COURT FILE NO.: CRIMJ(F) 1309/15

DATE: 2018 06 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

NICHOLAS LAKAN

Counsel: J. Campitelli, for the Crown D. Paradkar, for the Defence

HEARD: April 23-24, May 14, 2018 at Brampton

REASONS FOR JUDGMENT

Paras.

A. INTRODUCTION........................................................................................... 1

B. BACKGROUND PRIOR TO SEARCH............................................................. 4

C. THE SEARCH/ARREST............................................................................... 12

D. THE ITO

(1) Confidential Informers

(a) Introduction........................................................................................ 13

(b) CI 1................................................................................................... 15

(c) CI 2................................................................................................... 17

(2) Corroborating Investigation

(a) Introduction........................................................................................ 19

(b) Accused’s Criminal History.................................................................. 20

(c) Details Provided By CIs....................................................................... 25

(d) Accused Actively Trafficking Drugs...................................................... 26

(i) The November 6, 2013 Surveillance................................................... 27

(ii) The November 7, 2013 Surveillance (Phase 1)................................... 35

(iii) The November 7, 2013 Surveillance (Phase 2)................................... 40

E. POSITIONS OF THE PARTIES

(1) The Defence......................................................................................... 42

(2) The Crown............................................................................................ 52

F. ANALYSIS

(1) Governing Principles

(a) The Reviewability Standard.................................................................. 68

(b) Settling the Record For Review............................................................. 71

(c) The Reasonable Grounds Standard...................................................... 75

(2) Discussion............................................................................................ 84

G. CONCLUSION.......................................................................................... 106

Hill J.

A. INTRODUCTION

[1] In a judge-alone trial, Nicholas Lakan pled not guilty to a charge of possession of cocaine for the purpose of trafficking.

[2] As described more particularly below, resolution of the case is agreed to depend entirely on the question of police compliance with s. 8 of the Charter.

[3] On consent, the police officer who drafted the ITO (Information to Obtain a Search Warrant) for a warrant to search the accused’s residence was cross-examined by the defence respecting limited subject matter.

B. BACKGROUND PRIOR TO SEARCH

[4] As of early November 2013, Peel Regional Police Service (PRPS) Constable Sean Wegenschimmel had been on the force for approximately 3 years. As a constable executing uniform police duties, he was transferred on a temporary secondment on the TIPS program to the PRPS 21 Division Criminal Investigation Bureau, to be paired with more experienced plainclothes officers whom he could shadow as a training and career development experience.

[5] At the point of the investigation in the present case, the constable had had some involvement in about 30 drug cases. Only two of those investigations involved hand-to-hand transactions. He had been involved in an investigation involving a production order as well as two Criminal Code search warrant investigations but had never acted in the capacity of an ITO drafter or affiant.

[6] Information was received by the PRPS from two confidential informants (CI 1 and CI 2) identifying “Nick”, resident at 72 Executive Court, Brampton, as a cocaine drug dealer. Armed with this information, PRPS 21 Division officers took up surveillance in an effort to corroborate the informants’ disclosures. The investigation involved Const. Wegenschimmel in aspects of the surveillance but primarily in the assignment, probably by a coach officer, Const. Sean Osborne, of being the affiant for an ITO to obtain a Controlled Drugs and Substances Act (CDS) search warrant for the Executive Road address.

[7] By November 2013, Const. Wegenschimmel (the affiant) had not taken the PRPS search warrant training course.

[8] After surveillance of Nicholas Lakan, at his residence and when in his vehicle, on November 6-8, 2013, the affiant completed the ITO on November 9. The ITO stated that the offence in respect of which the search warrant was sought was possession of cocaine by Nicholas Lakan on or about November 8, 2013. The affiant’s grounds of belief were set out in Appendix C of the ITO (14 pages) which also incorporated Appendix D (relating to CI 1) (6 pages) and Appendix E (relating to CI 2) (4 pages).

[9] To the affiant’s recall, he “would have” had Const. Osborne look over the draft ITO as he was “overseeing” the work. Const. Osborne testified that, as of November 2013, he had “some” experience with drug investigations and certainly more than Const. Wegenschimmel. He had some experience in drafting search warrants, although not many drug warrants, but was not certain in his evidence in this proceeding whether he had taken the PRPS search warrant training course.

[10] In sort of a mentor function, Const. Osborne testified that he would have reviewed the draft ITO. While the officer made no note of the review, he informed the court that he “would have read it over” for the affiant likely on the affiant’s computer.

[11] After regular court hours on November 9, 2013, the ITO was submitted to the Newmarket Telewarrant Centre (TWC) and a CDSA telewarrant issued at 6:50 p.m. to search the dwelling at 72 Executive Court, Brampton, during the time period of 6:50 to 11:59 p.m. on November 9, for cocaine, scales, debt lists, packaging materials and currency.

C. THE SEARCH/ARREST

[12] The parties filed an Agreed Statement of Facts (Exhibit #7) detailing the searches and arrest of Mr. Lakan from which the following summary is drawn:

1. At 8:59 p.m. [on November 9, 2013] a traffic stop was initiated on Mr. Lakan’s vehicle, and he was placed under arrest for being in possession of cocaine for the purpose of trafficking. Police searched both Mr. Lakan personally, and his vehicle incident to his arrest. Inside the driver’s side passenger door, police located 2.5g of cocaine. Mr. Lakan was also found to be in possession of $1610.00, which was located inside his left front pant pocket.

2. Police proceeded to execute the search warrant inside 72 Executive Court, Brampton. Mr. Lakan’s family was present at the home. From a safe located in the garage, police seized 338g of powder cocaine, and 1 pill of ecstasy. At the time of Mr. Lakan’s arrest he was in possession of a key, which opened that safe. An additional amount of currency was also located in Mr. Lakan’s bedroom in the amount of $2473.00.

3. On November 13 2013, Peel Regional Police officers executed a search warrant on an RBC safety deposit box in Mr. Lakan’s name. Police seized a total of $5000.00 from that safety deposit box.

