Court File and Parties

Court File No.: CR-18-90000117-0000 Date: 2018-10-29 Ontario Superior Court of Justice

B E T W E E N : HER MAJESTY THE QUEEN – and – CARLOS SILVA

Counsel: Jason Mitschele and Kelvin Ramchand for the Crown Christopher K. Assié for the accused

Heard: May 22, 23, 24 and 25 and June 15, 2018

FAVREAU J. :

Overview

[1] The accused, Carlos Silva, is charged with a number of offences related to the seizure of over 30 kilograms of cocaine, several kilograms of Fentanyl and a number of other items on March 30, 2017.

[2] The controlled substances and other items were seized as a result of the execution of search warrants issued on March 27, 2017 and March 30, 2017 that permitted the searches of two residential addresses and a motor vehicle.

[3] Mr. Silva brings a pre-trial application to exclude evidence obtained during the execution of the search warrants. More specifically, he seeks orders:

a. Quashing search warrants issued by Justice Brownstone on March 27, 2017;

b. Quashing search warrants issued by Justice Crewe on March 30, 2017;

c. Declaring that Mr. Silva’s arrest on March 30, 2017 was arbitrary and in violation of section 9 of the Canadian Charter of Rights and Freedom, and that the search conducted at the time of his arrest was arbitrary and violated his section 8 of the Charter;

d. Declaring that the warrantless search of a residence at 702-12 Woodstream Blvd., in Thornhill, Ontario, was arbitrary and contrary to section 8 of the Charter; and

e. Excluding evidence found during the searches pursuant to section 24(2) of the Charter.

[4] The Crown brings an application to admit the notes of Detective Constable Michael Thompson as hearsay evidence pursuant to the principled exception to the hearsay rule.

[5] The evidence on both the defence and the Crown’s applications was heard at the same time, and therefore these reasons address both applications.

Background facts

[6] In 2016, the Toronto Police Drug Squad received information from a confidential informant about a group of people potentially involved in the trafficking of cocaine.

[7] Originally, the investigation focused on Franco Pellegrino and Michele Spataro.

[8] Based on this information, in November 2016, the police started conducting surveillance on Mr. Pellegrino and Mr. Spataro.

[9] On March 9, 2017, while surveillance was conducted on Mr. Spataro’s residence, the police observed a man, later identified as Mr. Silva, delivering a bag to Mr. Spataro in the garage attached to the house. Later that same day, Mr. Silva was observed going to Mr. Spataro’s house for a brief period of time and leaving with a bag. This was the first day Mr. Silva was observed by the police during the course of the investigation.

[10] On March 21, 2017, the police conducted surveillance of Mr. Silva. The surveillance started at 830 Lawrence Avenue West, which the police had identified as Mr. Silva’s residence. During the course of the surveillance that day, Mr. Silva’s car was seen driving to an apartment building at 76 Forest Manor Road, Toronto, and entering the garage. The police did not follow Mr. Silva into the garage, but later viewed video surveillance that showed Mr. Silva removing a weighted bag from another vehicle that had entered into the garage soon after Mr. Silva’s vehicle, and placing the bag in his own vehicle. The vehicles then left the garage.

[11] On March 27, 2017, the police filed an information to obtain search warrants (ITO), based on the evidence obtained about Mr. Pellegrino, Mr. Spataro, Mr. Silva and others primarily through surveillance. That same day, Justice Brownstone issued a number of search warrants, including warrants permitting the search of Mr. Silva’s apartment at 830 Lawrence Avenue West and his vehicle. The warrants were valid until April 1, 2017.

[12] On March 29, 2017, before the search warrants were executed, the police conducted further surveillance of Mr. Silva. On that day, he was observed leaving the building at 830 Lawrence Avenue West, and attending a condominium building bearing the addresses of 12 and 24 Woodstream Blvd., in Thornhill. He was seen entering the parking garage of the building and exiting a few minutes later. He then returned to 830 Lawrence Avenue West, where he again entered the building and exited a few minutes after. He then returned to the building on Woodstream Blvd. and was seen entering the main lobby building and exiting a few minutes later from another door. He was then seen going to an address at 150 Graydon Hall Drive in Toronto, where he and a person emerging from another vehicle that arrived around the same time were seen entering the building with backpacks and exiting the building approximately 15 minutes later with the same backpacks.

[13] On March 30, 2017, again before the search warrant issued on March 27, 2017 was executed, the police conducted further surveillance of Mr. Silva. Mr. Silva was seen going from 830 Lawrence Avenue West to another building at 7181 Yonge Street, in Thornhill, where he went into an underground parking garage. He was then seen going to the building at 12 and 24 Woodstream Blvd. The police followed him into the garage. After a few minutes, he was seen returning to the vehicle with a bag.

[14] Soon after Mr. Silva left the building, the police stopped his vehicle and arrested him and the driver. When Mr. Silva was arrested, he was searched and the police obtained two sets of keys. One of the sets of keys included electronic FOBs, regular sized keys, a mailbox key and two suitcase keys. The police took the keys back to the Woodstream Blvd. address and entered the building using one of the FOBs. At this point, they did not know which apartment in the building was associated with Mr. Silva.

[15] The officers involved conferred, and then one of the officers used the mailbox key to try each of the mailboxes for buildings 12 and 24, ultimately finding that the key opened the mailbox associated with apartment 702 at 12 Woodstream Blvd. The police officers then went up to unit 702. They used a key on Mr. Silva’s key chain to open the door. Once they entered the apartment, they verified that no one was in the apartment. They also observed what was described as a “cocaine plate” in plain sight in one of the bedrooms, and two locked suitcases in the closet of the same bedroom in the apartment. They also observed that there were no signs of anyone living in the apartment.

[16] After the officers entered and cleared the apartment, one officer went off to obtain a further search warrant for the apartment. Some of the other officers remained in the unit while awaiting the warrant. The officers initially entered the apartment around 12:48 pm, and the search warrant was obtained around 8:50 pm that evening.

[17] This second search warrant was signed by Justice Crewe, and it permitted the search of unit 702 at 12 Woodstream Blvd., amongst other locations.

[18] Once the search warrant was executed, the police found the following items in the apartment at 12 Woodstream Blvd.: a. 6.18 kilograms of Fentanyl; b. 28.52 kilograms of cocaine; c. A cocaine press; d. Ammunition; e. A money counter, vacuum sealer and packaging; f. A debt list; and g. A Samsung phone box.

[19] Meanwhile, the police also executed the search warrant previously obtained for the Lawrence Avenue West apartment, where they found the following items: a. $225,375 in cash; b. A money counter and vacuum sealer; c. Five cell phones; d. Two scales; e. Various documents and identification in Mr. Silva’s name; and f. Two sets of keys.

[20] The search of Mr. Silva’s vehicle, which was also executed that day, led the police to find the following items: a. 10.65 kilograms of cocaine; b. A handgun with a removed serial number; c. Ammunition.

[21] One of the police officers who was involved in the investigation, and who participated in the search of the Woodstream Blvd. apartment was Detective Constable Michael Thompson. Officer Thompson died on April 13, 2017, of a Fentanyl overdose.

Procedure followed on applications

[22] As indicated above, the evidence on both applications was heard together.

[23] The Officers who testified on the application were as follows: a. Detective Constable Awad, who was the lead officer of the Toronto Drug Squad team that conducted the investigation. He conducted some of the surveillance, directed Mr. Silva’s arrest and was involved in the search of the Woodstream Blvd. apartment; b. Detective Constable Indiran, who was involved in Mr. Silva’s arrest and the search of the apartment at 830 Lawrence Avenue West; c. Detective Constable Dodds, who participated in Mr. Silva’s arrest and the search of the Woodstream Blvd. property; and d. Officer Mathers, who participated in Mr. Silva’s arrest and the search of the Lawrence Avenue West property. He also conducted some of the surveillance.

