Court File and Parties

COURT FILE NO.: 7525-14 DATE: 20160512 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Fred Rojas-Machuca

BEFORE: Justice E. Gareau

COUNSEL: J. Chapman, Federal Crown K. Walker, Counsel for F. Rojas-Machuca

HEARD: May 11, 2016

Endorsement

[1] Before the court is an application for an order excluding evidence seized pursuant to a search warranted issued by a justice of the peace. The application is made under s. 8 of the Canadian Charter of Rights and Freedoms, which reads as follows:

Everyone has the right to be secure against unreasonable search or seizure.

[2] The position of the applicant is that the search warrant ought not to have been authorized given the lack of reasonable grounds in the information to obtain. The applicant alleges a s. 8 breach and argues that the evidence obtained resulting from the search warrant should be excluded by application of s. 24(2) of the Charter. In particular, the applicant argues that the information to obtain does not contain sufficient information to establish that there are drugs at the residence at 19 Taylor Boulevard, Elliot Lake, Ontario and that there is an inadequate nexus in time between the alleged offences and the issuance of the search warrant (the time being approximately one month between the two events). Despite the arguments advanced by counsel for the Federal Crown, I am satisfied that the applicant has established a sufficient privacy interest to be protected in that the information to obtain indicates that he resides at 19 Taylor Boulevard, Elliot Lake, Ontario and that he has standing to bring the s. 8 Charter application.

[3] I have reviewed the information to obtain a search warrant deposed to by Officer Ken Adams on September 18, 2013.

[4] I have conducted my review on the basis of the instruction set out in R. v. Garofoli, [1990] S.C.J. No. 115 where at paragraph 56 Mr. Justice Sopinka, speaking for the Supreme Court of Canada, stated:

The reviewing judge does not substitute his or her view for that of the authorizing judge. 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, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[5] I am satisfied that the information to obtain is sufficient in tying the applicant to the residence at 19 Taylor Boulevard, Elliot Lake, Ontario and establishes the probability of drugs at that residence. In that regard, I refer to paragraphs 157, 158 and 161 of the information to obtain. Given the fact that the investigation pertaining to the applicant was part of a wide-scale ongoing investigation in the East Algoma area, referred to as “Project Northshore”, I am satisfied that there is a sufficient connection in time between the last drug transaction (August 22, 2013) and the date the warrant was issued (September 19, 2013) and that the information to obtain is not fatal on the basis of its timeliness.

[6] On a review of all the evidence provided on the Charter motion, I am satisfied that the information to obtain contained sufficient and credible information to establish reasonable grounds to satisfy the justice of the peace that a search warrant should issue with respect to the residence of the accused at 19 Taylor Boulevard, Elliot Lake, Ontario.

[7] With the finding that there has been no Charter breach under s. 8 of the Charter, it is not necessary for me to consider s. 24(2) or apply the principles set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[8] Accordingly, the application is dismissed.

Justice E. Gareau Date: May 12, 2016