4. There is no dispute that Mr. Lakan had knowledge, and exercised control over the 338g of cocaine that was located in the safe, as well as all of the monies seized. If the 338g of cocaine is not excluded as a result of the challenge to the search warrant pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, Mr. Lakan acknowledges possession of that cocaine. Finally, there is no dispute that it was in his possession for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

D. THE ITO

(1) Confidential Informers

(a) Introduction

[13] The ITO disclosed to the defence contained redactions, particularly in sections relating to CI 1 and CI 2 and their transmitted information. A Crown summary of the redactions was provided to the court which, with further court recommendations to Ms. Campitelli, accepted by the prosecution, resulted in a Judicial Summary relating to the redactions (Exhibit #­­5).

[14] CI 1 provided information to PRPS Const. Kelly in the summer and fall of 2013 which in turn was passed on to the affiant. CI 2 provided information to PRPS Const. Leamon in the summer of 2012 which was transmitted to the affiant.

(b) CI 1

[15] Drawing on the public record of the ITO respecting CI 1, included in the information provided to the issuing justice was the following:

(1) the CI had known “Nick” for over 3 months – he identified Nicholas Lakan from a photo in the possession of the police

(2) a detailed physical description of the accused was given

(3) the CI provided a description of the accused’s house on Executive Court in Brampton as well as the colour and make of his vehicle often parked in the residence driveway

(4) for a period greater than 3 months, the CI witnessed the accused selling cocaine during which the CI purchased cocaine from him at the accused’s residence

(5) within 1 month prior to November 9, 2013, the CI attended 72 Executive Court and purchased cocaine from the accused.

[16] In addition, the affiant provided these details respecting CI 1:

(1) whether CI 1 had a criminal record – CI had never been charged with perjury or an obstruct-related crime

(2) the nature of the motivation or benefit promised the CI was to be provided only upon a successful result for the investigation

(3) police investigators were unaware of any instance in which CI 1 had provided false or exaggerated information

(4) within 60 days prior to November 9, 2013, as a result of information the CI provided about another male person trafficking drugs in Brampton, police surveillance was undertaken followed by arrest of the target in possession of drugs and a quantity of Canadian currency – that person was charged with drug trafficking and possession for the purpose of trafficking

(5) within 6 months prior to November 9, 2013, as a result of information given by CI 1 relating to another male person trafficking drugs in Brampton, a CDSA search warrant was executed resulting in the seizure of drugs and a quantity of Canadian currency – the male party was charged with a number of CDSA offences.

(c) CI 2

[17] The affiant included in the ITO the following details provided by CI 2 to Const. Leamon:

(1) CI 2 had known “Nick” as a drug dealer for more than 3 months prior to providing the information – from a photo in PRPS possession, the CI identified Nick as Nicholas Lakan

(2) during that time period, CI 2 regularly purchased cocaine from the accused at his residence – the CI confirmed that a police photo of 72 Executive Court was the accused’s dwelling

(3) CI 2 provided a detailed physical description of the accused, as well as the colour and make of the accused’s vehicle, the accused’s cellphone number, and the location and a description of his residence on Executive Court.

[18] The affiant also learned from Const. Leamon:

(1) whether CI 2 had a prior criminal record – the CI has not been charged with perjury or an obstruct-related offence

(2) the CI’s motivation or expected benefit for giving information to the police about the accused – with CI 2 aware that no reward would be forthcoming without a successful result to the investigation

(3) that investigators were unaware of CI 2 providing false or exaggerated information in the past

(4) while information provided in the past had been corroborated by the police, no arrests had been made.

(2) Corroborating Investigation

(a) Introduction

[19] The affiant included in the ITO a variety of information relating to the background of the accused as well as confirmatory facts, from records checks and police surveillance, respecting the accounts of the CIs.

(b) Accused’s Criminal History

[20] The affiant disclosed that the accused had a specific Criminal Name Index Number in the PRPS databases. The accused’s date of birth is September 11, 1984. In Appendix D of the ITO, reference was made to “a previous arrest template of Nicholas Lakan”.

[21] At p. 11 of the ITO, the affiant stated:

PR12351093

On October 17^th, 2013, Police investigated Nicholas Lakan at the Avenue Motel located at 1060 Dundas Street East, Mississauga. Nicholas Lakan was investigated in a black Toyota Corolla with an Ontario license plate of ANPY216. Nicholas Lakan was found to be in possession of 2.1 grams of cocaine, 6 Oxycotin pills, a digital scale, two cellular phones, and a large quantity of Canadian and American currency. Nicholas was arrested and charged with possession for the purpose of trafficking x2.

[22] The affiant noted on the same page of the ITO that his November 7, 2013 C.P.I.C. query revealed that the accused was not “currently” on charge. Questioned in this proceeding as to why the October 17, 2013 matter was not recorded in the C.P.I.C database, the affiant testified that the “PR12…” identifier suggested that the arrest may actually have occurred in 2012. In the end, the affiant remained uncertain about the circumstances of the accused’s prior drug arrest.

[23] At pp. 7-8 of the ITO, reference was made to PRPS records relating to surveillance, conducted on August 9, 2012, at the location of a Moxie’s restaurant located at 56 Peel Centre Drive in Brampton:

e) At approximately 9:05 am, Police observed Nicholas Lakan exit the Moxie’s restaurant and attend the front passenger seat of a black Honda civic. Police observed a hand-to-hand exchange occur between Nicholas Lakan and a female driver. The female driver was arrested a short time after and found to be in possession of 1 gram of powder cocaine (Peel Regional Police Occurrence PR12265723).

f) At approximately 11:58 pm, police observed Nicholas Lakan exit Moxie’s and enter the rear passenger seat of a white Acura AWT. Police then observed Nicholas Lakan engage in a quick hand-to-hand transaction with the front passenger. Police stopped the Acura a short distance away and located discarded powder cocaine across the floor board of the vehicle (Peel Regional Police Occurrence PR12265921).

[24] Relevant database review revealed that, in November 2013, Nickolas Lakan’s Ontario driver’s licence was suspended. On November 7, 8, and 9, police surveillance observed the accused driving his vehicle.

(c) Details Provided By CIs

[25] In the ITO, the affiant was in a position from police records and surveillance to confirm these details provided by the CIs:

(1) Nicholas Lakan resided at 72 Executive Court, Brampton, in 2012 and 2013

(2) the physical description provided of the accused’s dwelling was accurate

(3) that the accused, as described, operated a black Toyota Corolla vehicle

(4) the described physical description of the accused matched.