[24] In addition, the Crown and defence agreed that the transcript from the evidence of Detective Constable Dagonas at the preliminary inquiry was to form part of the record on both applications. Officer Dagonas was involved in the search of the Woodstream Blvd. apartment.

[25] Initially, Mr. Silva sought to cross-examine Officer Serrano, who swore the ITOs in support of the search warrants. However, the issue was resolved on consent. The Crown agreed to allow Officer Serrano to be cross-examined on what happened between the time of Mr. Silva’s arrest and the issuance of the search warrant on March 30, 2017. Ultimately, the defence chose not to cross-examine Officer Serrano on these issues and he was not called as witness.

Charter application to exclude evidence

[26] Mr. Silva seeks to exclude evidence obtained from the searches referred to above.

[27] His position on each of these searches is as follows: a. The March 27th search warrants should not have been issued because there were insufficient grounds against Mr. Silva for issuing the warrants and some of the evidence in the ITO was obtained pursuant to unlawful warrantless searches; b. Mr. Silva’s March 30th arrest was unlawful because there were no reasonable and probably grounds, and therefore the search of his person, including the keys obtained were not authorized; c. The warrantless entry of the Woodstream Blvd. building, including the use of the mailbox key to identify unit 702 and the entry into the unit and subsequent wait were unreasonable; and d. With the excision of the information obtained as a result of Mr. Silva’s arrest and the search of the Woodstream building, the March 30th warrant could not have been issued.

[28] Mr. Silva seeks to exclude all of the evidence obtained by the police as a result of the searches he claims were unlawful.

[29] I have considered each of the issues raised by the Mr. Silva below as they arise chronologically.

Issue 1 – whether the March 27th search warrants were lawful

[30] As reviewed above, the March 27th search warrants permitted the search of the apartment at 830 Lawrence Avenue West and the search of Mr. Silva’s vehicle.

[31] The search warrant was issued based on an ITO sworn by Officer Serrano, an officer with the Toronto Police Drug Squad, who was the lead investigator in this case.

Applicable legal principles

[32] In R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14, the Supreme Court of Canada reviewed the general principles applicable to the review of the issuance of a search warrant:

In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is "not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize the warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131).

[33] Therefore, in reviewing the ITO sworn in support of the issuance of the warrants for the Lawrence Avenue apartment, I must first determine whether anything in the ITO should be excised, and then, based on the information in the ITO and additional evidence admitted on the application, I must determine whether the applicant has demonstrated that there was insufficient credible and reliable evidence for issuing the warrants.

Positions of the parties

[34] The applicant advances three arguments in relation to the March 27, 2017 search warrants. First, he argues that the references to the apartment number at 830 Lawrence Avenue West should be excised from the ITO because the police only became aware of the apartment through an unlawful entry into the parking garage. Second, he argues that the information in the ITO about Mr. Silva and his activities up to March 27, 2017 are insufficient to support the issuance of the warrants against both the car and the apartment. Third, even if the evidence in the ITO was sufficient to support the issuance of a warrant with respect to Mr. Silva’s vehicle, it does not support issuance of a warrant to search the apartment in the Lawrence Avenue West building.

[35] The Crown disagrees with these positions, and argues that Mr. Silva has not met his burden of demonstrating that there was insufficient evidence on which the ITO could be issued.

Whether the entry into the garage was unlawful

[36] The ITO describes the manner in which the police were able to identify Mr. Silva’s Lawrence Avenue address.

[37] The vehicle in which Mr. Silva attended Mr. Spataro’s address was a white Hyundai Santa Fe. Mr. Silva was listed as the registered owner of the vehicle. The address linked to Mr. Silva’s registration was his mother’s home address. From prior efforts by the police to serve documents on Mr. Silva, the police were aware that Mr. Silva did not live at his mother’s address. However, records showed that Mr. Silva’s car received a parking ticket at the 830 Lawrence Avenue West address at 3:39 am on February 13, 2017. Based on this information, one of the officers involved in the investigation entered the indoor underground parking garage of the building, where he found Mr. Silva’s car parked in the spot associated with apartment 132. Another officer subsequently communicated with the management of the building to confirm the identity of the residents in apartment 132.

[38] The applicant argues that the entry into the parking garage was a warrantless search and that it violated Mr. Silva’s rights under section 8 of the Charter.

[39] Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. The scope of the protection offered by section 8 of the Charter is limited to circumstances where there is a reasonable expectation of privacy: R. v. Saciragic, 2017 ONCA 91, at para. 27.

[40] In Saciragic, at para. 28, the Court of Appeal identified the factors to be considered in analyzing a person’s reasonable expectations of privacy:

The factors that inform the analysis of whether there is a reasonable expectation of privacy have been grouped under four broad headings: (1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[41] Given that the entry into the parking garage involves a warrantless search, on this issue, it is the Crown that bears the burden of showing that the search was reasonable on a balance of probabilities: R. v. Collins, [1987] S.C.J. No. 15, at para. 22.

[42] The Crown argues that the entry into the parking garage at 830 Lawrence Avenue West to confirm that Mr. Silva resided in the building and to obtain his apartment number was reasonable because he did not have a reasonable expectation of privacy in this common area of the building and because his address is not the type of core biographical information in which he has a privacy interest.

[43] Both parties agree that the Court of Appeal’s decision in R. v. White, 2015 ONCA 2015, provides the guiding principles to be followed in deciding whether entry into the common areas of a multi-unit building gives rise to an expectation of privacy:

50 …The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. Some limits on police activity are necessary if privacy is to be protected.

51 There is nothing "perverse" about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.

[44] In White, the police entered a condominium building using a defective door on three separate occasions, and used the entry to walk through the halls, listen at the accused’s door, listen to conversations from a stairwell and look into the accused’s storage unit. Based on those circumstances, the Court of Appeal upheld the trial judge’s decision that the police’s warrantless search was unreasonable and violated the accused’s section 8 Charter rights.

[45] While White made clear that a warrantless search in the common areas of a condominium building can violate section 8 Charter rights, the case nevertheless confirms that a case by case analysis is required to make that determination.

[46] In support of its position that Mr. Silva did not have reasonable expectation of privacy in the parking garage for the purpose of verifying his address, the Crown relies on a number of decisions since White.

[47] For example, in R. v. Brewster, 2016 ONSC 4133 (Sup. Ct.), at para. 110, Code J. held that the Court of Appeal’s decision in White did not change the law in this area, and he then went on to review the circumstances in which courts have found that residents of multi-unit buildings do not have a reasonable expectation of privacy. At para. 111, his review includes a section specifically dealing with parking garages: Parking garages in multi-unit buildings

• Applying the principles that emerge from the above authorities, it has been held in this province that there is no reasonable expectation of privacy in observations made concerning "use of a spot in an underground parking garage in the condominium building" in order for the police to infer "the unit occupied by the [accused] in the building." Epstein J., as she then was, so held and the Court of Appeal agreed in R. v. Drakes and Brewster, 2009 ONCA 560 at paras. 17-18. The Court (O'Connor A.C.J.O., MacPherson and Cronk JJ.A.) reasoned as follows:

The trial judge referred to the "totality of circumstances" test formulated in R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.), at para. 45. In our view, she correctly applied this test, noting that the appellants shared the parking garage with 440 other units, that they had limited control over it, and that management (who did have control over the garage) consented to the police gaining access to it for the purposes of their investigation. See also: R. v. Thomsen, 2007 ONCA 878, [2007] O.J. No. 4863 (C.A.) and R. v. Laurin (1997), 113 C.C.C. (3d) 519 (Ont. C.A.).

