Court File and Parties

COURT FILE NO.: CR-15-3319 DATE: 2016-06-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – John Kushimo and Shannon Pierce

Counsel: Jeff Nanson, Counsel, for the Federal Crown Shannon Pollock, Counsel for the Applicant John Kushimo Frank Miller, Counsel For the Applicant Shannon Pierce

HEARD: June 17, 2016

RULING

BONDY J.

A. Background

1) Introduction

[1] This is an application to quash a search warrant on the basis that it violates section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the Charter). The warrant was issued pursuant to an Information to Obtain Search Telewarrant ("ITO") sworn by Constable Darius Goze ("Constable Goze") on July 31, 2013 at 8:15 p.m. He was at the time assigned to the Drugs, Intelligence, Guns and Surveillance Unit ("D.I.G.S. unit") of the Windsor Police Services.

[2] At approximately 9:30 p.m. on the evening of July 31, 2013, the accused, who is also the applicant, John Tokunbo Kushimo ("Mr. Kushimo") was stopped, arrested and searched near the intersection of Wyandotte St. West and Josephine Ave., Windsor, Ontario. A small amount of cannabis marihuana (1.4 grams) was located on his person.

[3] Shortly after at approximately 10:48 p.m. the search warrant was executed at 697 Bridge Ave., Windsor, Ontario.

[4] The Crown maintains that when the search warrant was executed, the following was seized from a dresser drawer in the master bedroom at 697 Bridge Ave.:

• 95.9 grams of crack cocaine (Count #1);
• 27.8 grams of cannabis marihuana (Count #2);
• $15,260 CDN currency;
• $240 USD currency;
• black "618 Type" touch stun-gun taser (prohibited weapon Count #3);
• functioning digital scale;
• packaging; and
• correspondence

[5] Mr. Kushimo is charged, on or about July 31, 2013, with, Possession of cannabis marihuana in an amount that did not exceed the amount set out for that substance in schedule VIII, contrary to section 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("C.D.S.A.").

[6] Mr. Kushimo is also charged jointly with Shannon Pierce ("Ms. Pierce") with three further offences on or about July 31, 2013, including: Possession of cocaine for the purposes of trafficking, contrary to section 5 of the C.D.S.A; Possession of marihuana in an amount that did not exceed that for a substance in schedule VIII, contrary to section 4(1) of the C.D.S.A.; and Possession of a prohibited weapon, namely a "618 Type" touch stun-gun taser, without being the holder of the license permitting such possession, contrary to section 91(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code").

2) Facts

a) Introduction

[7] At the time Mr. Kushimo first came to the attention of the police he was residing at 7285 Tranby Ave., Windsor, Ontario. That was in June of 2013. By the time the warrant was issued on July 31, 2013, he and the co-applicant, who is also the co-accused, Ms. Pierce had moved to 697 Bridge Ave. According to the information provided by Constable Goze, Mr. Kushimo and Ms. Pearce resided at each address together with two young children.

[8] The warrant was issued based upon representations by Constable Goze that he had reasonable grounds to believe that evidence relating to the offense of trafficking cocaine would be found at 697 Bridge Ave. That evidence included money, packaging materials, debtor lists, digital scales, and crack cocaine.

[9] The information relied upon by Constable Goze came primarily from six sources. They are as follows.

b) Confidential Informant "A"

[10] Confidential Informant "A" (“Source "A"”) is a registered confidential informant with the Windsor Police Service and an admitted drug user. Constable Goze has an informant-handler relationship with Source "A". In June 2013, Source "A" provided Constable Goze information that a male known as "Blue", and later identified as Mr. Kushimo, was an ounce level crack cocaine dealer that was actively selling a lot of crack cocaine.

c) Confidential Informant "B"

