1. Overview

[1] Sadyk Sadikov is charged with 18 offences that include possession of MDMA, methamphetamine, heroin, ketamine and marijuana for the purpose of trafficking, possession of the proceeds of crime, possession of a loaded firearm and 50 rounds of ammunition without being the holder of a licence knowing he was not the holder of a registration certificate, careless storage of a firearm, and possession of a firearm while prohibited from so doing by court order.

[2] Detective Stephen Henkel, a member of the Vice Section of the Major Crime Unit at 52 Division was the lead investigator into drug activities at Club 338 located at 338 Adelaide Street West in Toronto. He was the affiant in the Information to Obtain a search warrant (ITO) for both Club 338 and 306 Adelaide Street West.

[3] The ITO described an undercover police operation at Club 338, in which police discovered drug use and consumption in the presence of security and other Club staff. The ITO also described three drug purchases made by an undercover officer from a man who identified himself as “Alex”. One of the undercover officers identified Alex through a photo lineup as Sadyk Sadikov.

[4] A provincial court judge issued a Controlled Drugs and Substances Act S.C. 1996, c. 19, (CDSA) warrant authorizing a search for and seizure of controlled substances (including, but not limited to cocaine), packaging materials, debt lists, and police buy-money in apartment 302, 306 Adelaide Street West. Police were authorized to do a nighttime search and conduct a dramatic entry to the premises. The warrant was issued based on the representation that Mr. Sadikov was a drug dealer who had illegal drugs for the purpose of trafficking at the premises.

[5] On October 20, 2008 at 4:00 a.m. the police made a dramatic unannounced entry and executed the warrant to search the second floor apartment at 306 Adelaide Street West.

[6] Upon execution of the warrant at 306 Adelaide street apartment 302, police found large quantities of MDMA, marijuana, methamphetamine, heroin and ketamine, money, a loaded firearm and ammunition.

[7] Mr. Sadikov seeks an order to invalidate the search warrant and exclude the evidence obtained as a result of execution of the search warrant. He claims that to do otherwise would bring the administration of justice into disrepute.

2. The Issues to be Decided

[8] The issues to be decided are:

(i) Could the warrant have been issued?

Issue 1 - Was there full, fair and frank disclosure?

Issue 2 - Should a dynamic entry without notice have been permitted under the circumstances?

Issue 3 - Was the affiant of the ITO required to include the name of the executing officer in the ITO?

(ii) Was there a breach of the accused’s right to be free from unreasonable search and seizure as guaranteed by section 8 of the Charter? If so,

(iii) Should the evidence obtained in breach of the accused’s section 8 Charter right be excluded from the trial on the grounds that to do otherwise would bring the administration of justice into disrepute within the meaning of section 24(2) of the Charter?

3. The Law Regarding Issuance of a Search Warrant

[9] A search warrant may be issued if the court is satisfied that there are reasonable grounds to believe evidence of a criminal offence will be found at a specified location.[^1]

[10] A police officer drafting an ITO must make full, fair and frank disclosure in ex parte proceedings, and avoid making inaccurate statements or exaggerated assertions likely to mislead the reviewing justice.[^2]

[11] Warrants are usually drafted by police officers, without the benefit of legal advice. Therefore, some latitude should be accorded to the drafter of an ITO.[^3]

[12] A warrant is presumed to be valid and the onus of proving that it is invalid is on the party who asserts it. The test is not whether the reviewing judge would have issued the warrant but whether, after excising any information that should not have been before the issuing judge, looking at the record as a whole, the warrant could have been issued by the judge who did so.[^4]

[13] In Morelli[^5], Fish J. held that,

…the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.

[14] In deciding whether the ITO could have issued, the reviewing court must appreciate that the justice who issued the search warrant made the decision based upon the contents of the ITO as a whole, and approached the assessment of the ITO in a practical, non-technical way, drawing reasonable inferences from its contents.[^6]

[15] Inaccuracies in an ITO, on their own, are “not a sufficient basis on which to ground a finding of bad faith or an intent to mislead,” much less a basis on which to quash a search warrant. The existence of “material errors or omissions” or misleading evidence in the ITO “are not dispositive” of the validity of the search warrant.[^7] Information that is wrong however, is excised.[^8]

[16] The reviewing court looks at the ITO that was before the issuing judge and may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later.[^9]

[17] The reviewing judge’s role is not to draw inferences, or to prefer one inference over another.

4. The Evidence Adduced on this Application

[18] The following evidence was provided on this Application:

(a) the ITO prepared by Officer Henkel;

(b) the testimony of Officers Henkel, Jaafar and Onzuka on this Application;

(d) police notes of several of the officers involved in surveillance prior to execution of the search warrant.

5. Issues and Evidence that are Not in Dispute

Issues that are not in Dispute

[19] After some discussion it was agreed that Mr. Sadikov had standing to bring this Application as he has a reasonable expectation of privacy in the premises at 306 Adelaide Street West.

