Court File and Parties

COURT FILE NO.: 35/16 DATE: 2017/05/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen (Respondent) -and- Leon Abrahim Kofman (Applicant)

BEFORE: Justice A. K. Mitchell

COUNSEL: A. Prevost, for the applicant D. Moffat, for the Crown

HEARD: May 17 and 18, 2017

RULING WITH respect to s. 8 and s. 24(2) of the charter

Introduction

[1] Leon Kofman is charged with two counts of possession of cannabis marijuana for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“the CDSA ”), possession of a prohibited weapon, possession of a flick knife while prohibited, and failure to comply with an undertaking given to a peace officer, contrary to sections 91(2) , 117.01(1) , and 145(5.1) of the Criminal Code of Canada (the “ Code” ), respectively.

[2] On March 5, 2015, a search warrant (the “Warrant”) was executed at the residential condominium located at 1002-389 Dundas Street (the “Dundas Street condo”) and at the residential condominium located at 71-1500 Richmond Street North (the “Richmond Street condo”) in London, Ontario. Both condos are owned by the applicant’s mother. The applicant’s mother resides in the Richmond Street condo and the applicant’s girlfriend and the applicant’s young son reside in the Dundas Street condo. Pursuant to conditions of bail in effect at the time of the search, the applicant was required to reside in the Richmond Street condo with his mother.

[3] The Warrant was issued based on an Information To Obtain (“ITO”) sworn by Detective Constable Devon Gerber (“Detective Gerber”) of the Drugs and Guns Unit of the London Police Service (“LPS”) on March 4, 2015. The Warrant also encompassed a search of a white Saab motor vehicle, registered to the applicant’s mother (the “Saab vehicle”). The Warrant insofar as it extends to the Saab vehicle is not being challenged.

[4] The Warrant was executed and a number of items were seized from both the Richmond Street condo and the Dundas Street condo, including cannabis marijuana and resin valued at $242,360 and cash in Canadian currency totaling $12,555 together with various items consistent with drug trafficking with the bulk of the evidence found in the Richmond Street condo. Only a flip phone was found in the Saab vehicle.

[5] The applicant argues the ITO contained insufficient reasonable grounds to support the issuance of the Warrant with respect to both the Richmond Street condo and the Dundas Street condo. Mr. Kofman brings this application alleging a violation of his s. 8 Charter right to be free from unreasonable search or seizure and seeks an order to have all evidence obtained by the LPS during its execution of the Warrant excluded pursuant to section 24(2) of the Charter .

Procedure on the Application

[6] At first instance, the application was argued on the facial validity of the redacted ITO. By my ruling released May 16, 2017 [1] , I found that the redacted ITO did not contain reasonable probable grounds tying drug trafficking to either of the target locations. Perhaps uncharacteristic of the typical ITO insufficiencies, I found that both confidential informants were credible and found the information provided by both confidential sources to be compelling (albeit Source #2 to a lesser degree) and corroborated. That is, with respect to the information provided by the confidential informants, the test in R. v. Debot was met. I found:

…[D]espite the relative strength of the information supplied by the two confidential sources as corroborated and enhanced by the surveillance and search results, it cannot be reasonably inferred from the information provided by the confidential sources and the police surveillance that evidence of the offence of possession of drugs for the purposes of trafficking would be found at either the Dundas Street condo or the Richmond Street condo. The information contained in the redacted ITO in its totality and the reasonable inferences to be drawn therefrom could not support the issuance of the Warrant. [2]

[7] Moreover, at para. 27 I stated:

I am unable to conclude that a reasonable inference to be drawn from the information contained in the redacted ITO is that the drugs allegedly sold by Mr. Kofman in the various interactions described by Detective Gerber as drug transactions, were being stored at both or either of the Richmond Street condo and the Dundas Street condo. It is not enough that the surveillance, source information and search results connect Mr. Kofman to both locations (he appears to reside at the Dundas Street condo and his mother resides in the Richmond Street condo). Something more is required. The grounds set forth in the redacted ITO do not rise above “mere suspicion” and therefore do not constitute reasonable grounds. [3]

[8] In the face of my ruling on the facial validity of the Warrant, the Crown proposed and defence counsel agreed to implement the Step 6. procedure outlined in R. v. Garofoli . [4] Thereafter, the Crown made application to have me consider the excised material and whether it could have supported the issuance of the Warrant. This request could only be acceded if I was satisfied that the defence was sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.