[11] Police Constable Sieberer ("Constable Sieberer") is also a member of the D.I.G.S. unit. He has had a relationship with Confidential Informant "B" (“Source "B"”) for a redacted number of months. In June 2013, Constable Sieberer told Constable Goze that he had been informed by Source "B" that "Blue" deals crack every day and always has product on him. Source "B" is also an admitted drug user.

d) The Report of Police Constable Briscoe

[12] Police Constable Brisco ("Constable Brisco") submitted a report dated July 11, 2013. The report indicates that Constable Briscoe attended 697 Bridge Ave. in relation to a bylaw complaint. At the time, Constable Briscoe confirmed that the accused Mr. Kushimo was a resident of 697 Bridge Ave.

e) Surveillance of 7285 Tranby Ave.

[13] In June 2013, Constable Goze conducted a surveillance of 7285 Tranby Avenue. He observed Mr. Kushimo appear on the third floor balcony and say something to a male who was outside of the building on a bicycle. Mr. Kushimo came out, handed the male something which he put in his pocket, and then Mr. Kushimo himself put something into his pocket. Constable Goze opined that the encounter was consistent with a hand-to-hand drug transaction. Later the same day, Constable Goze observed Mr. Kushimo exit the building, get into a black Honda Civic and go to the "Rona" parking lot on Lauzon Parkway, where he met with an already parked vehicle. Mr. Kushimo parked his vehicle side to side with the other vehicle. Although he could not see everything that happened, on the basis of what he did observe, including the brevity of the meeting, Constable Goze opined that the conduct was consistent with a drug transaction.

f) Surveillance of 697 Bridge Ave., July 30, 2013

[14] Although Constable Goze conducted a surveillance of 697 Bridge Avenue on July 30, 2013, no meaningful evidence was gathered.

g) Surveillance of 697 Bridge Ave., July 31, 2013

[15] On July 31, 2013, members of the D.I.G.S. unit attended 697 Bridge Ave. to conduct surveillance. This surveillance transpired at an earlier time of the same day that the search warrant was obtained and executed.

[16] At approximately 2:24 p.m., Mr. Kushimo exited the front door of the house, got onto a bicycle, and rode to a bus stop. He met and sat beside a female who was estimated to be 50 years of age. Mr. Kushimo left after a short time. Constable Goze opined this brief encounter was consistent with a hand-to-hand drug transaction.

[17] At approximately 3:41 p.m., a pickup truck, which was later confirmed to have been rented, pulled up in front of 697 Bridge Ave. Three males exited. The driver was a black male, about 6' 2" or maybe taller, with short black hair. He was estimated to weigh 300 pounds. That description generally matches the description of "P" who according to Source "B" is Mr. Kushimo's supplier.

B. Analysis

1) Issues

[18] The defence does not take issue with the facial validity of the warrant or the sub-facial validity of either the warrant or the ITO. No evidence other than the warrant and the ITO was submitted by either the Crown or the defense. Accordingly, the only issue before me was the facial validity of the ITO.

2) Introduction

[19] I begin with the observation that "[e]veryone has the right to be secure against unreasonable search or seizure": see s. 8 of the Charter.

[20] The tension between the state and the individual in warrant applications is appropriately described in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36. Speaking for the Court, Dickson J. opines that "the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion”.

[21] Once the warrant is issued, there is a presumption of validity with respect to a search warrant and the sworn information supporting it: see R. v. Collins (1989), 32 O.A.C. 296 (ONCA), [1989] O.J. No. 488 (C.A.), at para. 38. The accused bears the burden of persuading the court that his or her Charter rights or freedoms have been infringed or denied. The standard is the civil standard of the balance of probabilities: see R. v. Collins, [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at para. 21.

[22] In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued". The reviewing judge is not to substitute his or her view for that of the authorizing judge: see R. v. Morelli, [2010] 1 S.C.R. 253, at para. 40, and R. v. Araujo, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original).

