COURT FILE NO.: CR-15-90000034-0000 DATE: 20160414 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Eric Gilman for the Crown

• and -

JOSEPH ANDREWS Alana Page for Joseph Andrews

HEARD: January 18 – 21, 26, February 1, 2, 3, 4 and 8, 2016

REASONS FOR DECISION Corrick J.

Introduction

[1] Joseph Andrews is charged with possession of cocaine and marijuana, and possession of cocaine, marijuana and psilocybin for the purpose of trafficking. He was charged on July 16, 2013 after police searched the truck he was driving, his home and a storage locker pursuant to search warrants. Police discovered 231grams of marijuana and 118 grams of cocaine in the truck. They discovered 582 grams of marijuana, 558 grams of cocaine and 56 grams of psilocybin in a storage unit alleged to be leased by him.

[2] Mr. Andrews elected a trial before me without a jury. Prior to the commencement of his trial, Mr. Andrews applied to have the evidence that was seized by the police excluded pursuant to s. 24(2) of the Charter on the basis that his rights protected by ss. 10(a), 10(b) and 8 of the Charter had been violated.

[3] The application focused in the main on the validity of six search warrants the police obtained. A Criminal Code search warrant and a Controlled Drugs and Substances Act search warrant were obtained for Mr. Andrews’ home, the truck he was driving, and a storage unit located at 345 Danforth Road. The warrants were based on an Information to Obtain (ITO) sworn by Officer Pala.

[4] I dismissed the application on February 2, 2016. These are my reasons for decision, both on the Charter application and the merits of the case.

The Section 8 Application

Procedure on the Application

[5] Officer Pala’s grounds for seeking the warrant relied heavily on information provided to the police by a confidential informant. As a result, the Crown disclosed a redacted version of the ITO to defence counsel.

[6] At the outset of the application, I granted Ms. Page leave to cross-examine Officer Pala on a number of discrete issues. Following her cross-examination, Mr. Gilman provided the court with a sealed copy of the unredacted ITO that was before the issuing justice, and asked the court to embark on the “step six” procedure outlined by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421. The unredacted ITO was made a sealed exhibit on this application. Mr. Gilman also provided the court and defence counsel with a draft judicial summary of the redacted portions of the ITO.

[7] After ruling that the court would follow the “step six” procedure, I reviewed the unredacted ITO and the draft judicial summary. I suggested amendments to the draft judicial summary. Mr. Gilman reviewed the proposed amendments with the confidential informant’s handler, and agreed that the revised summary could be disclosed to the defence. He prepared a final version of the judicial summary, which was provided to Ms. Page.

[8] Ms. Page challenged the adequacy of the judicial summary, arguing that the vague and general terms used in the summary did not provide Mr. Andrews with sufficient information about “the nature of the excised material to challenge it in argument or by evidence” as required at “step six” of Garofoli. After hearing argument, I ruled that the judicial summary was sufficient to permit a “step six” review of the ITO that was before the issuing justice.

[9] The record before me on the application consisted of the following:

1. the unredacted ITO that was before the issuing justice, together with the redacted ITO and judicial summary of the redactions;
2. the search warrants issued on July 16, 2013;
3. a transcript of Ms. Page’s cross-examination of Officer Pala and Officer Ross, who was the sub-affiant, taken at the preliminary inquiry on September 19 and November 21, 2014, following a successful Dawson application; and
4. an agreed statement of facts.

[10] In addition to the evidence of Officer Pala, I heard the evidence of five other officers involved in the investigation. Finally, Mr. Andrews testified on the application.

The Evidence

[11] On the basis of information received from a confidential informant, members of the Toronto Police Service began surveillance on Mr. Andrews’ residence at 95 Trinnell Boulevard in Scarborough on July 15, 2013. Mr. Andrews was observed to leave his residence in a black pickup truck and drive to a storage facility at 345 Danforth Road at 12:06 p.m. He was observed to lift the exterior roll-top steel door to unit #37 and enter a second door into the unit. At 12:57 p.m., Mr. Andrews was observed to leave unit #37, put something in the back seat of the truck, and drive away.

[12] As a result of these observations, Officers MacNeil and Ross attended the offices of Storage Mart at 375 Middlefield Road on July 15. Officer MacNeil obtained a “Self Storage Lease Agreement” executed on March 6, 2009 between 435412 Canada Inc. and Joseph Andrews with an address of 95 Trinnell Blvd. for the rental of “Space No. 37D.” It was signed by Mr. Andrews on March 10, 2009. The lease agreement did not state the address of “Space No. 37D.”

[13] The next day, July 16, 2013, Officer Pala began preparing an ITO to obtain search warrants for 95 Trinnell Boulevard, the black pickup truck, and storage unit #37D at 345 Danforth Road. Other police officers continued their surveillance on Mr. Andrews while they waited for the search warrants to be authorized. Officer Long, the supervising detective, testified that the plan was to surveil Mr. Andrews until the search warrants were authorized and then arrest or detain Mr. Andrews.

[14] At 11:53 a.m. on July 16, Mr. Andrews was observed leaving 95 Trinnell Boulevard in the black pickup truck and driving to 345 Danforth Road. He was observed leaving unit #37 at 12:10 p.m. with a paper shopping bag in his right hand. He placed the bag in the rear bed of the truck, and drove off.