[9] To meet this precondition to a consideration of the unredacted ITO, Step 6. required that a judicial summary of the excised material be provided to defence counsel to assure the defence was in a position to exercise its right to make full answer and defence. In order to prepare the judicial summary, an order was made directing that copies of the unvetted ITO with respect to each of the target locations be made and provided to the court. My responsibility included reviewing the summary and satisfying myself that it properly reflected the information contained in the redacted portions of the ITO.

[10] It should be noted that the defence was only entitled to be made aware of the nature of the redacted details and not the details themselves. The reasons for the redactions must be sufficient to allow the defence to mount a challenge of the redacted details both in argument and by evidence. That is, the defence must be in a position to mount both a facial and sub-facial attack on the Warrant. [5]

[11] Crown counsel and I exchanged various drafts of the judicial summary. We were unable to agree on a summary of the information provided by Source #1 in redacted subparagraphs 11(g) and (h) of the ITO. Rather than accept the proposed language of the court and risk this language identifying the confidential informant, the Crown elected to proceed with subparagraphs 11(g) and (h) remaining redacted.

[12] The judicial summary was provided to defence counsel for review and consideration. I determined from my review of the excised material that it did not resolve the insufficiencies in the ITO which I noted in my earlier ruling. Accordingly, it was unnecessary to receive submissions from defence counsel as to the adequacy of the summary for purposes of allowing the defence to make full answer and defence. My ruling pre-empted any argument by defence that the judicial summary did not sufficiently make him aware of the general nature of the excised material.

Analysis

Has there been a breach of the defendant’s s. 8 Charter rights?

[13] Pursuant to section 8 of the Charter , everyone has the right to be secure from unreasonable search and seizure.

[14] In assessing the validity of the Warrant, the standard of review is whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the Warrant could – not would - have issued. If that standard is met, the Warrant is valid.

[15] In assessing the sufficiency of the evidence contained in the ITO, the issuing Justice is permitted to draw reasonable inferences from the contents of the ITO. [6] In the totality of the circumstances, the ITO must reveal reasonable grounds to support the issuance of the Warrant. If the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have issued and is valid. [7]

[16] Having reviewed the unredacted ITO (save and except subparagraphs 11(g) and (h)), I find that the unredacted information provides additional support for my earlier finding that the confidential informants are credible and that the information provided by each source to police was compelling (the information provided by Source #1 to a greater degree) and corroborated by police surveillance and each other.

[17] Here, the deficiencies or insufficiencies in the ITO relate to the absence of information or evidence of any kind connecting Mr. Kofman’s alleged drug business to either the Dundas Street condo or the Richmond Street condo. Neither confidential source provided information from which it could be reasonably inferred that the applicant was selling drugs from or storing drugs at either the Dundas Street condo and/or the Richmond Street condo. Aside from knowledge of the general location where Mr. Kofman resided at the time the information was supplied, neither informant provided general, let alone detailed, information connecting, in any manner whatsoever, the target locations or either of them to drug trafficking. In fact, I question the basis for the issuing Justice believing the ITO contained sufficient grounds from which to reasonably infer evidence of drug trafficking would be found at either location.

[18] Based on my assessment of the sufficiency of the grounds contained in the unredacted ITO, the Warrant could not have issued. The Warrant cannot stand and therefore I find the search of the Dundas Street condo and the search of the Richmond Street condo were unlawful and both searches constitute a breach of Mr. Kofman’s s. 8 Charter rights.

[19] Having found a breach of s. 8 of the Charter, I shall now conduct a section 24(2) Charter analysis of the evidence sought to be excluded.

Should the evidence seized from the two target locations be excluded pursuant s. 24(2) of the Charter?