[23] A non-exhaustive list of the principles to be applied in reviewing a search warrant and its predicating ITO includes:

a) Both the ITO and the warrant must be read as a whole: see R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428, at para. 18; R. v. Church of Scientology of Toronto (1987), 18 O.A.C. 321 (ONCA) at p. 48, [1987] O.J. No. 64 (C.A.).

b) It is the totality of the circumstances which are to be considered: see R. v. Lewis (1998), 38 O.R. (3d) 540 (ONCA), [1998] O.J. No. 376 (C.A.), at para. 15; R. v. Debot (1986), 30 C.C.C. (3d) 207 (ONCA), at 218-219 (Ont. C.A.), aff'd. (1989), R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at 215 (S.C.C.).

c) "The totality of the circumstances encompasses factors which are relevant either to the accuracy of the information supplied by the tipster or the reliability of the tipster as a source of information for the police": see Lewis, at para. 16.

d) It is not generally necessary for the police to confirm every detail in an informant's tip so long as the sequence of events observed by the police conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence: see R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, para. 70.

e) The ITO must be read in a common sense manner having regard to the fact police officers are not legal draftspersons and should not be held to that standard: see Green at para. 17; and Lubell (Re) (1973), 11 C.C.C. (2d) 188 (Ont. H. Ct.), at pp. 190-191, [1973] O.J. No. 179, (Ont. H. Ct.) (Zuber J.).

f) Issuing Justices are entitled to draw inferences from the allegations in the ITO: see Church of Scientology, at p. 48; and Lubell, at p. 190.

See also, for example: R. v. Machulec, 2016 ONSC 1883, at para. 244.

[24] The review is conducted without reference to those portions of the ITO that have been redacted by the Crown, or excised by the court. The latter includes information excised because of a finding that the information provided by an informant does not meet the test for reliability. That limitation is notwithstanding that the reviewing judge will be making a decision based on less information than available to the issuing Justice. The reason for this approach is because allowing a reviewing court to make a decision based on information available to it but not to the accused is contrary to the principles governing the criminal justice process: see R v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, at paras. 45-51 and R. v. Durban, 2012 ONSC 6939, [2012] O.J. No. 5843, at para. 23.

[25] In conclusion, if, based on the record which was before the authorizing judge, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere: see R. v. Araujo, [2000] 2 S.C.R. 992, at para. 51, and R v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at para. 56 (Sopinka J).

3) Standing

[26] In order to have standing, an accused must demonstrate a reasonable expectation of privacy in the property, place or thing searched: see R. v. Edwards, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11, at para. 56.

[27] In this case, the warrant pertained to the residence of the two co-accused. The Crown acknowledges an expectation of privacy with respect to the residence and accordingly concedes standing.

4) The Facial Validity of the ITO

a) Introduction

[28] It is a precondition of issuance that the ITO contain information that permits the issuing Justice to conclude that there are reasonable grounds to believe that there is anything in a building, receptacle or place that will afford evidence of the commission of an offense: see s. 11(1) of the C.D.S.A.; and R. v. Prosser, 2016 ONCA 467, [2016] O.J. No. 3139, at paras. 15 & 16.

[29] In this case, the grounds relied upon were provided in part by two confidential informants. There are three overarching concerns to be addressed in assessing evidence from a confidential informant which was relied upon in obtaining a warrant. They are:

i. Whether the information reporting the commission of a criminal offence is compelling? ii. Where that information was based on a "tip" originating from a source outside the police, was that source credible? iii. Whether the information was corroborated by police investigation prior to making the decision to conduct the search?

see: Debot, at para. 53.

[30] “The first two address the concern that the information may be based on rumour or explainable as an innocent coincidence. The third factor guards against the possibility that the informant is acting maliciously or mischievously”: see R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342, at para. 29, aff’d R. v. Caissey, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66. Weakness in some areas can be compensated by strengths in another: see R. v. Durban, 2012 ONSC 6939, [2012] O.J. No. 5843, at para. 11.

b) Is the information compelling?

