ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13724/14

DATE: 20150703

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL CHIN

Defendant

Anya Weiler and Carolyn Otter, for the Crown

Christopher Murphy, for the Defendant

HEARD: June 22, 23, 24, 25, 26, 29 and 30, 2015

MCKELVEY J.

RULING ON THE GAROFOLI APPLICATION OF MICHAEL CHIN

Introduction

[1] The applicant, Michael Chin, is charged with a number of drug offences. Pursuant to Sections 8 and 24(2) of the Charter, the applicant seeks to exclude from evidence items which were seized during the execution of a search warrant at 1520 Woodruff Crescent, Pickering as well as items seized from his motor vehicle and observations made by police officers during the execution of the search warrant all of which occurred on June 27, 2013. The applicant takes the position that the Information to Obtain (“ITO”) relating to the search warrant contained misleading and incorrect information. It is argued that the police did not have reasonable and probable grounds to obtain the search warrant after certain portions of the affidavit which are claimed to be erroneous have been excised from the affidavit. Further the applicant takes the position that the affidavit was deliberately misleading and deceptive and that on this basis as well the warrant should be set aside. Finally, the applicant submits that there was not a sufficient basis for the warrant to authorize a search of the applicant’s residence.

[2] For oral reasons given at the time of the hearing I granted leave to the applicant to cross-examine the author of the ITO, Detective Constable Chambers (“Chambers”). As a result the evidence of Chambers has been considered on this application.

General Legal Principles on a Review

[3] The law in relation to the standard to be applied by a reviewing judge is well established. The proper standard of review is: based on the record before the authorizing judge, as amplified by the record before the reviewing judge, could the authorizing judge have granted the authorization. The reviewing judge does not conduct a de novo hearing nor substitute his or her view for that of the authorizing judge. Put another way, the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there is no basis for the authorization. See R. v. Garifoli, 1990 52 (SCC), [1990] S.C.J. No.115 at paragraphs 55, 56 and 62.

[4] In the context of an ITO for a search warrant which is made on an ex parte basis the affiant is required to provide full, frank and fair disclosure. The affiant should not make a misleading statement in the affidavit, either by means of the language used or by means of strategic omission of information.

[5] The statutory pre-conditions for the issuance of the warrant in this case are found in Section 11 of the Controlled Drugs and Substances Act which provides that a justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that,

(a) A controlled substance or precursor in respect of which this Act has been contravened,

(b) Anything in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) Offence related property, or

(d) Anything that will afford evidence in respect of an offence under this Act or an offence in whole or in part in relation to a contravention of this Act, under Section 354 or 426.31 of the Criminal Code.

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it”.

[6] It is apparent that this section is directed towards a situation where there are reasonable grounds to believe that drugs or other property are located in a place identified for purposes of the issuing of a search warrant. It is not necessary to identify for purposes of this section a particular person who might be in possession of the property.

[7] The question is to what standard of proof must be met in order to establish reasonable grounds for the search is one of “reasonable probability” or “reasonable belief”. See R. v. Dobot, 1989 13 (SCC), [1989] S.C.J. No.118 at paragraph 47.

[8] In reviewing the ITO affidavit I must review it as a whole, not in a piecemeal fashion. I am also obliged to accept the ability of the authorizing judge to draw reasonable inferences from the contents of the affidavit. See R. v. Spackman, 2012 ONCA 905.

[9] Finally the purpose of the review is to determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory pre-conditions existed. This is reflected in the comments of the Supreme Court in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] S.C.J. No.67 where the court states:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions.

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. See R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No.65.

Background

[10] The application for a search warrant in this case took place as part of a large drug investigation initiated by the Durham Regional Police called Project Wanipitee which began in January of 2013. It centred on an individual named Shaylendra Gocool and a number of his associates. The investigation began as a result of information suggesting that Mr. Gocool was importing cocaine.

[11] During the course of the investigation an individual, Tyler Cairns, was identified as one of Mr. Gocool’s main drug customers and was felt to be deeply entrenched in the drug subculture. Authorizations were obtained by police to intercept communications involving Mr. Cairns. These intercepts were very significant in the context of the identification of Mr. Chin as someone who was involved in drug trafficking. Tyler Cairns was identified as someone who trafficked in controlled substances and it was felt that the defendant Mr. Chin was one of his suppliers.