[15] The police followed the truck on Highway 401 to Yonge Street. At the off ramp from the highway to Yonge Street southbound, one of the officers believed he saw Mr. Andrews checking his mirrors to see if he was being followed. He relayed this information to the other surveillance officers. Mr. Andrews travelled southbound on Yonge Street in the curb lane and then quickly cut across three lanes of traffic to turn left towards the on ramp to the eastbound 401. Rather than take the ramp, Mr. Andrews drove straight through, and almost immediately turned into the parking lot of an apartment building at 16 The Links. At this point, Officer Long called for the take down of Mr. Andrews.

[16] Officer MacNeil handcuffed Mr. Andrews, and advised him that he was being detained pending the results of an application for a search warrant. Mr. Andrews was placed in the back of Officer Ross’s van, where Officer MacNeil advised him of his right to counsel at approximately 12:26 p.m. Mr. Andrews said that he wanted to speak to a lawyer. Officer MacNeil told him he could speak to duty counsel when they got to the police station.

The Search of the Truck

[17] Officers MacNeil and Ross detained Mr. Andrews in the van until 1:25 p.m., at which time they were advised that the search warrants had been signed. Officer MacNeil then searched the truck, and in the rear bed discovered a blue paper shopping bag that contained a vacuum-sealed bag of marijuana that weighed 231.34 grams. He also found an Equifax Report and income tax return related to Joseph Andrews in the glove box of the truck. He arrested Mr. Andrews for possession of marijuana for the purpose of trafficking and gave him his rights to counsel again.

[18] Officer Haffeje arrived after Mr. Andrews had been arrested. He searched the front cab of the truck, and discovered two Ziploc bags of cocaine secreted under the cup holder. One bag contained 111.55 grams and the other contained 6.98 grams of cocaine. He advised Mr. Andrews that he was under arrest for possession of cocaine and possession of cocaine for the purpose of trafficking. He did not inform Mr. Andrews of his right to counsel.

[19] Mr. Andrews was taken to 41 Division where he was paraded at 2:55 p.m. and placed in an interview room to await the arrival of the officers who had been investigating him. Mr. Andrews was eventually permitted to call a lawyer at 4:45 p.m.

The Search of the Storage Unit

[20] Officer McKenzie was the last officer to arrive at the parking lot where Mr. Andrews was detained. When he arrived, Mr. Andrews was in handcuffs and was being walked to Officer Ross’s van. Officer McKenzie went into Mr. Andrews’ truck, removed a set of keys from the ignition, removed all of the keys except the ignition key from the set, and replaced the truck key in the ignition. At the time, he knew that the search warrants had not been signed, but he assumed they would be. He also assumed that the keys he seized would open the storage unit and Mr. Andrews’ house. He took the keys to avoid having to damage the house and storage unit upon entry once the search warrants were signed.

[21] Once the search warrants were obtained, police entered storage unit #37 at 345 Danforth Road with the key that Officer McKenzie had seized from Mr. Andrews’ truck. Police discovered 557.73 grams of cocaine, 582.04 grams of marijuana, and 56.07 grams of psilocybin inside the storage unit, along with drug trafficking paraphernalia.

Positions of the Parties

[22] Ms. Page submitted that the search and seizure of drugs from the truck and storage unit violated Mr. Andrews’ rights protected by s. 8 of the Charter, and as a result, the evidence obtained should be excluded pursuant to s. 24(2) of the Charter. She argued that the ITO submitted to the issuing justice did not disclose sufficient grounds to support the issuance of the warrants. She argued that there was insufficient evidence before the justice that the confidential informant was credible or that the information provided by the confidential informant was compelling or corroborated. In addition, she argued that Officer Pala failed to make full, fair and frank disclosure to the issuing justice, in that the ITO contained misleading statements and relevant omissions.

[23] Furthermore, Ms. Page submitted that Mr. Andrews’ rights protected by ss. 8 and 10(a) and (b) of the Charter were breached during his detention and arrest. She argued that although these breaches were not of such a nature that would result in the exclusion of evidence pursuant to s. 24(2) of the Charter, they revealed the officers’ cavalier attitude toward the limits of police power and procedural fairness, which the court ought to take into account when considering the totality of the circumstances of the case.

[24] Ms. Page pointed specifically to three things in this regard. First, she argued that Mr. Andrews’ s. 10(b) rights were breached because of the more than four hours that elapsed between the time that Mr. Andrews said he wanted to speak to counsel and the time that he was permitted to do so. Second, Officer Haffeje’s failure to advise Mr. Andrews of his right to counsel after arresting him for possession of cocaine for the purpose of trafficking violated s. 10(b) of the Charter. Third, Officer McKenzie’s seizure of the keys from the ignition of Mr. Andrews’ truck violated s. 8 of the Charter.

[25] Finally, Ms. Page argued that there was no valid search warrant for storage locker #37 because the warrant authorized the search of unit #37D.

[26] Mr. Gilman submitted that Officer Pala set out his reasonable and probable grounds for the search warrants in the ITO in a full, fair and frank manner, and that any mistakes he made were not made in bad faith. In Mr. Gilman’s submission, the contents of the ITO amply supported the issuance of the warrants. The information provided by the confidential informant was compelling, credible and corroborated.

[27] With respect to the other breaches alleged by Ms. Page, Mr. Gilman argued that there were no breaches, and if there were, they were of such a minor nature that they cannot lead to the exclusion of evidence.

The Standard of Review

[28] The focus of my inquiry as the reviewing court is on whether there was reliable information in the ITO, that might reasonably be believed, that could have permitted the issuing justice to conclude that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. I am not entitled to substitute my view for that of the issuing justice.