[20] It was also agreed that Defence counsel could cross-examine Officers Henkel, Jaafar and Onzuka who conducted surveillance at Club 338 and 306 Adelaide Street West.

Evidence that is not in Dispute

[21] The following evidence was not in dispute:

a. Between June 6^th and October 20^th, undercover officers observed drug trafficking and use in Club 338;

b. “Alex” sold illegal drugs to Officer Jaafar four times at Club 338;

c. Alex told Officer Jaafar that “he kept the drugs at home”[^10];

d. Alex told Officer Jaafar he “lived close by”[^11] and “around the corner”[^12] from Club 338;

e. Club 338 is located at 338 Adelaide Street West;

f. 338 Adelaide Street West is about 100 metres from the place where the search warrant was executed, at 306 Adelaide Street West;

g. On September 5, 2008, Officer Jaafar identified “Alex” from a photo lineup as Mr. Sadikov;

h. Alex told Officer Jaafar his cellphone number was 416 899 2281;

i. Officer Jaafar spoke to Alex several times by calling that number;

j. The police did an ECops check and discovered that Mr. Sadikov told police on an earlier occasion that his telephone number was 416 899 2281;

k. The police discovered that the telephone number 416 899 2281 was registered to “John Doe”;

l. Alex told Officer Jaafar he had two pitbull dogs;

m. On October 15^th, Officer Hominuk saw two pitbulls in the window of the upper floor apartment at 306 Adelaide Street West;

n. The search warrant was obtained on October 17 and executed on October 20, 2008 at 4 a.m.;

o. In the hours leading up to the execution of the search warrant, police saw Mr. Sadikov leave 306 Adelaide Street West, enter 308 Adelaide Street West, leave 308 Adelaide Street West and sometime later enter 302 Adelaide Street West. A few minutes after 2:50 a.m. on October 20, Mr. Sadikov entered Club 338 and sold Officer Jaafar $200 worth of cocaine;

p. The warrant authorized police to enter the second floor apartment of 306 Adelaide Street West between midnight and 6 a.m. and make an unannounced dynamic entry by force; and

q. Police found a large quantity of narcotics, a loaded firearm, ammunition, $3,050 Cdn and $2,445 US, in cash and drug related items.

6. The Positions of the Parties

The Defence Position

[22] Mr. Sadikov claims the Controlled Drugs and Substances Act S.C. 1996, c. 19, (CDSA) warrant is invalid as there were no reasonable grounds to believe he kept drugs in the apartment at 306 Adelaide Street West.

[23] He claims the evidence relied on was “conclusory, highly misleading and shockingly inaccurate” and represents “an attempt to convey to the issuing justice that the Applicant resided at 306 Adelaide and that the items that would afford evidence of the offence would be located at the premises.”

[24] Mr. Sadikov concedes that he sold $200 worth of cocaine to Officer Jaafar on several occasions at Club 338 and this represents drug trafficking. [^13]

[25] However, Mr. Sadikov submits that the following material errors, misleading statements and statements made without foundation render the CDSA warrant invalid:

a) Officer Henkel’s summary provides that Adam (the runner) not Alex (the dealer) said he lived close by Club 338 (Adelaide Street);

b) Officer Jaafar described Alex in her notes as “perhaps half black”. Mr. Sadikov is not half black;

c) no investigation was done to determine Mr. Sadikov’s actual address;

d) the recitation of Sadikov’s criminal record in the ITO is misleading;

e) Officer Jaafar only remembers Alex showing her a photo of one dog (not two);

f) there is no evidence to support the suggestion that police saw Alex leave Club 338 and go into 306 Adelaide Street West;

g) there is no evidence to support the suggestion that the two pitbull dogs police saw in the window of 306 Adelaide Street West were Alex’ or that the man they saw outside of 306 Adelaide Street was Alex; and

h) the suggestion that Alex lived nearby is belied by the fact that it took him over 2 hours and the second time, over 50 minutes to return to Club 338 with the drugs.

[26] Mr. Sadikov further claims there was no reason for a dynamic unannounced entry and a point person had to be identified in the ITO.

[27] Mr. Sadikov therefore claims his section 8 Charter right to be free from unreasonable search and seizure was breached and the evidence obtained as a result of the search must be excluded as to do otherwise would bring the administration of justice into disrepute.

The Crown’s Position

[28] The Crown submits that,

a) the ITO contains sufficient reliable evidence that the search warrant could have issued;

b) the search warrant was executed by dynamic unannounced entry because it was being executed in tandem with the execution of the search warrant for Club 338 where drug activity was ongoing, drugs are easily transportable, and it was believed there were two pitbull dogs in the apartment and the affiant of the ITO claims that in his experience, dogs are less likely to be aggressive if the owner is not given the chance to give them a command; and

c) there is no requirement to provide the name of the officer in charge of executing the warrant.

