COURT FILE NO.: CR-16-7/711

DATE: 20181126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

JESSY KABANGA-MUANZA

Defendant/Applicant

Yeshe Laine, for the Crown/Respondent

Gavin Holder and Mr. Wong, for the Defendant/Applicant Jessy Kabanga-Muanza

HEARD: August 7, 10, 13-17, 20-22, 27, 2018

Ruling ON DEFENCE Section 8 APPLICATION

SPIES J.

Overview

[1] On July 20, 2015, at approximately 1:10 am, a firearm was discharged outside the apartment building at 10 Boultbee Avenue, Toronto, shattering a glass window on the outside wall of the lobby of that building (the “shooting incident”). One young man named Karlyle Robinson-Costain (“Mr. Costain”) was in the lobby of 10 Boultbee Avenue at the time and the shattered glass caused him some minor injuries. Police attended the scene and gathered evidence including the surveillance videos from 10 Boultbee and 20 Boultbee Avenue (the “Boultbee Videos”). As a result of the Boultbee Videos and other investigation, the police seized a motor vehicle on July 25, 2015 that they believed was involved in the shooting incident. There was no dispute that the defendant, Mr. Kabanga-Muanza (“Mr. Kabanga”) was the registered owner of this vehicle at the relevant time; a grey/silver 2004 Pontiac Grand Prix (the “Vehicle”). It was an admitted fact that the Vehicle seized by police was registered to Mr. Kabanga, with a VIN No. 2G2WP522841338097 (the “VIN Number”).

[2] On July 27, 2015, Justice of the Peace Quamina (the “issuing Justice”) authorized police to search Mr. Kabanga's Vehicle for trace evidence (including fingerprints and DNA) and gunshot residue (“GSR”). The issuing Justice refused the request that the police be authorized to search for a “silver handgun”, endorsing on the ITO that “there’s no information of the affiant’s source of knowledge of the existence of a ‘Silver handgun’ in relation to the attempted murder of the victim by an unknown suspect”.

[3] During the course of the authorized search of Mr. Kabanga’s Vehicle that followed by DC Hubbard on July 28, 2015, a firearm was located inside a cavity at the end of the dashboard on the driver’s side. Although DC Hubbard was not authorized to search for a firearm, he testified that this firearm was in plain view because the panel that covered this end of the dashboard was lying on the floor of the vehicle when he opened the driver’s side door.

[4] As a result Mr. Kabanga was charged with attempted murder, discharging a firearm with intent to endanger life, and using a firearm in relation to the shooting. The shooter was never identified. The Crown alleged that Mr. Kabanga was a party to these offences by driving the shooter to and from the site of the shooting in his Vehicle and supplying the shooter with the firearm. Mr. Kabanga was also charged with various firearms possession-related offences.

[5] Mr. Kabanga re-elected trial by judge alone and pleaded not guilty to all of the charges. On November 2, 2018, I convicted Mr. Kabanga of a number of offences; R. v. Kabanga-Muanza, 2018 ONSC 6515 (the “Judgment”).

[6] Mr. Kabanga alleged various breaches of his rights pursuant to s. 8 of the Charter of Rights and Freedoms (“Charter”). At the outset of the trial, he brought an application to obtain an order pursuant to s. 24(2) of the Charter to exclude all items seized as a result of the execution of the search warrant, which authorized the search of his Vehicle. Evidence on that application was heard on a voir dire blended with the trial. On August 27, 2018, I dismissed that application with written reasons to follow. These are those reasons.

The Procedure Followed at the S. 8 Charter Hearing

[7] It was agreed that Mr. Kabanga’s application be dealt with before proceeding with the trial proper but that the evidence on the voir dire be blended with the trial to avoid having to call certain witnesses twice. However, because of scheduling issues with some of the s. 8 witnesses, with the consent of the Defence, some trial evidence was called at times when s. 8 witnesses were not available. This cooperation between counsel ensured that this case was dealt with as efficiently as possible, which I appreciated.