In R. v. Verret (2013), 2013 ABQB 658, 574 A.R. 212 at paras. 11, 17 and 22 (Alta. Q.B.), Thomas J. reached the same conclusion and stated:

In respect to Stall 205, the accused may have had a right to park his motor vehicle or store goods in that space, a right which was seldom exercised by him in 2010. That said, he could have asserted control over the parking space and had the right to use it. However, the accused would not have been in the position to stop any other person in the parking garage from making observations about the vacant space defined in the Condominium Plan for Stall 205, or in respect to what was parked or placed in it. He had no right to construct an enclosure around that space and he was aware of that. At the time of his arrest on September 4 he had not constructed any enclosure which would have limited the view of what might be placed in Stall 205. ...[I]t would not be reasonable to expect privacy in this open space ...

[48] In Saciragic, which was also decided after White, the Court of Appeal considered an appeal from a decision in which police officers had used key fobs and security videos in an apartment building to identify the apartment of a suspect. In that case, the Court of Appeal upheld the lower Court’s decision that this did not constitute an unreasonable search, finding at para. 32, that the appellant in that case did not “have a reasonable expectation of privacy in his municipal address… A physical address does not, of itself reveal intimate details about one’s personal choices or way of life, and ordinarily, it is publicly available information to which many people have access”. The Court went on, at para. 33, to find that:

33 Neither, on the record before the court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant's connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.

[49] In my view, similarly in this case, the police entered the garage at 830 Lawrence Avenue West for the limited purpose of ascertaining Mr. Silva’s address, which, as indicated above is not viewed as core biographical information. He had no reasonable expectation of privacy in the parking garage, which is a common area in the building and where many people could observe the location of his parked vehicle.

[50] Accordingly, I do not accept the applicant’s argument that references to the Lawrence Avenue West address should be excised from the March 27, 2017 ITO.

Whether there was sufficient credible and reliable evidence to issue the warrants

[51] As reviewed above, my task as the judge reviewing the issuance of the warrant is not to decide whether I would have issued the warrants based on the evidence presented to the judge, but whether the judge issuing the warrant could have granted the warrant on the basis of the evidence in the ITO, as amplified on the application.

[52] Mr. Silva argues that the warrants authorizing the search of his vehicle and Lawrence Avenue West apartment should not have been issued because there was insufficient evidence that Mr. Silva was implicated in any drug trafficking activities at the time the warrant was issued and, in any event, even if there was sufficient evidence to implicate him and his vehicle, there was insufficient evidence to implicate his apartment.

[53] In support of the argument respecting the paucity of evidence specific to Mr. Silva, the applicant points out that the warrants issued on March 27, 2017, were only based on two days of observations of Mr. Silva’s activities, namely March 9, 2017 and March 21, 2017, and that no drugs were seen during those observations.

[54] In contrast, the Crown argues that Mr. Silva’s activities must be looked at in the context of the investigation as a whole, and that, even on their own, given what was known of Mr. Silva’s activities and given the nature of his activities during those two days, the issuance of the warrants was justified.

[55] Having reviewed the contents of the ITO in combination with the evidence on the application, I am satisfied that the evidence justified the issuance of the warrants. This conclusion comes from a review of the redacted evidence in the ITO as a whole, and from the evidence specific to Mr. Silva.

[56] The ITO contained evidence of the following:

• Detective Awad obtained information from a confidential source that Frank Pellegrino was in possession of high quantities of cocaine. Mr. Pellegrino owned a café, that was also associated with Mr. Spataro.

• Based on this information, the police started conducting surveillance on Mr. Pellegrino and Mr. Spataro in November 2016. By early March 2017, the police surveillance of Mr. Spataro had included several observations of the delivery and receipt of packages in a manner that the officer swearing the ITO identified as consistent with the delivery of narcotics.

• In this context, on March 9, 2017, Mr. Silva was seen attending Mr. Spataro’s residence twice. The first time, Mr. Spataro was seen opening his garage door, after “an unknown younger white male” who was later identified as Mr. Silva, showed up with a weighted black bag. Mr. Silva was then seen leaving the garage, going around the corner and entering the front passenger seat of a 2013 Hyundai Santa Fe, which was later identified as belonging to Mr. Silva.

• Later that day, Mr. Silva went to Mr. Spataro’s house again. He left the house thirty seconds later carrying a black weighted bag. He was again seen getting into the Hyundai Santa Fe. At this point, the affiant comments that “this is consistent with high level drug trafficking. The unknown male had come by twice to see Mr. Spataro and both times the visits were very brief in length.”

• On March 21, 2017, the police set up surveillance outside of Mr. Silva’s building on Lawrence West Avenue. The ITO describes how Mr. Silva was identified as the unknown male who had visited Mr. Spataro, including information about an ongoing driving ban due to driving offences and a conviction for possession of a firearm and possession of a Schedule II substance. He also had a number of other convictions. The police observed Mr. Silva in the passenger seat of his vehicle, being driven by someone else. The car was seen going onto highway 401, getting off, driving around a few streets, and getting onto the highway again in a manner that the officer described as a counter surveillance technique. The vehicle was then seen going down into an underground parking garage of a building identified as the residence of Mr. Silva’s mother. As Mr. Silva’s car went down into the parking garage, a black Range Rover that had been waiting outside the garage, followed Mr. Silva’s car into the parking garage. The police later reviewed security footage from the underground parking lot, where they saw an interaction between Mr. Silva and the driver of the Range Rover, which was parked two parking spots away. Mr. Silva removed a weighted duffle bag from the other car and placed it on the rear seat of his car, and he appeared to be looking at the contents. The other car left the garage, and Mr. Silva’s car left a few minutes later. The police followed Mr. Silva’s car, and then again observed him making lane changes and exits that were identified as counter surveillance techniques.

[57] Officer Awad’s viva voce evidence during the application generally confirmed the observation of these events on March 9 and 21, 2017, with the addition of some details. For example, Officer Awad was involved in the surveillance conducted on March 21st. He had observed the driver of the Range Rover with whom Mr. Silva met inside the parking garage waiting outside the building. He indicated that, the Range Rover waiting for Mr. Silva’s car and then following it into the parking garage was odd behaviour consistent with drug trafficking.

[58] The ITO was submitted on March 27, 2018. The ITO sought search warrants in respect of Mr. Silva’s vehicle and his Lawrence Avenue West apartment. The ITO also sought search warrants in relation to a number of other residences and vehicles linked to other suspects, including Mr. Spataro and Mr. Pellegrino.

[59] Looking at the individual components of Mr. Silva’s activities in isolation, they may not have sufficed to support the issuance of the warrants. However, looking at the circumstances as a whole, I see no basis for finding that the warrants were not justified. Mr. Silva's behaviour was consistent with the pattern of behaviour of others under surveillances, which included short visits, the delivery and receipt of weighted bags, driving patterns aimed at counter-surveillance and meetings in isolated locations such as an underground parking lot.

[60] In R. v. Buchanan, 2016 ONSC 2101 (Sup. Ct.), at paras. 48 and 50, Henderson J. addressed similar circumstances as follows:

48 I accept that each interaction taken individually could be innocuous; however, in this case, I find that at some point a pattern emerged. I accept that a person may have an occasional quick interaction with a friend, but as those interactions become more and more frequent, a trained police officer will start to consider whether each interaction has more significance.

50 Further, I acknowledge that, although there appeared to be some hand-to-hand contact, at no time did any officer observe any money or drugs change hands. In that respect, I accept the evidence of the officers that mobile drug trafficking is usually conducted in such a secretive manner that it would be rare for a police officer to ever see any money or drugs change hands.

[61] Before concluding on this issue, I must address one additional argument made by Mr. Silva’s lawyer about the ITO that led to the issuance of the Lawrence Avenue West warrant. As indicated above, Mr. Silva argues that, even if there were grounds for issuing the warrant in relation to Mr. Silva’s car, there were no grounds for issuing the warrant in relation to the apartment. In particular, he argues that there was no evidence that Mr. Silva kept or stored any drugs in his own residence, and therefore there was no basis for Justice Brownstone to issue that warrant.