[12] The involvement of Mr. Chin was identified only late in the investigation. His involvement was identified on June 21 and 22, 2013 which was only two days prior to the swearing of the ITO by Chambers.

[13] The ITO relating to the search warrant in question is 115 pages in length. The information about the applicant is contained in pages 93 to 99 of the ITO.

Position of the Applicant

[14] In support of his position that the authorization obtained in response to the ITO was obtained in contravention of his Section 8 rights the applicant sets out his position as follows:

(a) The applicant takes the position that the information submitted by Chambers in the ITO was deliberately misleading and that the search warrant relating to Mr. Chin should be set aside on that basis.

(b) The applicant further asserts that there was no information contained in the ITO which would justify a search warrant being issued for Mr. Chin’s residence.

(c) The applicant points to a number of alleged mistakes in the ITO and as a result of those mistakes argues that the incorrect facts should be excised from the ITO. Once the appropriate excisions have been made the applicant argues that the ITO does not outline a sufficient basis for the issuance of the search warrant in this case.

Did Chambers attempt to deliberately mislead the issuing judge in the ITO and, if so, should the search warrant be set aside on this basis

[15] There is considerable authority that even the existence of fraud may not be sufficient to set aside the validity of a search warrant. In Garofoli the court noted that if, based on the record which was before the authorizing judge, as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non disclosure, misleading evidence and new evidence are all relevant, but, rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[16] In the Supreme Court of Canada decision in R. v. Bisson 1994 46 (SCC), [1994] 3 S.C.R. 1097, the court noted that,

Errors in the information presented to the authorizing judge, whether inadvertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the authorization.

[17] In R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No.65 the Supreme Court comments with approval on a decision of the Nova Scotia Court of Appeal which suggested that there remains a need to protect the prior authorization process. It suggests that in appropriate circumstances a reviewing judge may conclude on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[18] Turning to the ITO in question the applicant correctly asserts that there are numerous errors made by Chambers in relation to the ITO concerning Mr. Chin. In his cross-examination Chambers acknowledged these errors but denied that there was any attempt to mislead the authorizing judge in the ITO. For the most part Chambers asserted that his summary in the ITO was influenced by inferences he drew from the investigation. For example in paragraph 182 of the ITO Chambers states that he is summarizing the central surveillance notes. At subparagraph (b) he states,

BPEB 706 was followed to 1520 Woodruff Crescent, Pickering where Michael Chin was observed exiting the vehicle and entering the residence.

The central notes for that day states as follows:

BPEB 706 pulled into the driveway at 1520 Woodruff Crescent. The power was still on for the vehicle, believed to be due to the automatic lights.

The lights for the vehicle are now off.

[19] Recognizing that 1520 Woodruff Crescent is the known residence of Mr. Chin it is reasonable to infer that after he pulled into the driveway he entered his residence. However, the description by Chambers in paragraph 182(c) is not an accurate reflection of the central notes. It was an error on his part to say that Michael Chin was “observed exiting the vehicle and entering the residence”.

[20] Another example of an error by Chambers is found in paragraph 179(c) of the ITO where he states, “Cairns met McLune at ‘BRKM 185’. Cairns gave McLune a small red pouch and McLune returned to the vehicle”.

[21] With respect to the red pouch the relevant central note for this date states as follows:

T2 carrying a small red pouch or bag in hand.

[22] It is apparent that the description by Chambers is not consistent with the record as set out in the surveillance notes. The applicant argues Chambers is deliberately trying to mislead the authorizing judge by suggesting there was a hand-to-hand transfer when in fact there is no evidence this occurred. In his cross-examination on this point Chambers again acknowledged that he may have overstated the information in his ITO. However, he stated that he drew an inference that Mr. Cairns gave Mr. McLune a small red pouch which contained money to pay for the drug transaction with Mr. Chin. He based this inference on the fact that Mr. Cairns was a highly active drug dealer and an intercept found at paragraph 178(f) of the ITO which describes how Mr. McLune called Mr. Cairns and Mr. Cairns told him that he would, “come to him and drop the loot”.

[23] This would appear to be another occasion where Chambers did not accurately summarize the surveillance in the ITO. If he had wished to state his belief, the inference he was drawing should have been clearly set out in italics or identified as an inference he has drawn. Throughout the ITO Chambers has set out his beliefs or inferences, based on the evidence in italics. That was not done in connection with this entry or some of the others as well.