(d) Accused Actively Trafficking Drugs

[26] As said, in an effort to identify the accused’s current activities, the PRPS conducted four days of surveillance, November 6, 7, 8 and 9, 2013. Aspects of this surveillance are summarized below.

(i) The November 6, 2013 Surveillance

[27] The affiant was involved in the surveillance of Mr. Lakan’s residence at 72 Executive Court on November 6, 2013.

[28] At p. 8 of the ITO, the affiant described the location and physical appearance of the dwelling. The narrative continued with the sighting of a male person arriving by car in the residence driveway. The ITO text continued:

h) Police observed a male white driver exit the vehicle and attend the front entrance of the residence. Police observed Nicholas Lakan open the door of the residence from the inside.

i) The male driver entered the front door area and engaged Nicholas Lakan in a hand-to-hand transaction. The front door closed behind the driver.

j) A short time later, the driver exited the residence through the garage.

k) The male then left the residence in the Chrysler immediately after.

l) The Chrysler was stopped by uniformed Police in the area of Torbram Road and North Park Drive, Brampton. The driver was found to be in possession of 0.6 grams of powder cocaine (Peel Regional Police Occurrence PR130641396).

[29] The defence questioning of the affiant focused on wording in the description of the November 6 surveillance, “…engaged … in a hand-to-hand transaction” and, as discussed further below, similar wording in the November 7 surveillance descriptions.

[30] In cross-examination, the affiant gave this evidence:

Q. Let’s talk about hand-to-hand transaction[s]. You’d agree with me that seeing a hand-to-hand transaction, like actually physically seeing something, is different than giving an opinion that you believed there was a hand-to-hand transaction?

The witness requested that the question be repeated:

Q. If you saw an interaction, [but] didn’t actually see a physical exchange, but you gave an opinion that you believed it was a hand-to-hand… that opinion would be different than actually physically seeing an exchange of something for something …?

A. I think I kind of disagree with that point especially in the context of with this case because there’s the hand-to-hand with two hands making contact … there’s also the background, the bigger picture surrounding that which would lead me to believe that there was actually an item that would have been exchanged.

Q. So what I’m trying to get to is that distinction you’ve just referred to. In your opinion that something had happened, that something had taken place, you’d agree with me that is distinct from actually seeing an actual interchange …?

A. I don’t know if could say it would be distinct.

Q. And so the language when you say “hand-to-hand”, you don’t understand the distinction between actually seeing an actual exchange take place versus your opinion that you believe an exchange had taken place, you don’t see the distinction?

A. But I saw an exchange, like an exchange take place.

Q. Right, as opposed to you didn’t actually see an exchange but you believe there was an exchange.

A. I saw an exchange on one occasion…

COURT: No, we’re not asking about this case in particular, we’re asking if you understand the difference between seeing two hands meet and an item being exchanged, as opposed to concluding that there had been a hand-to-hand transaction and an exchange …?

A. Okay, yes I understand.

Q. Now, when you tell somebody, like an issuing justice, and use the language that, “police observed” or “there was a hand-to-hand transaction”, would it be fair that you’re communicating that you, or other police, actually saw a physical hand-to-hand- exchange?

A. Yes.

Q. And in the context of a drug investigation, that would be an exchange of drugs for money…?

A. Or exchanging just drugs … sure, yeah…

Q. Right. You’re trying to convey, like I believe I saw a hand-to-hand based on the totality of the circumstances, that would have been better to say?

A. You’re right yes.

Q. In hindsight, it might have been fairer in an ex parte application?

A. That’s correct.

[31] By the conclusion of cross-examination, the affiant agreed that full and frank disclosure would have required him to say in the ITO that, from what he observed, he “believed” a hand-to-hand drug transaction occurred.

[32] The affiant testified that this evidence from his Discovery was accurate:

Q. From your point of view, certainly you didn’t see Mr. Lakan actually hand over anything to this other male, correct?

A. No, I didn’t.

Q. it was some kind of interaction, and you didn’t quite see what it was, right?

A. That’s correct.

[33] In this proceeding, the constable noted that the quantity of drugs exchanged may be sufficiently small that the narcotic cannot be seen by surveillance officers when two hands meet.

[34] Const. Wegenschimmel testified that in drafting the ITO as he did, he made no deliberate attempt to mislead the justice of the peace. He did not attempt to exaggerate the information he had at hand. His narrated expression in the ITO relating to hand-to-hand transactions being observed did not intentionally omit the wording “believed to be”.

(ii) The November 7, 2013 Surveillance (Phase 1)

[35] At p. 9 of the ITO, the affiant described the police surveillance at the suspect’s residence from 12:14 to 1:30 p.m. on November 7:

a) Police observed a Black Infiniti G35 parked in the drive way with a license plate of [redaction]

b) At approximately 12:45 pm Police observed Nicholas Lakan walk out of the front door of the residence, attend the rear passenger side door of the Infinity, at which time he opened the door, leaned inside, grabbed an unknown item, shut the door and immediately walked back into the residence.

c) At 1:23 pm, a white cube van with license plate of [redacted] pulled into the driveway of 72 Executive Drive, Brampton. A male white exited the vehicle, at which time the garage door of the residence was opened by Nicholas LAKAN from the inside. The unknown male walked into the garage. A hand-to-hand exchange was made between Nicholas Lakan and the unknown male. The male then immediately left.

[36] According to the affiant, he received this information from another surveillance officer, Const. Shane Cutler. The affiant’s notes record that, at 1:58 p.m. on November 7, he was briefed by Cutler regarding what that officer had observed. He made no note of what he was told. The witness acknowledged that he should have noted down the conveyed information. Under cross-examination, the affiant initially stated that he typed Cutler’s information directly into the draft ITO as it was related to him.

[37] Under further questioning, respecting a November 8, 2013 3:40 p.m. note, the affiant maintained that it was likely this day that he typed the Cutler information into his draft as it was related by that officer – however, he was not one hundred percent certain.

[38] Const. Cutler testified here that the observation he made was a white van pulling into the driveway of 72 Executive Court, at 1:23 p.m., and the driver entering and exiting the garage door when it opened. He lost sight of the van driver until he left the garage about a minute later. He saw no interaction between this individual and Nicholas Lakan.

