CITATION: R. v. Masilamany, 2016 ONSC 7638

COURT FILE NO.: 14-G1024

DATE: 2016/12/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Kirthi Masilamany

Applicant

– and –

Her Majesty The Queen

Respondent

P. Giancaterino, for the Applicant

J. Meloche and J. Hanna, for the Crown

HEARD: September 19, 20 and 21, 2016

REASONS FOR JUDGMENT

KANE j.

Charges

1Mr. Masilamany is charged pursuant to:

(a) Section 5(2) of the Controlled Drugs and Substances Act¹ for possession of drugs for the purpose of trafficking;

(b) Section 354(1)(a) of the Criminal Code of Canada² for knowingly being in possession of the proceeds of crime;

(c) Section 259(4) of the Code for operating a motor vehicle while disqualified; and

(d) Section 145(3) of the Code for breach of a term of recognizance prohibiting his operation of a motor vehicle and a recognizance breach as to residence.

Application, Relief Sought and Grounds

2Mr. Masilamany seeks an order excluding:

(a) any evidence seized during the execution of a section 11 Controlled Drugs and Substances Act (“CDSA”)warrant from his residence at 40 Starwood Rd. (the “Residence”) on January 16, 2014;

(b) any narcotics, debt lists, drug paraphernalia or currency, found at Mr. Masilamany Residence during the search thereof, or subsequent to that search while the applicant remained under arrest;

pursuant to sections 7, 8 and 24(2) of the Canadian Charter of Rights and Freedoms. ³ (the “Charter”)

Grounds of Application

3Mr. Masilamany submits that:

(a) the information in the Information to Obtain Search Warrant (the “ITO” and the “Warrant”) of the affiant, Detective Hill, (the “Affiant”):

i. contained inaccurate information, meant to mislead the Justice and ought not to have been relied upon;

ii. contains reckless disregard to the truth, material non-disclosure and facts which are in conflict with new evidence obtained at the preliminary hearing in this proceeding;

iii. lacked “full, fair and frank” disclosure;

iv. contains material omissions as to the observations of the applicant made by the Sub-Affiants, which is required to be disclosed on an ex-parte application and relevant to the review process;

v. all of which errors are material and would have influenced the issue of reasonable grounds and/or altered the character of the ITO affidavit and the issuance of the authorization;

vi. were known or should reasonably have been known by the Affiant to be false.

(b) The information provided by the Informant, once subjected to a Debot review, is not legally sufficient to provide a sufficient foundation for reasonable grounds.

(c) The ITO listing of the Residence as a location where heroin and oxycodone would be located lacks any clear nexus between the Residence and the alleged sale and/or purchase of the trafficked substances at that Residence;

(d) The Affiant did not have sufficient grounds to believe the Applicant was trafficking substances listed in the CDSA and no reasonable grounds to believe that trafficking evidence would be afforded in the Residence:

(e) The OPS have lost their January 8, 2014 surveillance notes (the “Lost Evidence”) which cannot therefore be produced to the applicant, however the surveillance results for that date are recorded in the ITO (the “January 8 Entry”) which was before the Justice. The January 8 Entry in the ITO should therefore be excised from this court’s consideration on this application;

(f) The court should conclude that the ITO lacked sufficient credible and reliable evidence that might be reasonably believed upon which the Warrant could have issued; and

(g) The product of the exercise of the Warrant should therefore be excluded from evidence pursuant to s. 24(2) of the Charter.

4The Crown submits that:

(a) The ITO was prepared by Detective Hill on the basis of the information contained in the occurrence reports prepared for each date of surveillance;

(b) There is no evidence that the ITO statements are inaccurate or misleading as to any surveillance occurrence;

(c) It is impermissible to compare the statements of facts contained in the January 16, 2014 ITO, to the Sub-Affiants testimony approximately one year later after the surveillance in February 2015 because such cross-examination information from the preliminary inquiry did not exist and therefore was not known by the ITO Affiant at the time of preparations and presentment of the ITO on January 16, 2014;

(d) There is no contradiction or omission between the events recorded in the occurrence reports and the statements of the Sub-Affiants on cross-examination;

(e) Independent of the conclusionary opinions of Detective Hill in the ITO that the occurrences reported in his opinion were consistent with drug transactions, there is consistency in the reporting of events recorded in the occurrence reports, the ITO and statements of the Sub-Affiants on cross-examination one year later in February 2015; and

(f) The Crown acknowledges that its inability to produce the occurrence report for January 8, 2014 results in the exclusion of that occurrence date summary and information from this court’s review of the ITO and the warrant issued. Mr. Masilamany agrees to proceeding in that manner as to the January 8, 2014 surveillance.