[24] A matter of considerable attention during Chambers’ cross-examination was his identification of Luke McLune in the alleged transactions between Mr. Cairns and Mr. Chin. At paragraph 178 of the ITO, for example, Chambers states,

On June 21st, 2013, Cairns called 647-852-2160, Luke McLune.

In a footnote Chambers states McLune was identified on June 21st using that cell phone number. In cross-examination Chambers agreed that at the time the ITO was sworn Mr. McLune’s voice had not been identified as being associated with that phone number. He inferred, however, that Mr. McLune was the other party to the conversation because at 8:11 p.m. the person alleged to be McLune called Cairns and Cairns told him that he would be there, “in two seconds”. The surveillance for that date shows that almost immediately thereafter Cairns drove to a meeting with another vehicle which had previously been associated with Mr. McLune. However, as acknowledged in cross-examination there were two people in that vehicle. Chambers inferred that it was McLune who was on the phone with Cairns. While this may or may not have been a reasonable inference to make it is apparent that with respect to the identification of Mr. McLune on June 21st, it was based on inferences made by Chambers and that the basis for his line of reasoning and the inferences he made was not set out in the ITO.

[25] On cross-examination Chambers was also cross-examined with respect to some omissions he made in the ITO. Chambers acknowledged in cross-examination that he ran a CPIC check on Mr. Chin. It did not disclose a criminal record but this information was not included in his ITO. In response Chambers testified that if he did not refer to a criminal record he assumed the issuing judge would assume that no criminal record had been identified. This appears to be a reasonable response given that other individuals who had criminal records were clearly identified as having criminal records. While it might have been preferable for Chambers to include this information I do not take it as evidence of an intent to deliberately mislead the court. As noted in the Ontario Court of Appeal decision in R. v. Nguyen, 2011 ONSC 465 in most cases, the absence of a reference to something not seen, not heard or not done will lead to the sensible inference that whatever it was was not seen, not heard or not done. There is no obligation on the affiant to explain away in advance, every conceivable indicia of crime they did not see or sense. I, therefore, do not view this omission as material.

[26] Another omission which was the focus of considerable attention on the cross-examination of Chambers is his failure to set out the timeline for investigative events which took place and are summarized at paragraph 182 of the ITO. The events described relate to observations of what was felt to be a second drug transaction which took place on June 22nd between Mr. Chin and Mr. Cairns with Mr. McLune acting as the middle man. There is no reference to a timeline between the three events which are described in paragraph 182. As noted in the underlying central notes, however, the transaction occurred over a period between 17:04 to 19:20 hours. Chambers agreed that the way the paragraph has been phrased, it looks like the events described in the paragraph followed one after the other. Chambers also agreed in cross-examination that during the period of surveillance Mr. McLune’s vehicle was lost to the surveillance team for a period of approximately 50 minutes. It was suggested to Chambers that having picked up funds from Cairns Mr. McLune could have been doing other drug transactions with other individuals using the money received from Cairns. Chambers stated in his evidence that it was not possible to include all the details from all the surveillance and that he felt his description of events in paragraph 182 was satisfactory. He noted that this was the last event which he summarized in his ITO and occurred during the final hours of his preparation of the ITO.

[27] In my view it would have been far preferable for Chambers to have included time notations for the events described in paragraph 182. The timing of events is significant. I am prepared, however, to accept Chambers’ explanation that some of the detail missing from paragraph 182 is due to the timeline he was facing in completing the ITO. I do note that timelines with respect to the surveillance were provided for the June 21st surveillance. I do not interpret the missing time notations in paragraph 182 as being reflective of a desire to deliberately mislead the authorizing judge.

[28] I conclude that there are a significant numbers of errors in the ITO prepared by Chambers as it relates to Mr. Chin. I conclude, however, that these errors did not result from a deliberate attempt to mislead the issuing judge. These errors were as a result of general sloppiness by Chambers in the preparation of the ITO. I reach this conclusion for the following reasons:

(a) For many of the errors the problem related to a failure by Chambers to set out in the ITO when he was drawing an inference and the basis for the inference. He described these errors in his evidence as “overstatements.” He produced considerable support for this explanation in his evidence. On cross-examination he was able to point to facts which provided a credible explanation for why the conclusions he drew were supported by the information available to him. This is not a proper way to prepare an ITO and Chambers should have separated the facts seen on the surveillance from his belief and the inferences he was drawing from the evidence. Nevertheless, I do not interpret this as being a conscious and deliberate attempt to mislead the authorizing judge.