The Adequacy of the ITO

[29] When the police rely upon information from a confidential informant as the basis for their reasonable grounds to justify a search, the court must examine whether the information was compelling, whether the confidential informant was credible, and whether the police corroborated any of the information. It is the totality of these circumstances that must be considered in determining whether the police officer’s grounds were reasonable and probable. Weaknesses in one area may be compensated by strengths in the others: R. v. Debot, [1989] 2 S.C.R. 1140 at p.1168.

Was the Tip Compelling?

[30] The first factor to consider is whether the confidential informant’s information was compelling. How much detail was provided? Was the detail based on first-hand observations or rumour and gossip? Were the details provided widely known to many people?: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 at para. 35.

[31] The nature of the information provided by the confidential informant contained in the redacted ITO and judicial summary is as follows:

Timing: The redacted ITO discloses that the handler received information from the confidential informant in July 2013. The unredacted ITO provides the specific date. The unredacted ITO also discloses the recency of the confidential informant’s information

Confidential informant’s knowledge of Mr. Andrews: Mr. Andrews was known to the confidential informant as Joe and was described as male, white, 30 - 33 years old, approximately 5'10" - 6', approximately 180 - 190 lbs. with a shaved head. The confidential informant identified Mr. Andrews from a photograph shown to him.

Address: Joe lives at 95 Trinnell Boulevard, a detached red brick bungalow, with a driveway that runs up the south side of the house.

Vehicle: Joe drives a newer model black pickup truck.

Criminal behaviour: The confidential informant has purchased cocaine from Joe.

The storage locker: Joe stores large quantities of drugs and money in a storage locker. The unredacted ITO discloses the means by which the confidential informant acquired this knowledge.

[32] It is not possible to outline in any greater detail the nature of the information the confidential informant provided to the police without risking the disclosure of the confidential informant’s identity. A review of the unredacted ITO reveals that the information provided by the confidential informant was detailed. The judicial summary of the redacted portions of the ITO indicates that the details of Mr. Andrews’ criminal activity provided by the confidential informant were frequently based on first hand recent specific information.

[33] I am satisfied that the confidential informant’s tip was compelling.

Is the confidential informant credible?

[34] To determine the confidential informant’s credibility, I have examined whether the confidential informant had provided reliable information to the police in the past, whether the confidential informant had any motive for providing the information, what the motive was, and what the confidential informant’s criminal antecedents were.

[35] As a preliminary matter, I want to deal with an inconsistency found in the ITO that relates to the credibility of the confidential informant. At page 4 of the ITO, under the heading, “Introduction of the Confidential Informant”, Office Pala wrote that the confidential informant has no history with the Toronto Police Service. Further on the same page, under the heading, “Confidential Informant”, Officer Pala wrote that the confidential informant is a carded confidential informant with the Toronto Police Service. Officer Pala testified at the preliminary hearing that he knew that the confidential informant was not carded and that he made a typographical error when he wrote that the confidential informant was carded. I am satisfied with that explanation and am satisfied that there was no attempt to mislead the issuing justice. I have excised the sentence that refers to the confidential informant as carded.

[36] There is little in the ITO to support the confidential informant’s credibility. The confidential informant was a ‘first time’ informant with no established record of providing reliable information to the police about the criminal activities of other people. Information about the confidential informant in the unredacted ITO does not strengthen the confidential informant’s credibility.

Was the confidential informant's information corroborated?

[37] The police investigation independently established the information provided by the confidential informant about Mr. Andrews’ address, physical description, age, and the vehicle he was driving. This was corroboration of the type referred to in R. v. Caissey, 2007 ABCA 380, affirmed on appeal at 2008 SCC 65, [2008] 3 S.C.R. 451 and R. v. Rocha, 2012 ONCA 707.

[38] In addition, the information provided by the confidential informant that “Joe” has a storage locker was corroborated by the surveillance conducted by the police on July 15, 2013, the details of which were set out in the ITO. On that date, police observed Mr. Andrews leave 95 Trinnell Boulevard and drive a black pickup truck to the Storage Mart at 345 Danforth Road. He was seen entering a code to open the gate to the facility and then observed entering unit #37. He was also seen leaving that locker about one hour later carrying a bag that he placed in the back of his truck.

[39] Finally, police obtained a copy of a Self Storage Lease Agreement listing Joseph Andrews of 95 Trinnell Boulevard as the tenant of storage space #37D. This too is corroborative of the informant’s tip.

[40] Ms. Page submitted that the fact that Mr. Andrews was observed attending a storage locker did not corroborate much, and certainly did not confirm that Mr. Andrews was in possession of cocaine. However, that is not necessary. As Rosenberg J.A. said in Rocha at para. 22, “The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required.”

[41] I am satisfied that there was investigative corroboration of the information provided by the confidential informant.

Conclusion

[42] As I have already indicated, the assessment of whether a tip from a confidential informant is sufficiently credible, compelling and corroborated to amount to the required “reasonable grounds” to issue the warrant must be based on the totality of the circumstances. Weaknesses in one area can be compensated by strengths in the other two.

[43] Despite the weakness in the confidential informant’s credibility, I am satisfied that the combination of the compelling tip together with some independent investigative corroboration provided the issuing justice with a sufficient basis upon which to grant these search warrants.

Was the disclosure contained in the ITO full, frank and fair?

[44] Police officers seeking ex parte authorizations, such as search warrants, are legally obligated to make full, fair and frank disclosure of all material facts: R. v. Araujo at para. 46. Ms. Page submitted that Officer Pala failed to meet this obligation because he provided the issuing justice with information that was inaccurate and misleading. She submitted that Officer Pala’s lack of attention to detail impairs his credibility and reliability, and the court should be mindful of that when assessing the unredacted ITO.

