ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: R. v. Hobeika and Sanchez, 2017 ONSC 6066

COURT FILE NO.: CR-16-90000067-0000

DATE: 20171011

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHEL HOBEIKA and NELSON SANCHEZ

Applicants

COUNSEL:

Kerry Benzakein and Kelvin Ramchand, for the Crown

Gregory Lafontaine, for Applicant Hobeika

Anthony DeMarco, for Applicant Sanchez

HEARD: October 3 to 6, 2017

Reasons for judgment – s. 24(2) Charter applications

S.F. Dunphy, J.

[1] The Applicants have each brought separate applications to exclude certain evidence the Crown seeks to introduce at their joint trial and other related relief pursuant to sections 8, 9, 10(b) and 24(2) of the Charter of Rights and Freedoms.

[2] The Applicants are charged with a number of counts of possession of certain controlled substances (commonly known as marijuana, cocaine, oxycodone, and "magic mushrooms") and possession for purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substance Act. Mr. Hobeika faces a number of additional counts related to possession of proceeds of crime and money laundering.

[3] The central (but by no means sole) issues raised by these applications surround the validity of two warrants obtained by police on September 15, 2013 to search an apartment in the Liberty Village area of Toronto and a 2005 Lincoln Aviator automobile in light of an alleged material change in the information on which they were based and then a further warrant obtained to search an apartment in Etobicoke on the basis of information obtained during an alleged exigent entry. All of the evidence obtained as a result of these challenged warrants is sought to be excluded pursuant to s. 24(2) of the Charter. Mr. Hobeika raises additional issues relating to the alleged violation of his right to counsel.

[4] For the reasons that follow, I have decided to dismiss these applications.

[5] Learning further information about a different address connected to the target of the investigation and already disclosed in the Information to Obtain (or "ITO") does not in any way invalidate the warrants obtained. Whether an otherwise valid warrant can be invalidated by subsequently discovered information is a question I need not decide because the "new" information was in fact only incremental and did not contradict the confidential informant nor undermine the reasonable grounds to believe held by police in seeking and eventually executing upon the two warrants.

[6] I have also found that both requirements of s. 11(7) of the CDSA for a warrantless search were satisfied on the facts of this case. The circumstances existing immediately prior to the exigent entry fortified the existing reasonable grounds of police to believe that the target Mr. Hobeika was a narcotics trafficker working out of a different location (i.e. Liberty Village). That circumstance, the confirmation of Mr. Hobeika's current access to and control over the second address and further information learned about other connections between this address and another accused drug trafficker all provided reasonable grounds for police to believe that evidence of Mr. Hobeika's illegal narcotics trafficking activities would be found there as well. Drugs must be stored and use of multiple locations is not unusual. The circumstances of Mr. Hobeika's arrest also created a well-founded apprehension that there may be others in or with access to the subject condominium unit who might hide or destroy evidence very quickly. There can be no serious suggestion that police fabricated the urgency as they had already started the process of seeking a warrant and hoped to obtain it before Mr. Hobeika appeared nor can I give effect to the suggestion that the police ought to have let Mr. Hobeika go instead of arresting him to preserve their investigation from discovery.

[7] Finally, I have found the Level III search of Mr. Hobeika followed all required procedures and did not violate Mr. Hobeika's Charter rights and Mr. Hobeika has failed to adduce sufficient evidence to demonstrate that the four hour delay in affording him access to counsel was a breach of his right to counsel given that the counsel he sought to contact was suspended and his failure to adduce any evidence of his desire to secure access to another.

Background facts

(a) Overview

[8] The following overview is a synthesis of the findings of fact that I have made from the evidence presented at the voir dire. I have omitted extraneous details tending to illustrate police tactics and some of the more detailed evidence is discussed in connection with the issue to which it particularly relates.

[9] On the basis of information obtained from a confidential informant (or "CI") on September 1, 2013, police began to investigate Mr. Hobeika as a suspected dealer of marijuana and cocaine in the Liberty Village area of Toronto. It was alleged by the CI that Mr. Hobeika used his vehicle – a Lincoln Aviator –and an identified condominium in the area in which he resided to traffic in these drugs.

[10] During the course of the investigation that followed some elements of the information obtained from the CI were confirmed. It was determined that a Lincoln Aviator was indeed located in the underground parking lot of the identified Liberty Village condominium building. The car was found to be registered to Mr. Hobeika at the Ministry of Transportation of Ontario but with an address in Unit 1112 of an Etobicoke Condominium (the same address was also listed on his driver's license). The CI provided police with no information regarding this second address associated with Mr. Hobeika and there is no evidence that the CI was even aware of it.

[11] The CI was able to make a positive identification of Mr. Hobeika from a 1999 file photograph maintained by police (Mr. Hobeika being known to police from prior charges none of which were drug-related).

[12] On September 13, 2013, police proceeded to apply for and obtain warrants under s. 11 of the CDSA to search the Liberty Village Condominium and the Lincoln Aviator. The warrants authorized a "no knock" entry to the apartment. Both warrants were obtained on the basis of substantially identical (but for the place to be searched) ITO's. No warrant was then sought for the Etobicoke Condominium but its existence as the address of Mr. Hobeika pursuant to MTO records was disclosed.

[13] Police did not immediately execute the two warrants but instead began surveillance of the Liberty Village building with a view to executing the warrants when Mr. Hobeika was present. In this fashion, it was expected that an arrest of the target of the investigation might also be effected along with the searches if the expected evidence was found. Mr. Hobeika was not seen to be home and the Lincoln Aviator was not in the parking lot that Friday evening.

[14] An extension of both warrants was sought and obtained on Sunday September 15, 2013. The ITO's for the extension warrants explained that Mr. Hobeika had not yet been located, but were otherwise identical to the original ITO's. I shall review the contents of the two ITO's in further detail when reviewing the challenges made to these warrants.

[15] After obtaining the extensions of the two warrants on September 15, 2013, police were again unable to locate Mr. Hobeika or the vehicle at the Liberty Village address when they proceeded to the building shortly after 5:30 p.m. Three officers from the team were then detached to proceed to the other address known to be associated with Mr. Hobeika, being the Etobicoke Condominium. They arrived there at about 8:23 p.m. and almost immediately located the Lincoln Aviator in the parking lot of the building and placed it under surveillance.

[16] The three officers at the scene in an unmarked car were Det. Prentice (then Staff Sgt. Prentice - in overall command of the team), Constable Abramovitz (the "Road Boss" with intermediate authority) and Constable Chaudry (since retired from the force). They were from the 11th Division Major Crimes Unit, a unit with responsibility for, among other things, investigating narcotics trafficking. Det. Prentice had extensive experience in investigating narcotics-related offences over the course of his seventeen year career.

[17] Det. Prentice checked the electronic directory of "buzzer codes" for the building occupants in the lobby and determined that Mr. Hobeika was listed as an occupant of the building. Based on his experience, Det. Prentice was of the view that any premises to which a trafficker had access and control was a probable location to find evidence of that trade since use of stash houses and multiple locations is a frequent hallmark of that particular illegal activity. Locating his car in the parking lot and finding his name on the occupant directory when added to the fact of his license and car registration at the same address confirmed to him the existence of good access and control to Unit 1112 on the part of Mr. Hobeika and thus the likelihood of evidence of trafficking to be found in that location.