(b) While Chambers had experience in preparing ITOs he had received only limited training. In his evidence he testified that his formal training consisted of one to two days during a programme he took on drug investigations. I view this to be a significant contributing factor to the errors which were made.

(c) The involvement of Mr. Chin came just prior to the finalization of the ITO. It is apparent that Chambers was under some pressure to finalize the ITO by June 24th. He was working ten to fifteen hours a day on two major ITOs, which likely compromised his ability to deal with the Chin investigation in as thorough a manner as required.

(d) While the applicant asserts that all of the errors made by Chambers went to the detriment of Mr. Chin this does not appear to be the case. Chambers made errors on matters which were of no consequence to the applicant. For example in paragraph 179 Chambers identifies the central note-taker for the surveillance as Detective Constable Hilborn whereas the surveillance report identifies the central note-taker as Detective Constable Ashworth. In footnote number 125 in referencing the telephone number called by Cairns on June 21st, 2013, the incorrect area code is used. This would seem to suggest a continuing pattern of sloppiness in the preparation of the ITO by Chambers. However, these errors are not related to issues which enhance the case against Mr. Chin.

[29] For the above reasons I conclude that the errors made by Chambers in preparing the ITO were not so fundamentally subversive of the prior authorization process as to require the warrant to be invalidated on that basis.

Was there a reasonable basis for the search warrant to be issued for the applicant’s residence

[30] Even assuming that there was a basis to issue the search warrant for the applicant’s vehicle it is submitted that there was no basis for the search warrant to issue for the applicant’s residence in Pickering. It is noted that the alleged drug transactions did not occur at the applicant’s house. Thus, even assuming that the applicant was involved in drug transactions on June 21st and June 22nd, it is argued there was no reasonable basis to believe that drugs would be present at the residence. The only time the applicant was observed at his residence was following completion of the alleged transactions when he returned to his home by car. The applicant submits that the police “jumped the gun” on the ITO for the residence. It is suggested that the police should have taken time to do a better investigation and should have conducted surveillance of the home to determine whether it was associated with any drug activity.

[31] The applicant relies on the Ontario Court of Appeal decision in R. v. Rocha, 2012 ONCA 707. That case involved two brothers who were selling cocaine from their restaurant. The police relied upon a statement from the informer that most of the cocaine sold at the defendants’ residence was kept at their home. The court agreed that the ITO was not sufficient to justify granting a warrant to search the respondents’ home. Unlike the information about the restaurant the court found that the informer’s tip about the residence was not compelling. It was a mere conclusory statement that the drugs were stored at the house and there were weaknesses in the credibility of the informer and no independent confirmation. The court therefore concluded that the totality of the circumstances could not support granting a warrant for the residence.

[32] The factual circumstances in the present case are quite different. The information in the ITO suggested that Mr. Chin had supplied cocaine to Mr. Cairns through a middle man on both June 21 and 22, 2013. On June 21st there was also a suggestion that he did another drug transaction after the one involving Mr. Cairns on June 21st. On both June 21st and 22nd Mr. Chin returned home after the alleged drug transactions occurred.

[33] Section 11 of the Controlled Drugs and Substances Act contains a broad basis for the issuance of a warrant provided that there are reasonable grounds to believe there is a controlled substance or, “anything that will afford evidence in respect of an offence under this Act” at the place to be searched.

[34] In the present case the order sought by the police was not restricted to a controlled substance but rather included a belief that other items involving trafficking could be found. These included such things as weigh scales, debt lists, drug packaging, drug precursors, safes or lockboxes, identification and documentation related to occupancy, currency appearing to be offence related property, cell phones, keys, and financial records. The warrant which was issued included reference to all of the above items.