[45] Ms. Page relied on Officer Pala’s failure to clarify the precise storage unit to be searched in support of her submission that Officer Pala failed to provide the issuing justice with all of the relevant information. Clarification was necessary in Ms. Page’s submission because Mr. Andrews had been observed entering storage unit #37, yet the lease agreement indicated that Mr. Andrews had leased storage unit #37D. In Ms. Page’s submission, Officer Pala made no effort to investigate this discrepancy. Instead, he applied for and obtained a warrant for unit #37D, and failed to advise the officers executing the warrant that it related to unit #37D. Officer Pala must have known of the discrepancy, according to Ms. Page, and deliberately withheld that information from the other officers.

[46] I do not accept Ms. Page’s submission. There is no evidence that Officer Pala was aware of this discrepancy or that he intentionally withheld information from his fellow officers. He was not asked about the discrepancy when he was questioned at the preliminary hearing or before me. When he was examined by Ms. Page before me about the notes he had made about the locker, he testified that he learned about unit #37 at 345 Danforth Road from the surveillance officers and the rental documents. He made a note of that in his memo book.

[47] Ms. Page pointed to the following specific portions of the ITO in support of her submission that Officer Pala failed to make full, frank and fair disclosure in the ITO. None of these points, viewed either individually or cumulatively, have caused me to conclude that the issuing justice could not have properly authorized the warrant.

❏ At page 4, para. i., the ITO indicated that the confidential informant is known to the police and is a carded informant, when in fact the confidential informant was not known to the police and had never been used as a confidential informant. As I have already indicated, this was Officer Pala’s error. I am satisfied that it was not made in bad faith or with the intention to mislead the justice given that the immediately preceding paragraph indicated that the confidential informant had no history with the Toronto Police Service. The issuing justice would not have been misled by this error.

❏ The ITO stated that the confidential informant had previously provided the police with information that had been confirmed by police investigation. No details about the information were provided. Officer Pala testified at the preliminary hearing that he did not know what information the confidential informant had provided to the police. He had been informed however by Officer Ross, the confidential informant’s handler, that the information had been confirmed through police investigation. He testified that the information could relate to anything, even something non-criminal. Ms. Page did not explore this issue when Officer Ross testified. Ms. Page submitted that this sentence in the ITO was misleading. It would have led the issuing justice to believe that the confidential informant had previously provided information that had led to arrests or that had been fruitful in police investigations. There is no basis to conclude that this statement is inaccurate. It does not say that the information led to the arrest or prosecution of anyone. I cannot assume that the issuing justice would have made such an assumption. A similar sentence in an ITO upon which there was no cross-examination was held not to affect the valid issuance of a search warrant in R. v. Green, 2015 ONCA 579.

❏ In a section entitled, “Grounds for Belief”, Officer Pala stated that he had direct knowledge of the information contained in the ITO. In fact, his knowledge was based on written reports prepared by others that he had read, checks he had done on police databases, and information that had been passed on to him. At the preliminary hearing, Officer Pala testified that he considered this to be his direct knowledge. I am not satisfied that this information was included to mislead the justice in any way; nor am I satisfied that the issuing justice was misled.

❏ Officer Pala stated in the ITO that the confidential informant had not received any consideration for the information that he gave police. Ms. Page submitted that this statement could be misleading if the issuing justice had not been told whether the confidential informant had requested consideration and whether the confidential informant had been promised future consideration if the information provided was accurate. Officer Pala testified at the preliminary hearing that the confidential informant had requested consideration. Officer Pala did not know whether a future benefit had been held out to the confidential informant if the information provided turned out to be true. I am satisfied that Officer Pala made full, frank and fair disclosure of the relevant information related to consideration in the unredacted ITO, and that the issuing justice would not have been mislead.

[48] As I have already indicated, none of these points viewed either individually or cumulatively, have caused me to conclude that the issuing justice could not have properly authorized the warrant.

[49] I find that there was a sufficient and proper basis upon which the issuing justice could have authorized the warrants. Mr. Andrews’ rights protected by s. 8 of the Charter were not violated by the searches conducted pursuant to the warrants.

Other Charter Breaches

[50] As I indicated, Ms. Page alleged three further breaches of Mr. Andrews’ Charter rights. She properly conceded that none of them would give rise to the exclusion of evidence pursuant to s. 24(2) of the Charter.

[51] The first is a breach of Mr. Andrews’ right to retain and instruct without delay. More than four hours elapsed between the time Mr. Andrews told officers he wanted to speak to counsel and the time that he was permitted to do so. Mr. Andrews was detained at 12:26 p.m. pending the authorization of the search warrants. After Officer MacNeil gave him his rights to counsel, Mr. Andrews indicated that he wanted to speak to duty counsel. Officer MacNeil told him that he could do so when they arrived at the police station.

[52] The search warrants were obtained about one hour later, at 1:25 p.m. Shortly thereafter, Officer MacNeil arrested Mr. Andrews for possession of marijuana for the purpose of trafficking and gave Mr. Andrews his rights to counsel again. Ten minutes later, Officer Haffeje arrested Mr. Andrews for possession of cocaine and possession of cocaine for the purpose of trafficking. He did not give Mr. Andrews his rights to counsel. He assumed that Mr. Andrews had already been advised of his rights to counsel because he was in custody when Officer Haffeje arrived at the scene.