[18] The affiant of the original search warrants, Constable Duarte, was then contacted and directed to return to the station from the Liberty Village Condominium stake-out to begin preparation of a third search warrant authorizing a search of the Etobicoke Condominium as well. This was done between 8:30 p.m. and 9:00 p.m.

[19] At about 9:00 p.m., Constable Abramovitz contacted 22 Division (in whose area the Etobicoke Condominium is located) to advise of their presence in the area and to inquire whether there was any relevant information about the building they should know of. During this call, it was learned that police had conducted a significant seizure of narcotics from a different unit on the 15th floor of the same building complex. The accused in that case, Mr. Shane King, had been released on a recognizance with Mr. Hobeika as surety. By the terms of the recognizance, Mr. King should have been living with Mr. Hobeika at Unit 1112 of that building.

[20] This additional information was relayed to Constable Duarte for inclusion in the ITO being prepared shortly after it was received.

[21] Uniformed back-up was called in with instructions to assist in the take-down when Mr. Hobeika was spotted. If Mr. Hobeika were to proceed to his car and seek to leave before the new warrant arrived, it was decided that he would be detained and the search warrant for the car would be executed at that time. The back-up arrived in an unmarked car and parked across the street at about 9:43 p.m.

[22] At about 9:45 p.m., Mr. Hobeika was seen to leave the apartment building accompanied by another man. They proceeded together to Mr. Hobeika's car with Mr. Hobeika getting in on the driver's side. The precise point at which he was positively identified and by which officer is immaterial.

[23] Police immediately moved in to block the vehicle's exit, detained Mr. Hobeika and the passenger and executed a search of the car. In addition to a noticeable smell of marijuana emanating from the vehicle, a quantity of marijuana was seen to be in the door pocket of the driver's side of the car (the side where Mr. Hobeika had been seated). The detention of Mr. Hobeika thus was transformed from investigative detention to arrest for possession of narcotics almost immediately as a result of the marijuana found in the vehicle. His keys were taken from him when he was searched.

[24] The other man was detained and then was also arrested after he was found to be in possession of a quantity of suspected cocaine and oxycodone tablets. Both men were in handcuffs within a matter of only a brief span of time.

[25] Constable Abramovitz informed Mr. Hobeika of his arrest and of his right to counsel at that time. He was then turned over to one of the uniformed officers (Officer La Vella) and was later conveyed by two other uniformed officers (at 10:08 p.m.) to the station for processing. That processing included a Level III (or "strip") search and alleged delay in facilitating access to counsel. I shall review this evidence in further detail below as Mr. Hobeika alleges that his s. 8 and s. 10(b) Charter rights were violated at this time.

[26] The other individual found in the vehicle and arrested along with Mr. Hobeika has no further role in these proceedings and will not be referred to further.

[27] The take-down of Mr. Hobeika had been quite loud and public. This was necessary to ensure the target made no mistake about what was happening. The uniformed officers arrived seconds later and assisted. Constable Abramovitz had loudly identified himself as police and ordered Mr. Hobeika not to move. At least three individuals had been seen to exit the building to watch the scene, two of whom were using cell phones. One of the individuals went back into the building.

[28] The Detective in charge at the scene (Detective Prentice) decided to enter the apartment building immediately to make a warrantless entry into Unit 1112. I shall consider the question of the validity of this warrantless entry and more evidence in relation to it below.

[29] The fob on Mr. Hobeika's key chain was used to gain entry to the common areas of the building. Once inside, the three officers (uniformed Officer Kravchenko accompanied Det. Prentice and Constable Abramovitz) proceeded to Unit 1112. At least two male voices were heard inside the unit from the hallway. Det. Prentice overheard only a snippet of what was being said: "text him". He knocked on the door. Steps were heard approaching the door. Detective Prentice identified himself as a police officer and said that he was there to perform a bail compliance check, utilizing the information learned earlier from 22 Division and hoping that this ruse might put the occupants off guard or in doubt for a period of time at least. Steps were then heard proceeding away from the door, not towards it. A ram was then used to force the door open. The three officers immediately entered and fanned out to locate any occupants and secure the premises.

[30] Det. Prentice went to the left and checked the bedrooms and a bathroom down a hallway. These were not searched beyond verifying that there were no persons present. Upon being satisfied that nobody was in that part of the unit, he proceeded through the kitchen and into the living room/dining room area. While passing through the kitchen, Det. Prentice observed what appeared to be several small chunks of cocaine powder on the kitchen counter and a number of small (approx.. 1.5" x 1.5") red Ziploc baggies of the sort commonly used in the drug trade. In the dining room (immediately off the kitchen) he saw one individual (later identified as the accused Mr. Sanchez) sitting at the table with a jar containing what appeared to be psilocybin or "magic mushrooms" on the table within arm's reach of him.

[31] By this time, the other two officers (Abramovitz and Kravchenko) were already in the living room and dining room. Constable Abramovitz was with Mr. Sanchez while Constable Kravchenko was with the other person. This other person was later released without charge and is of no further relevance to the narrative.

[32] The scene inside Unit 1112 was thereafter "frozen" to await arrival of the search warrant that came at 12:25 a.m. on September 16th, 2013. The outcome of that search is not relevant to the applications before me beyond the fact that the resulting evidence is sought to be excluded pursuant to s. 24(2) of the Charter by both defendants on the basis of alleged infirmities in the warrant and on the basis that the warrant was itself the fruit of an invalid warrantless search. I shall review those issues below.

[33] A search was also undertaken at the Liberty Village Condominium based upon the warrant issued (or renewed) earlier on September 15th. The validity of that warrant is under dispute and will be examined further below. Mr. Hobeika also seeks to exclude evidence obtained during this search on grounds that shall be examined below.

[34] Finally, items found during the Level III search of Mr. Hobeika and in the search of the Liberty Village Condominium led police to a safety deposit box and to certain bank accounts, in turn leading to further searches at the residence of Mr. Hobeika's sister, his mother and his automobile (a second time). All of these searches are, it is claimed by Mr. Hobeika, fruits of a poison tree (being unlawful searches leading to them) such that they too ought to be excluded from evidence pursuant to s. 24(2) of the Charter.

[35] I have preserved the privacy of other tenants or owners of units in the affected residential buildings by referring only to general descriptions of the specific properties searched (Liberty Village Condominium and Etobicoke Condominium or Unit 1112). Their full addresses are of course in the record and there is no issue on that account.

Evidence at the voir dire

[36] The following witnesses were heard at the voir dire:

a. Mr. Sanchez; b. Staff Sgt. (now Detective) Prentice; c. Constable Abramovitz; d. (now former) Constable Kravchenko; and e. Constable Paul;

[37] Mr. Sanchez' evidence was for the purposes of the voir dire alone. However, by agreement, the evidence of the four witnesses called by the Crown was for purposes of both the voir dire and the trial so as to avoid the necessity of calling them again. The evidence on the voir dire was also blended (all evidence admissible to all voir dire issues).

Issues to be determined

[38] Were the searches of the Liberty Village condominium and the Lincoln Aviator a violation of Mr. Hobeika's rights under s. 8 of the Charter?

[39] Was the detention and search of Mr. Hobeika on September 15, 2013 a violation of his Charter rights?

[40] Does Mr. Hobeika have standing to challenge the searches at Unit 1112 of the Etobicoke Condominium or his sister's apartment?

[41] Was the "exigent entry" into Unit 1112 of the Etobicoke Condominium lawful?

[42] Did the search of Unit 1112 of the Etobicoke Condominium breach the s. 8 Charter rights of either Mr. Sanchez or Mr. Hobeika?