[62] In support of this argument, Mr. Silva’s lawyer relies on the decision of the Ontario Court of Justice in R. v. Pham, 2013 ONCJ 181, at para. 81, wherein the Court found that search warrants issued pursuant to an ITO focused on a grow op were overly broad because they included the accused’s residence without any justification for the expectation that anything would be found in that location.

[63] In my view, the circumstances of that case are different than in this case. There, the focus of the investigation was a grow op with an identified location. In this case, the warrants originally sought regarding Mr. Silva were in respect of his vehicle, his residence and his mother’s residence. There was no obvious focal point for where drugs would be stored.

[64] During the course of his cross-examination, Detective Awad agreed that there were no observations of Mr. Silva bringing anything into the Lawrence Avenue West apartment, but he stated that it was not unreasonable to believe that he would keep proceeds of crime or other items at his residence. He further stated that, in his experience investigating drug trafficking, the police are successful in seizing drugs at the residences of traffickers.

[65] This case is similar to the circumstances in R. v. Lawrence-Coulthrust, 2017 ONSC 1075, at paras. 16-18, wherein Akhtar J. rejected a similar argument about a suspected drug dealer’s residence:

16 Secondly, Ms. Bristow claims that the police only had a suspicion that the items sought were in Unit 501. She submits that the police had to have some direct evidence that drug dealing was taking place inside the apartment prior to seeking the warrant.

17 I disagree. The police were obliged to set out their grounds for believing that the items sought, including the drugs, were at the place to be searched. At para. 17 of the warrant, the affiant wrote that, in his experience, drug dealers would store such items as the drugs for sale, weighing equipment, and materials in which the drugs were packaged in their residence. When cross-examined, the affiant made clear that his experience was based on previous arrests of drug dealers, conversations with sources, and discussions with experienced officers. I find the affiant's conclusion to be sufficiently grounded.

18 I am at a loss to understand why the police would need information that drug deals were actually taking place within the residence prior to seeking the warrant. It makes perfect sense that the drugs and accompanying paraphernalia had to be stored somewhere; and the most obvious place would be the suspect's home.

[66] While the ITO in this case did not explicitly provide the affiant’s experience as the basis for his reasoning that a warrant should be issued for Mr. Silva’s residence, Detective Awad did provide such evidence at the hearing, and, in my view, even in the absence of such evidence, Akhtar J.’s reasoning at paragraph 18 applies equally here.

[67] Accordingly, I find that there is no basis for excising any information from the ITO sworn on March 27, 2017, and I am satisfied that the issuing judge could have properly issued the warrants on March 27, 2017, based on the information contained in the redacted ITO and the evidence on the application. I therefore find that there was no violation of Mr. Silva’s section 8 Charter rights arising from the issuance of the March 27, 2017 warrants.

Issue 2 – whether Mr. Silva’s arrest was lawful

[68] As reviewed above, Mr. Silva was arrested on March 30, 2017. The physical arrest was conducted by Officer So, who did not testify. However, the arrest was directed by Detective Awad, who, as I indicated above, was the officer in charge of the team conducting the investigation. Detective Awad did testify.

[69] At the time of Mr. Silva’s arrest, the police seized two sets of keys, one of which was used to identify the unit in the Woostream Blvd. building, where quantities of cocaine and Fentanyl were ultimately found.

[70] Mr. Silva argues that the arrest violated his section 9 Charter rights, and that the search of his person following the arrest was therefore unlawful. Mr. Silva concedes that if the arrest was lawful, the search of his person that led to the keys was incidental to the arrest and was therefore lawful.

Applicable legal principles

[71] Section 9 of the Charter provides that “Everyone has the right not to be arbitrarily detained or imprisoned.”

[72] Section 495 of the Criminal Code defines a police officer’s powers of arrest as follows:

495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence…

[73] The burden of proof is on the Crown to show that there were reasonable and probable grounds for the arrest: R. v. Daley, 2014 ONSC 1079 (Sup. Ct.), at para. 14.

[74] The standard of proof required is that of “reasonable probability”.

[75] As held by the Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at paras. 16-17, there is both an objective and a subjective component to the requirement for reasonable and probable grounds:

16 There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; [Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228](Liversidge v. Anderson, [1942] A.C. 206 (H.L.)).

17 In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[76] In assessing whether there were reasonable and probable grounds, the court is to look at the “totality of the circumstances”: R. v. Williams, 2009 ONCA 35, at para. 5.

[77] In assessing whether there were reasonable and probable grounds for an arrest, it is appropriate to consider that officers make their decisions in dynamic and volatile situations: R. v. Golub, (1997), 34 O.R.(3d) 743 (C.A.), at para. 18:

Both a justice and a arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

Positions of the parties

[78] Mr. Silva argues that the Crown has not established that Detective Awad had reasonable and probable grounds for directing Mr. Silva’s arrest. Similarly to the arguments advanced in relation to the issuance of the March 27th warrants, he argues that the objective information upon which Detective Awad directed the arrest was not sufficient. In advancing this argument, he argues that I can only consider Detective Awad’s viva voce evidence on the hearing of the application, and that I cannot consider the evidence in the ITOs sworn on March 27, 2017 and March 30, 2017.

[79] The Crown argues that I can consider the totality of the evidence, which includes Detective Awad’s viva voce evidence and the contents of the ITOs, and that the evidence supports a finding that Officer Awad had both subjective and objective reasonable and probable grounds.

Analysis

[80] The first issue I must address is the issue of whether I can consider the contents of the ITOs in deciding whether there were reasonable grounds for the arrest.

[81] Neither Mr. Silva’s lawyer nor the Crown provided any authority on the issue of whether I could consider the contents of the ITO. Mr. Silva’s lawyer bases his position in large part on the fact that the Crown refused his request to allow cross-examination of Detective Serrano, who was the affiant of both ITOs. The Crown argues that the relevant consideration is that Officer Awad, as the head of the investigation, was aware of the information set out in the ITOs when he directed Mr. Silva’s arrest and that the ITOs also set out evidence of the objective circumstances of the investigation at the time of the arrest.

[82] I agree with the Crown. Detective Awad was the head of the investigation. He was actively involved in the investigation, and was present for some of the surveillance, including the initial surveillance when Mr. Silva was first seen on March 9, 2017. In addition, while Mr. Silva’s lawyer did not cross-examine Detective Serrano, he did cross-examine Detective Awad at some length about the circumstances giving rise to the evidence in the ITOs. Notably, as indicated above, Mr. Silva originally sought to cross-examine Officer Serrano, but that issue was resolved on consent. In any event, I agree with the Crown that Officer Awad’s viva voce evidence is sufficient to establish that there were reasonable and probable grounds for Mr. Silva’s arrest.

[83] Detective Awad’s evidence was that he believed that there were reasonable and probable grounds to arrest Mr. Silva on March 30th because of what had been observed between March 9th and March 30th supported a conclusion that Mr. Silva was involved in drug trafficking, and that he was in fact transporting drugs in his car at the time of his arrest on March 30th.

[84] Mr. Silva does not dispute that Detective Awad had subjective grounds for the arrest. However, he argues that there were no objective reasonable and probable grounds. I disagree. Even without considering the evidence in the ITO, the evidence of the totality of the circumstances described by Detective Awad during his testimony supports a finding that there were objective reasonable and probable grounds for Mr. Silva’s arrest on March 30th. Detective Awad’s evidence is that, by that point, he was aware of the following:

• The investigation initially focused on Mr. Pellegrino and Mr. Spattaro, who were “high level” targets. “High level” target are typically familiar with police techniques, and they tend to engage in fewer transactions involving larger quantities of drugs.

• Mr. Pellegrino was known to the police from an earlier investigation.

• Officer Awad’s experience led him to believe that Mr. Silva was a drug runner, which means that he was used by a group of people who did not want to be seen conducting sales, collections, pickups and drop offs.