[8] On the application the Crown called the officer in charge of the investigation; DC Ian Grantham; the affiant of the ITO, DC Benjamin Elliot, after I granted leave to the applicant to cross-examine the affiant, and other officers involved in the investigation leading up to the seizure of Mr. Kabanga’s Vehicle. The evidence on the voir dire included the evidence of DC Rinkoff through the filing of his will-say and his evidence at the preliminary inquiry and a will say from DC Leung[^1]. The Crown also called DC Simon Hubbard who searched the Vehicle after the search warrant was obtained and Mr. Costain. In addition the Crown called PC Ingley who testified about his examination of the interior of the Vehicle one year earlier. Mr. Kabanga did not testify nor did he call any other evidence on the application.

The Issues

[9] This application raised two main issues with respect to s. 8 of the Charter:

1. the applicant claimed to have a privacy interest in the Vehicle seized by police (which was conceded by the Crown) and argued that the police seizure of the Vehicle pursuant to s. 489 (2) of the Criminal Code prior to obtaining a warrant was a violation of s. 8 of the Charter;

2. the applicant also challenged the basis upon which the issuing Justice granted the warrant to search the Vehicle. In particular the applicant challenged the facial and the sub-facial validity of the warrant;

3. finally, if I found one or more breaches of Mr. Kabanga’s s. 8 Charter rights, I would have to consider whether or not the evidence seized should be excluded pursuant to s. 24(2) of the Charter.

[10] The applicant also alleged initially that the execution of the search warrant by DC Hubbard was carried out improperly but after hearing his evidence this argument was not pursued. There is no dispute that the search of the Vehicle by DC Hubbard was carried out lawfully and in accordance with the search warrant.

[11] The Crown’s position was that DC Grantham had reasonable grounds for the seizure of Mr. Kabanga's Vehicle pursuant to s. 489 (2) of the Criminal Code or in the alternative pursuant to s. 221 of the Highway Traffic Act (“HTA”) and that there was a basis upon which the issuing Justice could have been satisfied that the statutory requirements for granting the authorization to search the Vehicle were met and accordingly that a s. 8 violation of the Charter did not occur.

[12] As a preliminary issue, the applicant sought leave to cross-examine DC Elliot who prepared and swore the Information to Obtain ("ITO") judicial authorization for the search of Mr. Kabanga's Vehicle. For the reasons set out below I granted that application.

Evidence with Respect to the Seizure of the Vehicle on July 25, 2015

Assessment of the credibility and reliability of the evidence of DC Grantham

[13] The legality of the seizure of Mr. Kabanga’s Vehicle largely depended on the evidence of DC Grantham who was vigorously cross-examined by Mr. Holder. Overall, I concluded that DC Grantham was an honest, credible and reliable witness. In cross-examination he was responsive and made concessions where reasonable. A number of the issues that Mr. Holder raised were minor in my view and had no impact on my assessment of DC Grantham as a witness. Others that were more significant I will deal with as I review his evidence. Although there were a couple of occasions, as I will explain, that I was not able to make the observations from the Boultbee Videos that DC Grantham attested to, I accepted his evidence of what he said he observed. I relied upon his evidence in concluding that he had reasonable grounds to seize Mr. Kabanga’s Vehicle, when he decided to do so on July 25, 2015.

The Boultbee Videos

[14] Another officer obtained the video surveillance from a camera at 10 Boultbee, which DC Grantham then reviewed in his office. DC Grantham then went back to the scene to get the video surveillance from the camera at 20 Boultbee. He reviewed this video at the scene using a computer program that is owned by Toronto Community Housing (“TCH”), which allowed him to play the video frame by frame. DC Grantham testified that he did so several times. Mr. Holder advised that he had purchased an equivalent piece of software called the Evidence Review Program (“ERV”), which was used in Court during the course of DC Grantham’s evidence.

[15] DC Grantham testified that he reviewed the Boultbee Videos again once he was back at the station. He had no suspect in mind and he noted what he observed while reviewing the Videos.

[16] DC Grantham stated that based on the Video taken from 20 Boultbee Avenue, he observed that commencing at approximately 01:09:08 a suspect vehicle appeared and circled the raised roundabout area in front of 10 Boultbee Avenue, passing by the lobby of that building, where Mr. Costain was waiting while sitting on his e-bike. The suspect vehicle then stopped by garbage dumpsters near 20 Boultbee Avenue. DC Grantham noted that the driver side door of the suspect vehicle briefly opened and the occupants appeared to be fidgeting around. The driver did not exit and then the driver’s door closed. DC Grantham then saw more movement or fidgeting inside the vehicle and then the passenger exited from the front passenger seat of the suspect vehicle and walked to the center of the roundabout in front of 10 Boultbee Avenue.