[39] In cross-examination by Mr. Paradkar, according to Const. Cutler, he would have briefed the affiant about these observations at the Division sometime after 1:43 p.m. on November 7 or later when he and Wegenschimmel went out on surveillance together. Const. Cutler has no recall of seeing the affiant typing as he gave the affiant his observation information. Under questioning by Crown counsel, Const. Cutler maintained that he could not recall if he conveyed his information in person to the affiant.

(iii) The November 7, 2013 Surveillance (Phase 2)

[40] At p. 9 of the ITO, in summarizing his own surveillance observations made between 2:30 and 4:00 p.m. on November 7, 2013, the affiant wrote:

a) A black Toyota Corolla with a license plate of ANPY216 was observed parked in the drive way behind a black Infinity G35.

b) At approximately 2:51 pm, Nicholas Lakan exited the residence through the front door. Nicholas Lakan then entered the front driver side of the Toyota and proceeded to reverse out of the driveway. Once on the street, a white pickup truck with a license plate of [redacted] drove up to the residence. Nicholas Lakan was observed signaling to the driver of the pickup truck to follow him.

c) Nicholas Lakan was followed approximately 200 meters east on Executive Drive, Brampton, at which time he parked the Toyota Corolla adjacent to a mail box.

d) The white pickup truck parked in front of Nicholas Lakan.

e) Nicholas Lakan exited his vehicle and approached the front driver side window of the white pickup truck.

f) A hand-to-hand transaction was observed between Nicholas Lakan and the driver.

g) The white pickup truck then proceeded eastbound on Executive Court and Nicholas Lakan immediately drove back to his residence.

[41] In cross-examination, the affiant agreed that his wording, “[a] hand-to-hand transaction was observed…” amounted to a “black and white” statement that he actually saw a drug exchange. What the affiant in fact observed was Nicholas Lakan reach into the open truck window with the ability to have engaged in a physical drug transaction with the driver. He saw no specific item(s) exchanged. The witness again acknowledged that, “what was believed to be” a hand-to-hand transaction would have been “better phrasing” to express his opinion of what had occurred.

E. POSITIONS OF THE PARTIES

(1) The Defence

[42] The defence restricted its challenge to the warranted search to a sub-facial validity challenge.

[43] On behalf of the accused, Mr. Paradkar emphasized the heightened privacy interests implicated by the search of a private dwelling.

[44] It was submitted that the prior authorization regime of applying for a search warrant places an exceptional duty of balance and accuracy upon an ITO affiant, in the ex parte process, to disclose facts in a full, frank and fair manner.

[45] The primary position of the defence is that because Appendix C of the ITO contains “numerous falsehoods that inflate the degree of corroboration” for the information of the CIs, the warrant ought to be quashed regardless of whether reasonable grounds could otherwise be said to exist within the ITO. It was submitted that the deliberate and strategic efforts of the affiant to portray the police surveillance as turning up a pattern of actual hand-to-hand drug transactions on the part of the accused was intentionally designed to mislead the issuing justice to a false level of certainty respecting police confirmation of the CI information. That form of drafting was approved by a supervising police officer.

[46] Mr. Paradkar relied upon the evidence in this proceeding that the surveillance observations of November 6 and November 7 (Phase 2), 2013 did not involve the affiant actually seeing a physical hand-to-hand exchange of drugs. Though presented as an observed fact, the affiant had only drawn an inference that such activity had occurred. In respect of the November 7 (Phase 1) surveillance, the affiant claimed that a hand-to-hand drug transaction transpired involving the accused when, in fact, the relevant surveillance officer never observed such activity. Overall, the affiant unfairly distorted the prior authorization process.

[47] In the alternative, the defence submitted that the offending parts of the ITO referring to the affiant’s conclusions about November 2013 hand-to-hand transactions involving the accused must be excised from the ITO. The effect of excision, it was submitted, would be an ITO application without reasonable grounds remaining, effectively resulting in an unlawful warrantless search. It was argued that the grounds in the revised ITO, limited only to information from the CIs, would not meet the standard of reasonable and probable grounds – the remaining text of the ITO would no longer include facts making it “more likely than not that the offence occurred and that the facts establish it more likely than not that conducting the search will afford evidence”.

[48] Mr. Paradkar reviewed the Debot criteria respecting the recorded information from both CIs. Confirmation of innocuous biographical details provided by a CI, such as a residential address or vehicle description relating to an investigative target, amount to non-corroborative innocuous details, the product of widely held public knowledge, and non-predictive in terms of involvement in criminal activity. The affiant’s testimony respecting the ITO’s reference to the accused’s October 2013 arrest on drug charges is sufficiently confusing to be afforded no corroborative weight.

[49] In summary, it was submitted, in particular, that on the basis of the redacted and excised ITO the uncorroborated information from CI 1 could not be said to be credible or reliable. The CI 2 information could best be described as stale information from an untested tipster. Both CIs acted for some benefit. Their criminal records are unknown.

[50] On the subject of the court assessing the unredacted version of the ITO to assess the record upon which the justice acted to issue the search warrant, Mr. Paradkar submitted that: “With respect to the court accessing the Garofoli details on Step Six, I don’t have any submissions to make on that”.

[51] Application of the s. 24(2) Charter criteria discussed in Grant ought to lead to exclusion of the seized evidence. The police misconduct breaching s. 8 of the Charter is serious as a dwelling was searched, based upon a misleading sworn ITO, in the absence of objectively reasonable grounds for the search. The intrusion on the accused’s privacy, by an illegal search at night, was significant. In the balance, although the seized drugs are reliable evidence essential to the Crown’s case, it is imperative that the court disassociate itself from appearing to condone the unconstitutional behaviour of the police exhibited in this case.

(2) The Crown

[52] Ms. Campitelli submitted that the court ought to conclude that the affiant was a young, inexperienced officer tasked with drafting his first ITO, and that his inappropriately-worded references to observations of hand-to-hand drug transactions (Nov. 6/13 and Nov. 7/13 (Phase 2)) must be considered in this context. While his inexperience is not an excuse, it is the proper explanation for the manner in which he drafted the impugned passages in the ITO – not some deliberate or strategic attempt to mislead the justice or to include false information to prop up the CI information. Admittedly, proper review by the supervising officer ought to have caught the problematic drafting.

