Court File and Parties

COURT FILE NO.: CR-16-30000059-0000 DATE: 20170508 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER SACCOCCIA Accused

Counsel: Ron Krueger, for the Crown Ismar Horic, for the Applicant (accused)

HEARD: May 1 and 2, 2017

Thorburn J.

RULING ON GAROFOLI APPLICATION TO EXCLUDE EVIDENCE

1. OVERVIEW

[1] In 2013, Toronto police began an investigation into a violent rivalry among five street gangs that resulted in several deaths and the importation of illegal drugs and firearms. The investigation was known as Project Battery. As part of that investigation, police began surveillance on several members of the gang Asian Assassinz and discovered that Ken Mai was a mid-level drug dealer who had a unit at 1719 - 38 Joe Shuster Way. By intercepting Mai’s telephone communications, police also discovered that Mai was the only occupant of the unit, he cooked cocaine in the unit, and he kept drugs there. He did not sleep there.

[2] On May 16, 2014, Detective Constable Ryan Smith swore an Information to Obtain (“ITO”) a warrant to search the Applicant, Christopher Saccoccia’s condominium unit at 1420 -38 Joe Shuster Way and other premises. The Applicant’s unit was down the hall from Mr. Mai’s.

[3] O’Donnell J. deemed there were insufficient grounds to issue a warrant to search the Applicant’s unit.

[4] On May 23, 2014, D.C. Smith filed a second ITO that contained additional information. On the basis of the first ITO and further information in the second ITO, a warrant to search the Applicant’s unit was issued by O’Donnell J. on May 24, 2014.

[5] Pursuant to that warrant, police searched the Applicant’s unit and found illegal drugs and proceeds of crime.

[6] The Applicant claims the ITO did not contain reasonable grounds to believe an offence had been or would be committed in the Applicant’s unit and the warrant should therefore not have been issued. As a result, he claims there were no reasonable grounds to search his condominium unit and the illegal drugs seized from that unit should be excluded from evidence at trial. He relies on sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

[7] In his Notice of Application, the Applicant also sought to cross-examine D.C. Smith on the ITO to challenge alleged misrepresentations, improperly included information, and the grounds to search. In oral submissions, the Applicant abandoned his request to cross-examine D.C. Smith.

2. THE LAW

[8] An Application to issue a search warrant is made ex parte and must be supported by an affidavit. In order to issue a search warrant, there must be reasonable and probable grounds to believe that an offence has been committed and evidence will be found at the place to be searched. The court will consider the information in the Information to Obtain as a whole. The affiant’s reasonable belief can be based on information provided by others and when this is the case, the reliability of the information must be assessed in light of the totality of the circumstances. (R. v. Araujo, 2000 SCC 65 and R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421 at pp. 1456-145, 60 C.C.C. (3d) 161.)

[9] The affidavit must provide a full, frank and fair disclosure of material facts. The affiant must not deliberately mislead. Errors do not automatically lead to vitiation of the warrant. A warrant can be upheld on the basis of unaffected contents of the Information to Obtain. (Araujo (supra) at 469-470.)

[10] A court reviewing a search warrant that has already been executed does not determine whether the warrant should have issued but rather, whether there was credible and reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. (R. v. Sadikov, 2014 ONCA 72 at paras. 83-88).

3. ANALYSIS OF THE EVIDENCE AND CONCLUSION

[11] In the ITO, D.C. Ryan asserted that there were reasonable grounds to believe there was evidence of possession of drugs in quantities large enough to suggest they were there for the purpose of trafficking, and/or evidence of participating in or contribution to a criminal organization, to be found in the unit. Mr. Mai, the Applicant, and one other person were “persons connected to the proposed search warrants”. A request was made to search the Applicant’s unit and two other locations.

[12] D.C. Smith set out the following grounds for the warrant: a. Mai was a known mid-level drug dealer; b. Mai used his unit (which was in the same building and on the same floor as the Applicant’s), to store and traffic illegal drugs; c. Between January 30 and March 14, 2014, the Applicant went to Mr. Mai’s unit five times. The only other people who went to this unit were Asian Assassinz gang members and one trusted customer of Mai’s. For this reason, the officer believed Mai trusted the Applicant and that he was both aware of and party to the drug offences taking place in Mai’s unit; d. Between April 2 and May 20, 2014, Mr. Mai went to the Applicant’s unit nine times; e. On one occasion Mai was observed using a key to enter the Applicant’s unit; f. On May 11th, 2014 Mai was seen leaving the Applicant’s unit carrying beer bottles and returned to his unit which was on the same floor; g. On one occasion, Mai entered the Applicant’s unit for only one minute but closed the door behind him before entering the unit. The officer believed this was because they did not want to be seen; h. Police observed that the Applicant regularly pushed and pulled on his door 5 or 6 times after he locked his door and before leaving. D.C. Smith suggested this demonstrated that he was extraordinarily concerned with the security of his apartment; and i. The Applicant had been investigated for criminal offences in the past but had no convictions.

[13] The Applicant claims the above evidence contained a misrepresentation, an inaccuracy, and the information in the ITO was not sufficient to enable the judge to issue a search warrant to search the Applicant’s unit. In particular, a. The affiant claims that, “Mai was observed using a key to enter unit 1420 of 38 Joe Shuster Way” (the Applicant’s residence). It was however admitted that his view was obstructed as he was on the other side of the door and heard him at the door, heard keys rustling, the key enter the lock and turn, and the door open. In my view, this is not a misrepresentation as the word “observation” includes “a statement based on something one has seen, heard or noticed” (Oxford Dictionary). b. The Applicant further claims that the ITO falsely states that, “Mai has attended apartment 1420 on at least 5 occasions between the 2nd of April and the 20th of May, Christopher Saccoccia has also attended Ken Ying Mai’s drug stash location (unit 1719) on 9 separate occasions between the 30th of January and the 14th day of March 2014.” The Crown concedes that the Applicant attended five not nine times. The parties agree that this was a mistake, not a deliberate attempt to mislead. What happened was that the note of entry into and exit from the unit on each occasion were counted as two and thus the number was mistakenly high. While there was an error in noting the number of times the Applicant came to Mr. Mai’s unit, this would not change the decision as to whether a warrant could be issued to enter the premises as there were nonetheless ten visits back and forth from the Applicant to Mr. Mai’s unit and vice versa, thereby establishing an ongoing association for a prolonged period between the two. c. Finally, the Applicant claims that without evidence of a drug transaction, the above evidence could not support the issuance of a search warrant to search the Applicant’s premises. I disagree. The combined evidence of Mr. Mai’s known involvement in criminal activity, the use of his unit as a stash house to keep and sell illegal drugs, the fact that only trusted associates and customers were allowed to enter Mr. Mai’s unit and only while he was there, the fact that there was an ongoing relationship between Mr. Mai and the Applicant whereby there were ongoing regular visits between them over a period of months up to and including four days before execution of the search warrant, the fact that the Applicant was very concerned about security, and that on one occasion, the Applicant closed the door to his unit although Mr. Mai stayed only one minute, taken together, could support the issuance of a warrant to search the Applicant’s unit to look for drugs and related items.

[14] For these reasons the Application is dismissed.

Thorburn J. Released: May 8, 2017