[31] A mere conclusory statement made by an informant to a police officer does not provide a sufficient basis for granting a search warrant. The ITO must set out the grounds for the belief that the criminal activity is taking place. In this regard, the underlying circumstances disclosed by the confidential informer must be set out in order to enable the Justice to satisfy him or herself that there are reasonable grounds for believing what is alleged: see R. v. DeBot (1986), 30 C.C.C. (3d) 207 (ONCA), 17 O.A.C. 141, [1986] O.J. No. 994 (C.A.); aff’d R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118; and R. v. Greffe, [1990] 1 S.C.R. 755, [1990] S.C.J. No. 32, at para. 47.

[32] The greater the accuracy and detail, the more compelling the tip: see R. v. Wiley, [1993] 3 S.C.R. 263, [1993] S.C.J. No. 96, at para. 22.

[33] I make the following observations as to the information provided by Source "A" as against those principles.

[34] The description of Mr. Kushimo, where he lived, the part of the building that he lived in, the car he drove, and the fact that he lived with Ms. Pierce were all detailed and subsequently corroborated by independent police surveillance. Source "A" also identified the phone number for the phone Mr. Kushimo used to conduct his drug trade as 226-246-1536. That phone number was corroborated by Source "B". I am aware that this is all information that would be known by any acquaintance of Mr. Kushimo.

[35] The evidence as to Source "A" having purchased crack cocaine on at least five separate occasions is clear. I find that evidence compelling enough to support an inference that Mr. Kushimo is a drug dealer.

[36] Importantly, Source "A" said that he had bought crack cocaine from "Blue" within hours of the request for a warrant having been made. At that time, Source "A" also said that "Blue" is "up", meaning that he has product for sale. Finally, Source "A" said that Mr. Kushimo will be "good" for a while, from which it could be inferred that Mr. Kushimo had taken a sizable delivery. I find that information compelling given the close temporal proximity between the events detailed and the request for the warrant.

[37] Source "A" also told Constable Goze that Mr. Kushimo does not deal with people at his residence and that he believes that Mr. Kushimo always has product with him when he leaves his residence. Source "A" also said that Mr. Kushimo keeps the majority of his stash at the apartment. I make the following two observations with respect to the combined effect of that information.

[38] On one hand, that information is consistent with the drugs being purchased by Source "A" having been stored at Mr. Kushimo's residence. I say that because of the volume of drugs and the fact that Mr. Kushimo always has drugs with him when he leaves the residence.

[39] On the other hand, the expectation of privacy in a personal residence is significant. In this case there is no suggestion that Source "A" actually observed drugs in Mr. Kushimo's residence. As observed by Rosenberg J.A., at para. 26 of the decision in R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, information provided by the informer was essentially a conclusory statement or assumption that Mr. Kushimo keeps the majority of his stash at his residence.

[40] I reiterate, however, that information from Source "A" is not to be considered in isolation but rather in the context of the whole of the information that was before the issuing Justice. This issue is further considered below.

[41] As to Source "B", I make the following observations.

[42] The personal information about Mr. Kushimo provided by Source "B" is much less detailed than that provided by Source "A", and accordingly, less compelling.

[43] There was, however, some information which was sufficiently specific to be considered compelling. That is especially true in the context of the other evidence and information before the issuing Justice. Like Source "A", Source "B" referred to Mr. Kushimo as "Blue". Like Source "A", Source "B" said that Blue’s phone number was 226-246-1536. Like Source "A", Source "B" said that Mr. Kushimo is actively selling crack cocaine. In addition, Source "B" identified Mr. Kushimo's supplier as being 6'2"-6'4" tall, 350 pounds, black, having short black hair, and 25-26 years old. According to Source "B" he goes by the name of "P". He also said that "P" always drives rental vehicles. I reiterate that description generally matches the description of the individual observed at 697 Bridge Avenue in the hours immediately before the warrant had been requested.