[53] Insofar as the representation that the November 7 (Phase 1) surveillance resulted in the police seeing a hand-to-hand drug transaction, it was argued that Const. Cutler’s evidence was somewhat confusing as to when and what information was passed along to the affiant. Again, perhaps in the context of miscommunication or misunderstanding between the officers, this was not an instance of the affiant intentionally deciding to include false facts to assist in drawing the ITO up to the reasonable grounds standard.

[54] It was submitted that in the absence of the defence establishing that the affiant, in drafting the relevant passages as he did, intended to mislead the justice with the inclusion of known false information, the remedy of finding a s. 8 Charter breach together with non-reliance on the remainder of the ITO grounds, is unwarranted.

[55] As to the drafting relating to the November 6 surveillance (“engaged … in a hand-to-hand transaction”) and the November 7 Phase 2 surveillance (“[a] hand-to-hand transaction was observed”), the Crown conceded the wording to be inappropriate. However, with respect to the November 6 surveillance, counsel questioned whether, in the totality of circumstances narrated in the ITO, the reader would have been misled given that a brief meeting occurred between the accused and a male who arrived by car, followed by immediate arrest of that male who was found in possession of 0.6 g. of cocaine.

[56] In any event, as an initial position, it was argued that an excision exercise respecting November 6 and November 7 (Phase 2) surveillance observations, should result in a “reading down” of the affiant’s language to observation of a “suspected hand-to-hand transaction” or observation of what was “believed to be a hand-to-hand transaction”. Alternatively, the relevant excised passages ought to be replaced with wording to the effect of observation made of “a brief meeting” on each occasion between the accused and another unknown male.

[57] It was submitted that, with either alternative, the police surveillance on these two occasions was capable of providing a degree of corroboration for the CI information, as the short-term meets were entirely consistent with briefly-conducted drug buys.

[58] As I understood the Crown’s submission, the account of the surveillance of November 7 (Phase 1), as amplified by Const. Cutler, it being the most favourable version for the defence, ought to result in excision to the point of a short-term meeting occurring at the residence, apparently in the garage, between the accused and an unknown male.

[59] It was further submitted that the police surveillance also confirmed details of the CI information including the location of the accused’s residence, the particulars of his vehicle, and his physical description.

[60] Whether the accused’s drug arrest was in 2012 or 2013, it carried a measure of confirmation of his involvement with illicit drugs as did the August 2012 surveillance of the accused.

[61] The CIs provided independent separate stories. CI 1 had recent direct knowledge of cocaine at the accused’s residence and was a known, reliable informer. While CI 2 did not have an established track record of providing reliable information to the police, the informer spoke from direct knowledge and the informer’s 2012 experience with the accused was consistent with other ITO references to the accused’s 2012 involvement with drugs.

[62] Ms. Campitelli submitted that review of the totality of the circumstances in the redacted ITO, together with the judicial summary of these redactions, and the necessary excisions, resulted in a record of reasonable grounds upon which the justice could have issued the search warrant.

[63] By way of further alternative, it was submitted that, in light of the sufficient summary of the ITO redactions, the court could properly have resort to the unredacted ITO in a Garofoli Step Six review to satisfy itself that such grounds existed.

[64] In addressing s. 24(2) of the Charter and the relative seriousness of the Charter-infringing conduct of the police, on the basis of the court finding a lack of reasonable grounds upon which the justice could have issued the warrant, Crown counsel submitted that it was at the low end of the spectrum with the police acting in good faith. The affiant was inexperienced with ITO drafting. This is not a case of no grounds existing for the search. The police took active steps to corroborate the CI information. A warrant was applied for and those conducting the search acted under the authority of that court order.

[65] As to the impact of the police conduct upon the accused, there is no evidence that the warrant was not reasonably executed. Admittedly, search of a private dwelling was significantly intrusive.

[66] The seized drugs and money amounted to real, reliable, non-conscriptive evidence critical to proof of the Crown’s case.

[67] In all the circumstances, with only application of the second prong of the Grant test disfavouring admission, the court ought to admit the relevant evidence.

F. ANALYSIS

(1) Governing Principles

(a) The Reviewability Standard

[68] In assessing a submitted s. 8 Charter breach premised upon alleged legal insufficiency of an ITO, the trial court does not cast itself in the role of the justice who issued the warrant by asking whether it would have issued the warrant: Regina v. Prosser, 2016 ONCA 467, at para. 24.

[69] In Regina v. Paryniuk, 2017 ONCA 87, at paras. 42-43 (leave to appeal refused [2017] S.C.C.A. No. 81), the court stated:

The Garofoli Application

42 A trial judge who has to determine whether a search was authorized by law must decide whether the conditions precedent to the search authority on which reliance is placed have been satisfied. To do this, the trial judge conducts a hearing -- a Garofoli application. At that hearing, the judge examines the material before the authorizing judge or justice, material which may differ from the original because portions have been redacted, for example, to protect confidential informer privilege. Evidence at the Garofoli hearing may persuade the trial judge that parts of the original material should be excised or amplified. In the end, the record becomes fixed for review purposes.

43 What the trial judge is required to decide on the Garofoli application is whether, based on the record before the authorizing judge or justice, as amplified on the Garofoli review, the authorizing judge could have granted the enabling order: Garofoli, at p. 1452. The judge must decide whether, after excision and amplification, there was reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued: Araujo, at paras. 51, 54; R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The onus of establishing that the search authority was improvidently granted rests upon the accused: Campbell, at para. 14; Morelli, at para. 131; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68.

(emphasis of original)

[70] Similarly, in Regina v. Nguyen, 2011 ONCA 465, at para. 57, the court observed that:

That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.

(emphasis of original)

See also Regina v. Bennett, 2017 ONCA 780, at para 47; Regina v. Shin, 2015 ONCA 189, at para. 79.

(b) Settling the Record For Review

[71] In the present case, the defence mounted a sub-facial challenge to the presumptively valid warrant to search the accused’s residence. Such an attack “turns on what the affiant knew or ought to have known when the ITO was sworn”: Paryniuk, at para. 77. In other words, the application is for the accused to go behind the ITO to attack the reliability of its content: Regina v Lowe, 2018 ONCA 110, at para. 20; Regina v. Shivrattan, 2017 ONCA 23, at para. 26 (leave to appeal refused [2017] S.C.C.A. No. 93).