[43] Was Mr. Hobeika's right to counsel violated?

[44] Ought any evidence to be excluded pursuant to s. 24(2) of the Charter?

Discussion and analysis

(b) Were the searches of the Liberty Village condominium and the Lincoln Aviator a violation of Mr. Hobeika's rights under s. 8 of the Charter?

[45] The searches of the Liberty Village Condominium and the Lincoln Aviator conducted on September 15 and 16, 2013 were performed under the authority of warrants issued pursuant to s. 11(1) of the CDSA on September 15, 2013. The burden therefore lies upon the Applicant Mr. Hobeika to demonstrate why such searches nevertheless breached his rights under s. 8 of the Charter. There is no dispute from the Crown that Mr. Hobeika had a reasonable expectation of privacy attaching to both places.

[46] Mr. Hobeika's position is that the evidence presented to the justice who issued the two warrants in the Information to Obtain (or "ITO) for each was not sufficient to ground a reasonable belief that narcotics or evidence of a breach of the CDSA would be found in either place[^1]. This submission is supported by two principal arguments.

[47] Firstly, it is submitted by the Applicant that all of the indicators relied upon by police as forming reasonable grounds to seek the warrant in the ITO derived directly from a CI. However, it is submitted that the police were unable to verify any of this information independently of such "tip" from the CI. The information was thus uncorroborated and lacking in sufficient indicia of credibility or reliability to sustain a reasonable belief.

[48] Secondly, the ITO referenced allegedly drug-related conversations (by voice and text) between an undercover police officer and a certain Toronto telephone number given as a "contact number" for Mr. Hobeika by the CI. These interchanges occurred on September 11th and 12th and did not result in a transaction occurring nor did they permit a positive identification of Mr. Hobeika as the person actually connected to the telephone number in question. The only information connecting Mr. Hobeika to this telephone number was from the same CI. Once again, this information is attacked as inherently unreliable and not worthy of credence.

[49] In addition to attacking the sufficiency of the ITO's underlying the warrants, Mr. Hobeika submits that the warrants had ceased to be valid by reason of new information learned by police prior to execution of them. That new information would be the indicia that Mr. Hobeika might be living at the Etobicoke Condominium which information was claimed to be in possible contradiction of the information obtained from the CI. In the circumstances, the Applicant submits that the police ought not to have acted on the warrants issued before conducting a further investigation and supplementing the ITO with the additional information obtained.

[50] It is useful to start with first principles. The two warrants in question were issued under s. 11(1) of the CDSA. That provision permits a justice on an ex parte application to issue a warrant if he or she is satisfied on information under oath "that there are reasonable grounds to believe" that a controlled substance or precursor, "offence related property" or evidence of an offence under the Act is to be found in the place for which a warrant is sought.

[51] There is no hard and fast rule to be applied in determining what constitutes "reasonable grounds to believe" in the existence of one or more of the conditions described in s. 11(1) of the CDSA. Some of the following are useful starting points:

a. The standard of proof is not proof beyond a reasonable doubt or even a prima facie case: R. v. Debot 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 47; b. The evidence must however rise beyond mere suspicion: R. v. Ngo, 2011 ONSC 6676 at para. 35; c. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation nor are minor flaws to be isolated and embellished to the point where police conduct rather than the sufficiency of the evidence is placed on trial: Ngo at para. 34-35; and d. The trial judge assessing the validity of the warrant must not substitute his or her view for that of the justice of the peace who issued it but must instead review the record before the Justice (trimmed of any extraneous or unconstitutionally obtained evidence where appropriate) to determine whether the justice could have issued the warrant: Ngo at para. 33 and R. v. Jones, 2001 CanLII 28336 (ON SC) at para. 5.

[52] It is clear that the only information in the ITO linking Mr. Hobeika to the drug trade and possible violations of the CDSA was supplied to the affiant by the CI. Such information must be examined to determine whether it is sufficiently credible, compelling and corroborated when considered in conjunction with all of the other information contained in the ITO to support the reasonable grounds of the affiant and ultimately the justice issuing the warrant to believe that evidence will be present at the place to be searched: Debot at para. 53.

[53] While the ITO's have been (lightly) redacted on the record before me to delete information that might identify the CI, there is no dispute in the present case that I must examine the validity of the warrants based upon the redacted ITO alone – there has been no request for me to go beyond the redacted ITO. Mr. Sanchez' application to cross-examine the affiant (Constable Duarte) applied to the warrant obtained in respect of the Etobicoke Condominium only and was rejected by me.

[54] Was there sufficient credible, compelling and corroborated information contained in the ITO on which these two warrants were granted so that a properly instructed justice could have issued the warrants? In my view there was.

[55] There was sufficient information contained in the ITO from which the reviewing justice could reasonably conclude that the information conveyed by the CI concerning Mr. Hobeika was credible.

[56] The ITO contained evidence that the CI had been working with Toronto Police for approximately seven years, that information provided by the CI had been corroborated and proven truthful in the past (even if not acted upon) and that the CI's handler reported to the affiant no conflict of bad character or non-credible information. In reporting upon the credibility of the CI, the affiant relied upon his own experience with the CI as well as that of the CI's handler. The affiant had extensive experience as a police officer, including in drug investigations.

[57] There was sufficient information contained in the ITO from which the reviewing justice could reasonably conclude that the information conveyed by the CI was compelling.

[58] The CI provided quite specific information about the nature of the drug trafficking business allegedly engaged in by Mr. Hobeika including the frequency with which he carried it on (daily, more intensively on weekends), the volume (at least $700 per day and never known to be out of stock) and the locations (trafficking known to be carried on from the Liberty Village Condominium and form the Lincoln Aviator). Most of the information conveyed was first-hand and contained significant detail directly observed by the CI. Other details were also provided including a description of Mr. Hobeika, a telephone number allegedly used by Mr. Hobeika, the unit number and buzzer code of the unit in the Liberty Village Condominium and a description of the interior of the Liberty Village Condominium.

[59] This was not fourth-hand vague information. It was precise, direct and actionable information. It was, in a word, compelling.

[60] There was sufficient information contained in the ITO from which the reviewing justice could reasonably conclude that the information conveyed by the CI was corroborated.

[61] It is important to bear in mind that the concept of corroboration does not require that each and every detail, or even every material detail, supplied by a CI must be corroborated by some other fact. If that were the case, CI's would be of little use to an investigation. The degree of corroboration, if any, of the information is a factor going to weight which in turn impacts upon whether reasonable grounds exist viewing the information contained in the ITO as a whole.

[62] Indeed, the Debot "three C's" are simply a convenient short-hand to describe the type of inquiry that is undertaken. Compelling information that is not also credible, for example, is of little value. Corroboration adds more weight to both credibility and compelling. However, the entire exercise is not undertaken in isolation but having regard to the reasonable grounds to believe standard which is based on the totality of the evidence and the requirement that the reviewing judge is not to substitute his or her judgment for that of the justice who made the initial determination.

[63] The information from this CI was corroborated in a number of ways prior to the ITO being sworn. Firstly, independent confirmation of the presence of Mr. Hobieka at the Liberty Village Condominium was obtained. The very same type of car (a Lincoln Aviator) was found in the underground garage of the building and the car was found to be registered to Mr. Hobeika. Secondly, the CI was able to identify Mr. Hobeika from a file photograph. Both of these facts serve to eliminate mistake or coincidence as contributors to the information supplied by the CI. Thirdly, the telephone number supplied by the CI as being connected to Mr. Hobeika and used by him to conduct his drug trafficking business "checked out". An undercover officer contacted the number and carried on a drug related conversation with the possessor of that phone even if he was unable to persuade the person to engage in a sale.