[53] Officer MacNeil testified that he did not permit Mr. Andrews to use his cell phone to call duty counsel before the search warrants had been executed on the storage locker and Mr. Andrews’ house because he was concerned about the destruction of evidence. He further testified that he could not provide Mr. Andrews with any privacy at the scene to have a conversation with a lawyer. When questioned by Ms. Page about why he did not take Mr. Andrews promptly to the police station to make a call, he said that was not a practical solution. The staff sergeant in charge of the station may not have accepted Mr. Andrews before he was charged, and taking Mr. Andrews to the police station would have left Officer Ross alone at the scene of the take down in a location unknown to the officers, without knowing whether the take down had been observed by anyone, which led to officer safety concerns.

[54] Mr. Andrews testified that while he was in detention and under arrest, the officers treated him respectfully and politely. He was not asked any questions by the officers. When he indicated that he was thirsty, the officers drove to a convenience store to get him something to drink.

[55] Mr. Andrews was given access to counsel at 4:45 p.m. after all the locations to be searched had been secured.

[56] Given the circumstances facing the officers, having detained Mr. Andrews in an unfamiliar location, away from one of the locations to be searched, and having limited personnel that day to search two locations and a vehicle and cover the location of the take down, they were justified in delaying the implementation of Mr. Andrews’ right to counsel until the areas to be searched were secured: R. v. Learning, 2010 ONSC 3816. The officers had valid concerns about the destruction of evidence, which were borne out by Mr. Andrews’ evidence that the person to whom he was delivering the marijuana, who lived at 16 The Links, told him sometime later that he had seen his truck in the parking lot that day. Mr. Andrews’ rights under s. 10(b) were not violated by the delay in allowing him access to counsel.

[57] The second breach alleged by Ms. Page is Officer Haffeje’s failure to advise Mr. Andrews of his right to counsel after arresting him for possession of cocaine for the purpose of trafficking. By the time Officer Haffeje arrested Mr. Andrews, Officer MacNeil had already advised him twice of his rights to counsel. In my view, Officer Haffeje’s failure to do so or to inquire about whether anyone else had did not violate Mr. Andrews’ s. 10(b) rights.

[58] The third breach alleged by Ms. Page is Officer McKenzie’s seizure of the keys from the ignition of Mr. Andrews’ truck. Officer McKenzie arrived at the take down scene after Mr. Andrews had been removed from his truck, and handcuffed, and was being taken to Officer Ross’s van. He testified that he believed that Mr. Andrews was in investigative detention and had been given his rights to counsel. This belief was based on the standard operating procedure at the time of the team of officers investigating Mr. Andrews, which was to detain suspects rather than arrest them when they were taken down. This team of officers treated detention the same as arrest. Officer McKenzie testified that he believed that he had the authority to seize the keys because Mr. Andrews was under investigative detention.

[59] There is a distinction between an officer’s search power incident to arrest and an officer’s search power incident to investigative detention. The power to search incident to arrest is broader. A police officer may search a person under investigative detention when he or she has reasonable grounds to believe that his or her safety or that of others is at risk: R. v. Mann, 2004 SCC 52. This power does not extend to seizing a set of keys from a vehicle in preparation for the execution of search warrants. Mr. Andrews had a reasonable expectation of privacy in the vehicle he was driving and Officer McKenzie’s seizure of the keys breached his rights protected by s. 8 of the Charter.

[60] I agree with Ms. Page that the nature of this breach does not give rise to the exclusion of evidence. The key to the storage locker was not used prior to the issuance of the search warrant. It was seized in good faith by Officer McKenzie to avoid damaging the doors to the storage locker and Mr. Andrews’ house when the search warrants were executed. In my view, this was a very minor breach, and a s. 24(2) analysis would not lead to the exclusion of evidence.

[61] The final argument made by Ms. Page on the legality of the search of the storage unit is that there was no valid authority to search unit #37 because the search warrant authorized the search of unit #37D.

[62] I do not accept this argument. There is no evidence that the unit searched is not the unit referenced in the search warrant. The officers searched the storage unit that they had observed Mr. Andrews enter on two occasions. Mr. Andrews testified that the storage unit that the police officers saw him exit on July 16, 2013 with a blue bag in his hand was his storage unit. It was the unit referenced in the rental agreement that Officer MacNeil obtained on July 15, 2013. He testified that he had signed that rental agreement some years ago.

[63] In conclusion, the searches of the pickup truck Mr. Andrews was driving and storage unit #37 at 345 Danforth Road were conducted pursuant to validly authorized search warrants. Mr. Andrews’ Charter application is dismissed.

The Trial

[64] The case for the Crown rests upon the evidence of the police officers who searched storage unit #37 at 345 Danforth Road and the pickup truck Mr. Andrews was driving when he was detained on July 16, 2013.

The Evidence

Search of the Pickup Truck

[65] On July 16, 2013, surveillance officers observed Mr. Andrews leave his residence at 95 Trinnell Boulevard in a black pickup truck and drive to a storage unit at 345 Danforth Road. Officer Long testified that he observed Mr. Andrews exit unit #37 at 345 Danforth Road at 12:10 p.m. with a blue shopping bag in his right hand. Mr. Andrews closed both the interior and exterior doors to the storage unit, placed the bag on the driver’s side in the tailgate of the truck, and drove away. He was followed by surveillance officers to 16 The Links, where he was ultimately detained by the police.