5The Court in its decision dated September 19, 2016 granted Mr. Masilamany leave to cross-examine Detective Hill, the Affiant of the ITO as well as Detectives Cory and Emery who participated in the surveillance. The cross-examination proceeded on September 19, 2016.

Background

6The Ottawa Police Service Drug Unit (the “OPS”) received complaints on April 22 and 23, 2013, of reported drug activity by a male who was later identified as the accused. The OPS conducted surveillance of Mr. Masilamany on April 26 and May 30, 2013.

7On December 20, 2013, the OPS received information from a first-time confidential informant (the “Informant”) that Mr. Masilamany was engaging in trafficking heroin and oxycodone.

8The OPS conducted surveillance of Mr. Masilamany on January 8, 9, 10, 14 and 15, 2014.

9Detective Hill in the ITO states that based upon activities reported about a dark skinned male walking a bull mastiff dog, information from the Informant and the results of surveillance of the accused, he concludes that the accused during OPS surveillance had been observed conducting a series of short drug transactions and that a search of his Residence and/or a black 2004 Porsche automobile bearing Ontario license marker BSFA408 for which the Warrant was required, would likely reveal evidence of Mr. Masilamany possession of drugs for the purpose of trafficking including heroin and oxycodone and documentation in relation thereto including related documentary evidence, drug paraphernalia, Canadian currency, cellular telephones, safes and lockboxes.

10The OPS presented the ITO sworn by Detective Hill to a Justice of the Peace on January 16, 2014.

11The sworn ITO of Detective Hill is based on his own surveillance observations and the surveillance observations of the S-A as recorded in the surveillance notes made by the designated note taker per date of surveillance.

12The Warrant was granted by a Justice of the Peace on January 16, 2014. The Warrant was exercised at the Residence later on January 16, 2014 during which the OPS found various narcotics, equipment and alleged proceeds of criminal offences in the Residence. Mr. Masilamany was arrested during this exercise of the Warrant on January 16, 2014 on these charges.

Surveillance of April 26 and May 30, 2013

13As to the surveillance of the accused conducted on April 26 and May 30, 2013, no details thereof are contained in the ITO. Detective Hill in the ITO states; “I am not relying upon the results of those surveillances in support of this application.”

14The accused submits this statement as to the April 26 and May 30, 2013 surveillance omits to place relevant information before the issuing Justice. He submits that the ITO as to these two days of surveillance should state that no wrong doing by the accused was observed on these two dates.

15This Court disagrees with that submission.

16Section 487.01(1) of the Criminal Code provides that to obtain a warrant, a judge must be satisfied by written information under oath that there are reasonable grounds to believe that an offence has been or will be committed.

17There is no purpose for police to apply for a warrant based on surveillance, if the surveillance conducted led the affiant in the ITO to conclude, as here, that he “was not relying upon the results of that surveillance in support of this application.” It is clear from this statement that there was no wrongdoing observed as to the purpose of the surveillance and the warrant sought, namely evidence witnessing or suggesting drug related transactions on April 26 and May 30, 2013. That is the only logical and proper interpretation of this notation in the ITO as to those dates. The Justice was not misled by an alleged failure to state this conclusion in a different way.

January 8, 2014 and Lost Evidence

18During argument, the parties agreed that paragraph 3.04 of the ITO as to surveillance conducted on January 8, 2014 is to be excluded and not considered as to the whether there were sufficient and reasonable grounds before the Justice to justify the issuance of the Warrant.

19This review is accordingly so limited in excluding that information before the issuing Justice.

ITO

20The Affiant, Detective Hill, was a participant in the surveillance of Mr. Masilamany on January 8, 9, 10 and 14, but not on January 15, 2014.

21Detective Hill in the ITO states he relies upon:

(a) information of two complainants provided to the OPS as contained in a April 22, 2013 occurrence report, that on most days around noon or in the evening, a dark skinned male, between 5’10” to 6’ tall, with a large brindle coloured bull mastiff dog, attended the rear of 1370 Clyde Avenue, met with a white driver of a Ford Fiesta and engaged in what they believed to be drug transactions;

(b) the information on April 23, 2013 of one of the above complainant’s report to police that the dark skinned male reported on April 22, was then meeting the white driver of the Ford Fiesta at the rear of 1370 Clyde Avenue. A member of the OPS thereupon attended that reported site and observed a dark skin male walking a large Bull Mastiff dog;

(c) OPS investigation and communication with others determined that the dark skinned male individual observed by the OPS behind 1370 Clyde Ave., resided at the Residence in front of which was parked a Volvo bearing license plates registered to the accused;

(d) the April 24, 2013 report by another individual to the OPS that he had observed the dark skinned male in question on April 23, 2013 sitting behind the mall at 1370 Clyde Ave. at a picnic table with his dog, had seen that person frequently at that location behind the mall, that it seem like he was waiting for somebody, assumed that he was walking his dog and did not believe him to be suspicious;

(e) the December 20, 2013 allegations of a first time Informant to the OPS that the accused was East Indian, was trafficking in heroin and oxycodone, that he arranged drug orders via his cell phone and dealt drugs using his Maserati, his Volvo or his Porsche, also travelled on foot with his bull mastiff dog to meet customers and would often deal behind businesses on Merivale Road; and

(f) the observations during subsequent surveillance of Mr. Masilamany as observed by Detective Hill and by other members of the OPS surveillance team.