• Officer Awad was involved in the surveillance of Mr. Spataro’s house on March 9, 2017. Mr. Silva was observed arriving at the house on foot, carrying a weighted bag, and handing it to Mr. Spataro in the garage. Mr. Silva’s car was parked a couple of houses down from Mr. Spataro’s house. Mr. Silva was then seen returning to the vehicle, getting into the passenger seat and being driven away. Mr. Spataro was seen later that day meeting with someone, and handing over a large bag. Later that evening, Mr. Silva returned to Mr. Spataro’s house, went to the front door, stayed for a short period and returned to his vehicle and left.

• On March 21st, Mr. Silva was seen in the passenger side of the White Hyundai. He was driven to a building on Forest Manor Road, where he was seen entering and exiting a garage with another vehicle. As indicated above, Officer Awad viewed the fact that the Range Rover appeared to be waiting for Mr. Silva’s car as suspicious and consistent with drug trafficking.

• Detective Awad was aware of video footage obtained by the property managers of the Forest Manor Road building that showed Mr. Silva’s vehicle in the parking garage, subsequently joined by a black Range Rover. Mr. Silva and a man in the Range Rover had a discussion, after which Mr. Silva was given a large black duffel bag. Mr. Silva was then seen fiddling with something in the back seat of his car.

• On March 29th, Mr. Silva was observed leaving the Lawrence Avenue West building. He was again a passenger in the white Hyundai. He was followed to the Woodstream Blvd. building. Mr. Silva was seen going into the building, and exiting shortly after. He then met an individual in a black car at a gas station. The cars drove in tandem, and ended up at the back of 150 Graydon Hall Drive. Mr. Silva’s car parked in the back of the building. Mr. Silva and a man from the black car entered the back of the building with backpacks. They were then seen exiting the building with the backpacks, after which they got into their respective vehicles. They drove away in tandem, both making abrupt lanes changes, and the other car eventually made a u-turn and the police lost Mr. Silva’s car.

• On March 30th, the plan was to conduct further surveillance on Mr. Silva. As a result of the surveillance, the police became aware of further activity by Mr. Silva at the Woodstream Blvd. building. Officer Awad was not involved in the surveillance that day, but he was informed that Mr. Silva was seen entering the building for a short period of time, and then exiting with a weighted bag.

• Officer Awad was aware that Mr. Silva had placed bags in the back of his car, which he testified was consistent with the use of a secret compartment used to hide contraband.

• After Mr. Silva left the Woodstream Blvd. building, Officer Awad made the decision to arrest him because he believed that he was carrying controlled substances in his car at that time.

[85] In my view, the totality of the circumstances reviewed above supports a finding that there were objective reasonable and probable grounds for Mr. Silva’s arrest on March 30, 2017. Mr. Silva had two interactions with one of the main targets of the investigation. Mr. Silva was subsequently seen on three separate days engaging in activities that were consistent with drug dealing. Given Mr. Silva’s contact with Mr. Spataro and the nature of his movements, locations of his meetings and hand to hand transfers of weighted bags, there were objective grounds for his arrest.

[86] As indicated above, Mr. Silva conceded that if I found that the arrest was lawful, then the search from which the keys to the Woostream building were found was lawful, as it was incidental to Mr. Silva’s arrest.

Issue 3 – whether the warrantless search of the Woodstream address was lawful

[87] As reviewed above, following his arrest, the keys found on Mr. Silva were used at the Woodstream address.

[88] The applicant argues that the police conducted two warrantless searches at the Woodstream addresses, arguing that both of them violated Mr. Silva’s section 8 Charter rights. The first search at issue was the use of the mailbox key to identify the relevant unit number and the second search was the entry into the unit, including the eight hour wait in the unit while the March 30th warrant to search the unit was being obtained.

[89] The applicant further argues that any references to information obtained from these alleged unlawful searches should be excised from the March 30, 2017 ITO.

[90] The Crown argues that both searches were authorized due to exigent circumstances and that they were conducted in a reasonable manner.

Applicable legal principles

[91] Section 11(7) of the Controlled Drugs and Substances Act permits a police officer to conduct a search without a warrant where “by reason of exigent circumstances it would be impracticable to obtain one”

[92] The burden of proof is on the Crown to demonstrate that there were exigent circumstances on a balance of probabilities.

[93] In R. v Paterson, 2017 SCC 15, at paras. 32 to 34, the Supreme Court of Canada reviewed the meaning of “exigent circumstances”:

33 The common theme emerging from these descriptions of "exigent circumstances" in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. This threshold is affirmed by the French version of s. 11(7), which reads "l'urgence de la situation".

34 Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7). Those circumstances must render it "impracticable" to obtain a warrant. In this regard, I respectfully disagree with the Court of Appeal's understanding of s. 11(7) as contemplating that the impracticability of obtaining a warrant would itself comprise exigent circumstances. The text of s. 11(7) ("by reason of exigent circumstances it would be impracticable to obtain [a warrant]") makes clear that the impracticability of obtaining a warrant does not support a finding of exigent circumstances. It is the other way around: exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, "impracticability", howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.

[94] Even if there were exigent circumstances, the search must be reasonable.

Positions of the parties

[95] The Crown raises a preliminary issue as to whether Mr. Silva has standing to challenge the searches at the Woodstream address, arguing that Mr. Silva had no privacy interest in that location because it was a “stash house” and not a private residence. Alternatively, the Crown argues that there were exigent circumstances arising from both concerns over the potential loss of evidence and concern over officer safety.

[96] Mr. Silva argues that he has standing to challenge the lawfulness of the search. He further disputes the rationale for the warrantless search. He argues that the exigent circumstances were precipitated by the officers’ decision to arrest Mr. Silva, and that the Crown cannot rely on exigent circumstances arising from officer conduct. He further argues that the officers were untruthful in their evidence about what they did when they entered the apartment, and that they should not be allowed to benefit from this alleged misconduct.

Whether Mr. Silva has standing on this issue

[97] As indicated above, the Crown argues that Mr. Silva has no standing to challenge the search of the Woodstream Blvd. building, because the apartment was not his residence and it was used as a stash house. In advancing this argument, the Crown argues that Mr. Silva has not established that he had a reasonable expectation of privacy.

[98] Mr. Silva argues that he has standing in the search because he has an interest in the subject matter of the search.

[99] As indicated above, as set out in Saciragic, consideration of whether Mr. Silva has a privacy interest depends on (1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

[100] The Crown concedes that Mr. Silva appears to have had possession and control of the property given that he had keys to the building and apartment. However, the Crown argues that Mr. Silva has not established a subjective expectation of privacy given that no one lived in the apartment and it appeared to be used uniquely for the purpose of drug trafficking.

[101] In R. v. Jones, 2017 SCC 60, [2017] S.C.J. No. 60, the Supreme Court recognized that an accused should not be required to lead positive evidence of his subjective expectation of privacy, because doing so creates a risk of self-incrimination. Instead, the Court held that:

32 In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory.

[102] In this case, the facts the Crown would have to prove in the prosecution against Mr. Silva are that Mr. Silva used the apartment to store illicit drugs and potentially to conduct other drug trafficking activities.

[103] While Mr. Silva’s privacy interests in the apartment are fairly limited as it was clearly not used as a residence, given that this was a locked apartment to which Mr. Silva had keys in a building he had been seen entering and exiting on more than one occasion, I am not prepared to find that he had no subjective expectation of privacy and that any such expectation he had was unreasonable.

[104] While I have found that Mr. Silva has standing to challenge the search of the Woodstream Blvd. property, his limited privacy interest is relevant to the analysis of the reasonableness of the searches conducted.