[72] Despite grounds existing for the issuance of a search warrant, a trial court may exercise its discretion to set aside a warrant where the police conduct leading up to its issuance has been manifestly subversive of the prior authorization process: Regina v. Strauss, 2017 ONCA 628, at para. 25. In Paryniuk, at paras. 62-66, 69, the court stated:

62 In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicial officer: R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal refused, [2010] S.C.C.A. No. 371, at para. 40. In at least one brief endorsement, this court has described the conduct necessary to engage this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v. Vivar, 2009 ONCA 433, at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

63 Two brief points should be made about the remedy the appellant seeks.

64 The first has to do with abuse of process. Where state conduct poses no threat to trial fairness, but risks undermining the integrity of the judicial process, the conduct falls within the residual category of the abuse of process doctrine: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73. The goal of the remedy is not to provide redress for a past wrong done to an accused, but to determine whether some remedy short of a stay of proceedings will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.

65 At trial, the appellant framed the remedy he sought as the exclusion of evidence under s. 24(2) of the Charter for an infringement of s. 8. But when he took up the judge's invitation to challenge the warrant on the basis of a subversion of the pre-authorization process, the application became the functional equivalent of an application to terminate the prosecution for an abuse, namely, a subversion of the process. In those circumstances, the authorities limiting the availability of a stay of proceedings to the clearest of cases may be applicable: R. v. Jageshur (2002), 2002 CanLII 45116 (ON CA), 169 C.C.C. (3d) 225 (Ont. C.A.), at para. 69.

The Principles Applied

66 As I will explain, I agree with the appellant that a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority. In this case, however, I am satisfied that the circumstances do not justify such an order and that the trial judge was right to refuse it.

69 What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119, at para. 31; Lahaie, at para. 40; Vivar, at para. 2. …

[73] Where, as in the present case, additional evidence is adduced in the s. 8/24(2) Charter application through witnesses, including permitted cross-examination of the ITO affiant, issues of amplification and excision necessarily arise. In Paryniuk, at paras. 45-47, the court held that:

45 The assessment required by Garofoli is contextual. What is involved is an analysis to determine whether there remains sufficient reliable information upon which the search authority could be grounded. This approach appropriately balances the need for judicial finality and the need to protect systems of pre-authorization: Araujo, at para. 54. In this analysis, facts originally omitted are also considered: Morelli, at para. 60.

46 Essential features of the Garofoli application are excision and amplification. Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary predicate remains: Araujo, at para. 58; Campbell, at para. 14; Morelli, at para. 41. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared: Morelli, at paras. 41-43.

47 A final point concerns the standard against which alleged errors or omissions in the ITO are tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 122.

See also Nguyen, at paras. 23, 25.

[74] In cases where an ITO depends in whole, or significantly, upon information passed to the police by a confidential informer, Crown disclosure of the sealed original ITO will generally be in a redacted format. Crown and judicial summaries of the redacted material, in an effort to explain the nature of the redactions, are then provided to the defence. In some cases, the prosecution seeks to have the reviewing court rely upon the redacted, undisclosed contents of an ITO in order to demonstrate that reasonable grounds existed upon which the justice could exercise the discretion to issue the search warrant. In Bennett, at paras. 10, 12, the court stated:

10 The Crown conceded that the redacted version of the ITO did not disclose sufficient information to make out the reasonable and probable grounds required to justify the issuance of the warrant and invoked the "step six" procedure from R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The step six procedure allows the trial judge to support the issuance of the warrant based on the unredacted ITO, despite the accused's inability to access it, so long as a summary of the redacted portions of the ITO is provided and the accused is sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at paras. 2, 23-25.

12 The appellant was provided with a copy of the redacted ITO and judicial summary. No objection was taken to the sufficiency of the summary. The trial judge ruled that the summary was sufficient for the purpose of informing the defence of the nature of the redacted material and to allow a challenge to the ITO in argument or by evidence.

See also Regina v. Rocha, 2018 ONCA 84, at paras. 10, 18, 20; Lowe, at paras. 49-50; Regina v. Boussoulos, 2018 ONCA 222, at paras. 6-7.

(c) The Reasonable Grounds Standard

[75] In Regina v. Amare, 2014 ONSC 4119, at para. 83(4) to (13) (affd 2015 ONCA 673), although in the context of an arrest, the court provided this overview of the reasonable and probable grounds standard – a threshold of credibly-based probability:

(4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1

(5) in other words, the 'reasonable grounds to believe' standard "consists of compelling and credible information that provides an objective basis", objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117

(6) the fact "that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable": R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47

(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach -- it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); [Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220] at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116

(8) that said, reasonable grounds is about "probabilities" (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 CanLII 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213)), nor at the low threshold of mere suspicion or possibility (Morelli, at para. 37; R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47

(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers "always be correct, but that they always be reasonable" United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012)

(10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)

(11) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 -- the officer is not required "to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations": Chehil, at paras. 34, 67

(12) an officer's training and experience may provide "an objective experiential...basis" for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73

(13) a court reviewing the existence of reasonable grounds concerns itself "only with the circumstances known to the officers": R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original)

[76] In submitting a search warrant ITO to the court, essentially a sworn affidavit produced in an ex parte proceeding, the affiant is obliged to present an accurate and balanced account of the investigative facts - "It is trite law that an applicant for a search warrant has a duty to make disclosure of all material facts in the ITO supporting the request" for a search warrant: Nguyen, at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 2004 CanLII 17920 (ON CA), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-400.

See also Morelli, at paras. 41-60, 100.

[77] Where an affiant’s reasonable grounds are founded upon CI information, the issue arises as to the reliability of the hearsay relied upon by the ITO draftsperson. Where information from a confidential informer contributes to the formation of grounds for the exercise of a police power, courts generally look to the “Debot” criteria as summarized by Doherty J.A. in Regina v. Green, 2015 ONCA 579, at para. 15:

R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168, instructs that when information relied on comes from a confidential informant, the court, in considering the adequacy of the information, must have regard to:

• Information relevant to the credibility or reliability of the confidential informant;

• The degree to which the information is compelling or cogent; and

• The degree to which the confidential informant's information is confirmed or supported in material matters by credible independent information.