[20] An application for a search warrant is an ex parte process and therefore an affiant has a duty to the court to provide a clear and accurate record to support the requested warrant. The standard of care imposed on the affiant is high because without such a high standard the guarantee under s. 8 of the Charter would be rendered meaningless. [8]

[21] I must decide whether to exclude the evidence obtained from the illegal search and seizure of one or both of the target locations having regard to three factors [9] :

(a) the seriousness of the State conduct violating the Charter , including the nature of the police conduct that led to the discovery of the evidence, whereby:

(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law; and

(ii) an inadvertent, trivial or minor violation, the existence of good faith or exigent circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence.

(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;

(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:

(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);

(ii) the importance of the evidence to the Crown’s case; and

(iii) the notion that the discoverability of the evidence is no longer a determinative factor.

(a) The seriousness of the State conduct violating the Charter

[22] The conduct of the State falls on a continuum with the more egregious conduct justifying the exclusion of evidence under s. 24(2) of the Charter . Egregious conduct compels the court to distance itself from such conduct.

[23] This was not a warrantless search. The applicant does not challenge the manner in which police acted on the Warrant issued with judicial authority. The conduct of the police executing on the Warrant was in all respects reasonable. Moreover, the applicant does not accuse the police of fraudulently and intentionally misleading the issuing Justice by failing to disclose relevant facts, or providing false and intentionally misleading information. The applicant limits his argument to the conduct of the police in preparing the ITO. The applicant does not suggest Detective Gerber intentionally misled the issuing Justice or acted in bad faith. However, he sought to impress upon me that the absence of bad faith does not support a finding of good faith.

[24] In addition to providing no evidence or information to connect the alleged drug business of Mr. Kofman to either of the target locations, defence counsel points to the following paragraphs of the ITO which he submits unfairly suggest Mr. Kofman is involved in suspected criminal activity perpetrated by others and/or is more culpable:

Paragraph 17. September 18, 2012 London Police Constable Adam Douglas submitted a report on Versadex records regarding a vehicle stop with KOFMAN in his White Saab. Constable DOUGLAS noted while speaking with KOFMAN he appeared nervous; Constable DOUGLAS noticed burrs on KOFMAN’s jacket, mud on his shoes and he was dressed all in black. KOFMAN admitted that he was out in the woods looking for a marijuana grow operation but was not successful. Constable DOUGLAS did not search the vehicle and no charges were laid.

30. On February 20, 2015 members of the London Police Guns and Drugs Unit conducted surveillance on Leon KOFMAN. Observations were made at 1110 Dalhousie Drive where KOFMAN was suspected of visiting. Police observed two short visits to this address in which persons were seen entering and exiting the address. One person was observed carrying a black backpack into and out of the unit and another person was observed attending and leaving in a very short period of time. Both of these instances were indicative of drug transactions…

31. As a result of observations at 1110 Dalhousie I conducted checks on local v Versadex records which yielded the following information. (Trent ROBERTS, date of birth 1991-06-10, was identified as an occupant of 1110 Dalhousie, ROBERTS has a conviction for possession of Marijuana from 2012. Police received Crimestoppers information in 2011 linking ROBERTS to local drug dealers.)

[25] The applicant argues the affiant was reckless and negligent in his drafting of the ITO as evidenced by the above-referenced paragraphs, and in doing so the ITO was misleading. The applicant relies primarily on the decision in R v. Morelli [10] . In this decision, the court excluded evidence consisting of firearms and ammunition found after the execution of a warrant based on a deficient ITO.

[26] As was noted in Morelli:

The relevant question here is whether the ITO was misleading, not whether it was intentionally 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 material information available to him at the time. [11]

[27] The Crown argues the ITO is not misleading, intentionally or otherwise. The Crown submits that the State’s conduct does not come near to the level necessary to support exclusion of the evidence. I was referred to the Ontario Court of Appeal decision in R. v. Blake [12] where the court stated with respect to a finding of “good faith” that it reduces the need for the court to disassociate itself from the state conduct that resulted in the Charter infringement, and supports the admissibility of the challenged evidence. In Blake the court accepted the trial judge’s finding that the police did not act negligently or in ignorance of any of the applicable Charter requirements.