[17] DC Grantham believed that the passenger discharged a single shot before running back to the vehicle, which then left the scene. Mr. Holder challenged the evidence of DC Grantham that he could see a gun in the passenger’s hand and the flash of the gun when it was discharged in the Boultbee Videos. DC Grantham watched the Boultbee Videos in court so that he could identify the point where he believed that he saw the flash from a firearm, when he first watched the video. From the Video taken from 10 Boultbee Avenue, he identified that point at 1:10:28, which he explained in court. As DC Grantham stated, by this point he had already concluded that a shot had been fired by the passenger in the direction of Mr. Costain. This may have impacted or influenced his observations.

[18] Mr. Holder challenged the evidence of DC Grantham that he could see a gun in the passenger’s hand and the flash of the gun when it was discharged in the Boultbee Videos. I agree that that is difficult to see; I am not able to see it either, but I do not find that DC Grantham was being dishonest about this. Mr. Costain was a reluctant witness but he testified that he heard a firecracker sound and saw a flash. Furthermore, given the timing of the vehicle being at the scene, the movement of the vehicle, the movements of the passenger and the timing of the shattering of the glass, I have no difficulty finding that it was the passenger who exited the vehicle who fired a firearm in the direction of the entrance to 10 Boultbee. Mr. Costain corroborates this as well as he saw the vehicle stop by the garbage dumpsters, he saw a car door open and thought someone was getting dropped off. He saw a black shadow by the car coming towards the entrance to 10 Boultbee, as I have already stated. He saw a flash, and he testified that after the bang, he saw a car driving off.

[19] In his submissions Mr. Holder argued that DC Grantham ought to have investigated the possibility that someone other than the passenger of the vehicle was the person who shot into the lobby of that building. I did not accept that submission. First of all, based on the evidence I heard, there was absolutely no doubt that a gun was fired in the direction of Mr. Costain, given that the glass of the vestibule was shattered and bullet fragments were found on the floor and in the wall of the lobby. Mr. Holder did not suggest that the vehicle seen pulling up and parking by the dumpsters did so at a different time than when this shot was fired. As for who made this shot, although the Boultbee Videos show other persons outside on the sidewalk and there was another car in front of the vehicle when it first stopped by the dumpsters, I rejected Mr. Holder’s suggestion that someone other than the passenger from the vehicle fired a firearm at that moment towards the lobby of 10 Boultbee when the glass shattered. The Boultbee Videos show that the vehicle drove past the lobby of 10 Boultbee where Mr. Costain was, circling around the roundabout, and then parked. There was then a protracted pause while the people in the front seat of the vehicle moved around inside the vehicle and the driver’s door could be seen opening for a short period of time and then closing. At this point the passenger exited and walked towards 10 Boultbee where Mr. Costain was waiting in the lit lobby of the apartment building. Mr. Costain corroborated this as well, as when he saw the vehicle stop by the garbage dumpsters, he saw a car door open and thought someone was getting dropped off. He saw a black shadow by the car coming towards the entrance to 10 Boultbee and he testified that after the bang, he saw a flash, and then the car driving off.

[20] Although the Boultbee Videos show other persons outside on the sidewalk and there was another car in front of the vehicle when it first stopped by the dumpsters, I rejected Mr. Holder’s suggestion that someone other than the passenger from the vehicle fired a firearm at that moment towards the lobby of 10 Boultbee when the glass shattered. No one exited from the other car and my finding that the passenger is the person who discharged a firearm towards the lobby of 10 Boultbee Avenue was confirmed by the evidence of Mr. Costain that I have just reviewed.

[21] All of the evidence suggested that the passenger of the vehicle that pulled up to the garbage dumpsters near 20 Boultbee fired the shot in question. For these reasons I found that it was objectively reasonable for DC Grantham to believe that the passenger of the vehicle in the Boultbee Videos fired the shot at Mr. Costain while he was waiting in the lobby.