[29] In the alternative, the Crown submits that even if some or all of the evidence was obtained in breach of the accused’s Charter rights, the police acted in good faith, they made every effort to follow the rules, and the evidence is central to the outcome of the trial. As such, it should not be excluded.

[30] The Crown claims the Application should therefore be dismissed.

7. Analysis of the Evidence as to the Surveillance Preceding the Search

[31] For the reasons that follow I find that the search warrant could reasonably have been issued.

Alleged Deficiencies in the ITO

(a) Whether it was Adam or Alex who said he lived close by

[32] Late evening August 10^th to early morning August 11^th, Officer Jaafar had a conversation with a person who identified himself as Adam. Adam identified himself as a “runner”. In her notes, Officer Jaafar stated that,

“Deal facilitated with runner, male Asian, older, approx.. 50s, short, oversized shorts (past knees), skinny. Dealer stated “have to go home and get it, be back in 10 minutes .. lives really close. Upon return stand at bar with dealer “Alex” we’re next to security that always stands in this location.”

[33] Officer Henkel, the affiant of the ITO, provided a summary of the same incident from his review of Officer Jaafar’s notes. His summary reads as follows:

”Adam” advised DC Jaafar that “he had to go home and get, but he be back in 10 minutes”.

[34] Mr. Sadikov suggests this indicates that Adam and not Alex told Officer Jaafar he lived close by.

[35] Officer Henkel testified on this Application that, “My understanding of that is that the person [Alex] had to go and get the narcotics, not Adam, but the person who's the back-end. From my understanding, is that the person who is responsible for going to get the narcotics lived around the corner and was coming back. That was my understanding.”

[36] Officer Jaafar testified that it was Alex not Adam who told her he had to go home and get the drugs.

[37] She also testified and noted in her police notes that, on several other occasions, Alex told her he lived close by, around the corner from Club 338.

[38] Officer Jaafar’s police note and her testimony are clear, and she is the only source of the information. Moreover, Officer Henkel testified that he shared Officer Jaafar’s understanding notwithstanding his summary that Adam not Alex lived nearby and would go home and get the drugs.

[39] Officer Henkel’s summary should therefore be excised as it is in error, leaving Officer’s Jaafar’s testimony which is clear.

(b) Whether the Officer Believed Alex was “Perhaps Half Black”

[40] In her police notes, Officer Jaafar described Alex as, “male, non-white, perhaps half-black, approximately 6 feet, heavy set”. Mr. Sadikov is not black. He claims therefore that the person described could not be him.

[41] These police notes were written the first time Officer Jaafar saw Mr. Sadikov.

[42] Mr. Sadikov is not black but does have black hair and dark skin. He is approximately six feet tall and heavy set. At the time, as seen in the police photos taken at the time of his arrest, his hair was very closely cut.

[43] On September 5, 2008, after having more time to see and interact with him, Officer Jaafar pointed Mr. Sadikov out of a police photo lineup and identified him as the person who sold her drugs under the name Alex.

[44] On the basis of the above, it is reasonable to infer that Alex is Mr. Sadikov.

[45] At paragraph 12 of the Notice of Application, Mr. Sadikov concedes that, “pursuant to the Applicant selling a small quantity of cocaine to undercover officer D.C. Jaafar on several occasions, reasonable and probable grounds existed to believe that the Applicant was trafficking in cocaine.”

(c) Investigations to Determine Alex’ Address

[46] One police report provides that Mr. Sadikov’s address was 3 Goldfinch Court, Toronto. The address linked to the cellular telephone number Alex gave to officer Jaafar is 181 St. Clair Avenue West.

[47] Mr. Sadikov claims the failure to conduct further investigations and the failure to speak with the landlord at 306 Adelaide Street West before the warrant was executed, was negligent.

[48] Page 15 of the ITO includes details of the investigation of the cell phone number 416 899 2281. It was registered to John Doe with a mailing address of 181 St. Clair Avenue West #7. A police report disclosed that a male involved in a dispute in May of 2008 identified himself as Sadyk Sadikov and provided a date of birth and that phone number.

[49] On page 30 - 31 of the ITO, Officer Henkel stated that,

Surveillance of “Alex” has identified that he resides at 306 Adelaide Street West, in a Unit on the 2^nd floor. This male has been identified as Sadyk Sadikov. It appears from the fact that his cellular telephone is registered to “John Doe” that he is attempting to avoid being identified through a subscriber check by police. [The undercover officer] advised that she had been told by him that he resided close and that “He kept it at home”, referring to the cocaine. “Alex was further observed leaving the nightclub and entering 306 Adelaide Street West on October 6^th, 2008, prior to completing a drug transaction with [the undercover officer]. In addition, the suspects’ two pitbulls, which were shown to [the undercover officer] from his cell phone, were observed sticking their heads out of the 2^nd story unit at 306 Adelaide Street West on October 15^th, 2008”.