Whether there were exigent circumstances justifying the entry

[105] The evidence of the Crown is that the police believed there were exigent circumstances justifying the warrantless search at the Woodstream Blvd. property because, once Mr. Silva was arrested, there were concerns that other people involved in the group would alert each other and would take steps to destroy evidence. In particular, Officer Awad’s evidence was that, in his experience arresting one member of the network could tip off the whole network.

[106] Mr. Silva’s counsel suggested that the sense of urgency was created by the police.

[107] However, in my view, the urgency was created by Mr. Silva’s arrest, and the timing of Mr. Silva’s arrest was not arbitrary. As reviewed above, the arrest took place a few minutes after Mr. Silva left the Woodstream Blvd. building, having been seen placing a bag in his car. This came after several other days of surveillance during which the police observed Mr. Silva engaging in conduct that gave rise to a belief that he was engaging in drug trafficking.

[108] The timing of the arrest was based on the belief that Mr. Silva was transporting drugs in his car at that time. It was impractical to apply and obtain a search warrant for the Woodstream Blvd. address while following Mr. Silva. Mr. Silva had already been seen to take counter surveillance measures while being driven on other days.

[109] Accordingly, I accept the Crown’s argument that there were exigent circumstances in this case and that it was impractical for the police to obtain a warrant before entering the Woodstream Blvd. building.

Whether the search of the mailboxes was reasonable

[110] Mr. Silva argues that it was not reasonable for the police to seek to identify the unit at the Woodstream Blvd. address through the use of the mailbox key on Mr. Silva’s key chain.

[111] The Crown argues that the use of the mailbox key was reasonable in the circumstances because there was real urgency in identifying the unit in the building with which Mr. Silva was associated and Mr. Silva had a low expectation of privacy.

[112] As indicated above, the evidence is that, after Mr. Silva’s arrest, the police were concerned with ensuring that no evidence was destroyed. A number of officers attended the Woodstream address from the arrest. These were officers Awad, Dodds, Thompson and Serrano. When they arrived at the building, Officer Dagonas was already speaking to the management at the building to try to figure out which unit Mr. Silva was associated with.

[113] Out of a sense of urgency, Officers Awad, Dodds, Thompson and Serrano collectively decided to use the mailbox key to identify the unit. Officer Dodds performed the search. He tried the key on all units for the 12 Woodstream and 24 Woodstream addresses, and the key did not open any mailboxes. He tried the mailboxes associated with 12 Woodstream again, and was able to open mailbox 702. He observed that the mailbox was full, but he did not remove anything from the mailbox. The officers then went up to unit 702, and were able to open the door with one of the keys on Mr. Silva’s key chain. Several minutes later, Officer Dagonas was able to confirm with the building management that that was the unit associated with Mr. Silva.

[114] Officers Awad and Dodds confirmed during the cross-examination that this was the first time they had used this method to identify a suspect’s apartment, and Officer Awad agreed that it was “unorthodox”.

[115] As indicated above, I have accepted that there were exigent circumstances in this case and therefore that there was urgency in securing any evidence. I also accept that the method used to identify the unit with which Mr. Silva was associated was reasonable under the circumstances. The key could not open any of the boxes other than the box for unit 702. The key was only used to identify the unit number. There is no evidence that any mail was reviewed or opened. In addition, given that no one appears to have been living in the apartment, including Mr. Silva, any expectations of privacy in the mailbox would be small.

[116] In my view, this is somewhat similar to the search performed in Saciragic referred to above, in which the use a key fob to verify an address was not seen as an unlawful search.

[117] Accordingly, I accept that the use of the mailbox key to identify unit 702 at 12 Woodstream Bld. was reasonable in the circumstances of this case.

Whether the decision to remain in the unit was justified by exigent circumstances and was reasonable

[118] After the police identified unit 706, they went up to the unit. Their evidence is that they used the key to enter the apartment in order to ensure that no one was in the apartment and that any evidence in the apartment was secure. Once the apartment was secured, officer Awad made the decision to have the officers remain in the apartment while they awaited the search warrant. The entry was around 12:40 pm and the search warrant was obtained around 8:50 pm.

[119] The defence argues that, even if there were exigent circumstances justifying the entry into the unit to clear it and ensure that no evidence was destroyed, there was no basis for the officers to remain in the unit while awaiting the search warrant. As part of this argument, Mr. Silva’s lawyer invites me to infer that the officers did in fact search the unit prior to the issuance of the warrant, and that their motivation for staying in the unit was their knowledge that the quantities of drugs were very significant. Mr. Silva argues that the alleged police misconduct made the search unreasonable.

[120] The Crown argues that the decision to enter into the apartment was based on the need to prevent the destruction of evidence and that the decision to remain in the apartment was based on concern over police safety, both of which are exigent circumstances. The Crown also denies that there was any police misconduct.

[121] Five officers entered the apartment, namely Officers Awad, Serrano, Dodds, Dagonas and Thompson. Officers Awad, Dodds and Dagonas provided evidence in respect of the circumstances of the entry into the apartment and the wait in the apartment before the search warrant was obtained.

[122] Officer Awad testified that when the officers entered the apartment, it was evident that no one lived there. There were no personal objects in the apartment and no clothes in the closets. It appeared to be a “stash house”. In addition, the police saw a cocaine plate in plain view in one of the bedrooms and two locked suitcases in the closet of the same bedroom in the apartment.

[123] Officer Awad’s evidence is that he made the decision that officers were to remain in the apartment while Officer Serrano obtained a search warrant. He testified that he was concerned with the safety of the officers if they waited outside. He testified that he had done this in the past on two or three occasions, but never for this long. His explanation with respect to the length of the stay in this case was that there were a number of other searches and arrests going on that day, which explained the delay in getting the search warrant.

[124] The basis for Mr. Silva’s allegations of police misconduct focus on Officer Awad’s statement that the suitcases in the closet where the drugs were ultimately found were “locked” at the time the officers entered the apartment. Mr. Silva’s lawyer argues that the officers could not have known that the suitcases were locked unless they had tried to open them, which suggests they were opened and the officers were aware of the drugs at the time the decision was made to stay in the apartment. He suggests that the motivation for staying in the unit was that the officers were excited about having found a large quantity of drugs.

[125] Officer Awad’s explanation for using the word “locked” was that he assumed the suitcases were locked because of the locks on the suitcases. The locks at issue are locks built into the suitcases. I agree with the defence that it is not necessarily evident from looking at the suitcases that they were locked. However, in my view, this apparent discrepancy in Officer Awad’s evidence is not sufficient to give rise to a finding that the police searched the apartment before obtaining the search warrant. The evidence from Officer Dagonas, who remained in the apartment throughout the whole period, is that she spent that time waiting for the search warrant. Similarly, Officer Dodds, who was in the apartment for a significant portion of the waiting time, also testified that the suitcases were not opened.

[126] Realistically, looking at the evidence the officers had up to the point when they entered the apartment, it was reasonable to conclude that the suitcases were locked. Up to that point, they had observed Mr. Silva involved in a number of furtive transactions, including the delivery and receipt of weighted bags in parking garages. When then entered the apartment, it was evident that no one lived there, and the only thing they saw was a cocaine plate and two suitcases in a closet. Accordingly, without any evidence beyond Officer Awad’s use of the word “locked”, I cannot find that there is evidence that the police opened the suitcases before the search warrant was obtained.

[127] With respect to the decision to remain in the apartment, I accept that there were exigent circumstances and that it was not unreasonable. Officer Awad’s evidence is that he was worried that, if the officers remained in the hallway while awaiting the warrant, they would be “sitting ducks”. The apartment was at the end of a long hallway. If the officers had remained outside the apartment while awaiting the search warrant, there was no safe exit if someone had shown up with a firearm. The officers reasonably believed that there were “high level” targets involved, and that they should take measures to protect themselves. More significantly, they were not waiting inside someone’s personal residence. It was evident that no one lived in the apartment, and therefore any expectations of privacy would be very low.