[44] As to both Source "A" and Source "B" there was some information for which the source of their knowledge was not identified. Accordingly, a determination as to whether that particular information was based on hearsay or direct observation was difficult or impossible. As a result, that particular information was clearly less compelling.

c) Is the informant credible and reliable?

[45] The defence maintains that there was not enough information available for the issuing Justice to make a reliability and credibility assessment. I disagree with that assertion. I would distinguish between an inability to make any assessment whatsoever and an assessment which may not be entirely favourable. I find the arguments put forth by defence counsel to be more consistent with the latter than the former. I say that because even a tip from an anonymous informer can be found compelling and reliable if appropriately corroborated: see, for example, R. v. Plant, [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, at para. 28; and R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (ONCA), [2000] O.J. No. 1436, (C.A.).

[46] I reiterate that it is "[t]he totality of the circumstances encompasses factors which are relevant either to the accuracy of the information supplied by the tipster or the reliability of the tipster as a source of information for the police": see Lewis, at para. 16.

[47] That said, I do agree with the defence proposition that there are some difficulties with the credibility and reliability of both Source "A" and Source "B".

[48] I begin with the observation that Constable Goze does not actually come out and say that he believes either Source "A" or Source "B" to be reliable.

[49] I reiterate that Source "A" is known to Constable Goze and has provided reliable information in the past. I agree with the defence submission to the effect that the evidentiary value would have been enhanced by including details of past results of information from Source A. These results would include the number of search warrants obtained, the name and quantity of the drugs seized, who was arrested, and similar information that had been revealed.

[50] I also agree with the defence proposition that full disclosure of all material facts is required whether those facts are favorable or not. An informant cannot "pick and choose" the relevant facts in order to obtain the desired results: see R. v. Morelli, [2010] 1 S.C.R. 253, at para. 58.

[51] That requirement of full disclosure must, however, be balanced against maintaining the anonymity of confidential informants. There are two reasons. The first is that "whatever their motives, the position of informers is always precarious and their role is fraught with danger.” see: R. v. Scott, [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at para. 31. The second is that informant privilege is "owned" by both the Crown and the informant her/himself. Accordingly the Crown has no right to disclose information which may reveal the informer's identity: see Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, at para. 23; and R. v. Leipert, [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, at para. 15. The greater the specifics as to past operations the greater the probability the confidential informant will be found out and potentially suffer consequences at the hands of those who he/she informed upon.

[52] To be clear, I am not suggesting that any inference favourable to the Crown result from the caution exercised. I am only observing that it was open to the Justice to conclude that the lack of specifics regarding past operations was a result of protection of the anonymity of confidential informants, rather than an attempt to pick and choose relevant facts in order to obtain the desired result.

[53] The same goes for intimate details of the confidential informant’s criminal record and the precise nature of their crimes of dishonesty.

[54] To that I would add that I disagree that anything turns on the precise nature of the crimes of dishonesty. The law is well-established that a conviction for a crime of dishonesty negatively impacts credibility. Further, the monetary value of the offences or the fact they may be common crimes does not alter the negative impact: see R. v. Turlon (1989), 32 O.A.C. 396 (ONCA), [1989] O.J. No. 524 (C.A.). As a result, I considered the evidence of Source "A" in that context.

[55] The fact that Source "A" is an admitted drug user would require the issuing Justice to approach the information provided by her/him with some caution. It is, however, equally true that this background provides her/him with the requisite understanding of the drug subculture. That was observed by Constable Goze in the ITO.

[56] I also agree with the defence observation that specific information may have been of assistance to the Crown's case. Particularly, the precise number of times that Source "A" has provided information which resulted in search warrants where people were arrested and the drugs named on the warrant were seized. That said, it was open to the reviewing judge to conclude that there had been two occasions on the basis of the language employed in the ITO. Accordingly, I considered the decision of the authorizing Justice on that basis.