[28] I was also referred to the decision in R. v. Rocha [13] . In deciding whether or not to exclude the evidence, the trial judge in Rocha had before him only the redacted ITO. A judicial summary was not prepared nor requested. The trial judge excluded the firearm and drug evidence seized from the accused’s residence having found that the redacted ITO contained no information to compel the belief that drugs and firearms would be located at the house at the time of the search. The issuing justice relied entirely on the conclusory statement of the confidential informant that “most of the cocaine was kept at the brother’s house”. Aside from a description of the outside of the accused’s house, no information to support that conclusion was provided by the informant.

[29] As earlier noted, I had the benefit of considering the additional information contained in the unredacted ITO. While the unredacted ITO provides details to support the conclusory statement provided by the confidential informants that Mr. Kofman deals large amounts of drugs in the City of London, it provides no additional information or details connecting either target location to Mr. Kofman’s alleged drug trafficking operation.

[30] The affiant states that one of the grounds for believing drugs and drug paraphernalia will be found at the Dundas Street condo is that Mr. Kofman is consistently observed leaving the underground parking lot in the morning and returning during the day and late in the evening, before and after conducting suspected drug transactions.

[31] In this case, the connection between the specific criminal activity and the target location is tenuous at best and does not rise to the level needed to support a trampling of an individual’s basic Charter right to be free from the unlawful search of the very place in which the highest expectation of privacy is held.

[32] The mere fact the applicant resides at the Dundas Street condo is not evidence capable of supporting a reasonable inference that drugs will be found in the Dundas Street condo. Moreover, the two occasions on which the applicant is observed attending at the Richmond Street condo presents a far more tenuous connection, if any connection at all. In essence, the Crown is asking me to conclude that a search of an individual’s place of residence could be justified based only on evidence of suspected drug dealing from locations unconnected to the individual’s residence. Such a finding would have broad-sweeping implications.

[33] An indication of the absence of bad faith is the police being aware of the need to obtain a warrant and proceeding accordingly to obtain one (including the preparation of an ITO). Along those same lines, carelessness in preparation of the ITO will not, in most instances, support the exclusion of evidence. However, significant carelessness in the preparation of the ITO will most likely lead to the issuing justice being misled and will be considered as being on the serious end of the spectrum of state misconduct [14] .

[34] I find that the affiant acted in a reckless, careless and negligent manner and with complete disregard for the basic requirement that the ITO contain at least some grounds upon which the issuing Justice could reasonably believe evidence of drug trafficking, specifically – and not other criminal activity - would be found at the Dundas Street condo and/or the Richmond Street condo. With his extensive experience, Detective Gerber ought to have known the information supplied by the confidential sources and the other evidence contained in the ITO presented insufficient grounds for the issuance of the Warrant.

[35] The ITO was not only deficient due to the complete absence of evidence connecting drug trafficking to the two target locations but was also misleading. The paragraphs cited above suggest that Mr. Kofman was involved in the drug transactions observed taking place at 1110 Dalhousie (not either of the target locations). There is no evidence to support this suggestion. Mr. Roberts’ owns this property which is not one of the target locations. This information and Mr. Roberts’ criminal convictions are irrelevant and cannot and do not support an inference that evidence of Mr. Kofman’s drug business will be found at either condominium. Similarly, the information relating to the traffic stop which did not result in either a search of the vehicle or charges being laid is misleading. It appears the only reason for including this information was to mislead the issuing Justice that Mr. Kofman was more culpable than he actually was. At a minimum, it was included to taint the issuing Justice’s perspective of the evidence and information connecting Mr. Kofman to drug trafficking.

[36] As an aside, I note that Detective Gerber cites as one of the grounds to support the issuance of the Warrant with respect to the Saab vehicle, that Mr. Kofman “[r]outinely places what appears to be the same backpack in the trunk of the vehicle he operates.” This statement is not an accurate summary of the surveillance. As noted in my earlier ruling, Mr. Kofman was observed with a backpack and placing that same backpack in the Saab vehicle on only one of six days on which surveillance was conducted.

[37] On balance, this factor favours exclusion of the evidence.

(b) The impact and extent of the violation on the Charter interests of the accused

[38] As recognized in R. v. Silveira [15] , one’s personal residence carries with it a significant expectation of privacy. Aside from an individual’s physical person, there is no place of privacy which one might protect more fiercely than one’s home.