Surveillance Events Reported in ITO

January 9, 2014

22The surveillance notes as to this date are those of Officer Pilon and indicate participation by 9 other members of the OPS.

23The ITO states that:

(a) The OPS observed the accused at 4:35pm walking with his dog to and then entering the Residence. The accused at the time wore a black coat with a fur collar.

(b) The accused was observed at 6:09pm leaving the Residence, driving the Porsche to a meat store at 1400 Clyde Ave where he purchased products and then drove back to the Residence at 6:29pm.

(c) The Porsche departed from the Residence at 9:44pm, drove to the back of a store mall at 1508 Merivale Rd and then parked. A Silver Dodge Neon, bearing Ontario markers BSFA821 (the “Neon”), arrived and parked beside the Porsche, whereupon a white male exited the Neon and entered the rear passenger seat of the Porsche and then exited therefrom approximately one minute later. That male then entered the Neon, whereupon both vehicles departed.

(d) Shortly thereafter the driver of the Neon turned on that vehicle’s dome light and looked at an unidentified item in his left hand.

(e) The Porsche drove to, and stopped at 221 Stewart St. at 10:03pm, whereupon a passenger exited the Porsche wearing a black coat with a hood and fur trim, walked to an address on the North side of the street and then returned to the Porsche within one minute at 10:04pm. The Porsche then drove to the Residence. At 10:19pm, an unknown person exited the Residence and drove away in a Volvo.

24Detective Hill in the ITO states his belief that:

(a) the accused engaged in two drug transactions at 9:46pm and 10:03pm; and

(b) this surveillance corroborates the allegations of the Informant that the accused has a Porsche and a Volvo.

25The legal issue before the Justice was not what Detective Hill believed. The question was what evidence was presented to reasonably support his conclusions that the events reported constituted drug transactions by the accused and whether those actions were linked to his Residence and his automobiles.

Position of Accused

9:46pm and 10:03 Events

26The accused submits that as to the 9:46pm event with the Neon that:

(a) Officers Corey and Pilon on cross-examination at the preliminary inquiry testified they could not identify the accused as an occupant of the Porsche in these events; and

(b) The ITO omits stating that the surveillance members could not see, a) the hands of the persons in the Porsche, b) what if anything were in the hands of the person in the Porsche and the Neon driver who entered the Porsche or c) whether anything was transferred between those occupants in the Porsche.

27The accused submits that the issuing Justice was therefore misled in Detective Hill’s statement in the ITO as to his belief was that these two events constituted drug transactions by the accused.

28The surveillance notes for this date identify the accused driving the Porsche between 18:19 and 18:28 hours. The ITO states the accused drove the Porsche to and from the meat shop between 18:09 and 18:29 hours while wearing a black coat with a fur collar

29The accused submits the evidence of the officers at the preliminary inquiry was clear that they could not identify the accused.

30I agree that the only connection to the accused as to these two events were the facts that:

(a) the accused earlier that day was observed walking while wearing a coat with a fur collar;

(b) driving the Porsche; and

(c) the male in these two events involved the use of the Porsche and was wearing a black coat with hood and fur trim.

31This limited identification of the person involved however was accurately disclosed in the ITO.

32Neither the ITO nor the surveillance notes state the accused was visually identified as the driver or occupant of the Porsche at these two events at 21:46 and 22:03 hours. The ITO however has the occupant of the Porsche at 22:03 hours exiting and then entering the Porsche at Stewart St. while wearing a black coat with hood and fur collar which is a similar description of a coat the accused wore on other occasions.

33The ITO does not state and no such information was before the issuing Justice that as to these two events, the surveillance team:

(a) could see or saw the hands of the two persons inside the Porsche;

(b) could see what if anything were in the hands of either male; or

(c) could see whether anything was transferred between the occupants in the Porsche.

34The absence of visual identification of the accused during surveillance as to these two events, were the facts as reported in the ITO before the issuing Justice. The ITO does not state that the OPS visually identified the accused as the Porsche occupant or wearing the black hooded coat with the fur collar. Detective Hill in his ITO conclusion states his belief that the person in the Porsche and wearing the black hooded coat with fur collar was the accused.

35Notwithstanding the absence of direct visual identification of the accused as revealed in the ITO on these two events, the Justice issued the warrant. These however were not the only events in the ITO before the Justice.