DC Grantham’s observations of the suspect vehicle from the Boultbee Videos

[22] DC Grantham was not asked about what model of vehicle he believed the suspect vehicle to be when he first reviewed the Boultbee Videos save that in his notes he wrote “Pontiac Grand Am” which he struck out. In cross-examination he admitted that initially he searched on the Internet for a Grand Am before he realized that the vehicle he saw was in fact a Grand Prix. He said that he confused these models. DC Grantham testified that after he viewed the Boultbee Videos, he did an open source Internet search for “Pontiac Grand Prix,” looking for the type of vehicle that he believed that he saw in the Boultbee Videos. He identified a copy of a page from Wikipedia showing a single image of a 2004-2008 Pontiac Grand Prix, which he said that he looked at. This page shows a vehicle with a front license plate holder. It is very similar, but not the same as the vehicle in the Boultbee Videos, as it does not have the dark molding on the side of the vehicle nor does it have five point hubcaps. Otherwise it looks the same. As a result of his search, DC Grantham believed that the vehicle in the Boultbee Videos was a seventh generation – between 2004 and 2008 – Pontiac Grand Prix, silver/grey in colour. DC Grantham said that at this time he believed that this was the vehicle involved in the shooting incident and that the passenger from that vehicle was the shooter.

[23] DC Grantham observed that the suspect vehicle’s windows were heavily tinted and he was very firm in cross-examination about this. He testified that he was certain that this level of tint was an after-market addition since it was so heavy. He could see a white square on the rear of the vehicle, which he thought was a license plate, but he could not make out what was on the plate. He observed that the vehicle did not have a front license plate or holder for a license plate; the front bumper of the vehicle was curved and so it would require a holder. DC Grantham testified that it was not common to see no front license plate holder on a vehicle in Ontario. In addition he noted that there was a dark stripe or molding running horizontally along both sides of vehicle although he admitted in cross-examination that he could not tell if these were after-market or whether it was part of the package when the vehicle was sold. Finally, he noted that the suspect vehicle had silver five point rims or hubcaps. DC Grantham admitted that he couldn’t tell if the style of rims on the vehicle was unique or whether it was the style of rims sold with the vehicle.

The investigation

[24] After reviewing the Boultbee Videos, and making his observations of the suspect vehicle, DC Grantham created a police bulletin on July 20, 2015 (“Bulletin”) containing screenshots of the suspect vehicle from the Boultbee Video taken from 20 Boultbee Avenue. DC Grantham disseminated this Bulletin to officers in 51 Division, where he believed Mr. Costain had an association and 55 Division, which was the division that included the Boultbee apartment buildings. The Bulletin stated that the vehicle is a “7th generation (2004-2008) Pontiac Grand Prix. Silver. NO front license plate.” The Bulletin went on to describe the shooter as:

Male white, average build, wearing black hoodie with a white logo/design on the front, grey/light blue jeans, white runners. Armed with an unknown make/model handgun.

Information from DC Petrakis

[25] On July 21, 2015 at approximately 9:12 am, DC Grantham received an email in response to his Bulletin from DC Michael Petrakis, which stated in part as follows:

I had a look at the photo of the suspect vehicle, the older model Pontiac Grand Prix. It looks like it may be Jessy Kabanga-Muanza’s (92.10.19) car as it has Quebec plates (E09FWN). The last time he was arrested he was located sleeping in his car on Blong, just north of 29 Louvain ….

He’s currently on probation for trafficking and it does not appear that he is in custody. [Emphasis added]

[26] DC Grantham testified that DC Petrakis also advised him that the last known address he knew of for Mr. Kabanga was Apt. 312, 29 Louvain Avenue, Toronto (the “Louvain Address”) and that DC Petrakis gave him the VIN number for the vehicle which he advised was a 2004 Pontiac Grand Prix silver/grey in colour. DC Grantham testified that the Louvain Address was in the center of 55 Division.

[27] DC Grantham said that he ran a search on the VIN Number of Mr. Kabanga’s Vehicle that he received from DC Petrakis. The report stated that the license plate, E11HFL, a Quebec plate, was registered to Jessy Kananga-Muanza with a Montreal address, DOB October 19, 1992. The report also included a warning that the Vehicle was “not authorized to circulate” and that the Vehicle was “prohibited from being put into operation (Quebec only)”.