[35] With the surveillance appearing to show two drug transactions on June 21st and another one on June 22nd I conclude there was a reasonable basis to believe that there would be some evidence of the drug activity found at the applicant’s residence. Specifically I believe it would be reasonable to conclude that any proceeds from the drug transactions would be located at the residence as this is where the applicant went following those transactions. In addition, if the financial proceeds were kept at the residence it is also reasonable to believe that some financial records would be located there. It would also be reasonable to believe that some controlled substances would be there given that the applicant was observed to be involved in what appeared to be two drug transactions on June 21st. It is reasonable to believe that any drugs which were not sold on the 21st or 22nd would have returned home with the applicant which leads to an inference that the residence was a place of storage for drugs and records relating to these transactions.

[36] I therefore conclude that there was a sufficient connection established to the residence which would support a reasonable basis to believe that evidence of the applicant’s drug activities would be found in the residence.

Taking into account any incorrect facts asserted in the ITO and any excisions form the ITO evidence which are required was there still a reasonable basis for the search warrant to be issued

[37] There were clearly a significant numbers of errors in the ITO. The applicant submits that these errors should be excised and after appropriate excisions from the ITO are made there were insufficient grounds on which to issue a warrant. The consideration of this issue involves a consideration of when amplification is appropriate. In Garofoli the court notes that a reviewing judge should consider whether the record, as amplified on the review, supports a conclusion that the authorizing judge could have granted the authorization. If so, the reviewing judge should not interfere. In R. v. Araujo, 2006 S.C.C. 65 the Supreme Court commented that in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may be used to correct this information. When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension. The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had requisite reasonable and probable grounds but had, in good faith, made some minor, technical error in the drafting of their affidavit material.

[38] In R. v. Morelli, 2010 SCC 8, 2010 S.C.C. 8 the Supreme Court again considered the issue of amplification. It noted that 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. Rather, the reviewing court should resort to amplification evidence of the record only to correct minor technical errors in drafting so as not to put form above substance in situations where the police had the requisite reasonable and probable grounds. The focus is to be 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.

[39] In the present case the information contained in the ITO about the applicant’s drug activities is compelling. I propose to initially review the evidence as summarized in the ITO and then to consider the effect of any errors made by the affiant and consider whether these errors as well as any appropriate amplification preclude a reasonable basis for the warrant to have been issued.

[40] Following is a summary of the evidence contained in the ITO which in my view provides compelling evidence of the applicant’s involvement in drug transactions on June 21 and 22, 2013:

Date and Time

Observation

Reference

June 21 at 7:11 p.m.

Cairns called McLune and asked him if he had three “zips” (which was believed to be a reference to 3 ounces of cocaine). McLune tells Cairns that he doesn’t have that much but he could get it in 20 minutes and would call Cairns back.

Paragraph 178(a) of the ITO

June 21 at 7:14 p.m.

McLune called Cairns back and said “his boy” is in Ajax and is going to call back in two seconds.

Paragraph 178(b) of the ITO

June 21 at 7:21 p.m.

McLune calls Cairns and tells him that “he will meet you”. Cairns told McLune he didn’t want to drive and told McLune to tell him to meet at the PetroCanada station at Thickson and Rossland. Cairns tells McLune to tell “him” to meet at the PetroCanada station, Thickson and Rossland, by the air machine.

Paragraph 178(c) of the ITO

June 21 at 7:58 p.m.

McLune calls Cairns and tells him the guy would be here soon, ten at the most.

Paragraph 178(e) of the ITO

June 21 at 7:43 p.m.

A silver Mercedes licence BRKM 185 (“185”) was observed arriving at the PetroCanada station.

Paragraph 179(a) of the ITO

June 21 at 8:11 p.m.

McLune called Cairns and said he was there waiting for his guy. Cairns said he would come to him and “drop the loot”. McLune said he would come by Cairns and would be there in two seconds.

Paragraph 178(f) of the ITO

June 21 at 8:10 p.m.

Vehicle 185 left the PetroCanada lot and attended at Cairns residence in Whitby. Cairns met with McLune at 185.

Paragraph 179(c) of the ITO

June 21 at 8:28 p.m.

Vehicle 185 seen back in the PetroCanada lot.

Paragraph 179(d) of the ITO

June 21 at 8:58 p.m.

A motor vehicle with licence BPEB 706 (“706”) arrived at the PetroCanada lot. The registered owner of this vehicle is Mr. Chin. McLune exited vehicle 185 and got into the passenger side of vehicle 706.

Paragraph 179(e) of the ITO

June 21 at 9:00 p.m.