[50] In my view no further investigation of Mr. Sadikov’s address was necessary given that he was seen there, he told Officer Jaafar he lived close to Club 338 and had two pitbulls, two pitbull dogs were seen at 306 Adelaide Street, and there was an apparent attempt to hide the identity of the person associated with the telephone number used by Mr. Sadikov.

(d) The Recitation of Sadikov’s Criminal Record

[51] The ITO provides that,

“CPIC check of Sadyk Sadikov revealed that he was currently on Probation for the offences of Assault Peace Officer x 2. Sadikov was also on two separate court imposed firearms prohibitions as a result of convictions of P4P and assault peace officer x 2. The CPIC check also revealed Sadikov has a criminal record with 3 convictions on it. Sadikov was convicted on June 26^th 2007 for P4P Schedule 1, and July 5^th, 2007 for 2 x assaulting a peace officer.”

[52] Mr. Sadikov suggests that the above paragraph in the ITO was written in “an obtuse and misleading fashion” such that it leaves a common-sense person to understand that “in addition to convictions resulting in court-imposed firearms prohibitions, the Applicant also has two additional convictions – which is obviously not the case.”

[53] In fact, Mr. Sadikov has two convictions for assaulting a peace officer and one conviction for drug trafficking. There are two orders prohibiting him from carrying firearms.

[54] While the above passage from the ITO is not a model of clarity, it does not leave the reader with the incorrect impression that Mr. Sadikov has more than three prior convictions. On the contrary, the passage specifically states that, “The CPIC check also revealed Sadikov has a criminal record with 3 convictions on it.”

(e) Evidence Officer Jaafar saw Photos of Two Dogs

[55] The ITO provides that on September 5, 2008, “Alex showed her [Officer Jaafar] photos of his dogs on his cellphone”. Mr. Sadikov claims there is no evidence she saw a photo of both dogs.

[56] At the Preliminary Inquiry, Officer Jaafar testified that, “He stated he was on his way and he’d been busy playing with his two dogs; he has two pitbulls. He arrived a few minutes later and he showed me some photos of his dogs on his cell phone. …I have a recollection of one photo and it showed Alex with one dog, and I believe he was kind of holding it in his arms.”

[57] On this Application she testified that while she only remembered the image of one photo, Mr. Sadikov showed her pictures of his dogs.

[58] On the basis of the above, I am satisfied that Officer Jaafar clearly said she was told by Alex that he had two pitbulls and that he showed her pictures of his two pitbull dogs (although she now only remembers one image.)

(f) Observations of Alex leaving the Club and Going into 306 Adelaide Street West

[59] The ITO provides that on October 6, 2008, Officer Jaafar again asked to purchase drugs from Alex. He told her he kept the drugs at home and left Club 338 to pick up the drug order. He went into 306 Adelaide Street West.

[60] There is no note in the ITO to indicate who saw Alex leave the Club and walk along Adelaide Street West, and enter 306 Adelaide Street West or who advised that Alex was “surveillance conscious”.

[61] Mr. Sadikov therefore suggests these statements are completely unsupported by the facts and suggest a “degree of bad faith”.

[62] Officer Hominuk observed Alex leave Club 338 at 3:07 a.m., and light a cigarette.

[63] On this Application, the affiant of the ITO, Detective Henkel, testified that he was the one who saw Mr. Sadikov enter 306 Adelaide Street. Officer Henkel testified that at approximately 3:12 a.m., he saw the man walk eastbound on Adelaide Street and enter 306 Adelaide Street West. He testified that there were very few people on the street at that time of night. Officer Henkel testified he saw “his [Mr. Sadikov] hand reaching towards the upper portion of the door lock.”

[64] Officer Evelyn was also conducting surveillance in front of 306 Adelaide Street that night. Officer Evelyn testified in the first trial that he received information over the police radio that a man was leaving Club 338 to obtain drugs to complete a sale to the undercover officer. Officer Evelyn made no note of the time he received this information. He then saw a man fitting Mr. Sadikov’s general description walking along east towards 306 Adelaide Street. The man entered 306 Adelaide Street.

[65] Officer Evelyn was not sure about the time of his observations of this man. He knew that it was after 1:00 a.m., the time he began his observations. He thought it was around 1:10 a.m., but admitted it was “a bit of a guess”. Officer Evelyn was unable to identify the man and said that, “From my distance it was dark. He was wearing a baseball cap." (At 4:38 a.m. that evening, Officer Henkel received a text message from D.C. Jaafar advising that, “Alex wearing black baseball cap….”)

[66] According to the ITO, the undercover police officer did not arrive at Club 338 until 1:50 a.m. Mr. Sadikov left Club 338 at 3:07 a.m. and returned to Club 338 at 3:56 a.m.

[67] Officer Evelyn was not sure when he made his observations and his estimate of when he made those observations is inconsistent with the timing of three other officers (Hominuk, Henkel and Jaafar).