[28] As a result of this information, DC Grantham contacted THC at the Louvain Address, where he reviewed the tenant list and determined that it included the name of Mr. Kabanga.

[29] DC Grantham did not seek to detain Mr. Kabanga or obtain a warrant to seize and search his Vehicle at this stage. No surveillance was conducted of Mr. Kabanga's known address on this date or at any time.

Observations by DC Rinkoff

[30] On July 21, 2015 at approximately 3:15 pm, DC Lee Rinkoff, also from 55 Division, called DC Grantham and advised him that when he was exiting southbound onto Lakeshore Boulevard from the Freshco parking lot, which was near the intersection of Leslie Avenue and Lakeshore Boulevard, he observed a silver Grand Prix entering that parking lot and recognized the driver to be Mr. Kabanga. In cross-examination, DC Grantham was taken to his notes, where he noted that DC Rinkoff had informed him over the phone that the driver’s side window of the defendant’s Vehicle was down, and that he had positively identified Mr. Kabanga as the driver. DC Grantham also stated this in his Report where he also stated that DC Rinkoff had a clear, unobstructed view of Mr. Kabanga in the driver’s seat.

[31] After receiving this information DC Grantham reviewed the video surveillance from Freshco parking lot and compared it to the Boultbee Videos. He did not make a note of when he so but he testified that he had an independent recollection of doing this on the same day he received the information from DC Rinkoff.

[32] In his notes DC Grantham wrote that the vehicle in the Freshco video had the "exact same descriptors/features" as the suspect vehicle from the shooting. DC Grantham conceded in cross-examination that the Freshco video shows the rear of the vehicle and that there was a spoiler on the edge of the trunk. He also admitted that he could not tell from the Freshco video whether the vehicle had a front license plate or holder. It was pointed out to DC Grantham that the image of the vehicle from the Wikipedia search that he produced does not show a rear spoiler, but I note that image only shows the vehicle from the front. DC Grantham testified that he did not have notes of every Internet search that he did, suggesting that he did more than the one Wikipedia search, which was entered into evidence. It was suggested to DC Grantham that he never testified before that he had done other Internet searches. When DC Grantham was asked about this at the preliminary inquiry, he identified the Wikipedia page marked in evidence as the website that was in his notes; but he was not asked if this was the only website that he went to or if he could recall doing other searches. I did not find that this exchange impacted negatively on his credibility.

[33] DC Grantham was challenged on the statement in his notes that the vehicle in the Freshco video had the exact same descriptors as the vehicle in the Boultbee Videos. DC Grantham explained this by testifying that the unique descriptors he observed in the Freshco video that are visible (namely the fact the vehicle was a silver 7th generation Pontiac Grand Prix, with heavy tint on the windows, 5 star rims and the dark molding on the side of the vehicle) were exactly the same in the Boultbee Videos. I accepted that evidence. The Boultbee Videos do not show the rear of the suspect vehicle clearly enough to determine whether or not it had a rear spoiler.

[34] DC Grantham admitted that although damage to the left front bumper of the vehicle in the Freshco video is visible, he did not make observations of it at the time he first reviewed that video. Based on my observations, if you were aware of the damage to Mr. Kabanga’s Vehicle, that DC Grantham observed at the time he decided to seize the Vehicle, the damage is somewhat visible but it is certainly not obvious in the Freshco video and in my view could be missed if one was not aware of the existence of this damage.

[35] There is no dispute that the Freshco surveillance video does not show any windows on the vehicle that Mr. Kabanga was allegedly driving to have been lowered. DC Grantham was taken to DC Rinkoff’s evidence at the preliminary inquiry where he testified that that the windows were up and tinted and that he did not tell anyone that the windows were down. DC Rinkoff testified then that his observations of Mr. Kabanga were made through the front window of the vehicle. In response, DC Grantham testified that he made his notes three hours after the call from DC Rinkoff and that this note was an error. He was not sure if the windows were up or down or how DC Rinkoff made the identification and through which window. What was important to him was that DC Rinkoff had made a positive identification of Mr. Kabanga and that he was driving the suspect vehicle. This information was part of his grounds in deciding to seize the Vehicle. DC Grantham was totally responsive to the questions asked by Mr. Holder. I accepted his explanation.