Both vehicles left the lot and parked on Abrams Street in Whitby briefly.

Paragraph 179(f) of the ITO

June 21 at 9:02 p.m.

McLune called Cairns and told him one of them has a bit of powder in it, Cairns asked if it was cut or mixed. Cairns asked if it was fish. McLune said he couldn’t tell. McLune was heard talking to someone else. McLune then said it’s not bad. Cairns then told him to “just bring it”.

Paragraph 179(g) of the ITO

June 21 at 9:05 p.m.

Vehicle 185 returned to the Cairns residence.

Paragraph 179(g) of the ITO

June 21 at 9:12 p.m.

Vehicle 706 moved and parked on William Stephenson Drive in Whitby.

Paragraph 179(h) of the ITO

June 21 at 9:09 p.m.

Cairns called Coates (believed to be his customer) and told him it’s taking too long. Cairns told Coates he had a half zip of fish if he wanted it. Coates told Cairns it was getting too late and they agreed to meet in the morning.

Paragraph 183(a) and Exhibit 4 which is the transcript of the call.

June 21 at 9:20 p.m.

Vehicle 185 and 706 parked on Abrams Street Whitby for brief period.

Paragraph 179(i) of the ITO

June 21 at 9:22 p.m.

Vehicle 185 returned to Cairns’ residence again.

Paragraph 179(j) of the ITO

June 21 at 9:24 p.m.

Vehicle 706 left the area and was followed to an address in Toronto where a female exited the vehicle.

Paragraph 179(k) of the ITO

June 21 at 10:30 p.m.

An unknown male came from the apartment building and entered the vehicle 706.

Paragraph 179(l) of the ITO

June 21 at 10:34 p.m.

The unknown male exited vehicle 706 and returned to the apartment building.

Paragraph 179 of the ITO

June 21 at 10:51 p.m.

The Chin vehicle left the lot and returned home.

Paragraph 179(o) and (p) of the ITO

June 21

Michael Chin was identified as the driver of vehicle 706 on June 21 by Detective Constable Stalwagon through an MTO photograph.

Paragraph 179 (m) of the ITO

[41] The above information supports a conclusion that Cairns was seeking to purchase three ounces of cocaine through a middle man (believed to be McLune). The purchase was completed with the supplier being Mr. Chin. A further transaction apparently occurred with an unknown person in Toronto at around 10:30 p.m.

[42] In his evidence on cross-examination Chambers testified, that he believes initially, when Mr. Chin met Mr. McLune, he provided him with a sample of cocaine. This would explain why Mr. McLune returned to Mr. Cairns’ residence after the call at 9:02 p.m. Chambers believed that once Cairns was satisfied about the quality of the cocaine, McLune returned to meet with Mr. Chin at around 9:20 p.m. when the actual sale took place. This appears to be consistent with the intercepted communications and the surveillance.

With respect to the events on June 22, 2013, I have summarized the relevant information from the ITO:

Date and Time

Observation

Reference

June 22 at 5:26 p.m.

McLune called Cairns to tell him that he was at the gas station waiting to meet “him”. Cairns said “fish right” and also said, “he’s waiting”

Paragraph 181(b) of the ITO

June 22 at 5:44 p.m.

McLune told Cairns he was still “there” waiting.

Paragraph 181 (c) of the ITO

June 22 at 6:47 p.m.

McLune texted “here”.

Paragraph 181(d) of the ITO

June 22

Vehicle 185 was observed door to door with vehicle 706. After a short meeting vehicle 185 attended at Cairns’ residence.

Paragraph 182(b) of the ITO

June 22 at 6:50 p.m.

McLune called Cairns and said he was coming to his house right now.

Paragraph 181(d) of the ITO

June 22

Vehicle 185 observed after the meeting on Abrams Street in Whitby at the Cairns’ residence.

Paragraph 182(b) of the ITO

June 22

Vehicle 706 returned to Mr. Chin’s residence.

Paragraph 182(c) of the ITO

[43] The evidence of a drug transaction on this date is also compelling. Although Chambers did not record the times of the surveillance, the surveillance report for June 22nd shows that the meeting between vehicle 706 and vehicle 185 took place at 6:50 p.m. which is entirely consistent with the intercepts which suggest that the transaction occurred between 6:47 and 6:50 p.m.

