Redacted]

b. In my experience investigating drug offences, I have learned that drug dealers will often arrange drug transactions in public places, particularly their vehicles, which last for short periods of time.

31Based on the edited description, where does the opinion that the defendant engaged in a drug transaction come from? It is impossible to determine when the passenger entered or exited the vehicle. As described, the event seems benign.

32The opinion expressed with respect to the second reported event on February 26, 2013 is even more perplexing. The circumstances were explained in these terms:

At 3:48 p.m. Detective Matthew Garwood observed the Honda Odyssey pull into the driveway of 163 King Edward Avenue. The Honda Odyssey remained in the driveway for approximately 25 to 30 seconds before reversing out of the driveway and travelling northbound on King Edward Avenue.

i. In my experience investigating drug offences, I have learned that drug dealers will often arrange drug transactions in public places, particularly their vehicles, which last for short periods of time.

33A similar but abridged description appeared later in the ITO followed by the statement “I believe this was a drug transaction.” However, there is nothing in the ITO that suggests anyone else was in or approached the Odyssey or that anything was left behind.

34Even if there was a basis for suspecting that one or more drug transactions had occurred, a connection to the residence is never stated. The only link is that surveillance of the Odyssey commenced in or near the parking lot at 1430 Jalna Boulevard.

35The first attempt at tying the residence to the suspected illegal activity is found at para. 37 of the ITO. D-C Bourdeau offered this comment:

In my experience investigating drug related offences, drug dealers often keep their drugs with them in their vehicles and their residences or the residences they use to sell the drugs.

36The paragraph contains a generalized statement about the propensity of those engaged in drug trafficking. Without some case-specific evidentiary support, it seems to me to be of little, if any, value: R. v. Morelli, supra at paras. 77-79.

37In the concluding section of the ITO, the affiant deposed that he had reasonable grounds to believe that the defendant did, without lawful excuse, possess a substance included in Schedule I to the CDSA, namely cocaine, for the purpose of trafficking. There was no mention of the residence until the next sentence. It read:

I therefore request authorization to enter and search the residence at 5-1430 Jalna Boulevard, London Ontario and the…Odyssey…in order to seize the listed items as evidence to assist in the prosecution of the listed offences.

38The ITO sought permission. Insofar as the residence is concerned it did not provide sufficient grounds. Suspecting someone of trafficking a Schedule I drug does not automatically justify the issuance of a search warrant with respect to their home: R. v. Rocha, supra at para. 26.

39The illegal activities disclosed by the CI did not occur at the residence or suggest any connection to it. The police investigation was limited both in time and result. The ITO did not establish reasonable grounds to believe that the residence contained anything mentioned in s. 11 of the CDSA. The totality of the circumstances did not support the issuance of a warrant in relation to that property.⁷

40The warrant should not have included the residence.⁸ Consequently, the subsequent search and seizure violated s. 8 of the Charter.

C. The Implications - Section 24(2) of the Charter

41Section 24(2) of the Charter requires the exclusion of evidence obtained in a manner that infringed s. 8 “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

42Three factors are to be considered: the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the defendant and society’s interest in the adjudication of the charges on their merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.

i. The Seriousness of the Charter-infringing state conduct

43The search of the residence and the backyard occurred after a justice of the peace issued a warrant pursuant to s. 11 of the CDSA. It included the Odyssey. The defendant challenges the warrant only in relation to the residence.

44The conduct that warrants consideration relates to the warrant’s issuance, not its execution.

45At first blush this factor may seem to be an insignificant one. The affiant did not fail to make full and frank disclosure of material facts. The factual statements in the ITO were not false or misleading. Material facts were not omitted.

46Nonetheless, the ITO was insufficient in a material respect. It contained conclusions that lacked evidentiary support. It sought permission to search a residence without a factual basis. Greater care should have been taken in the drafting of the ITO. As Fish J. said in R. v. Morelli, supra at para. 102:

Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

47It should have been readily apparent to the affiant that the ITO overreached when it came to the residence. That comment is not intended to excuse the court from its obligation to review an ITO carefully and with a critical eye. However, the application was brought without notice. An affiant’s fundamental obligation is to be honest, fully forthcoming and fair. Strongly worded but unsubstantiated conclusory pronouncements can be as misleading and as persuasive as an inaccurate or incomplete statement of fact.