36The observation that the person wore a black coat with hood and fur trim alone, and for this single event, is not identification of the accused and carries little weight. Were this the only evidence before the Justice, it is doubtful a warrant would have been issued.

37The ITO however was subsequently prepared and reports on a series of events which include instances of the accused being visually identified wearing a coat as so described. The Justice had this same cumulative evidence in considering whether or not reasonable grounds had been presented.

January 10, 2014

38The surveillance notes as to this date are those of Officer Redmond which indicate participation by seven other members of the OPS.

39The ITO states:

(a) the accused drove and stopped the Porsche at the Residence at 3:16pm. The accused exited the Porsche, left the motor running and entered the Residence. At the same time a male and female child exited the passenger side of the Porsche, enter a silver Volvo parked on the street and drove off.

(b) at 3:30pm, the accused, while driving the Porsche, departed from the Residence with an unidentified female in the passenger seat and drove to an apartment building at the rear of 2781 Richmond arriving at 3:41pm. The Officers lost sight of the Porsche for about 2 minutes, but then located it parked in a parking spot. A male then entered the back passenger side seat of the Porsche and then exited the Porsche 1 or 2 minutes later.

(c) The Porsche then drove to a drug store at 3:53pm. The female passenger exited the Porsche. The accused then drove the Porsche out of the parking lot and parked across the street. The female entered that drug store where she remained until exiting it at 4:12pm and then walked to and entered a second drug store which she exited 4:24pm, whereupon the accused in the Porsche picked up the female and drove to the Residence.

(d) The Porsche left the Residence at 8:58pm, travelled to, and stopped, at 109 Leduc St. in Gatineau at 9:14pm. A white male walked up to the open passenger window. Some 20 seconds later the Porsche departed and drove to and stopped at 271 Stewart St. at 9:24pm. The accused then exited the Porsche and walked into a dark laneway where he remained for about 20 seconds whereupon he returned to the Porsche, departed, and then drove to the Residence arriving at 9:38pm.

40Detective Hill as to this surveillance, states in the ITO his belief that the accused engaged in three drug transactions at 3:41pm, 9:14pm and 9:24pm.

Position of Accused

3:41pm Event

41The accused states that Officers Corey or Redman at the preliminary inquiry testified that they did not see another male enter into, or exit, from the rear seat of the Porsche.

42The surveillance notes as to this event indicate that the male who entered into the passenger side rear seat of the Porsche and exited therefrom two minutes later, was observed and reported by Detective Hill, not by Officers Cory or Redman. The absence of such observations by Officers Cory and Redman creates no omission or misstatement of these facts to the issuing Justice.

43On cross-examination, Detective Hill as to the 3:41 pm event stated he made this observation from a distance of approximately 50ft. from the accused seated in the Porsche. He agreed he did not visually see:

(a) a transaction occurring inside the Porsche between the accused and the other male who sat in the rear seat of the Porsche for approximately 1 or 2 minutes; and

(b) the other male exiting the Porsche with possession of an item or in his hands.

9:14pm and 9:24pm Events

44The accused states that Officers Cory and Arsenault at the preliminary inquiry testified as to these transactions and stated that they could not identify the driver or occupants in the Porsche.

45The 9:14pm event continues into the 9:24pm event in that the Porsche is returning to Ottawa from the Gatineau event. Detective Hill is listed as the source of the 9:24pm event as to which the surveillance notes, upon which he was cross-examined, state that the “Target” exits and then re-enters the Porsche.

46The ITO as to the 9:24pm event indicates that the accused exited the Porsche in front of 271 Stewart St., walked into and remained in the laneway for 20 seconds before returning to the Porsche and then departing that location.

47The surveillance noted in the ITO records the accused’s use of a Porsche, which corroborates that detail provided by the Informant.

48On cross-examination, Detective Hill testified that:

(a) as to the gas fill up at 9:02pm, he understood it was the accused who entered and then exited the kiosk; and

(b) as to the 9:24pm event, he saw the accused, who is described as the “Target” in the surveillance notes. His identification of the accused was based upon the seating position and clothing of the accused and not via facial identification.

(c) The surveillance officers would report “unknown” to describe a person who they could not identify if that was the case rather than the accused, who was the “Target” of the surveillance.

49Detective Hill testified that he identified the accused based on his seated position in the same Porsche and his clothing, but not by facial identification. It is true that others, at times, drove the Porsche. Detective Hill did not however reverse this identification evidence during his cross-examination.

50Whether another officer was unable to identify whether the male was the accused is not relevant.

51Based on the evidence presented including cross-examination of the Affiant, I would not exclude or amend this information before the Justice.