[66] Officer MacNeil testified that once the search warrant for the pickup truck was authorized, he opened the tailgate of the pickup truck and located a blue Tommy Hilfiger shopping bag that contained a wooden picture frame and a vacuum sealed bag of marijuana. Officer Haffeje took a photograph of the bag in the location where Officer MacNeil found it. Officer Long testified that the photograph (Exhibit 3) depicts a bag that is consistent with the type of bag he saw Mr. Andrews carrying when he exited the storage unit. The location of the bag in the photograph was consistent with where he saw Mr. Andrews place it. Officer MacNeil turned the bag over to Officer Haffeje.

[67] Officer MacNeil also found an income tax return and an Equifax Report related to Mr. Andrews in the glove box of the pickup truck.

[68] The vacuum sealed bag contained 231.34 grams of marijuana.

[69] Ms. Page conceded that the Crown has proven beyond a reasonable doubt that Mr. Andrews was in possession of this marijuana for the purpose of trafficking. I agree. I therefore find Mr. Andrews guilty of count three.

[70] Officer Haffeje testified that he arrived at 16 The Links at 1:35 p.m. He was responsible for taking photographs at the scene. After he took some initial photographs, he assisted in the search of the pickup truck. He located Mr. Andrews’ driver’s licence in a well under the driver’s seat armrest. He also removed the cup holder from the centre console and discovered two plastic bags containing what he believed to be cocaine. He photographed the bags in the location he found them.

[71] Officer Haffeje turned the bag of marijuana he had received from Officer MacNeil and the bags of cocaine over to Officer O’Connor at the debrief meeting that occurred at 41 Division at 4:30 p.m. on July 16, 2013.

[72] The contents of the two plastic bags analysed as cocaine. One bag contained 6.98 grams and the other contained 111.55 grams of cocaine.

Search of the Storage Locker

[73] Mr. Andrews was observed by surveillance officers going to storage unit #37 on July 15 and July 16. Officer McKenzie testified that on July 15, 2013 he observed Mr. Andrews leave his home at 95 Trinnell Boulevard at 11:37 a.m., and drive the black pickup truck to a Storage Mart facility at 345 Danforth Road. Mr. Andrews drove up the driveway of the Storage Mart, entered a code, which opened the security gate, and drove to unit #37. At 12:05 p.m., Mr. Andrews opened the exterior roll-down steel door of unit #37, exposing an interior entrance door, which he entered.

[74] Officer Long observed Mr. Andrews leaving storage unit #37 on July 15 at 12:57 p.m. Mr. Andrews closed the exterior steel door of the unit, placed something in the rear seat of the pickup truck and drove away. Officer Long did not see Mr. Andrews lock the exterior steel door.

[75] On July 16, Officer McKenzie observed Mr. Andrews leave 95 Trinnell Boulevard at 11:53 a.m., and drive the pickup truck to 345 Danforth Road. Officer Long observed Mr. Andrews exit unit #37 at 12:10 p.m., close the entrance door and the exterior steel door, and place a bag he was carrying in his right hand in the tailgate of the truck. Mr. Andrews was followed, and eventually stopped near Yonge Street and Highway 401.

[76] After Mr. Andrews was detained, Officers McKenzie, Long and O’Connor went to 345 Danforth Road to await the issuance of a search warrant for the storage unit. At 1:25 p.m., the officers were advised that a search warrant for the storage unit had been authorized. Officer McKenzie testified that he unlocked the exterior steel door with one of the keys he had seized from the ignition of the pickup truck Mr. Andrews had been driving.

[77] Officers McKenzie and O’Connor searched the storage unit. Officer Long was present but did not seize anything.

[78] Officer McKenzie testified that he searched a stainless steel fridge that was found along the back wall. It was plugged in and functioning. In the main part of the fridge, he found a prepackaged bag of marijuana and a prepackaged bag of magic mushrooms. On the top shelf of the fridge door, he located a small bag of suspected cocaine. In the can holder of the fridge he located another bag of suspected cocaine. On the bottom shelf of the fridge door, he found three bags of suspected cocaine, in pressed form.

[79] On top of the fridge, Officer McKenzie located a vacuum sealer.

[80] In a cabinet above the fridge, Officer McKenzie located an empty bottle labelled “Dextrose Powder,” a bag of white powder, a bottle jack, and a number of boxes of Glad Wrap.

[81] In the drawers of a dresser that was inside the storage unit, Officer McKenzie located numerous boxes of baggies, a large black bag containing other bags that appeared to be used, and a digital scale.

[82] After Officer O’Connor photographed the items that Officer McKenzie found in the locations where he found them, Officer McKenzie seized them and placed them in the trunk of his car. Following the debrief meeting at 41 Division, he turned the drug exhibits over to Officer O’Connor, who was the drug exhibit officer. He informed Officer O’Connor where he had found each of the items.

[83] During the search of the storage unit, Officer O’Connor seized a yellow No-Frills bag that contained a bag of white powder and two Ziploc bags containing white powder from the top of a table that was next to the fridge.

[84] At 41 Division, Officer O’Connor received the suspected drugs that Officer McKenzie had located in the storage unit as well as the suspected drugs Officer Haffeje had seized from the pickup truck. Officer O’Connor testified that he kept the items he received from Officer Haffeje separated from the items that Officer O’Connor gave him. Officer O’Connor photographed the items, weighed them, and submitted them for testing.

[85] Officer O’Connor testified that he made some errors in recording his processing of the drug exhibits seized during this investigation. He either failed to note the location from which each of the exhibits was seized, and the officer who seized it, or he did note it but is unable to find his notes. The drug exhibits he received from Officer Haffeje are depicted in a photograph marked Exhibit 33. The drug exhibits seized from the storage locker are depicted in photographs marked Exhibits 27 and 28. He did not separate the items he seized from the storage unit from the items that Officer McKenzie seized.