[64] None of this corroborating evidence precludes fabrication by the CI of course[^2]. However, that is not the standard required for reasonable grounds or for my review of the warrant issued by the justice.

[65] This disposes of the second ground raised by the Applicant in challenging the sufficiency of the ITO. The Crown is not required to prove that it was in fact Mr. Hobeika who possessed the phone or engaged in the drug-related conversation with the undercover officer. The fact that a phone number identified by a credible source with Mr. Hobeika also appears to be associated with the narcotics business by reason of the drug-related conversation carried on is some corroboration of the allegation that he carries on the business of trafficking in narcotics.

[66] In my view, there were sufficient grounds stated in the ITO's filed in support of each of the two warrants issued on September 15, 2013 (Liberty Village and Lincoln Aviator) that a properly instructed justice could have issued them.

[67] Had circumstances changed following the issuance of the two warrants to such a degree as to preclude the police from acting upon them? In my view they had not.

[68] The Applicant has cited no authority to me for the proposition that a warrant validly obtained can become invalidated prior to its execution by reason of new information that comes to light. I am prepared in principle to accept the proposition in at least in some exceptional circumstances. If a warrant were issued alleging "X" had committed a particular crime at a time and place and it was subsequently discovered by means of conclusive and reliable information that "X" was out of the country at the time, then the foundation of the warrant would have been fatally undermined and it is hard to see how the police could act in good faith upon it. The circumstances would, in my view, have to be quite exceptional indeed for such a conclusion to be reached.

[69] The facts of the present case are about as far from that posited example as can be. Investigations are by their nature a dynamic thing. There was some new information discovered as there will always be. Police are not required to provide a minute-by-minute update of each additional piece of information gleaned after the ITO is signed after all.

[70] The "new" information here was not new in kind but in detail. The connection of the Etobicoke Condominium to Mr. Hobeika was both known and disclosed in the ITO: it was his address of record according to MTO records. The "new" information was nothing more than a sighting of the Lincoln Aviator at this already-identified (and disclosed) address and the presence of Mr. Hobeika's name on the building directory of occupants. That same automobile had also been sighted at the Liberty Village Condominium underground parking lot only a few days previously.

[71] The suggestion that this "new" information somehow contradicted the information from the CI is more than a bit of a stretch. At the highest, this raised the mere possibility of the CI being mistaken as to the location of Mr. Hobeika's principal residence – a fact of no bearing on whether he used the Liberty Village Condominium to conduct his narcotics trafficking business. The fact remains that the CI gave concrete, first-hand and current information about Mr. Hobeika trafficking at that location. Drugs may be stored in more than one place: R. v. Nguyen, 2015 ONCA 753 at para. 34. Narcotics dealers using stash houses or multiple addresses is hardly a novelty. The new information did not undermine the premise of the existing investigation even if it may have expanded it to some degree. The narcotics trafficking business of Mr. Hobeika may have been broader than the CI knew. That does not preclude the use of the Liberty Village Condominium in the manner described by the CI from his first-hand experience.

[72] The police are not required to know all there is to know about a target before seeking or executing upon a warrant. They are required only to have reasonable grounds for believing that the conditions for the issuance of a warrant under s. 11 of the CDSA exist. Nothing discovered that evening altered the basis for that conclusion.

[73] In my view, the two warrants were validly issued and police lawfully executed them in accordance with their terms. There was no violation of the rights of the accused Mr. Hobeika under s. 8 of the Charter arising from the execution of these two warrants.

(c) Was the detention and search of Mr. Hobeika on September 15, 2013 a violation of his Charter rights?

[74] Mr. Hobeika was found to be in possession of a quantity of marijuana when he was arrested. When he was brought to the police station about one hour after his arrest, he was subjected to a Level III or "strip" search shortly thereafter. The Applicant Mr. Hobeika submits that search amounted to an unconstitutional search in violation of his rights under s. 8 of the Charter.

[75] Both parties rely upon R. v. Golden, 2001 SCC 83.

[76] While it is fair to observe that it is highly unlikely that a Level III search would ever have been sought let alone authorized incidental to a routine arrest for possession of this quantity of marijuana, it is also fair to observe that this was not such a routine arrest. Mr. Hobeika's arrest followed detention (if only by seconds) in connection with a significant investigation into drug trafficking activities. By the time of his transport to the station, the visual evidence of the exigent entry into the apartment identified as Mr. Hobeika's in the Etobicoke Condominium had revealed the probable presence of cocaine and psilocybin as well. Multiple cell phones had been found on his person and cocaine and oxycodone had been found in the car at the time of his arrest. The searches of the condominiums and automobile had not yet been completed.

[77] In these circumstances, there was no prospect of Mr. Hobeika being released on a simple appearance notice or at all before the outcome of the searches of the three addresses was complete. Constable Paul had taken custody of Mr. Hobeika at the scene, conducted him to the station and through the parade before the desk sergeant. He sought and received a Level III search authorization for the purpose of verifying whether the prisoner had any drugs or other evidence on his person. It was reasonable and necessary for him to do so in my view.

[78] The procedures followed to authorize and conduct the Level III search closely adhered to the procedures outlined in Golden. Prior authorization was sought, the search was conducted in private and there was no unnecessary humiliation involved. There was no intrusive physical examination. The accused person removed his clothing item by item and each was returned to him to be put back on as soon as it was physically inspected.

[79] Constable Paul did locate evidence during this search: various receipts were found that led the police down further investigatory trails that led to warrants to examine his bank accounts and ultimately to search his sister's and his mother's residence.

[80] In my view, the search conducted was a lawful search incidental to arrest and was carried out in a reasonable manner. There was no breach of Mr. Hobeika's s. 8 Charter rights.

(d) Does Mr. Hobeika have standing to challenge the searches at Unit 1112 of the Etobicoke Condominium or his sister's apartment?

[81] The Crown initially challenged the standing of Mr. Hobeika to seek to exclude the evidence obtained from Unit 1112 of the Etobicoke Condominium pursuant to s. 8 of the Charter.

[82] Mr. Sanchez' evidence on the voir dire established that:

• Mr. Hobeika was the owner of Unit 1112, a three-bedroom condominium;
• Mr. Sanchez was renting one room of the condominium as a cash-paying tenant and in that capacity had use of the common areas in the unit as well;
• Mr. Hobeika occupied the "master bedroom" in the unit;
• While Mr. Hobeika had moved out in or about April 2013, he had never moved his furniture out and he continued to come and go from the unit from time to time, alone or in the company of others.

[83] Evidence of Det. Prentice established that Mr. Hobeika was in possession of keys both to the building and to Unit 1112 while evidence of Det. Kravchenko established that a briefcase containing documents clearly belonging to Mr. Hobeika (a mortgage commitment in his name for a transaction to close a few days later) was found inside Unit 1112.

[84] Whether Mr. Hobeika was a full or merely part-time resident of the apartment, it is clear that it was a residence of his and one in respect of which he had a reasonable expectation of privacy. In light of this evidence, the Crown did not press this issue further. Mr. Hobeika clearly had a reasonable expectation of privacy attaching to Unit 1112.