[128] Accordingly, while the decision to remain in the apartment was unusual and would likely not be justified in most circumstances, in my view, in combination the concerns over officer safety due to the nature of the investigation and the long hallway as well as the low expectation of privacy given the nature of the apartment, the decision to remain in the apartment was justified by exigent circumstances and was reasonable.

Issue 4 – whether the March 30th search warrant was lawful

[129] The March 30th search warrants were issued pursuant to a supplementary ITO sworn by Officer Serrano. The ITO formed an appendix to the original ITO, and set out information about the police’s surveillance of Mr. Silva’s activities on March 29th and March 30th, including the trips to the Woodstream Blvd. building. The ITO also made reference to the police’s entry into the Woodstream apartment, including the manner in which the unit was identified.

[130] The applicant concedes that if my findings on Issues 2 and 3 above did not lead to any excisions in the March 30th ITO, then there were grounds for issuing the March 30th warrants.

[131] Given my findings on Issues 2 and 3, and my review of the ITO in question, I am satisfied that there were grounds upon which Justice Crewe could issue the warrant to search the Woodstream Blvd. address.

Application to admit Officer Thompson’s notes

[132] The Crown seeks to have the following documents admitted for the truth of their content pursuant to the principled exception to the hearsay rule: a. Officer Thompson’s notes dated March 30, 2017; b. Property reports dated April 5 and 6, 2017; and c. The exhibit list prepared by Officer Thompson.

[133] The basis on which the Crown seeks to have these documents admitted is that Officer Thompson is no longer available as a witness due to his death on April 13, 2017. The Crown argues that these documents are both necessary and reliable.

[134] Mr. Silva disputes that the notes, reports and exhibit list are admissible, arguing that the Canada Evidence Act makes clear that officer’s notes are to be admitted for the truth of their content. Alternatively, he does not dispute that the evidence at issue is necessary, however he argues that it is not reliable given the circumstances of Officer Thompson’s death.

Circumstances of Officer Thompson’s death

[135] Officer Thompson was one of the officers involved in the investigation in this case. On March 30, 2017, he was one of the officers who entered unit 706 at 12 Woodstream Blvd. and who remained in the apartment while awaiting the search warrant. Once the warrant was issued, he was the officer who opened and searched the suitcases in the closet, where he reported finding cocaine. He was also the Exhibit Officer that day, which means he was charged with collecting and tracking the exhibits.

[136] He died two weeks later from a Fentanyl overdose on April 13, 2017.

[137] None of the officers who testified on the application knew where the Fentanyl that caused the overdose came from or whether Officer Thompson had a history of drug consumption or drug addiction.

[138] As part of the record on the application, the Crown included the text of an email sent to the defence setting out the circumstances of Officer Thompson’s death:

We have received the following information from the Toronto Police concerning DC Michael Thompson who passed away on April 13 2017. DC Thompson died of a fentanyl overdose on April 13, 2017 in his home. As a result of his death, Durham Regional Police Officers undertook an investigation into the “sudden death occurrence, as it was characterized. DC Thompson was found by a fellow officer in medical distress at his home on April 19, 2017 when he did not show up for work and an ambulance was called. Toxicology results have since confirmed that DC Thompson had 14 mg/ml of fentanyl in his system. This is roughly 4 times the toxic limit. The coroner, Dr. Carlisle, has indicated he was unaware of any prescription for fentanyl. It is clear that DC Thompson died as a result of the ingestion of fentanyl. An expert opinion was sought which indicated that the product was ingested within the previous 24 hours, and that the quantity was too large for the concentration in DC Thompson’s blood to have been caused by mere contact with fentanyl. DC Thompson was an exhibit officer during Project Aqua on March 30, 2017. Analysis has since shown that the product seized included a quantity of fentanyl as well as cocaine. With the passing of DC Thompson, questions remain and the TPS has reviewed the case to determine whether in fact there is a connection between the seizure and his death. It has not been able to establish that connection, nor rule it out. Given the sudden and untimely nature of his death, Toronto Police are unable to confirm the frequency, length or duration of his use of illicit substances, or where he may have obtained them. DC Thompson also used cocaine for a period of time that was unknown while he was a Drug Squad officer. There is no information about where he obtained the cocaine, the amounts that he used, or how exactly he ingested it. There is no information of any other drug use.

[139] Accordingly, given the proximity in time between the seizure of drugs on March 30, 2017 and Officer Thompson’s death on April 13, 2017, the police have not been able to rule out the possibility that the source of drugs consumed by Officer Thompson was not from the drugs seized in this investigation.

Preliminary issue regarding interpretation of Canada Evidence Act

[140] As indicated above, Mr. Silva argues that the Canada Evidence Act should determine the admissibility of documents prepared by Officer Thompson, including his notes.

[141] In advancing this argument, Mr. Silva’s lawyer relies on the provisions of the Canada Evidence Act that state that records made during an investigation are not to be considered business records.

[142] The relevant provisions are as follows:

30(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

30(10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) a record made in the course of an investigation or inquiry…

30(11) The provisions of this section shall be deemed to be in addition to and not in derogation of (a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

[143] Mr. Silva argues that, in combination, these provisions make clear that records made during the course of an investigation are not to be considered business records and that they are not to be admitted under the common law exception to the hearsay rule.

[144] In support of this argument, Mr. Silva relies on the following interpretation of these provisions in R. v. Schertzer, [2008] O.J. No. 226 (S.C.J.), at paras. 7 to 9:

7 Contrary to the prosecution's submissions, I do not consider that either the police memorandum books or the surveillance notes are properly admissible as business records under section 30 of the Canada Evidence Act. I reach that conclusion because of the express prohibition contained in section 30(10) of the Act that states:

"Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) a record made in the course of an investigation or inquiry,"

8 I also conclude that that prohibition is not overridden by section 30(11) of the Act that states:

"The provisions of this section shall be deemed to be in addition to and not in derogation of (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved."

9 Section 30(10)(a)(i) adds an express prohibition to the admission into evidence of business records that are made in the course of an investigation or inquiry. It is a prohibition that is "in addition to" the existing rules of law regarding admissibility. Its effect is not, therefore, nullified given the clear wording of section 30(11). I would also note that if the prosecution's submission was correct that the common law requirements can, in essence, override section 30(10), there would be very little opportunity left for that section to have any real effect.

[145] In response, the Crown argues that these provisions do not mean that the principled exception to the hearsay rule can never be invoked to seek to admit investigative notes or documents. I agree.

[146] In combination, these provisions suggest that investigatory records may not be admitted as business records. But this does not preclude them from being admitted on the basis of the principled exception to the hearsay rule in appropriate circumstances.

[147] The effect of Mr. Silva’s argument is to suggest that there are no circumstances in which investigative reports or notes can be admitted into evidence as an exception to the hearsay rule. This is a fairly dramatic proposition and is not supported by any authorities. On the contrary, it does appear that, on occasion, Courts have admitted an officer’s records in accordance with the exception to the hearsay rule; see, for example, R. v. West, [2001] O.J. No. 3413 (Sup. Ct.) and R. v. Rowley, [1992] O.J. No. 2347 (Gen. Div.)

Necessity and reliability test

[148] An out of court statements that a party seeks to adduce to prove the truth of its contents constitutes hearsay evidence. Hearsay is generally inadmissible unless it falls within an exception to the prohibition against hearsay: R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35, at para. 1.

[149] The principled exception to the hearsay rule provides that out of court statements may be admitted if they meet the twin requirements of necessity and reliability: Bradshaw, para. 23.

[150] In this case, given Officer Thompson’s his death, Mr. Silva does not dispute that the evidence at issue meets the necessity requirement.

[151] As explained in Bradshaw, at paras. 26 to 32, reliability can be demonstrated in one of two ways: a. The circumstances under which the statement was made do not give rise to any concerns that the statement is untrue (referred to as “substantive reliability”); or b. The truth of the statement can be sufficiently tested by means other than contemporaneous cross-examination (referred to as “procedural reliability”).