January 13, 2014

52Detective Hill in the ITO states that on this date, he conducted a CPIC inquiry which disclosed that the accused:

(a) was then bound by recognizance terms related to two counts of driving while disqualified which prohibited him from driving, to keep the peace and reside at a residence in Montreal P.Q.;

(b) had an outstanding charge or breach of probation;

(c) was prohibited until expiry in April 2014, from driving in Canada:

(d) had a criminal record for two convictions of possession of drugs for trafficking, breaches of recognizance terms, probation, driving while impaired, resisting arrest and dangerous operation of a motor vehicle.

53The Court concludes there was no material misstatement or omission as to the reference to the accused, or “Target”, in the 9:14 and 9:24 events.

January 14, 2014

54The surveillance notes as to this date are those of Officer Cory and indicate participation by 6 other members of the OPS.

55The ITO states:

(a) that a blue Maserati, bearing Ontario markers BSNA770 (the “Maserati”), and the Porsche were observed parked in the driveway of the Residence covered in snow.

(b) The accused at 12:23pm exited the Residence, wearing a black jacket with a fur trimmed hood together with a large dog.

(c) The accused met a white male also walking at 12:27pm. The accused and the other male had a hand to hand exchange which lasted a few seconds before walking into a parking lot behind the Parts Source store at 1508 Merivale Rd.

(d) At 12:30pm, the accused walked to the passenger side of a waiting brown Honda CRV, license # AVCX507. The accused removed an unknown item from his right pants pocket and then reached through the open window of the Honda. The Honda then departed. The accused then walked with his dog to the Residence.

(e) At 1:45pm, the accused drove the Porsche to the rear parking lot of the Part Source store at 1508 Merivale Rd. and parked beside a Nissan Maxima, Ontario marker BLHZ613. The male driver exited the Nissan and entered the back passenger side seat of the Porsche. The accused looked down to his lap and then reached back to the passenger area. The other male then exited the Porsche and boarded the Nissan.

(f) The Porsche at 1:50pm then travelled to a fast food restaurant which the accused then entered, purchased food, departed and then at 1:59pm drove to the Residence.

56Detective Hill in the ITO expressed his belief that:

(a) the accused engaged in three drug transactions at 12:27pm, 12:30pm and 12:46pm;

(b) this surveillance corroborates the information of the Informant that the accused will meet customers on foot with his dog and also drives a Maserati.

57Detective Hill on this date also received a corporation profile report for Heart 02 Corporation, to which the Porsche and Maserati were registered to. That same report records that:

(a) the company was incorporated in 2009;

(b) the accused was its sole Director; and

(c) the listed business address of the company was C-386 Bank St. The OPS subsequently determined that the C-386 Bank St. address was occupied by Golden Dragon Property Management.

58Detective Hill in the ITO states that this corporate search result corroborates the Informant’s statements that the plaintiff was a business owner.

Position of Accused

12:27pm Event

59The accused submits there is no evidence of a drug transaction in this event as there is no evidence of anything being transferred from the accused to the other male.

60The accused as to this event relies upon the preliminary inquiry cross-examination of Officers Cory and Emery.

61Officer Cory stated he only saw the two hands coming together, could not see if anything was in those hands and could not say if anything was transferred. Officer Emery stated he did not see the exchange of an item.

62The ITO as to this event and the notes written by Officer Cory each state there was a “brief hand to hand exchange that lasted only a few seconds”. The phrase of a hand to hand exchange suggests that something was transferred between the hand of the accused and the hand of the other male, as opposed to for example a simple hand shake.

63Detective Hill in the ITO expresses his belief that this was a drug transaction by the accused.

64Detective Hill on cross-examination testified that:

(a) He could not see the other person or whether that person was carrying anything upon the two men departing.

(b) He heard Officer Cory at the time report this event over the radio as a hand to hand exchange but he did not later ask that officer what was seen exchanged.

(c) Based on his 14 years of policing street drug deals, he stated that one never sees the drug item being exchanged in a quick street transactions like this and that in the past exchanges of a drug item have occurred as part of a simple handshake.

(d) The hand to hand exchange, within the surrounding events, was consistent with a street drug transaction.

(e) Officer Cory could have been more specific as to what he specifically observed being exchanged.

65Officer Cory on cross-examination testified that on this occasion he saw the accused meet with a white male and they then had a hand to hand exchange. He testified at the preliminary inquiry that he did not see any item exchanged between the two men. On cross-examination, he stated:

(a) he did not see an item or anything in the hand of either male but;

(b) what he saw was not a handshake between them, which he would have reported as such;

(c) the accused handed something to the white male in what appeared to be a hand to hand exchange, however, he did not see an item pass between them.

(d) as he departed away from the accused, the white male looked down into his opened hand.

12:30pm Event

66The accused submits:

(a) there is no evidence of a drug transaction in this event as there is no evidence of anything being transferred from the accused to the other male.