These factors do not each form a separate test; rather, the reliability of the confidential informant's information is assessed by looking at the totality of the circumstances.

See also Rocha, at paras. 23-25; Lowe, at paras. 51-63; Regina v. Parshall, 2018 ONCA 59, at paras. 4 to 15; Shivrattan, at paras. 27-28; Regina v. Dunkley, 2017 ONCA 600, at para. 15; Regina v. Carelse-Brown, 2016 ONCA 943, at paras. 38-48; Prosser, at para. 17; Amare, at paras. 84(1) to (5) (approved in Regina v. Poirier, 2016 ONCA 582, at para. 65).

[78] In some cases, prior criminal activity on the part of the target of the investigation may be relevant to grounds for the search. For example, in Regina v. Pasian, 2017 ONCA 451, at para. 6, the court observed that:

Although characterized by the application judge as "prejudicial and of marginal relevance", the information from the police databases situated the appellant in the drug subculture, and could assist in understanding the short transactional meetings with people in parking lots that were observed in the police surveillance. Earlier in his reasons, in dealing with the s. 8 breach, the application judge observed that this information may have provided the affiant with the subjective grounds for belief the appellant was involved in drug-related activity and were included for the sake of completeness.

[79] Grounds of belief in an ITO ought not to present investigatively-discovered facts as bald, conclusory opinions or statements without reference to factual foundation: Rocha, at para. 23. There is a distinction between fact and belief or inference: Nguyen, at para. 41.

[80] In this case, under cross-examination, it became clear that the affiant’s references to observing hand-to-hand drug transactions expressed a belief or deduction, not an actual observation of a physical exchange.

[81] In our caselaw, we seldom see investigative report of observation of an actual drug transaction: Regina v. Curtis, 2016 ONCA 685, at para. 9 (“observed hand-to-hand transaction by the appellant with a known drug user”); Regina v. McCue, 2010 ONCA 15, at para. 20 (“had observed a hand-to-hand transaction”).

[82] Most frequently, there is a description signalling the surveillance officer having drawn a reasonable inference that that is what transpired, for example by reference to an “apparent” hand-to-hand transaction (Regina v. Richards, 2017 ONCA 424, at paras. 2, 13; Regina v. Merelles, 2016 ONCA 647, at paras. 8, 28; Regina v. Hopkinson, 2014 ONCA 836, at para. 4), or a “belief” that such an event occurred (Regina v. Brown, 2012 ONCA 225, at para. 12 (“…indicated his belief that a drug transaction was ongoing … based in part on his experience of seeing hand-to-hand transactions in the past and arresting people on that”); Regina v. Soto, 2011 ONCA 828, at paras. 4-5 (“…observed what they believed to have been two hand-to-hand transactions”)), or a stated assertion that what was observed “appeared” to have been a hand-to-hand transaction (Regina v. Major, 2017 ONCA 357, at para. 1 (“appeared to have been a hand-to-hand transaction”); Regina v. Iyeke, 2016 ONCA 349, at para. 2 (“saw him engaged in what appeared to be hand-to-hand drug transactions”)), or similar qualified language: Regina v. Boe, 2018 ONCA 531, at para. 3 (”police … surveillance … observed him in his vehicle interacting with others in circumstances they believed to be suspicious and consistent with drug trafficking”); Regina v. Reid, 2017 ONCA 430, at para. 4 (“after he was observed in several hand-to-hand transactions suggestive of drug trafficking”).

[83] In Regina v. Dezainde, 2015 ONCA 474, where the trial judge rejected the police observational evidence of seeing a number of actual physical hand-to-hand transactions during drug investigative surveillance, in light of an informer’s tip of Dezainde dealing heroin, it was nevertheless permissible, in assessing the grounds of the police, for the court to have considered those eight (8) brief encounters by the accused with various others to amount to circumstances supporting the inference of drug trafficking.

(2) Discussion

[84] The defence s. 8 Charter challenge in this case is limited to a sub-facial attack on the ITO drafted by Const. Wegenschimmel. The facial validity of the ITO and the companion warrant to search is not challenged.

[85] The sub-facial challenge brings into sharp focus the credibility and reliability of the ITO affiant. Having seen and heard the affiant testify, it became manifestly apparent, respecting the relevant drafting inaccuracies or deficiencies, that they were not the product of a strategic, manipulative attempt on his part to overstate the quality of known investigative facts in an intentional effort to prop up the quality of CI information.

[86] Initially, under cross-examination, the affiant was clearly struggling with the notion of unbundling the terminology, “hand-to-hand transaction”, separating fact from opinion. Pressed by Mr. Paradkar, the witness came to see, it seemed for the first time, that the distinction was of importance and that his drafting had the potential to mislead.

[87] Const. Wegenschimmel had limited policing experience in November 2013 and was effectively a trainee in a PRPS investigative office. He had never drafted an ITO or acted as a warrant application affiant. He had not had the benefit of the PRPS search warrant training course. The review of the drafted ITO by a supervising officer appears, unfortunately, to have been cursory at best.

[88] Leaving to the side what impact, if any, past pronouncements of this court have had with the PRPS that, in the context of the constitutional protections of s. 8 of the Charter, the drafting of search warrant documentation cannot be left to unskilled, part-time participants in warrant matters, I accept that the affiant made no deliberate attempt to misstate facts or to mislead the issuing justice. Nor was there a recklessness for the truth of text in the ITO. Inexperience, lack of training, inadequate oversight and, as discussed below, apparent miscommunication, led to the investigative version of events placed before the court.

[89] As canvassed in para. 82 above, there is a difference between observed facts, and, observations leading to deduction, opinion or inference.

[90] In terms of the November 6, 2013 surveillance described at p. 8 of the ITO, representing the accused as “engaged … in a hand-to-hand transaction”, the record, as amplified, establishes that the affiant did not see drugs or money exchanged. On seeing the unknown male visitor to the accused’s residence extend his arm in the direction of the accused, the affiant, knowledgeable of the CI information and other relevant facts, deduced that a drug buy transpired.