[39] It was argued by the applicant that on March 5, 2015 he was residing in two locations and, therefore, had two homes each attracting the highest expectation of privacy. The Crown argues that one cannot have two residences each attracting the same level of expectation of privacy. The Crown submits that the Richmond Street condo carries with it a diminished expectation of privacy because the applicant spent the most of his waking hours at the Dundas Street condo and the applicant’s mother had access to Mr. Kofman’s unlocked bedroom throughout the day while he was at the Dundas Street condo.

[40] The circumstances here are unique. It is difficult to imagine a scenario or living arrangement where an individual might argue he or she has two residences of equal standing. This is such a case. During the standing phase of this application, Mr. Kofman testified that he resided with his girlfriend and young son at the Dundas Street condo until he was charged and subjected to bail conditions requiring that he reside with his mother at the Richmond Street condo. But for the bail conditions, he would have continued to reside with his girlfriend and his child at the Dundas Street condo. Mr. Kofman spent equal time at both residences. On the one hand, he watched his son while his girlfriend worked fulltime. On the other hand, he abided by his court-ordered curfew and spent nights at the Richmond Street condo with his mother. He had key access and access to the condo through the secure parking garage at each location.

[41] I find that Mr. Kofman maintained a residence (and therefore held a high expectation of privacy) at both the Dundas Street condo and the Richmond Street condo. The unlawful search of both residences was a serious infringement of Mr. Kofman’s Charter rights. This factor favours exclusion of the evidence found at both locations.

(c) The societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence

[42] It is important to note that although the information provided by the confidential sources focused on Mr. Kofman’s cocaine dealing, no cocaine was found at either of the target locations. A large quantity of marijuana was seized having a significant street value. Marijuana is a Schedule II substance. Cocaine is a far more destructive and addictive substance and therefore Parliament has seen fit to classify cocaine as a Schedule I substance attracting more severe penalties for those who choose to traffic in cocaine. Society has a heightened interest in having cases involving cocaine trafficking adjudicated on their merits. That interest is significantly diminished in the case of those persons charged with trafficking in marijuana.

[43] The Crown advises that the evidence seized from the target locations if excluded will gut its case with respect to the drug-related charges. Despite the quantity and value of the marijuana seized and the reality that its exclusion will result in an acquittal of Mr. Kofman, the Crown fairly concedes that consideration of society’s interest in adjudication of the case on its merits tips (ever so slightly) in favour of excluding the evidence.

[44] In Morelli the court held that “the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private place in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued”. [16]

[45] Despite the significant quantity of marijuana seized and the centrality of the evidence to the Crown’s case, the unredacted ITO is sufficiently misleading and woefully deficient with regards to a connection between the target locations and Mr. Kofman’s alleged drug business. Should the Crown be permitted to proceed to trial relying on the evidence seized from the Dundas Street condo and the Richmond Street condo the administration of justice would be brought into disrepute.

[46] On balance, a consideration of this factor favours exclusion.

Disposition

[47] After considering and balancing the factors in R. v. Grant , the evidence seized from both the Dundas Street condo and the Richmond Street condo shall be excluded .

“Justice A. K. Mitchell” Justice A. K. Mitchell Released: May 19, 2017

[1] R. v. Kofman, 2016 ONSC 3019. [2] Ibid ., at para. 26. [3] See R. v. Bui, 2014 ONSC 8 at para. 49. [4] R. v. Garofoli, [1990] 2 S.C.R. 1421. [5] R. v. Crevier, 2015 ONCA 619 at para. 72. [6] Ibid. at para 82. [7] Ibid. at para 81. [8] R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8 at para. 102. [9] R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32 at para. 71. [10] Supra. [11] Supra . at para. 59. [12] R. v. Blake, 2010 ONCA 1 at para. 24. [13] R. v. Rocha, 2012 ONCA 707. [14] R. v. Dhillon, 2010 ONCA 593 at paras. 51 and 61. [15] R. v. Silveira, [1995] 2 S.C.R. 597 at para. 148. [16] Supra, at para. 109.