[85] The issue of standing remains a live one however in relation to the evidence found in the search of his sister's apartment. Mr. Hobeika has failed to adduce any evidence that he had a reasonable expectation of privacy in respect of this apartment. There is no evidence that he ever had possession or control of the premises, that he owned it or historically used it, that he regulated access to it or even had a subjective expectation of privacy: R. v. Merelles 2016 ONCA 647 at para. 18-21.

[86] I conclude that Mr. Hobeika has failed to establish that he has any standing to challenge the validity of the search of his sister's apartment pursuant to s. 8 of the Charter.

(e) Was the "exigent entry" into Unit 1112 of the Etobicoke Condominium lawful?

[87] It is not contested that the police initially entered the Etobicoke Condominium building without a warrant. They used a fob found on Mr. Hobeika's key chain to gain entry to the building itself and then after identifying themselves as police and hearing sounds emanating from inside the unit, made a forced entry into Unit 1112.

[88] The Crown's position is that the warrantless entry was a lawful one pursuant to s. 11(7) of the CDSA. Section 11(7) of the CDSA permits a peace officer to effect a warrantless search if (i) the conditions for obtaining a warrant exist (i.e. reasonable grounds to believe); and (ii) "by reason of exigent circumstances it would be impracticable to obtain" a warrant. It is common ground that the burden of proof to establish both conditions rests with the Crown.

i. Were there reasonable grounds to believe evidence of a breach of the CDSA would be found inside Unit 1112?

[89] This element of the test requires me to examine both the subjective belief of the officers in question and the objective basis for that belief.

[90] The subjective belief of the officers in question means the officer or officers who actually made the decisions in question if others simply acted on their orders without making an independent determination. In this case, the decision to effect the warrantless entry was made by Det. Prentice as the ranking officer on the scene in conjunction with Constable Abramovitz. It was difficult on the evidence to distinguish what decisions were made by which of these two. Det. Prentice had the undoubted right to overrule Constable Abramovitz if he disagreed with a decision but was often unclear as to whether he had ordered something or agreed with an order given by Constable Abramovitz. While the actual entry decision appears to have been primarily Det. Prentice's order, I have considered the decision as a joint one for this reason. Constable Kravchenko was the third officer involved in the entry, but clearly followed orders only.

[91] In my view, the following circumstances cumulatively support the existence of a reasonable belief that drugs or other evidence of a breach of the CDSA would be found in Unit 1112:

a. The fact that there were reasonable grounds to believe that Mr. Hobeika was actively engaged in the business of trafficking in narcotics which reasonable grounds were the basis of the existing but not-yet-executed warrants issued by a justice in respect of the Liberty Village Condominium and the Lincoln Aviator where this trafficking was believed to take place; b. The fact that MTO records indicated that the automobile registration and Mr. Hobeika's driver's license both listed Unit 1112 as Mr. Hobeika's residence; c. The fact that Mr. Hobeika's automobile was found in the parking lot of the Etobicoke Condominium; d. The fact that Mr. Hobeika was listed as an occupant of the Etobicoke Condominium in the electronic directory used to call occupants to seek entry; e. The fact that Mr. Hobeika had been named as surety for an accused connected to a significant 2011 drug seizure from the same building (albeit at different unit) and that the accused in that case had been required to reside with Mr. Hobeika at Unit 1112 as a condition of his release; f. The fact that Mr. Hobeika had been observed leaving the Etobicoke Condominium and entering his Lincoln Aviator parked at the same building; g. The fact that Mr. Hobeika was detained after entering his automobile in the company of another individual and his automobile smelled of marijuana and contained a visible quantity of marijuana; and h. The fact that the passenger accompanying Mr. Hobeika was found in possession of a quantity of cocaine and oxycodone.

[92] Det. Prentice then had seventeen years of service in the police force over which time he had gained significant experience in relation to narcotics investigations. In his experience, drug traffickers frequently operate out of multiple addresses and also make use of "stash houses" and similar arrangements. The confirmation that Mr. Hobeika had current access to and apparent control over Unit 1112 and appeared to be present there at the time (approx.. 8:30 p.m.) was sufficient to provide both Det. Prentice and Constable Abramovitz with subjective grounds to believe that evidence of Mr. Hobeika's narcotics trafficking would be found inside Unit 1112 and on that basis they gave orders that Constable Duarte be removed from staking out the Liberty Village Condominium and assigned to prepare an application for a further warrant for Unit 1112 forthwith.

[93] Both applicants urged me to discount the subjective belief of both officers due to their lack of specific familiarity with the contents of the ITO's underlying the two existing warrants. This is an objection without substance in my view.

[94] The investigating officer and affiant of the two ITO's (Constable Duarte) was a direct report of Constable Abramovitz as "Road Boss" and along with Constable Abramovitz was a member of Det. Prentice's MCU team. Both of the two senior officers had direct knowledge of the broad lines of the investigation leading to the warrants and were aware of the contents of the warrants themselves (including the information that Mr. Hobeika was believed on reasonable grounds to be engaged in drug trafficking from the two named locations). Both knew that Mr. Hobeika's address on record at the MTO was Unit 1112 and both had expected that Mr. Hobeika would be found at the Liberty Village Condominium when planning their operation earlier that evening. There is nothing further that knowledge by them of more "details" of the ITO's would have added to the reasonable grounds to believe equation after Mr. Hobeika's automobile was located at about 8:25 p.m. in Etobicoke in any event. At all events, I cannot assume that material details from the ITO were not known to them in the ordinary course of their supervisory duties simply by reason of their not having read the ITO's prepared by a subordinate in full.

[95] Both applicants also strongly urged me to find that the subjective belief of the two commanding officers on the scene amounted to no more than a hunch or simple suspicion that evidence might be found at that location. In order to elevate that suspicion or hunch into reasonable grounds, they suggest that further investigation would have been required in order to observe Mr. Hobeika's comings and goings, what he carried in and out of the building, etc. In support of this argument they urge upon me the authority of R. v. Jones, 2001 CanLII 28336 (ON SC).

[96] The Jones case is readily distinguished. The credibility of the CI in that case was questionable. The inference drawn in that case was that the accused took care to confine his activities to a particular location. In the present case, the accused had been known to sell narcotics from multiple locations – a residence and a car – even if the CI had no information about this particular additional location in Etobicoke.

[97] I am disinclined to dismiss as mere suspicion the product of years of professional experience, particularly where the conclusion reached is so entirely consistent with common sense. Drugs and their proceeds are portable. Both need to be stored somewhere. Stash houses may be used. The business is a sophisticated one that generates very significant volumes of cash. It is quite reasonable to expect (as the police did here) that active traffickers in narcotics will use multiple locations in plying their trade providing they have good access and control over them.

[98] If (as occurred here) the target of the investigation was arrested before there was time to put the additional location under surveillance, it would no longer be possible to observe him coming and going from that location to obtain the sort of confirmation the applicants assert is necessary. The necessity of searching it would be no less compelling and indeed imperative.

[99] The process of gathering evidence does not stop with an arrest. Armed with knowledge of a current and tangible connection between Mr. Hobeika, the narcotics business and Unit 1112, the requirement for a search of that premise became an investigative inevitability. Certainty that evidence will be found at the location is not the required standard for the existence of reasonable grounds to believe. The correct standard is credibly-based probability: R. v. Sadikov, 2014 ONCA 72 at para. 81.