(b) The ITO should have stated that the surveillance officers did not see an item in the hand of the accused or delivered to the Honda occupant when the accused placed his hand in the Honda window.

67The accused relies upon the preliminary inquiry cross-examination of Officer Emery who testified that he did not see an item exchanged.

68The ITO sworn by Detective Hill states that the accused, again at the rear of the Part Source store, removed an unknown item from his right pant pocket and then reached his right hand inside the window of the Honda and then departed; which he believed and states in the ITO was a drug transaction.

69Officer Emery on cross-examination testified that:

(a) He has done over 300 street level drug purchases.

(b) He watched from a distance of 40 to 50 feet from the Honda and saw the accused go into the parking lot behind the Part Source store.

(c) The accused reached into his right hand pocket and then exited his hand which was closed or clenched.

(d) The accused then reached into the window of the Honda and then exited his open hand from the Honda window.

(e) He could not see what the accused had in his hand as he withdrew that hand from his pocket. The accused then placed his closed hand into the Honda. He could not see what was given to the occupant of the Honda. Based on his street drug trafficking experience, he believes that “something” was in the hand of the accused as he withdrew his closed hand from his pocket, then placed that hand inside the Honda and then exited his open hand from that vehicle.

1:45pm Event

70The accused submits there is no evidence of a drug transaction in this event as there is no evidence of anything being transferred by the accused as he reached back into the back seat of the Porsche where the other male was sitting.

71The ITO does not state the surveillance officers saw anything in the hand of the accused as he reached back to the back seat area of the Porsche, nor that they saw any item being given to the male in the back seat.

72This is another of several occasions reported in the ITO of a person entering the back seat of a vehicle occupied by the accused and then departs one of two minutes later.

73The accused submits:

(a) There is a legal requirement that the Affiant make full and fair disclosure on the ITO ex parte application, as stated in R. v. Morelli, 2010 SCC 8 at para. 58 and R. v. So, (2013), (Ont.Ct.J) (unreported), para. 5;

(b) there is no evidence of an item exchange as to these events, as reported in the ITO and now confirmed by cross-examination on this application; and

(c) Detective Hill failed to inquire about and reveal the absence of such facts in the ITO.

74I agree with the accused that Officer Cory should have reported that he saw the two hands coming together in what appeared to be an exchange of something, he could not see anything exchanged and the hands action was not a simple handshake. That is different than the “hand to hand exchange” he reported and which was then repeated in the ITO by the Affiant. His evidence on cross-examination is that it was not a handshake. Officer Cory and Detective Hill’s evidence that one never sees the item in brief street level drug deals could have been included in the ITO.

75Detective Hill did not at the end of surveillance briefing question this officer whether he saw an item being exchanged Detective Hill in cross-examination testified one never sees the drug item during brief street drug transactions. That however, should have been so stated in the ITO.

76The court in R. v. Browne, 2012 ONSC 3942, para. 88, involved an officer who reported a “hand to hand transaction” in the ITO, admit at the preliminary inquiry that he did not see anything transferred and the two males could simply have been shaking hands. That Court interpreted the ITO reporting of a transaction having occurred as “nothing more than semantic trickery”, was “misleading evidence” intended to persuade the Justice that a drug transaction had occurred.

77A “brief hand to hand exchange” reporting in an ITO seeking the issuance of a warrant is the equivalent of a “hand to hand transaction”, as in Browne.

78In this case, it is the Affiant who expresses his belief that the reported “exchange” was a drug transaction. Officer Cory did not admit it could have been a simple handshake, as in Browne. That possibility was denied during cross-examination on this application. This is an important distinction from the decision in Browne where that officer admitted his reporting of a drug transaction could be inaccurate as it could have been a simple hand shake.

79The above more detailed and therefore more accurate description of these events:

(a) Was not an intentional misreporting by the Affiant as to what he was told by the observing officer. The Affiant had no basis to doubt the event as reported, particularly when he knew from experience that the item is never seen in brief street drug transactions;

(b) Was not a deliberate attempt to mislead the authorizing Justice;

(c) Remains actions as amplified, which are consistent with brief street level drug deals; and

(d) In the context of all of the other surveillance event reports, coupled with the information from the prior complainants and the Informant, would not materially impact whether the Justice would have issued the warrant or had reasonable grounds to do so.

80Even the exclusion of these two reported events in the alternative, does not change my ultimate conclusion as to whether the Justice had been presented with reasonable and credible grounds to justify the issuance of the Warrant.

January 15, 2014

81The surveillance notes as to this date are those of Officer Grenier which indicate participation by five other members of the OPS.

82The ITO states that the Porsche arrived at the Residence at 11:30am. The Porsche departed from the Residence at 12:10pm and drove to the rear of the Part Source store at 1580 Merivale Rd. at 12:14pm. The accused was in the front passenger seat of the Porsche which was being driven by a white male.