[86] Officer O’Connor testified that he recalled that the suspected marijuana and magic mushrooms seized from the storage unit were located in the fridge. He also recalled that all of the cocaine in pressed form came from inside the fridge. He testified that the items seized outside of the fridge were more granular in nature.

[87] In total, 439.2 grams of cocaine, 56.07 grams of psylocibin, 582.04 grams of marijuana, and more than three kilograms of other white granular substances, including benzocaine, were seized from the storage unit. Officer Canepa, who testified as an expert in the distribution and sale of cocaine, marijuana, and psilocybin, estimated the total value of the drugs seized from the storage unit to be between $20,000 and $26,000.

[88] Mr. Andrews called no evidence.

Positions of the Parties

[89] Mr. Gilman submitted that the only reasonable inference to be drawn from the circumstantial evidence before the court is that Mr. Andrews had knowledge and control of the marijuana and cocaine in the pickup truck, and knowledge and control of the drugs in the storage unit, and that his possession of these drugs was for the purpose of trafficking. Although other inferences may be available on the evidence, to draw them would require the court to engage in impermissible speculation, according to Mr. Gilman.

[90] Ms. Page submitted that the Crown has not proved beyond a reasonable doubt that Mr. Andrews had either knowledge or control of the cocaine seized from the pickup truck. He was not the registered owner of the truck and he was observed driving the truck for only a brief period of time on two consecutive days. Although an Equifax Report with Mr. Andrews’ name on it and his driver’s licence were found in the truck, there is no evidence about when they were put there.

[91] She further submitted that there are reasonable inferences that can be drawn from the Crown’s circumstantial evidence regarding the drugs in the storage unit other than the inference that Mr. Andrews had knowledge and control of the storage unit’s contents. She pointed to the fact that he was seen going to the unit only twice and that no other surveillance was conducted on the unit to determine if others accessed it.

[92] Ms. Page submitted that the court cannot rely on Officer O’Connor’s evidence that he recalls which drug exhibits were seized from the fridge and which were seized from elsewhere in the storage unit, or which exhibits were seized from the storage unit and which were seized from the pickup truck. His evidence, according to Ms. Page, is not reliable, and is tainted by his knowledge of which exhibits tested as cocaine. Furthermore, the court cannot be assisted by the inadequate inventory that he took of the items seized from the unit. For example, the Property Reports prepared by Officer O’Connor, which are marked as Exhibits 32B, 32C, and 32D, list a total of 11 items described as “cocaine from storage”. Yet, Officer McKenzie testified that he seized six bags of suspected cocaine and Officer O’Connor testified that he seized three, for a total of nine. There is no explanation for the discrepancy between the evidence of what was seized and what was recorded on the Property Reports.

Analysis

[93] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[94] The first is that the Crown bears the burden of proving Mr. Andrews’ guilt beyond a reasonable doubt. This standard is a very high one. It is not enough for me to believe that Mr. Andrews is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt. On the other hand, it does not require the Crown to prove his guilt with absolute certainty.

[95] The second is the presumption of innocence. This presumption stays with Mr. Andrews throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged.

[96] The presumption of innocence also means that Mr. Andrews does not have to testify, present evidence, or prove anything in this case. He does not have to prove that he is innocent of these crimes.

[97] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

[98] Mr. Andrews is charged with possession of cocaine and marijuana, and possession of cocaine, marijuana and psilocybin for the purpose of trafficking. The Crown alleges that on July 16, 2013, Mr. Andrews had personal possession of cocaine and marijuana in the pickup truck he was driving, and had constructive possession of cocaine, marijuana and psilocybin in a storage unit he rented at 345 Danforth Road.

[99] The law of possession is well established. The Crown must prove knowledge and control of the thing that the accused person is alleged to possess: R. v. Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.). In this case, the Crown must prove beyond a reasonable doubt that Mr. Andrews knew of the presence of the drugs in the pickup truck, and in the storage unit, and had control of them. Possession may be established by either direct or circumstantial evidence. The Crown seeks to prove Mr. Andrews’ possession of the drugs in the storage unit through circumstantial evidence. Before the court can find that Mr. Andrews had possession of the drugs found in the storage unit, the Crown must establish that the only reasonable inference available from the evidence is that Mr. Andrews had knowledge and control of those drugs: R. v. Yowfoo, 2013 ONCA 751 at para. 6.

[100] As I indicated, Ms. Page conceded that the Crown has proved beyond a reasonable doubt that Mr. Andrews was in possession of the 231.34 grams of marijuana found in the pickup truck for the purpose of trafficking. I therefore turn to the evidence related to the cocaine found in the pickup truck and the drugs found in the storage unit.

[101] Much of the evidence against Mr. Andrews is circumstantial. When assessing circumstantial evidence, I am required to examine the evidence as a whole rather than view the individual items of evidence in isolation. It is the cumulative effect of the evidence that must satisfy the Crown’s burden of proof: R. v. Uhrig, 2012 ONCA 470 at para. 13. In keeping with that direction I have considered the following.

❏ Mr. Andrews was observed driving the black pickup truck on July 15 and 16. Although the registered owner of the truck is George Andrews with a date of birth in 1945, the evidence is that Mr. Andrews had the use of it. When the police searched the pickup truck on July 16, they located an Equifax Report related to Joseph Andrews and Mr. Andrews’ income tax return in the glove box. The date of request recorded on the Equifax Report was July 9, 2013. Mr. Andrews’ driver’s licence was also found in the well of the armrest of the truck.