[91] It should be noted that elsewhere in the ITO the affiant did express his summary of what occurred in terms of an opinion. On p. 5 of the application, in the “Background” section of the ITO, in describing the November 6 surveillance at the accused’s residence, the affiant stated: “Police observed what was believed to be a hand-to-hand exchange…”. On p. 13 of the ITO, in describing the November 6 and 7 surveillance, the affiant spoke in terms of observed conduct “believed to [be] drug transactions”.

[92] In light of these references, the short-term nature of the meeting at the accused’s residence front door, and the immediate arrest of the second party in possession of a quantity of cocaine, in the context of the other information in the ITO, accepting that the ITO p. 8 reference to a hand-to-hand transaction ought to have spoken in terms of “apparent”, “appeared to be”, “believed to be”, or “suggestive of”, the prejudicial damage is minimal. The affiant’s opinion of a drug buy was entirely reasonable in the circumstances.

[93] As to the affiant’s description of the November 7, 2013 (Phase 2) surveillance, “[a] hand-to-hand transaction was observed”, the amplified record establishes that that representation of fact was, again, actually an inferential conclusion. What the affiant in fact observed, after seeing conduct of the accused and an unknown male moving their respective vehicles, was the accused, in this brief meeting, reaching his arm through the open driver’s window of the other male’s truck toward the driver before driving back down the street to his residence. No exchange of drugs or money was actually seen. In light of the totality of information in the ITO, including the apparent trafficking activity on the prior day, the affiant’s opinion of a drug deal on this occasion is eminently reasonable.

[94] On the current record, the ITO representation of the November 7 (Phase 1) surveillance, “hand-to-hand exchange was made”, cannot be accepted as accurate. Const. Cutler, the officer responsible for this surveillance duty, testified to an account of a short-term meet between the accused and an unknown male, likely in the residence garage, with no drug deal observed. The affiant believes that Cutler told him that a hand-to-hand exchange was observable. Neither officer testified here with any precision as to when or how the Cutler information was transmitted to the affiant. While it is unknown and unclear whether a miscommunication or misunderstanding occurred between the two constables, the court is satisfied on the affiant’s evidence that he held an honest belief, when drafting the ITO, that what he wrote was what he was told by Const. Cutler.

[95] Where there are circumstances of inaccuracy or innocent misrepresentation in an ITO, the balance achieved by excision of offending text is designed, not so much as a penalty of sorts, but as a corrective measure. The question arises in this case as to whether the excision process should operate as a ‘read down’ rectification (“believed to be a hand-to-hand transaction”; or “participated in a short-term meet”) or more bluntly applied leading to wholesale removal of reference to the observed events. In my view, the balance best struck here is to leave the text of the ITO respecting the November 6 and November 7 (Phase 2) observations as a short-term meeting held on each occasion in the circumstances otherwise described by the affiant. The ITO reference to the November 7 (Phase 1) surveillance should be excised completely.

[96] Before returning to the contribution of the surveillance evidence to the existence of reasonable grounds in the ITO upon which the justice could have issued the search warrant, it is appropriate to examine the grounds set out in the remainder of the ITO.

[97] In my view, apart from the surveillance evidence, the ITO contained reasonable grounds upon which the court, acting judicially, could have issued the warrant.

[98] Beginning with CI 1, the affiant described this informant as having direct, personal knowledge in 2013 of the accused trafficking cocaine. The accused was the CI’s drug dealer and the CI had purchased cocaine at the accused’s residence within a short time before the warrant was to be executed. This was not the case of an anonymous, untested tipster with second-hand hearsay or flimsy rumour. The CI provided details respecting the accused’s residence, vehicle and personal appearance. The tip information was compelling.

[99] Insofar as the credibility/reliability of CI 1, and assuming for the purpose of this redacted assessment that that individual, seeking a benefit for the tip, to have had a criminal record for dishonesty, these counterbalancing factors fall to be considered:

(1) CI 1, a known informant, had not given false or exaggerated information to the police in the past

(2) the CI had an established track record with accurate information recently provided in two cases leading to the seizure of drugs and cash and the laying of charges

(3) any criminal record possessed by CI 1 did not include perjury or obstruct-related offences

(4) in terms of the CI’s motivation, and self-interest, no benefit would be forthcoming if the information provided did not produce results

(5) provision of demonstrably false information on the CI’s part risked liability for obstructing justice (s. 139(a)) or public mischief (s. 140(1)).

On balance, there were clear indicia of the likely credibility of CI 1.

[100] Turning to corroborative or confirmatory information:

(1) CI 2 had direct knowledge of the accused as a cocaine trafficker in 2012 when the informant regularly bought cocaine from the accused at his residence

(2) as described at paras. 20 to 23 above, the accused had a recent criminal history involving illicit narcotics

(3) details of the accused’s description provided by the CIs, as well as his residence and vehicle proved to be accurate.

[101] On the totality of circumstances, without the surveillance evidence, the grounds of belief set forth in the redacted ITO, accompanied by the redaction summary information, constituted a persuasive statement of credible probability of long-term drug dealing on the part of Nicholas Lakan and that, in November 2013, the accused would have cocaine and related paraphernalia at his residence – effectively a substantial record of reasonable and probable grounds upon which the justice could have judicially exercised discretion to issue the warrant to search.

[102] In the absence of objection to the sufficiency of the redaction summary, and with no objection advanced to a Garofoli Step Six assessment, on the basis of this court’s review of the unredacted ITO actually read by the justice, it can be confidently said, again leaving the surveillance evidence out of the calculus, that review of the remainder of the unredacted ITO substantiates the existence of reasonable grounds upon which the justice could have issued the warrant.

[103] Adding in the surveillance details of the November 6 and November 7 (Phase 2) surveillance, on the basis of briefly-held meetings as described on each date between the accused and unknown male persons, one of which led immediately to an arrest of a person in possession of cocaine, simply serves to add additional corroborative effect in terms of the accused likely dealing drugs from his residence.

[104] The accused has failed to discharge the onus of establishing, on balance, that the police searches breached his s. 8 Charter right.

[105] In the result, it is unnecessary to undertake a s. 24(2) Charter analysis. The deficiencies in the affiant’s ITO drafting, such as they were, were not deliberate attempts to mislead or recklessly-made representations of fact. With or without the surveillance evidence, the justice was justified in issuing the warrant.

G. CONCLUSION

[106] The accused is found guilty of Count # 1 in Indictment 1309/15.

Hill J.

Released: June 13, 2018