[100] I need not find that these known circumstances when the new warrant was first ordered to be prepared amounted to objectively reasonable grounds to obtain a warrant under s. 11(1) of the CDSA. This was not the only evidence in the possession of the police at the time the exigent entry was actually made approximately one hour later. All of the evidence known at the time of the entry was actually made must be assessed.

[101] This further evidence included the information from 22 Division obtained at 9:00 p.m. that Mr. Shane King, an individual connected to a significant narcotics seizure in the same building, had been released from detention with Mr. Hobeika as a surety. The release conditions required Mr. King to reside in Unit 1112 – Mr. Hobeika's address at the time. This evidence provided an additional tangible link between the location sought to be searched and the narcotics business that Mr. Hobeika was credibly alleged to be in by the CI even if the CI had provided no evidence at all in respect of this location.

[102] The applicants both sought to portray the evidence regarding Mr. King and his release conditions as "stale". There is simply no evidence that this is so. The original arrest may have been in 2011, but there is no information before me as to when Mr. Hobeika became a surety for Mr. King or indeed that those release conditions were not then still in force in September 2013. I have no basis to assume they were not.

[103] Finally, significant confirmatory evidence was obtained at the time of the take-down of Mr. Hobeika and his car.

[104] First, the car gave off a strong odour of marijuana as soon as the door was opened and a quantity was located inside the car. Second, Mr. Hobeika was found in possession of two mobile phones. Finally, the search of the vehicle revealed cocaine and oxycodone.

[105] There was some dispute as to whether the cocaine and oxycodone was found solely on the person of the passenger accompanying Mr. Hobeika or whether these narcotics were also found inside the automobile. The ITO prepared to obtain the warrant that was used to conduct the actual search of Unit 1112 later that night is ambiguous on the point and neither Const. Abramovitz nor Det. Prentice directly addressed the question in their evidence. In my view, it does not matter. In either case, the circumstances of the arrest provided some additional corroboration of the connection of Mr. Hobeika to the narcotics trafficking business.

[106] If a justice reviewing an ITO containing the same information as was possessed by the two officers at the relevant time could have issued a warrant, then the subjective belief of the officers in the existence of reasonable grounds meets the objective standard as well. In my view there was credible evidence of the probability of evidence of a breach of the CDSA being located in Unit 1112 – the unit inside the building that Mr. Hobeika most likely came from when spotted leaving the building.

[107] I therefore find that there were reasonable grounds to believe that evidence of a breach of the CDSA would be found inside Unit 1112 before the exigent entry was actually made and that the first condition of s. 11(7) of the CDSA is therefore satisfied: grounds for the issuance of a warrant pursuant to s. 11(1) of the CDSA to search Unit 1112 existed at that time. I have considered the question from the perspective of what was known when the decision was made in the parking lot of the building. The additional information learned in the common areas of the building before the forced entry to Unit 1112 was made did not relate to the matter of reasonable grounds but did affect the consideration of urgency and will be considered below.

ii. Were there exigent circumstances that rendered it impracticable to obtain a warrant?

[108] There is no dispute that "exigent circumstances" for the purposes of s. 11(7) of the CDSA includes an imminent danger of the loss, removal, destruction or disappearance of evidence if the search were to be delayed for the time necessary to obtain a warrant: R. v. Patterson, 2017 SCC 15; R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.J. No. 98 and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] S.C.J. No. 49.

[109] The main issue raised in this case was whether police ought to have emerged from their cover and detained Mr. Hobeika and the Lincoln Aviator when he emerged or whether instead they should have stayed in hiding and simply allowed him to leave. It is suggested that they could have followed him to detain him elsewhere or given themselves time to conduct further investigations into his links to Unit 1112, to seek a warrant and, if successful, to execute the warrants at a different time. The Applicants both suggest that the exigent circumstances here were the product of circumstances flowing from a decision the police chose to make – that of detaining Mr. Hobeika at the scene – and not from circumstances beyond their control. There were less intrusive paths the police could and should have followed.

[110] Neither Applicant seriously challenged the proposition that, from the time police emerged from cover and initiated the take-down that the jig was up, even if they did not actually concede the point.

[111] At that point at least it was plain and obvious that the risks of imminent destruction or loss of any evidence of a breach of the CDSA that the police might expect to find in Unit 1112 were high.

[112] The time required to flush narcotics down a toilet, to toss them out the window or otherwise arrange for their destruction is measured in seconds not minutes or hours. In a large building such as the Etobicoke Condominium[^3], items could be hidden in the common areas, tossed to a neighboring balcony or simply thrown away long before even a rapid-response Telewarrant could be obtained.

[113] As I have noted, the take-down was a loud and public affair. There were three cellular telephones found when the two men in the car were detained (two in the possession of Mr. Hobeika). Any of these might have been used to send a quick message as police approached the car. People were seen emerging from the building, two of whom were using cellular phones and at least one of whom had gone back inside after observing the situation for a time. The condominium had security cameras covering the parking area and the two entrances to the lobby – the output from these cameras are quite often visible to building occupants through closed-circuit television channels allowing them to identify prospective visitors before admitting them. Det. Prentice noted that in his experience, narcotics dealers very often utilize lookouts to give them warning or else have pre-arranged signals via cell phone or text message.

[114] There was clearly a credibly-based probability that word may have gotten back to those either inside or with immediate access to Unit 1112 that Mr. Hobeika had been detained and police may be on their way. The risk of the place being sanitized was real and growing by the second.

[115] It was suggested that the police had no way of knowing that anyone was actually inside Unit 1112 and in a position to destroy evidence when the decision to enter was made in the parking lot. Absent confirmation of this fact, it was submitted that police could not simply presume the existence of imminent danger. In my view, that objection has no merit.

[116] The information from 22 Division acquired earlier that evening was that Mr. King was required by the terms of his release to be living in Unit 1112. His location was not known. Mr. King may have been present in the unit or he may have had access to it while living in his own unit in the same building. Either situation would afford him an opportunity to sanitize Unit 1112 before police could arrive with a warrant. There was imminent risk of loss or destruction of the evidence inside Unit 1112 from him at least

[117] The fact that police expected to find someone inside the unit is corroborated by the fact that a "ruse" was devised to distract or confuse the occupants by pretending to be conducting a simple bail compliance review in relation to Mr. King.

[118] Confirmation of the fact of people being inside Unit 1112 in a position to destroy evidence was in fact obtained before the door to Unit 1112 was actually forced. The attending officers all heard male voices coming from inside the unit before Det. Prentice knocked and announced himself. The sounds of footsteps moving away from the door after Det. Prentice announced himself as a police officer added further grounds to the fear of loss or destruction of evidence.

[119] The applicants submit that this additional information – gleaned by police after making an unauthorized entry into the public areas of the building using Mr. Hobeika's key fob - is not admissible to bolster the Crown's claimed reliance upon s. 11(7) of the CDSA. Both applicants assert a reasonable expectation of privacy attaching to the public areas of the Etobicoke Condominium and not merely the actual residential unit itself.

[120] The expectations of privacy attaching to common areas of a secure residential building are not the same as those arising in respect of the actual residence itself. Mr. Hobeika's expectations of privacy attaching to the sounds audible in the common areas emanating from his unit while he himself was in custody strikes me as quite low to non-existent. For his part, Mr. Sanchez was merely a tenant of Mr. Hobeika and did not even have exclusive possession of the entire unit, renting only one bedroom in it.

[121] I would view the expectations of privacy that both applicants could reasonably assert as regards observations made by police from the common areas of the building while approaching the door to knock on it to be significantly attenuated for these reasons: R. v. White, 2015 ONCA 508.