[68] On the other hand, the timing of Officer Henkel’s observations is consistent with the timing of Officers Hominuk and Jaafar.[^14] Officer Henkel claims he saw Mr. Sadikov walk along Adelaide Street West and enter 306 Adelaide Street.

[69] For these reasons, I accept that Officer Henkel’s observations have a basis in fact and could reasonably be believed.

(g) Observation of Alex’ Two Pitbull Dogs in the Window of 306 Adelaide Street West and a male that appeared to be their Target

[70] The ITO provides that on October 15^th, “the officers” observed 2 pitbull dogs, one black and one brown, and that the dogs were the same ones the officers had previously seen Alex with while sitting outside his residence, that several people, 2 male and 2 female were loitering and entering/exiting 306 and that, “One of the males appears to be our target.”

[71] Mr. Sadikov claims there is no basis to support any of these claims.

[72] Officer Onzuka testified that on that day just prior to taking the pictures of the dogs, he was in his vehicle with Officer Evelyn when he saw a man with the dogs. Officer Evelyn said, “There’s the guy and his dogs” and told him to take a photo. Because he was driving, he could not take a photo and by the time he parked, the man was gone.

[73] Officer Onzuka’s notes provide that minutes later he saw, “2 pitbull like dogs” hanging out of the 2^nd floor window of the second floor apartment of 306 Adelaide Street West. “A brown and a black dog, the same dogs as our target”. He took a photo of the dogs which he sent to Officer Henkel on October 15^th.

[74] Officer Henkel testified on this Application that Detective Constable Evelyn told him that he recognized Mr. Sadikov. Thereafter, the following exchange took place between Defence counsel and Officer Henkel:

Q. Okay. But did you understand that Officer Evelyn knew what Mr. Sadikov looked like?

A. Yes. Well, from the night of October 6th from the surveillance as well as -- I had a board in our office. We shared an office -- with Mr. Sadikov's photo and all the buys from the surveillance photographs we had taken of all the known suspects as well as all the unknown suspects we were trying to identify, so they would have known what they looked like … my understanding is that everybody knew what Mr. Sadikov looked like.

Q. Officer Evelyn tells you that he and Onzuka saw Alex, that person in that photograph, sitting out on the front steps?

A. Yes. That was the information that I had received….when he called me…

[75] From the above exchange with Officer Henkel, there is some reasonable basis for Officer Henkel’s belief that Officer Evelyn saw Mr. Sadikov with his dogs at 306 Adelaide Street West on October 15th.

(h) Time Taken by Alex to get Drugs from Home

[76] Mr. Sadikov suggests that Alex did not live close to Club 338 because on September 5^th it took Alex almost 2 hours, and on October 6^th, almost 50 minutes to go home and return with drugs for Officer Jaafar.

[77] On September 5^th, 2008 sometime before 2:13 a.m., Officer Jaafar contacted Alex and told him she wanted to buy the same quantity of cocaine as last time ($200) and he told her he would see her at Club 338. At approximately 4:04 a.m. Officer Jaafar contacted Alex on his cell phone number again to see if he was still coming to Club 338. According to the ITO and the officer’s notes, Alex apologized and told her he was just playing with his two pitbull dogs.

[78] When questioned about this, Officer Henkel testified that, “My understanding from what I wrote was he was explaining to her the reason for the delay and that he was playing with his dogs.”

[79] Alex’ explanation to Officer Jaafar belies the Defence assertion that it took Alex almost two hours to go home and get the drugs. Instead, he specifically said he had been playing with his dogs and there is no reason to believe otherwise. He arrived back at Club 338 shortly after the conversation at 4:04 a.m.[^15]

[80] The ITO indicates (and Officer Jaafar confirmed) that on October 6^th at Club 338, Alex told Officer Jaafar he would go and get her $200 worth of cocaine as “I keep it at home”. Alex left at 3:07. The surveillance team saw him have a cigarette out front of Club 338. He was observed walking eastbound on Adelaide Street West. A male was seen entering 306 Adelaide Street West. At 3:56 a.m. Officer Jaafar advised that Alex had sold her the drugs.

[81] In my view, it is not unreasonable to assume that if Mr. Sadikov were not hurried, it could take him just under 50 minutes to leave Club 338, stop and have a cigarette, walk home, take the drugs and do other miscellaneous things and return to the Club. Therefore, there is a reasonable basis in fact to suggest that Alex lived nearby.

Authorization for an Unannounced Dynamic Entry

[82] Section 11 of the Controlled Drugs and Substances Act outlines the powers available to police to search upon obtaining a warrant. Section 12 of the Act provides that for the purpose of exercising the powers in a search warrant, “a peace office may (a) enlist such assistance as the officer deems necessary; and (b) use as much force as is necessary in the circumstances.”