[152] In this case, the Crown relies on the circumstances under which the documents authored by Officer Thompson were prepared. In Bradshaw, the majority explained substantive reliability as follows:

31 While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process" (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" (Smith, at p. 933); "under such circumstances that even a sceptical caution would look upon it as trustworthy" (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is "unlikely to change under cross-examination" (Khelawon, at para. 107; Smith, at p. 937); when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[153] In Bradshaw, the Court also explained that substantive reliability can arise from corroborative evidence in appropriate circumstances:

45 First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement (see Couture, at paras. 83-84; Blackman, at para. 57). Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on. Because threshold reliability is about admissibility of evidence, the focus must be on the aspect of the statement that is tendered for its truth.2 The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove.

46 A similar approach was taken in restricting the type of corroborative evidence that can be relied on to establish the threshold reliability of Mr. Big statements. In Hart, Moldaver J. (writing for the majority) concluded that there was a "complete lack of confirmatory evidence" (para. 143), disregarding corroborative evidence that merely confirmed the accused's presence at the scene of the crime when it took place, because the Mr. Big statement was tendered to show that the accused killed his daughters, not that he was present at the scene of the crime. As Moldaver J. explained:

The issue has always been whether the respondent's daughters drowned accidentally or were murdered. There was never any question that the respondent was present when his daughters entered the water. All of the objectively verifiable details of the respondent's confession (e.g., his knowledge of the location of the drowning) flow from his acknowledged presence at the time the drowning occurred. [para. 143]

Thus, in assessing the threshold reliability of Mr. Big statements, the trial judge considers only corroborative evidence that goes to the truthfulness or accuracy of the material aspects of the statement.

47 Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing the admissibility of hearsay evidence, "the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility" (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937). Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement (see U. (F.J.), at para. 40). Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.

48 In assessing substantive reliability, the trial judge must therefore identify alternative, even speculative, explanations for the hearsay statement (Smith, at pp. 936-37). Corroborative evidence is of assistance in establishing substantive reliability if it shows that these alternative explanations are unavailable, if it "eliminate[s] the hypotheses that cause suspicion" (S. Akhtar, "Hearsay: The Denial of Confirmation" (2005) 26 C.R. (6th) 46, at p. 56 (emphasis deleted) ). In contrast, corroborative evidence that is "equally consistent" with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), [1996] 2 S.C.R. 291, at paras. 34-35). Adding evidence that is supportive of the truth of the statement, but that is also consistent with alternative explanations, does not add to the statement's inherent trustworthiness.

49 While the declarant's truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

Whether the evidence is reliable

[153] The Crown argues that the documents authored by Officer Thompson that it seeks to tender for the truth of their content are reliable because of the circumstances under which they were prepared and because of the corroborative evidence that confirms their accuracy.

[154] In relation to the circumstances under which the notes were prepared, the Crown argues that the notes were prepared contemporaneously with the events at issue and Officer Thompson would not have had any incentive to misstate the facts because they were prepared with a view to using them at a later date.

[155] While this may be true in many situations, given the circumstances of Officer Thompson’s death, I am not satisfied that the circumstances under which the notes were made offer any guarantee of trustworthiness. There is a close nexus in time between the investigation and Officer Thompson’s death. The Crown has candidly admitted in the email quoted above that it is not possible to rule out the fact that Officer Thompson may have obtained the drugs from which he died from this particular seizure. He was in fact the officer who found he controlled substances in the suitcases and, under the circumstances, it is difficult to say that his notes and records are trustworthy given the circumstances under which they were made.

[156] The Crown further relies on corroborative evidence in support of its application. As reviewed above, in Bradshaw, the Supreme Court held that the corroborative evidence must be trustworthy and the truthfulness of the statement must be the only explanation for the evidence.

[157] In this case, I accept that the trustworthiness of some of the records is supported by corroborative evidence, but not all of the records.

[158] The property reports and exhibit lists are independently verifiable, and they were in fact independently verified in this case. The property reports set out a list of the items seized at the Woodstream Blvd. address, and it was signed and verified by Officer Awad a few days after the search. Similarly, the exhibit list consists of a factual list of exhibits, and it was verified by Officer Indiran after Officer Thompson’s death.

[159] In contrast, Officer Thompson’s notes from March 30, 2017, record his observations and actions that day. They include a detailed account of what he saw and seized when he opened the suitcases after the warrant was obtained. He describes various bags, their respective locations in the suitcases and the description of substances found in those bags. The Crown argues that this evidence can be verified by photos and the evidence from other officers who were present that day. However, it is Officer Thompson who opened the suitcases. It does not appear that anyone else was with him when he opened the suitcases and first searched them. Officer Dagonas’ evidence is that Officer Thompson conducted the search in the bedroom while she was in a common room of the apartment. Officer Thompson brought the suitcases into to the common area to be photographed after he had opened them and advising that he found cocaine in the suitcases.

[160] Given the circumstances of his death and the Crown’s inability to ascertain the source of the drugs that caused Officer Thompson’s death, and in the absence of evidence that specifically corroborates his observations when he opened the suitcases, in my view it is not possible to say that his notes are reliable.

[161] The Crown argues that, at worst, the quantity of drugs Officer found may have been larger than the quantity he reported finding. In my view, this argument is not persuasive. The issue is whether his notes are reliable based on the circumstances in which they were made and available corroborative evidence. The fact that they may underreport what was found does not assist in making a finding of reliability.

[162] Accordingly, I find that the reports and exhibit lists are admissible pursuant to the principled exception to the hearsay rule. However, Officer Thompson’s notes are not admissible.

Conclusion on both applications

[163] Accordingly, with respect to Mr. Silva’s application to exclude evidence found as a result of the search warrants issued on March 27, 2017 and March 30, 2017, I find that: a. The police entry without a warrant into the parking garage of the Lawrence Avenue West building was not an unreasonable search, and Mr. Silva’s section 8 Charter rights were therefore not violated; b. The warrants issued on March 27, 2017, to search Mr. Silva’s vehicle and the Lawrence Avenue West apartment could have properly issued based on the totality of the circumstances before Justice Brownstone and the amplified record on the application, and therefore the issuance of the warrants did not violate Mr. Silva’s section 8 Charter rights; c. There were reasonable and probable grounds for Mr. Silva’s arrest on March 30, 2017, and therefore his section 9 Charter rights were not violated; d. The police entry without a warrant onto the Woodstream Blvd. property on March 30, 2017, including the entry into the lobby of the building (including the use of the mailbox key) and into unit 702, did not violate Mr. Silva’s 8 Charter rights; and e. The warrants issued on March 30, 2017, to search Mr. Silva’s vehicle and unit 702 of the Woodstream property could have properly issued, based on the totality of the circumstances before Justice Crewe and the amplified record on the application, and therefore the issuance of the warrants did not violate Mr. Silva’s section 8 Charter rights.

[164] Accordingly, Mr. Silva’s application pursuant to section 24(2) of the Charter to exclude the evidence obtained as a result of the execution of the search warrants issued on March 27, 2017 and March 30, 2017 is dismissed.

[165] With respect to the Crown’s application to admit the notes, reports and property exhibit list prepared by Detective Constable Thomson on the basis of the principled exception to the hearsay rule, I find that: a. Officer Thompson’s notes dated March 30, 2018, are not admissible as they do not meet the reliability requirement of the principled exception to the hearsay rule; b. The property reports dated April 5 and 6, 2017, are admissible on the basis of the principled exception to the hearsay rule; and c. The Exhibit List prepared by Officer Thompson is admissible on the basis of the principled exception to the hearsay rule.

[166] Accordingly, the Crown’s application is granted with respect of the property reports and exhibit list, and the balance of the application is dismissed.

FAVREAU J. RELEASED: October 29, 2018