[44] I turn now to the question of whether the errors made by Chambers in the ITO rise to the level that undermine the reasonable and probable basis which was required for purposes of the search warrant. In my view they do not rise to this level and I therefore conclude that the discretion of the authorizing judge should not be interfered with.

[45] I agree with the applicant’s position that at least on June 21st Mr. McLune was not properly identified in the telephone exchanges with Mr. Cairns. While his vehicle was observed during the transaction there are not reasonable and probable grounds to believe that that Mr. McLune was the driver of the vehicle on June 21st. Having said that, however, the identity of Mr. McLune as the middle man is not a material factor in considering the information relating to Mr. Chin’s activities on that date. Whether the middle man was in fact Mr. McLune or some other person the information relating to Mr. Chin’s involvement is unaffected. Thus, while I believe that the reference to Mr. McLune as being the middle man in the telephone intercepts and the surveillance should be excised this does not have the effect of undermining the information about Mr. Chin’s activities on that date.

[46] I would also excise the reference in paragraph 179(c) which states that Cairns was seen giving Mr. McLune a small red pouch when he met with McLune at 8:10 p.m. The surveillance for June 21st does not support this observation. However, the intercepted communication referred to in paragraph 178(f) makes it clear that Cairns was meeting with his middle man to “drop the loot”. Despite this excision, therefore, there are reasonable and probable grounds to believe that this was the purpose of the meeting which took place at 8:10 p.m.

[47] I would also excise the reference in paragraph 179(b) which indicates that at 8:03 p.m. McLune and a male later identified as Michael Chin were observed walking around vehicle 185 and both got into that vehicle. The Crown acknowledges that the reference to Michael Chin in this paragraph is not accurate and should be excised. However, this information does not detract from the later identification of Mr. Chin at the critical time when he attended the PetroCanada station at 8:58 p.m. together with the critical observations which followed.

[48] The applicant argues that the conversation between Mr. Cairns and the middle man which took place on June 21, 2013 suggests that Mr. Chin did not sell the anticipated three ounces of cocaine to Mr. Cairns. They refer to the fact that Mr. Cairns states in a telephone call with his client that he only had a half ounce available to sell. However, it is significant to note that the telephone call took place at 9:09 p.m. This is prior to the return of vehicle 185 to Mr. Cairns’ residence. As noted previously it is reasonable to conclude that Mr. Cairns had not yet received delivery of the cocaine from his middle man at the time this call took place. Further the information obtained from the intercepted communications is compelling that Mr. Chin had agreed to sell the three ounces of cocaine requested by Mr. Cairns. The information is equally compelling that the transaction did in fact take place.

[49] As previously noted I view the failure of Chambers to properly document the times of the surveillance on June 22nd as an error on his part. Having said that I believe it is appropriate to amplify the evidence in the ITO by referencing the times which are found in the surveillance report for June 22nd. The timing of the surveillance coincides closely with the timing of the telephone intercepts which are referred to in paragraph 181. Of particular significance is the fact that Mr. Cairns’ middle man is seen meeting with Mr. Chin at 18:50 hours immediately after the middle man texted Mr. Cairns, “here” which suggests that the supplier had indeed arrived.

[50] Chambers made an error in paragraph 181(c) when he states that Mr. Chin was observed exiting his vehicle later that evening and entering the residence. This is not consistent with the surveillance report of June 22nd. However, the surveillance report does document that his vehicle pulled into the driveway at his residence and the lights for the vehicle went off at 7:30 p.m. It is a reasonable inference that Mr. Chin entered the residence at about that time. In my view, therefore, nothing of significance turns on this error.

Conclusion

[51] Counsel agreed that I should first determine whether there was a breach of Section 8 of the Charter prior to considering their arguments with respect to Section 24(2) of the Charter. For the reasons stated I have concluded there was no Section 8 breach in connection with the issuance of the search warrant. There were in fact reasonable and probable grounds upon which the authorizing judge could have granted the search warrant in question. This portion of the application is therefore dismissed.

Mr. Justice M.K. McKelvey

Released: July 3, 2015

R. v. Chin, 2015 ONSC Number 4323

Oshawa Court File No.13724/14

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL CHIN

RULING ON THE GAROFOLI APPLICATION OF MICHAEL CHIN

Mr. Justice M.K. McKelvey

Released: July 3, 2015