[57] The defence maintains that the information does not provide the timing of Source "A's" prior tips in relation to the information provided in this investigation. I disagree. The duration of the informant-handler relationship is described in terms of months rather than years. It follows that there was a reasonably close temporal proximity between past tips noted and the present tip.

[58] I further agree with the defence observation that the information before the issuing Justice does not disclose the number of times Source "A" provided information that was incorrect, nor does it provide any other indicators of the accuracy of Source "A's" predictions. I also agree that the information before the issuing Justice does not disclose the number of times the information provided resulted in convictions. As a result, I also agree with the defence position that this adversely impacts the credibility and reliability of the information provided by Source "A". It follows that I considered the decision of the authorizing Justice in that context.

[59] My observations as to the information of Source "A" also apply to Source "B". To that, I would add that the information provided by Source "B" only resulted in the issuance of a single search warrant. In other words, Source "B" does not have much of a track record.

[60] Also, as to both Source "A" and Source "B", there was no information as to potential motives for them supplying information to the police. This again negatively impacted reliability and credibility and again I considered the decision of the authorizing Justice in that context.

[61] In summary, the information from which the authorizing Justice could assess the reliability and credibility of Source "A" and Source "B" was less than optimal when considered in isolation. That said, I find that as a result of the corroboration of important portions of the information provided by each source it was open to the authorizing Justice to consider that information in the context of all of the information, albeit assigning it appropriate weight.

d) Were the tips corroborated?

[62] Corroboration of some parts of a tip by other means can act as indicia of reliability of the tip generally: see R. v. Caissey, 2007 ABCA 380, at paras. 18 & 24-25; and R. v. Plant, [1993] 3 S.C.R. 281, at para. 28. The level of verification required may be higher when the police rely on an informant whose credibility cannot be assessed, or where fewer details are provided and the risk of innocent coincidence is greater: see R. v. Debot, [1989] 2 S.C.R. 1140, at para. 70. For the reasons above, I find that is the situation here.

[63] Corroboration does not necessarily have to go to the criminal act itself. It is sufficient when the facts corroborated related collateral issues such as identity, age, address, occupants of the home or descriptions of vehicles; provided the information is detailed and compelling: see R. v. Caissey, 2007 ABCA 380, at para. 25; and R v. Rocha, 2012 ONCA 707, at paras. 22-25. However, it is necessary that the information provided go beyond innocent facts which could have been known by any acquaintance of the suspect. The information must provide a reasonable basis for believing that the suspect is engaged in conduct which is distinguishable from that of a law abiding citizen: see R. v. Muller, 2011 ONSC 4892, [2011] O.J. No. 3971, at para. 48 (Pomerance J.), rev’d on other grounds 2014 ONCA 780, [2014] O.J. No. 5327.

[64] In assessing the evidence, the issuing Justice is entitled to rely upon the opinion of the author of the ITO as to such things as the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia. The contents of an ITO need not be compliant with the rules of evidence applicable at trial: see R. v. Prosser, 2016 ONCA 467, [2016] O.J. No. 3139, at para. 18.

[65] Source "A" and Source "B" tended to corroborate the evidence of each other. Both said that they had purchased crack cocaine from Mr. Kushimo and both were aware that he lives in the east end around Lauzon Parkway. The information in that regard from Source "A" was however much more detailed. Both referred to Mr. Kushimo as "Blue" and both gave the phone number at which Mr. Kushimo could be reached as 226-246-1536.

[66] That evidence was also corroborated and significantly expanded upon by police surveillance.

[67] The surveillance and other evidence as to the details of where Mr. Kushimo lives, the type of car that he drives, his physical characteristics etc. all tend to corroborate information provided by both Source "A" and Source "B". I am aware that that is evidence that any acquaintance of Mr. Kushimo would likely know. That, however, does not detract from its accuracy.