[122] In all of the circumstances, I do not find it necessary to consider whether the additional information learned immediately prior to forcing the door of Unit 1112 must be excluded from consideration because I am satisfied that exigent circumstances rendering it impracticable to await the delivery of a warrant existed at the time the decision was made to enter the lobby of the building at all events.

[123] If I am wrong in that conclusion, I would find that the application of the White analysis to the facts of this case would not exclude from consideration the evidence gathered in the common area hallway immediately before and after knocking on the door and announcing the presence of police. The confirmation that two males were inside the unit where evidence was reasonably likely to be found rendered an exigent entry necessary and reasonable.

[124] I have reached this conclusion based the following factors:

a. The very attenuated expectation of privacy of both applicants in relation to the common areas of the building for the reasons mentioned; b. Unlike White, police were not seeking to further their investigation to determine whether to seek a warrant – the decision to seek a warrant had been taken one hour previously and had only been strengthened with subsequently discovered information; and c. The "search" of the common areas was minimal and reasonably conducted – police proceeded directly to Unit 1112 and did not make any effort to conduct covert surveillance before knocking and announcing themselves.

[125] I shall now consider the core objection of both Applicants which is that the exigent circumstances relied upon were in some way the creation of the police. It is common ground (and common sense) that the police cannot be the authors of the exigent circumstances that they rely upon to justify a warrantless search.

[126] The position of the applicants is that the police had other options that would have afforded them the time to seek and obtain a warrant for Unit 1112 once Mr. Hobeika's car was spotted at the Etobicoke Condominium. The two options suggested are (a) to have followed Mr. Hobeika in the car until out of sight or earshot of the Etobicoke Condominium and effecting the take-down there; or (b) simply allowing Mr. Hobeika to leave so as to permit a more fulsome investigation of the allegedly new information learned (that Mr. Hobeika's connection to the Etobicoke Condominium appeared current) and planning to extend or execute the warrants as the case may be at a later time.

[127] In my view, the applicants' positions on this question are without merit and would amount to playing "Monday morning quarterback" with operational decisions made in the field and on the fly by the police.

[128] Some overall observations of the nature of this inquiry are in order. It is not my task to apply 20:20 hindsight. Conclusions reached with the aid of that light are as pointless as they are irrelevant. The Charter protects the rights of the high and the humble, the scoundrel and the saint alike. I can no more justify a Charter breach by reference to the evidence unearthed in consequence than I can make a finding of infringement of rights based on allegedly preferable alternate courses of action that may present themselves with the leisure of time and the advantage of hindsight. Any given situation may present a number of reasonable alternative reactions in real time. My task is not to examine the path not taken to see if it offered advantages; my task is to examine whether the path actually taken was itself within the range of reasonable choices having regard to the totality of the circumstances then known. Operational decisions taken by police on the fly based upon their cumulative experience and having regard to an evolving and dynamic situation are not to be dissected out of context.

[129] I am guided in these observations by the comments of C. Hill J. in R. v. N.N.M., 2007 CanLII 31570 (ON SC) at para, 204-205 that similar operational decisions must be afforded a "broad strike zone" and by the comments of Cromwell J. in R. v. Cornell, 2010 SCC 31 at para. 24 that my role is "to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement" and with due regard to the unfairness of applying after-the-fact assessments to discretion and judgment exercised by police officers in difficult and fluid circumstances. That description is exactly applicable here.

[130] There was no reasonable prospect of trying to re-organize the take-down operation on the fly to detain Mr. Hobeika at some other location that night. Six officers in two teams were present at the Etobicoke Condominium. One team had arrived only two minutes before Mr. Hobeika emerged from the building. The Etobicoke Condominium is located a short distance from a major highway. The uncontradicted evidence that I accept without hesitation is that there was no reasonable prospect of organizing a safe or effective tail operation to try to arrange a take-down elsewhere. It could not be presumed that Mr. Hobeika would proceed to Liberty Village nor is there evidence that sufficient assets were in place to arrange an interception there in any event. Finally, any such operation would run the risk of giving the target or his passenger time to send text messages to alert others while a stop was being effected.

[131] The applicants nevertheless suggest that there was no "shot clock" running and that police could have – and indeed should have – opted to take no action that night, but to pursue their investigation further instead. This too is simply Monday morning quarterback talk. Police had actionable intelligence and valid warrants to search both the car and the Liberty Village Condominium. It is not my role to tell them not to act when they have reasonable grounds in hand to take action and decide to do so.

[132] I therefore find that the search of the Unit 1112 was authorized under s. 11(7) of the CDSA. Upon entry of the unit, police took no further actions beyond those necessary to secure the premises pending arrival of a warrant to complete the search. The search was thus minimally intrusive having regard to its objectives – preservation of evidence pending receipt of a properly-authorized warrant.

(f) Did the search of Unit 1112 of the Etobicoke Condominium breach the s. 8 Charter rights of either Mr. Sanchez or Mr. Hobeika?

[133] I have found that the entry into Unit 1112 was authorized by s. 11(7) of the CDSA and did not breach the s. 8 Charter rights of either Applicant. The plain-sight evidence garnered during that entry included the observed presence of narcotics (psilocybin and cocaine) was added to the ITO being prepared. The ITO was submitted by fax to the justice at 11:01 p.m. on September 15, 2013, it was received by the justice at 11:15 p.m., was issued at 11:25 p.m. and was printed off and brought by car to the search site at 12:25 a.m. on September 16, 2013.

[134] There can be no serious objection to the sufficiency of that warrant if the plain-sight evidence obtained during the forced entry of Unit 1112 is included. The completion of the search of Unit 1112 under the authority of that warrant was according to law and violated no Charter rights of the applicants.

[135] If I am wrong in concluding that the entry without a warrant was authorized pursuant to s. 11(7) of the CDSA, I must consider whether the warrant could nevertheless have been issued were I to excise from the ITO the "plain sight" information learned in consequence of the exigent entry.

[136] I note here that Mr. Sanchez made an application to cross-examine the affiant of this warrant – the same Constable Duarte as swore the other two ITO's. I rejected that application as the applicant was unable to articulate any reasonable basis for me to grant it. I could see no basis to seek the affiant's answer to what were hypothetical questions as was suggested. There is no relevance to obtaining the affiant's answer to whether he would still have had reasonable grounds to believe if some or all of the facts he related in the ITO were removed. There was no allegation that cross-examination might reveal evidence that the affiant lacked belief in the truth of any of the facts related in the ITO or the basis for such an allegation. The objective inferences available to be drawn from those facts is a matter for the court.

[137] Having found that there were reasonable grounds to believe that the conditions for issuance of a warrant existed before the building was entered shortly after 9:45 p.m., I would also find and for the same reasons that the ITO shorn of references to the plain-sight information learned following the exigent entry also contains sufficient grounds to justify the issuance of a warrant.

[138] I therefore conclude that the execution of this warrant at Unit 1112 did not violate the rights of either Applicant under s. 8 of the Charter. I shall nevertheless consider below the arguments made in relation to s. 24(2) of the Charter.

(g) Was Mr. Hobeika's right to counsel violated on September 15, 2013?