❏ The marijuana found in the tailgate of the pickup truck on July 16, which Mr. Andrews has conceded he possessed, was contained in a vacuum sealed plastic bag. The letters “O” and “G” were marked on the bag in what appears to be black felt pen. The marijuana seized from the fridge in the storage unit was in a plastic bag with the same letters marked on it in black felt pen.

❏ The cocaine found under the cup holder in the pickup truck on July 16 (depicted in Exhibits 7 and 8), is in the same pressed rectangular form and contained in the same type of Ziploc bags as the cocaine located on the side door of the fridge in the storage unit (depicted in Exhibit 18).

❏ The cocaine seized from the pickup truck was packaged in two separate bags. One bag contained 6.98 grams or approximately ¼ ounce and the other contained 111.55 grams or approximately ¼ pound, quantities in which cocaine is frequently sold, according to Officer Canepa. Officer Canepa testified that the cocaine was worth between $5,200 and $6,800.

❏ Mr. Andrews was observed to drive the pickup truck to the storage unit on July 15 and July 16. On July 15 he was in the unit for approximately 50 minutes; on July 16 for a much briefer period of time, five or ten minutes.

❏ The key to the lock on the exterior steel door of the storage unit was on the key ring seized by Officer McKenzie from the ignition of the pickup truck on July 16. Although there is no evidence that Mr. Andrews used the key on July 15 or 16 to enter and exit the storage unit, he had a key that opened that lock. Officer McKenzie testified that he used the key to open the exterior door when he searched the unit on July 16. The key in the lock is depicted in Exhibit 14.

❏ The Self Storage Lease Agreement obtained by Officer MacNeil records Joseph Andrews as the tenant of storage space #37D. Although the agreement does not state the address of the storage space, I find that it relates to storage unit #37 at 345 Danforth Road. I base this on the fact that Mr. Andrews was in possession of a key that opened storage unit #37 at 345 Danforth Road, that he was observed to go there twice, that the lease agreement shows Joseph Andrews with an address of 95 Trinnell Boulevard as the tenant, and that the size of the unit recorded on the lease agreement is consistent with Officer McKenzie’s estimate of the size of the unit.

❏ The storage unit contained many items commonly used in the distribution of drugs. Many bags of white powder, including more than two kilograms of benzocaine, a common cutting agent for cocaine according to Officer Canepa, were located. Also found were numerous boxes of Ziploc-type bags, dozens of used Ziploc-type bags, a digital scale of the type that Officer Canepa testified is used in the sale of cocaine and marijuana, and a vacuum sealer. In my view, this storage unit was the site of a drug storage and distribution operation.

❏ Although the drugs and most of the indicia of drug trafficking were not visible when the police entered the storage unit on July 16, the pre-search photograph of the unit’s interior (Exhibit 15) shows that there are two bags of white powder in plain view on top of the table beside the fridge, and a vacuum sealer on the top of the fridge. One can also see some of the black garbage bag and another plastic bag sticking out from the bottom left hand drawer of the dresser in the photograph.

[102] Ms. Page submitted that there are too many unanswered questions surrounding the processing of the drugs found in the storage unit for the court to make any reliable findings. She submitted that not only is Officer O’Connor’s evidence unreliable because of his failure to properly record the location of the items seized and the officer who seized them, but that it is also not credible. She urged the court to find that Officer O’Connor’s testimony that the marijuana and psilocybin were found in the fridge is based simply on the photographs and not on his memory, and that his evidence that the hard-pressed white powder was seized from the fridge is tainted by his knowledge that these items tested as cocaine. Ms. Page argued that Officer O’Connor exaggerated the extent of his memory of where the items were located.

[103] I do not accept this submission. As Officer O’Connor testified, he erred in the processing of the exhibits seized from the storage unit. However, he was the officer responsible for taking photographs of the interior of the storage unit. Those photographs, which are independent of Officer O’Connor’s memory, reveal that the marijuana located in the storage unit was found in the fridge as was the psilocybin. In addition, one can see at least some hard-pressed white powder on the side of the fridge door.

[104] I accept Officer O’Connor’s explanation for the inconsistencies in his evidence at trial and the evidence he gave at the preliminary hearing. He testified that he learned of the errors he had made in the processing of the exhibits during the preliminary hearing, and prepared better to give evidence at the trial. He admitted that seeing the photographs and the physical exhibits at the trial helped him to recall matters. He did not see the physical exhibits at the preliminary hearing and could not remember what, if any, photographs he saw at that time. This is a reasonable explanation.

Conclusion

[105] In my view, having regard to the totality of the evidence, the only reasonable conclusion that can be drawn is that Mr. Andrews had knowledge of the cocaine hidden under the cup holder in the pickup truck he was driving on July 16 and that Mr. Andrews had both knowledge and control of the drugs found in storage unit #37 at 345 Danforth Road and that his possession was for the purpose of trafficking.

[106] I am satisfied beyond a reasonable doubt that Mr. Andrews had knowledge and control of the cocaine and marijuana found in the pickup truck and had knowledge and control of the marijuana, psilocybin, and cocaine in storage unit #37 at 345 Danforth Road.

[107] I am further satisfied beyond a reasonable doubt, based on the uncontradicted evidence of Officer Canepa that Mr. Andrews possessed these drugs for the purpose of trafficking. I therefore find him guilty of all counts.

Corrick J.

Released: April 14, 2016