[83] In the ITO, Officer Henkel requested that,

Due to the nature of this investigation and the type of activities being conducted as well as the correlation between Sadyk Sadikov (aka “Alex”) and Club 338 located at 338 Adelaide Street West in the City of Toronto, I am requesting that a search warrant be endorsed for an unannounced, dynamic forced entry into 306 Adelaide Street West, second floor apartment facing south onto Adelaide Street West, in the City of Toronto. An unannounced dynamic entry would provide a greater level of safety for the police officers executing the warrant. This would also ensure that disposable evidence, namely narcotics are not lost.

Surveillance as well as Sadik [sic] Sadikov’s own admission confirms that he is in possession of two large pit bull dogs. These animals are kept in his apartment where the narcotics are believed to be concealed. Dynamic entry combined with Police Dog Services will allow control of the animals in order to ensure safety and wellbeing to all officers and to the animals.

I am further requesting that this Controlled Drugs and Substances Act Search Warrant be endorsed for a night time entry. The reasons for a night time entry are due to the fact that the hours of operation for “Club 388” [sic] are from 11:00pm to 7:00am and this is the time when Sadyk Sadikov operates his drug trafficking trade. In addition, a night time entry is being requested due to the close proximity of “Club 338” to Sadyk Sadikov’s residential address. Disposal of evidence is possible once the fact that a search warrant has been executed at “Club 338” becomes common knowledge.

[84] The ITO included uncontradicted evidence of at least three drug sales by Mr. Sadikov to Officer Jaafar. It was therefore reasonable to assume and Mr. Sadikov concedes he was a drug dealer. It is clear that drugs are easily transportable and that Mr. Sadikov might be alerted and given the opportunity to dispose of drugs if the warrant were executed after the warrant on the Club 338 premises which would need to be done at night.

[85] Moreover, there is evidence that “Alex” or Sadikov, told the undercover officer that he had two pitbull dogs – the same number and breed of dog seen outside and in the window of the second-floor, south-facing apartment at 306 Adelaide.

[86] The Act clearly grants the police the right to use these special procedures in executing a search warrant pursuant to that Act. In this case, given the simultaneous execution of a warrant on the Club 338 premises and the fact that drugs are transportable and information that two pitbull dogs were inside, there was exigent circumstances. The reasons for the request were put before the judge of first instance for her consideration.

[87] In my view, the issuing judge made no error in granting the request for a dynamic, unannounced entry to the premises.

Whether there is a Need for One person to Direct the Search and be Named in the ITO

[88] Section 12 of the Controlled Drugs and Substances Act provides that, “An endorsement that is made on a warrant ... is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law.”

[89] The wording of the Act does not require that an officer be named in the warrant. Moreover, there is no appellate authority since the inception of the Controlled Drugs and Substances Act that an officer must be named in the warrant.

[90] As such I do not agree that the failure to specifically name an officer responsible for the execution of the search warrant in the ITO renders the warrant invalid.

Part 8. Conclusion on the First Issue: Whether the Search Warrant Could be Issued

[91] In my view, the ITO could have been issued.

[92] The ITO includes:

a. information that Alex was a drug dealer,

b. a physical description of Alex,

c. evidence that Mr. Sadikov used the name Alex,

d. Mr. Sadikov said he lived close to Club 338 at 338 Adelaide Street West,

e. Mr. Sadikov told the undercover officer that he had two pitbull dogs,

f. two pitbull dogs were seen in the upper floor apartment of a row house at 306 Adelaide Street West close to Club 338;

g. Mr. Sadikov was seen at 306 Adelaide Street West; and

h. Mr. Sadikov had a prior criminal record for drug trafficking and assaulting a peace officer and was prevented by court order from having a firearm.

[93] This information might reasonably be believed as,

a. Mr. Sadikov concedes, “selling a small quantity of cocaine to undercover officer D/C Jaafar on several occasions, that reasonable and probable grounds existed to believe that the Applicant [Sadikov] was trafficking in cocaine”,[^16]

b. Officer Jaafar corrected her initial impression that Mr. Sadikov was “perhaps half black”, when she later picked him out of a photo lineup prior to execution of the warrant;

c. there is no evidence to dispute Officer Jaafar’s notes and her testimony that Mr. Sadikov used the street name Alex when dealing with her,

d. Officer Jaafar’s notes of August 11 show that Alex told her he kept his drugs at home and lived nearby and that he repeated this on a later occasion,

e. there is no evidence to dispute Officer Jaafar’s police notes and her testimony that Mr. Sadikov told her he had two pitbull dogs,

f. there is no evidence to dispute Officer Onzuka’s notes and the photo he took of two pitbull dogs seen in the upper floor apartment of a row house at 306 Adelaide Street West,

g. although there are no police notes to this effect, Officer Henkel testified that he saw Mr. Sadikov at 306 Adelaide Street West on October 6^th and that he was told by Officer Evelyn on the telephone on October 15^th that Officer Evelyn saw Mr. Sadikov in front of 306 Adelaide Street West on October 15^th; and

h. there is no dispute that Mr. Sadikov had a prior criminal record for drug trafficking and assaulting a peace officer and was prevented by court order from having a firearm at the time the search warrant was executed.