[139] Mr. Hobeika was arrested at about 9:45 p.m. on September 15, 2013. He was promptly informed of his right to counsel by Constable Abramovitz before being turned over to Constable La Vella who was not called as a witness by either side. He was then turned over to Constable Paul at 10:08 p.m. with the instruction that Mr. Hobeika had requested to be put in touch with a particular lawyer. He arrived at 11 Division at 10:28 p.m. Following the granting of permission by the booking sergeant, Mr. Hobeika's Level III search was started at 10:35 p.m. and presumably finished a few minutes later. Mr. Hobeika was not placed in contact with counsel until some time after 3:00 a.m. on September 16, 2013 when Det. Prentice arrived back at the Division after having attended the two searches.

[140] Mr. Hobeika submits that this delay of more than four hours amounted to a breach of his right to counsel guaranteed by s. 10(b) of the Charter. He has provided no evidence that he ever sought to exercise his right to counsel, the only evidence to that effect coming from the police. That evidence establishes that the lawyer Mr. Hobeika sought to contact could not be located and was determined to have been suspended. There is no evidence that asked to be put in touch with duty counsel or some other lawyer instead, at least none pertaining the to the time frame of 11:00 p.m. until 3:00 a.m. (at which time Det. Prentice returned to the station, spoke to Mr. Hobeika, secured his agreement to speak to duty counsel and made arrangements for this to occur).

[141] What was the reason for the delay? While there were numerous suggestions made that the "real" reason for the delay in granting access was the desire of police to isolate the target of the investigation (Mr. Hobeika) until after the searches had been completed, there is no evidence that this was the case.

[142] Certainly it is hard to credit this alleged but unproved motive with any reasonable foundation in fact. By the time Mr. Hobeika was at the station, police had secured the Etobicoke Condominium and were awaiting receipt of a search warrant. If they had not secured the Liberty Village Condominium pending arrival of the search team, there was nothing preventing them from doing so and in short order. If the preservation of evidence or safety of the officers was to be a justification for deferring access to counsel, there is no evidentiary foundation before me to justify that claim. However, that explanation is not one that is advanced by the Crown.

[143] While there is some evidence of delay in facilitating the exercise by Mr. Hobeika of his right to counsel, the applicant has failed to lead sufficient evidence to persuade me that this delay was unreasonable in the circumstances.

[144] Constable Paul and Constable Moniz both brought Mr. Hobeika to the station but Constable Paul left the station shortly after completing the Level III search to perform other duties leaving Mr. Hobeika in the charge of his partner, Constable Moniz from about 11:00 p.m. The applicant did not seek to call Constable Moniz who was at the station and there is no information as to what efforts if any he made to facilitate the right to counsel or what communications if any he had with Mr. Hobeika (who provided no evidence in support of his application). Was Mr. Hobeika willing to talk to duty counsel? Did he have alternate counsel in mind? There is no information before me. Mr. Hobeika would know what he said and did between 11:00 p.m. and 3:00 a.m. – he chose to provide no evidence.

[145] Absent direct evidence from Mr. Hobeika or from Constable Moniz, I cannot conclude that the delay in granting access to counsel was unreasonable even if it has not been adequately explained. The burden of proof on this application rests with Mr. Hobeika. He has submitted no evidence nor did he require the evidence of any of the officers who played a role. While a four hour delay appears on its face to be quite long, the length of the delay alone does not shift the burden of proof on this application.

[146] I do not conclude that Mr. Hobeika's right to counsel pursuant to s. 10(b) of the Charter was violated on the facts of this case.

(h) Ought any evidence to be excluded pursuant to s. 24(2) of the Charter?

[147] I have not found that any of the Charter rights of either Applicant was violated. It is thus not necessary for me to consider further whether any of the resulting evidence ought to be excluded since none of it was obtained in a manner that infringed or denied any of the rights guaranteed to either Applicant by the Charter.

[148] Nevertheless, I shall review the R. v. Grant analysis[^4] as it would apply in the event it were found that the exigent entry was not authorized by s. 11(7) of the CDSA or infringed the rights of either applicant under s. 8 of the Charter:. I shall also consider the s. same analysis in relation to the alleged deprivation of the s. 10(b) Charter right to counsel.

[149] The Crown contends and I agree that the seriousness of the breaches in this case would tend towards the "minor" or inadvertent end of the scale.

[150] As regards the search at Unit 1112, the police had already determined to seek a warrant and put those wheels in motion. They did not engineer the urgency – to the contrary, their most fervent desire was that Mr. Hobeika would not emerge until after they had time to obtain the warrant. They were not looking for more information to justify a warrant – they believed they had enough. The decision to act urgently without waiting for a warrant was made in good faith. The search that followed was no more than was required to secure the premises while waiting for the warrant to arrive.

[151] Turning to the consequences of depriving Mr. Hobeika of his right to counsel, I reach similar conclusion. There is no evidence that police sought to or did take advantage of Mr. Hobeika's lack of legal counsel in any way. He was given his caution. There was no attempt to obtain a statement from him without benefit of legal advice. There is no evidence that can be pointed to as having been obtained "as a result" of the claimed infringement.

[152] While the Charter-protected rights in this case – the privacy of the home and the right to counsel – are both at the high end of the spectrum of protected rights, the impact of the breaches alleged in this case temper that conclusion somewhat for the reasons noted above.

[153] If police erred in concluding that there was imminent danger of loss of evidence, their error was made in good faith and was a question of degree not kind. The grounds for a warrant existed and they were already in the process of seeking one. The cause and effect relationship between the evidence found and the Charter right infringed is slight. Mr. Sanchez was not entitled to a "sporting chance" to destroy the evidence in the unit pending the arrival of that warrant simply because it is later found that the police lacked sufficient evidence of urgency when they acted believing they did. Similarly, no attempt to take advantage of an unrepresented Mr. Hobeika was made and there is no direct cause and effect relationship between any evidence actually obtained and the alleged infringement of Mr. Hobeika's right to counsel.

[154] Finally, the serious nature of the allegations (drug trafficking) and the impact of the exclusion of the evidence on this case (the Crown admits that it would be unable to proceed with either prosecution) are both indicative of the significant societal interest in obtaining an adjudication of these charges on the merits.

[155] Considering the three Grant factors in combination, I would not exercise my discretion to exclude any of the evidence obtained in this case or, at the limit, would exclude no more than the "plain sight" evidence observed during the original exigent entry before the arrival of the warrant. I can see no basis to consider going further than that.

Disposition

[156] For the foregoing reasons, I conclude as follows:

(1) Mr. Hobeika's application to find Charter violations relating to (and to exclude evidence obtained from) the various searches of his person, the Lincoln Aviator, Unit 1112, the Liberty Village Condominium, his sister's apartment, his mother's home and the various bank accounts and safety deposit box searches are all dismissed.

(2) Mr. Sanchez' application in relation to the search of the Etobicoke Condominium is also dismissed.

(3) The trial shall now continue subject to these rulings.

CITATION: R. v. Hobeika and Sanchez, 2017 ONSC 6066

COURT FILE NO.: CR-16-90000067-0000

DATE: 20171011

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

MICHEL HOBEIKA and NELSON SANCHEZ

REASONS FOR JUDGMENT

– s. 24(2) Charter applications

S.F. Dunphy J.

Released: October 11, 2017

[^1]: The ITO for each of the two warrants was identical save for the description of the place to be searched.

[^2]: Nor was there evidence of fabrication, it should be noted.

[^3]: No direct evidence of the size of the building was adduced. I have inferred that it is a large building due to the number of floors (at least fifteen) and the number of units per floor (at least 12).

[^4]: R. v. Grant, [2009] SCC 32 at para. 71