48The Charter-infringing state conduct was not egregious. However, it was significant.

ii. The impact of the breach on the Charter-protected interests of the accused

49If a place where the defendant has a high expectation of privacy is searched, the impact of the breach of s. 8 of the Charter will favour exclusion of the evidence. As McLachlan C.J. and Charron J. wrote in R. v. Grant, at para. 78:

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy…is more serious than one that does not.

50A residence is such a place: R. v. Grant, supra at para. 113; R. v. Rocha, supra at para. 38; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 at para. 140; R. v. Blake, 2010 ONCA 1 at para. 28. In this case, the clear plastic bag containing crack cocaine was found underneath a handprint in the snow that had accumulated beside an outdoor swing in what the Crown described as a “back gated courtyard”. Occupants of a residence have a reasonable expectation to privacy in such an area.

51The impact of the breach was serious.

iii. Society’s interest in an adjudication on the merits

52The expectation that charges will be determined on the merits is real and important. As Doherty J.A. said in R. v. Blake, supra at para. 31:

Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable to the Crown’s case. The charge is also a serious one, although as the majority point out in Grant, at para. 84, the seriousness of the charge will “cut both ways” when assessing society’s interest in an adjudication on the merits.

53Those comments are relevant here. After weighing the Grant factors, the Court of Appeal in Blake decided that the evidence was admissible notwithstanding the breach of s. 8 of the Charter.

54This case also involves cocaine. Mr. Aboukhamis faces a charge of possession of that substance for the purpose of trafficking. Physical evidence was seized. To this point, Blake seems to be very similar to this situation.

55However, in my view Rocha is more so. In Rocha, a small amount of cocaine was seized as a result of the search of a restaurant. Prohibited weapons, cash, cocaine, Oxycodone pills and a shotgun were seized at a residence. The Court of Appeal concluded that the ITO was insufficient to justify the granting of a warrant with respect to the latter. The evidence seized from the residence was excluded.

56Rosenberg J.A. noted that while the evidence had been admitted in Blake, a caution had been issued. At para. 33 of Blake, Doherty J.A. wrote:

If there was a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.

57In Rocha, the situation was, indeed, different. At para. 43, Rosenberg J.A. explained:

While there was no impropriety or bad faith, there was a sufficient inattention to constitutional standards to tip the scales in favour of exclusion given the deleterious effect on the respondent’s privacy interests.

58In Morelli, evidence was also excluded because of a breach of s. 8 of the Charter. The majority of the Supreme Court of Canada concluded the ITO contained information that was “misleading, inaccurate, and incomplete”.⁹

59I have not gone that far. Nonetheless, admission of the evidence seized in this case may also have serious consequences. While facts were fairly stated in the ITO, conclusions were not. Generalizations and propensity were substituted for case-specific information. A desired result and expediency overwhelmed the responsibility to be balanced and fair and respectful of a Charter protected right.

60This fact situation is similar to the one in Rocha. The fact cocaine was found does not justify the means.

61The comments made in Morelli, supra at paras. 110-111 apply. Fish J. wrote:

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

62I agree.

63A passage from R. v. Grant, supra resonates too. At para. 84, McLachlan C.J. and Charron J. wrote in part:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

D. Conclusion

[64] For the reasons given I have concluded that the s. 11 CDSA warrant should not have included the residence. Mr. Aboukhamis’ rights under s. 8 of the Charter were violated.

65After considering and balancing the Grant factors, I have concluded that the evidence seized from inside and in the backyard behind the residence should be excluded.

Footnotes

1. 1R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.
2. 2The intended reference may have been 2013 given the placement of the date in the ITO. However, the date was not corrected when D-C Bourdeau testified.
3. 3As mentioned, the February, 2012 reference may have been in error.
4. 4That opinion was set forth at p. 11, para. 25 and p. 13, para. 34 of the ITO.
5. 5Those opinions were expressed at p. 12, para. 29 and p. 13, para. 36.
6. 6Those opinions were also expressed at p. 12, para. 29 and p. 13, para. 36.
7. 7For an analogous situation see R. v. Rocha, 2012 ONCA 707.
8. 8The defence did not challenge the warrant insofar as it included a Honda Odyssey van.
9. 9R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 109.