[94] Officer Evelyn’s testimony was not reliable as to the time of his observations and he himself characterized it as a guess. The testimony of Officers Jaafar, Onzuka and Henkel as to information they had before the warrant was executed, was credible and I have therefore used that testimony where indicated to assist me in resolving minor errors in the ITO.

[95] Looking at the ITO as a whole, although there are some errors and statements that are unclear, I do not believe there was any intention to mislead the court. I also believe there was sufficient reliable evidence that might reasonably be believed that the warrant could be issued to search the upper level apartment of 306 Adelaide Street West.

Part 9: The Second Issue: Was there a Section 8 Charter Breach?

[96] There are two questions to be answered in any section 8 Charter challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy.[^17] The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

[97] An assessment must be made as to whether, in a particular situation, the public’s interest in being left alone by government should yield to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably law enforcement.[^18]

[98] The Supreme Court in Hunter v. Southam Inc.[^19] held that a search must be authorized by law and be carried out in a reasonable manner.[^20] There is a high expectation of privacy in a dwelling.[^21]

[99] In this case, the parties agree that Mr. Sadikov had a reasonable expectation of privacy in the 2^nd floor unit of 306.

[100] However, for the above reasons, I find the warrant was validly executed and therefore, there was no breach of the accused’s section 8 Charter right to be free from unreasonable search and seizure as a result of the search of the premises.

[101] If I am wrong and there is a breach of Mr. Sadikov’s section 8 Charter right because the search warrant could not have been issued, given the high expectation of privacy in a dwelling, I must consider whether the evidence should nonetheless be admitted at trial.

[102] I have set out my analysis below, on the assumption that there was a breach of Mr. Sadikov’s right to be free from unreasonable search and seizure.

Part 10: The Third Issue: Should the Evidence be Excluded Pursuant to Section 24(2) of the Charter?

[103] Evidence must be excluded if, in all the circumstances, its admission would bring the administration of justice into disrepute. Where an Application is brought pursuant to section 24(2) of the Charter, the court must assess the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(i) the impact of the breach on the Charter-protected interests of the accused,

(ii) the seriousness of the Charter-infringing state conduct, and

(iii) society’s interest in the adjudication of the case on its merits.[^22]

[104] The court must determine whether, on balance, admitting the evidence obtained by the Charter breach would bring the administration of justice into disrepute. There is no overarching rule to determine when the balance is tipped such that the evidence must be excluded.

[105] The courts have held that conduct expressly authorized by court order should permit the police to assume they are acting lawfully.[^23]

[106] The first factor requires an assessment of the degree to which the breach undermines the protected rights of the accused.[^24] “The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public” that Charter rights count for little, “bringing the administration of justice into disrepute”.

[107] In the context of section 8, if the search or seizure takes place in an area where “the individual reasonably enjoys a high expectation of privacy”, or is done in a manner “that demeans his or her dignity”, the breach is more serious.[^25]

[108] The second factor involves a determination as to whether the admission of evidence would send a message to the public that courts condone serious state misconduct.[^26] “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct” by the exclusion of evidence linked to it.[^27]

[109] Extenuating circumstances, concerns regarding imminent harm, and good faith on the part of police may serve to diminish the concern that their conduct would bring the administration of justice into disrepute. On the other hand, evidence that the conduct was part of a pattern of abuse tends to support exclusion.[^28]

[110] The third factor is whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.[^29] The reliability of the evidence and its importance to the prosecution’s case are relevant to this third factor. So too is the “public interest in truth-finding”.[^30] Exclusion of highly reliable evidence may more negatively affect the administration of justice by weakening the essence of the prosecution’s case.[^31] It is the long-term reputation of the judicial system that is at issue.[^32]

[111] The public has an interest in seeing a determination of the charges on the merits but also in having a justice system that is above reproach. The balancing required by s. 24(2) of the Charter is qualitative and therefore not capable of mathematical precision.[^33]

[112] In this case, even if there were an infringement of Mr. Sadikov’s section 8 Charter right, the evidence found during the search of the apartment should not be excluded from the trial.

[113] The police conducted an investigation, many days of surveillance, and obtained a warrant before attending to conduct a search of the premises. There was no institutional pattern of abuse of Charter rights. Moreover, the evidence found in the apartment is highly reliable and key to a determination of this case on the merits. I say this mindful that society also requires a legal system that is beyond reproach.

[114] Weighing all of the above concerns, I believe that a reasonable person, informed of all relevant circumstances and the values underlying the Charter would not believe that admission of the gun, drugs and proceeds of crime into evidence at trial would bring the administration of justice into disrepute.