83At 12:19pm, a Honda CRV driven by a white male in his 50s arrived and parked beside the Porsche. The accused exited the Porsche and walked to the driver’s side of the Honda CRV. where a white male was sitting in the driver’s seat.

84The accused returned to and entered the Porsche at 12:20pm. The Porsche and the Honda CVR then departed. While departing, the driver of the Honda CRV was observed looking down at his lap area. The Porsche returned to the Residence at 12:21pm where it stopped briefly.

85The Porsche then drove to and parked at 12:35pm at the rear of 631 Somerset St. where Johnny Razor barbershop is located.

86At 12:37pm, the lights of the Porsche were on. A white male was the sole occupant. At 12:39pm, the accused exited the barbershop, got in the Porsche, which then departed.

87At 12:40pm, the Porsche drove to and stopped at Somerset St., near Richmond Rd. whereupon the white male driver exited the Porsche, entered a business and then left therefrom at 12:43pm whereupon he boarded the Porsche and departed the area

88The Porsche drove to and stopped at the rear of an apartment building at 141 Preston St. at 12:45pm. The white male exited the Porsche and spoke to two other white males at 12:47pm during which time the accused from outside the Porsche reached under its cargo area carpeting.

89The Porsche departed the above Preston St. address at 12:54pm with the white male as driver and the accused as passenger.

90The Porsche drove to and stopped in the parking lot of the Beer Store at Scott St. and Parkdale Ave. at 1:00pm. The accused exited the Porsche and returned to it at 1:04pm with another male who entered the back passenger side of the Porsche whereupon the Porsche departed. The police lost sight of the Porsche at 1:09pm. The Porsche was located at the Residence at 1:19pm.

91Detective Hill in the ITO expresses his belief that:

(a) the accused engaged in three drug transactions at 12:14pm, 12:37pm and 12:46pm; and

(b) this surveillance corroborates the Informant that the accused will meet drug customers behind businesses on Merivale Rd.

Position of Accused

12:37pm Event

92The accused states that the ITO reports the accused going into the barber shop and exiting shortly thereafter, but records no events or evidence of a drug transaction inside the barbershop. That is an accurate description of the ITO information as to this event, upon which Detective Hill in the ITO states his belief that this was a drug transaction.

12:46pm Event

93The accused states that the ITO report of surveillance as to this event records no evidence of a drug transaction.

94The ITO states that the Porsche was parked containing a while male driver and containing the accused behind an apartment building. The white male driver exited the Porsche and spoke to two other males while the accused exited the Porsche, opened the trunk and reached under the carpeting in the cargo area.

95This was the limited information in the ITO as to the 12:37 and 12:46 events. That limited information was before the issuing Justice, together with the other reported events.

Information from Informant

96The accused submits the information from this first time and therefore untested informer should not be relied upon and does not meet the test in R. v. Grant, (1993) 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173, paras. 53-63 (S.C.C.), as to:

(a) Whether the information was compelling, namely specific or merely bald global allegations;

(b) Credible; and

(c) Corroborated.

97The Informant’s information was global, in the sense that specific drug transactions were not cited. The information was specific however as to the type of drugs being trafficked; the accused doing those transactions on foot and with vehicles which were specifically identified, subsequently observed at the Residence and frequently used by him; and the location of reported drug transactions frequently occurring behind stores on Merivale Rd. and the Part Source store in particular.

98The ITO does not state the Informant’s source of his information.

99The credibility of the Informant was not based on past information provided to the police as this was a first time informant.

100Corroboration in the form of similar reports by the complainants of the accused doing drug transactions behind stores in the same area lends credibility to the Informant’s information.

101Surveillance results as to the accused frequently conducting brief meetings at night with others behind stores in the same area, with hands briefly inserted in and out of other vehicle windows and other males briefly sitting in the back seat of the accused’s vehicle, result in material corroboration of this Informant.

Information from Complainants

102The information of the complainants was based on their personal repeated observation of the conduct of a male later identified as the accused and their belief that he was repeatedly involved in drug transactions. There is no evidence why these individuals would falsely report this information.

103It is hoped that police officers would not normally ignore such information or doubt the credibility of several citizens reporting suspected illegal events. Their allegations were before the Justice.

104Information subsequently received from the Informant and surveillance observations corroborate the complainants’ information.

105I disagree that the Justice should have placed little or no weight on the information of the complainants.

Basic Legal Principles as to this Application

106The Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(1) and 24(2) state:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

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

9. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

107The Supreme Court in R. v. Garofoli, (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) stated:

Grounds for Review

52 In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, Lamer J. (as he then was) set out the basic test for determining the reasonableness of a search under s. 8 of the Charter. He stated, at p. 278:

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

53 In Hunter v. Southam, supra, this Court set out the basic requirements with respect to prior authorizations. In Duarte, supra, this Court decided that s. 178.13(1)(a) complies with these standards, and that before granting an authorization, a judge must be satisfied by affidavit that there are reasonable and probable grounds to believe that:

(a) a specified crime has been or is being committed; and,

(b) the interception of the private communication in question will afford evidence of the crime.