[68] Importantly, the surveillance confirmed the assertion made by both Source "A" and Source "B" that Mr. Kushimo is in fact a drug dealer. Specifically, the encounters between Mr. Kushimo and other individuals in June 2013 and July 31, 2013, as described by the officers on surveillance, are consistent with drug transactions. The nature of these encounters which allow for such an inference is described below.

[69] Further, it was open to the issuing Justice to infer that the tall and large individual who attended Mr. Kushimo's residence in a rented vehicle on July 31, 2013 was potentially "P". I reiterate Source "B" had identified "P" as Mr. Kushimo’s supplier.

[70] I also reiterate that the surveillance evidence tends to expand on the information provided by Source "A" and Source "B". Critically, the surveillance evidence tends to support Source "A's" assertion that Mr. Kushimo stores his "stash" in his residence.

[71] For example, it was open to the authorizing Justice to infer from the evidence obtained on the surveillance of 7285 Tranby Ave. that drugs were stored in the Tranby Ave. apartment. I say that because on both of the occasions when Constable Goze observed what he believed to be hand-to-hand drug transactions, Mr. Kushimo had been observed leaving the apartment building and going directly to the purchasers.

[72] Similarly, an inference could be drawn from the evidence obtained from the July 31, 2013 surveillance of 697 Bridge Ave. that Mr. Kushimo stores the drugs in that residence. As said above, Mr. Kushimo was observed going directly from his house to a bus stop where what was believed to be a hand-to-hand drug transaction was completed.

[73] I am aware that defence counsel maintains that it was not open to the issuing Justice to infer that the conduct at the bus stop described by Constable Goze was consistent with a hand-to-hand drug transaction. That is because there is no evidence that Mr. Kushimo's hands had actually been observed. I disagree with that assertion. Constable Goze was an experienced police officer who had been in the D.I.G.S. unit for over three years at the time that observation had been made. Given the combination of the information provided by the officer, and his opinion based on field experience, I find it was open to the issuing Justice to make that inference.

[74] In summary, Mr. Kushimo had been observed by the police leaving his residence to complete drug transactions on multiple occasions. That practice was observed when he lived on Tranby Ave. and also when he lived on Bridge Ave. I find it was open to the issuing Justice to infer that the drugs Constable Goze believed Mr. Kushimo was selling on each of those occasions had been stored in the residence from which he had just emerged.

e) Conclusions as to Facial Validity

[75] In summary, I agree with the defence proposition that credibility and reliability of both Source "A" and Source "B" left something to be desired. I also agree that the information provided was not as compelling as that often observed in similar circumstances.

[76] However, I reiterate that in assessing whether the issuing Justice could have granted the authorization, the reviewing judge must consider the totality of the circumstances. I also reiterate that weakness in one area can be compensated by strength in another.

[77] I find that the independent surveillance conducted by the police accomplishes that end in the circumstances of this case. The surveillance of 7285 Tranby Ave. and the surveillance of 697 Bridge Ave. were all consistent with Mr. Kushimo being a drug dealer. The surveillance of 7285 Tranby Ave. and the surveillance of 697 Bridge Avenue tended to corroborate Source "A's" assertion that Mr. Kushimo stored his "stash" in his residence. I find that it was open to the authorizing Justice to infer that the drugs which were the subject of the warrant were stored in Mr. Kushimo's residence based on the totality of the information before her or him.

[78] For the foregoing reasons, I find that the evidence which was before the authorizing Justice as to facial validity was sufficient for her/him to grant the authorization.

5) Conclusions

[79] For all of these reasons, I conclude that the defence has failed to demonstrate on a balance of probabilities that the authorizing Justice could not have granted the authorization on the record before him or her. It follows that I should not interfere.

C. Order

[80] Accordingly, the defence application to quash the search warrant is dismissed.

Christopher M. Bondy Justice

Released Orally: June 24, 2016

COURT FILE NO.: CR-15-3319 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – John Kushimo and Shannon Pierce REASONS FOR JUDGMENT Christopher M. Bondy Justice

Released Orally: June 24, 2016