Part 11. Conclusion

[115] For the above reasons, the warrant could reasonably have been issued. I therefore find there was no section 8 Charter breach. Even if the actions did constitute a section 8 Charter breach, the police conducted an investigation and surveillance, acted in good faith in securing a warrant to search the promises; they conducted further surveillance to confirm some of their information; there was no deliberate attempt to mislead, and no allegation of an institutional pattern of abuse of Charter rights, and the evidence is reliable and material. Therefore, its admission into evidence would not bring the administration of justice into disrepute.

[116] For these reasons, the Application is denied.

Thorburn J.

Released: April 27, 2015

COURT FILE NOS.: CR- CR-14-90000125-000

DATE: 20150427

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SADYK SADIKOV

RULING

Thorburn J.

Released: April 27, 2015

[^1]: R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. [^2]: R. v. Araujo, supra note 12 at paras. 46-47; R. v. Morelli, supra note 10 at paras. 99-103. [^3]: Re Lubell and The Queen (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188 (O.H.C.J.), at pp. 190-191; Re Times Square Book Store and The Queen (1985), 1985 170 (ON CA), 21 C.C.C. (3d) 503 (Ont.C.A.), at p. 512; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont.Ct.Gen.Div.), at p. 364; R. v. Nguyen, at paras. 57-58. [^4]: R. v. Morelli, supra note 10 at para 39-43; R. v. Garofoli, supra para 18 at p. 1452; R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20; R. v. Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d) 213, at para. 3 and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d, 2011 SCC 32, [2011] 2 S.C.R. 549. [^5]: R. v. Morelli, supra note 10 at para 40. [^6]: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R. v. Evans, 2014 MBCA 44, [2014] M.J. No. 129, at para. 10; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 52; R. v. Sadikov, supra note 5 at para. 82. [^7]: Garofoli, at p. 1452; and Ebanks, at para. 20. [^8]: Ebanks, at para. 21. [^9]: Morelli, at para. 41; and Araujo, at para. 58. [^10]: August 11and October 6 [^11]: August 11 [^12]: September 5 [^13]: Notice of Application paragraph 12. [^14]: Officer Hominuk observed Alex leave the Club at 3:07 a.m. and Officer Henkel saw a man whom he thought was Alex walking eastbound on Adelaide Street in the direction of 306 Adelaide Street at 3:12 a.m. Officer Jaafar arrived at Club 338 at approximately 1:50 a.m. [^15]: In her police notes she states that, “When he arrives a few minutes later he shows me photos of them on his phone.” [^16]: Notice of Application paragraph 12. [^17]: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para 18. [^18]: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 at pages 167-168. [^19]: Ibid. [^20]: Collins, supra note 23 at para. 23, cited in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para 56. [^21]: R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 at para 43; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297 at para. 140; R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8 at para. 42; R. v. Tessling, supra note 20 at para 22.. [^22]: R. v. Grant, supra note 24 at para 71 and R. v. Harrison, supra note 26 at para 2. [^23]: R. v. Blake, supra note 8 at para. 24; R. v. Rocha, supra para 28 at para. 28. [^24]: Ibid. at para. 76. [^25]: Ibid. at para. 78. [^26]: R. v. Grant, supra note 24 at paras. 74 and 112. [^27]: Ibid. at para 72. [^28]: Ibid. at para. 75. [^29]: Ibid. at para. 82, citing R. v. Kitaitchik, (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47. [^30]: Ibid. at para. 81. [^31]: Ibid. at paras. 81 and 83. [^32]: Ibid. at para. 84. [^33]: Ibid. at paras 84 and 86; Harrison, supra note 26 at para. 36.

R. v. Sadikov, 2015 ONSC 3112

Case Summary

1. Overview

2. The Issues to be Decided

3. The Law Regarding Issuance of a Search Warrant

4. The Evidence Adduced on this Application

5. Issues and Evidence that are Not in Dispute

Issues that are not in Dispute

Evidence that is not in Dispute

6. The Positions of the Parties

The Defence Position

The Crown’s Position

7. Analysis of the Evidence as to the Surveillance Preceding the Search

Alleged Deficiencies in the ITO

(a) Whether it was Adam or Alex who said he lived close by

(b) Whether the Officer Believed Alex was “Perhaps Half Black”

(c) Investigations to Determine Alex’ Address

(d) The Recitation of Sadikov’s Criminal Record

(e) Evidence Officer Jaafar saw Photos of Two Dogs

(f) Observations of Alex leaving the Club and Going into 306 Adelaide Street West

(g) Observation of Alex’ Two Pitbull Dogs in the Window of 306 Adelaide Street West and a male that appeared to be their Target

(h) Time Taken by Alex to get Drugs from Home

Authorization for an Unannounced Dynamic Entry

Whether there is a Need for One person to Direct the Search and be Named in the ITO

Part 8. Conclusion on the First Issue: Whether the Search Warrant Could be Issued

Part 9: The Second Issue: Was there a Section 8 Charter Breach?

Part 10: The Third Issue: Should the Evidence be Excluded Pursuant to Section 24(2) of the Charter?

Part 11. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1