54 To arrive at the conclusion that the search is authorized by law, the reviewing judge must therefore conclude that these conditions were complied with. If he concludes that they were not, then the [page1452] search is not authorized by law and is unlawful. Consequently, in order to discharge the duty cast upon the reviewing judge to determine whether there has been a breach of s. 8, he or she must determine whether the Code provisions have been satisfied. This is the inevitable result of the statutory conditions being identical to the requirements of s. 8. Whereas Wilson precluded a review of the authorizing judge's decision that the statutory conditions had been complied with, unless some ground such as fraud or new evidence was established, the application of s. 8 requires review as a step in determining the reasonableness of the search and seizure.

55 While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:

If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.

56 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, non-disclosure, 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.

62 The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she must be satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. While this is the general instruction that each judge should apply, special problems arise with respect to the use of information of informants. It is therefore desirable to examine what special requirements, if any, should be developed to enable judges to apply the general instruction in a way that strikes a just balance between the needs of law enforcement and the protection of the rights of privacy.(emphasis added)

108The Supreme Court in R. v. Morelli, 2010 SCC 8 stated:

13 The threshold question on this appeal is whether the justice of the peace who issued the search warrant acted on reasonable and probable grounds, as required under both the Criminal Code and the Charter. To answer that question, it is necessary to first understand when one may properly be said to "possess" an image in a computer, within the meaning of s. 163.1 of the Criminal Code.

39 Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

40 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 [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find 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.

41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

58 In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

59 The relevant question here is whether the ITO was misleading, not whether it was intentionally [page277] misleading. Indeed, in the Court of Queen's Bench, the judge who had the benefit of observing the Crown's witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer's selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

60 The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the Court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes. Likewise, where, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO. (Emphasis added)

109The Supreme Court in R. v. Arauio 2000 SCC 65, [2000] 2 S.C.R. 992 stated:

51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application [page1017] for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:

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, non-disclosure, 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. [Emphasis added.]

As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature may suffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098, the requirement was described as "sufficient reliable information to support an authorization" (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

52 In oral argument, counsel for the appellant Grandmaison made much of a passage in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251, where Sopinka J. explained the test applicable on a review of a search warrant when some of the information supporting the warrant had been obtained in violation of the Constitution. Sopinka J. wrote that "it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra" (emphasis added). In using the word "would", Sopinka J. did not set out to alter the test that comes from Garofoli, given that he [page1018] cited this judgment in the same sentence. I take the word in this context not as setting a different standard of review but simply as suggesting the sincerity of the inquiry that a reviewing judge should undertake. As this Court confirmed in Bisson, supra, the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that may reasonably be believed on the basis of which the authorization could have issued.

54 The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.

While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a [page1019] reviewing judge, in appropriate circumstances, from concluding 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. [Emphasis added.]

(R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 553)

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. (Emphasis added)

Conclusions

110Pursuant to the above law, this Court concludes that there was no misstatement of facts intended to mislead the Justice.

111Even omitting the lost evidence of January 8, 2014, the lack of facial identification of the accused on January 9, 2014 if that event is considered in isolation which should not be the case, and amplifying or correcting the information before the Justice to exclude any suggestion that police observed items being transferred on January 14, 2014 rather than they observed hand to hand contact and conduct commonly seen during brief street drug transfers; there remained with the information of the complainants, the Informant and the remaining surveillance reports, apparent reliable evidence that the accused, operating from his home and out of similarly identified vehicles located at his home, was conducting numerous late evening brief 1 or 2 minute encounters with numerous individuals behind stores, many in an area where he had been reported by the complainants to be conducting drug transaction, all consistent with drug related transactions as presented.

112Notwithstanding the absence of direct surveillance observation of drug packets being delivered by the accused, the cumulative evidence of apparent drug transactions was voluminous.

113Considered in total, which was what was before the Justice, the evidence presented, even as amended as to the hand to hand exchanges on January 14, 2014, strongly supports a reasonable belief far exceeding speculation that the accused was conducting repeated drug transactions from his home and vehicles.

114This Court concludes that the Justice had reasonable grounds to authorize this warrant. The Sections 7 and 8 Charter rights of the accused as to the issuance of this warrant were not breached.

115Given this conclusion, a Section 24 Charter analysis is not appropriate.

116This application is accordingly dismissed.

Footnotes

1. 1S.C. 1996, c. 19
2. 2R.S.C., 1985, c. C-46
3. 3Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11