[36] It was put to DC Grantham in cross-examination that by this point he had “tunnel vision” and was focusing exclusively on Mr. Kabanga’s Vehicle. To this suggestion DC Grantham testified that if Mr. Kabanga’s Vehicle was a silver 7th generation Pontiac Grand Prix, with a Quebec marker and no front plate/holder, then he was looking for it; but he disagreed that he was looking for Mr. Kabanga’s Vehicle exclusively. He testified that he was looking for the particular features he had identified of the vehicle from the Boultbee Videos. I accepted that evidence. It was clear from the Bulletin that DC Grantham distributed that this is exactly what he was doing.

Supplementary Occurrence Report

[37] DC Grantham prepared a Supplementary Occurrence Report (“Report”) on July 23, 2015 and he was cross-examined on this Report as to how he interpreted the information he received from DC Petrakis. In particular, DC Grantham’s Report stated that on July 21, 2015, at approximately 9 a.m., DC Petrakis “indicated that the vehicle at the scene of the shooting at 10 Boultbee Avenue was the same vehicle in which [Jerry] Kabanga-Muanza was investigated when near his home at 29 Louvain Avenue”. In cross-examination on the fact that in his email to DC Grantham, DC Petrakis only stated that the suspect vehicle in the Bulletin may be Mr. Kabanga’s Vehicle. DC Grantham testified that he took this to mean an identification of the suspect vehicle involved as Mr. Kabanga’s Vehicle because of the further information he received from DC Petrakis about Mr. Kabanga’s criminal record and the fact that the shooting incident took place very close to the place where Mr. Kabanga had been investigated before and close to his home. Putting all of that together, DC Grantham testified that “to himself”, he had identified the suspect vehicle. He insisted that he never said that DC Petrakis had stated it was the same car only that it was the investigation that pushed him to that vehicle. He denied that he was engaging in deliberate falsehoods with respect to the information he received from DC Petrakis. I accepted that evidence. DC Grantham clearly interpreted the information from DC Petrakis as identifying the suspect vehicle as Mr. Kabanga’s. However he did not issue a new Bulletin to the officers in 51 and 55 Division asking that they be on the lookout for only Mr. Kabanga’s Vehicle.

[38] DC Grantham testified that in his Report he did not set out all of the details of his investigation; it was meant to be just a summary. In that Report, he set out a summary of his observations of the Boultbee Videos, which was the subject of cross-examination, particularly as some of the observations set out in this Report were not in his notes. I will deal with those now, as they were important to my assessment of the credibility and reliability of the evidence of DC Grantham.

[39] The Report included DC Grantham’s observation that at 1:10:04, the driver and front passenger were fidgeting/searching around inside the vehicle, the driver’s side door opened briefly and then closed, and no one exited the vehicle; and that after a white male exited the vehicle, he fired a single shot from the center of the roundabout, and that at 1:10:35, DC Grantham noted that the shooter was a white male. He set out a description, which included “no gloves”. His Report went on to state that 1:10:51 the suspect male shooter was returning to the vehicle with a “silver handgun visible in right hand” which DC Grantham admitted was not in his notes from when he first watched the Boultbee Videos.

[40] DC Grantham was taken through the Boultbee Videos using the ERV program and he explained what and how he made certain observations about the passenger. He was challenged on whether or not he could see movement in the vehicle after the driver door was closed and he remained firm that he could although he conceded that with the light off he could not see what was going on inside the vehicle. I agree, based on my own observations.

[41] DC Grantham also testified that he believed that the passenger in the vehicle was a white male based on his hands, and that he assumed the passenger was not wearing any gloves. It was put to DC Grantham that he was not able to tell if the passenger was Caucasian, Asian, or white. He could only see the lightness in terms of the contrast to the hoodie. DC Grantham agreed all that he could see was that the passenger was a light skinned male and he could not tell the race. This was one of the examples that Mr. Holder referred to in his closing submissions and he suggested that DC Grantham was careless with the truth, and the nature and extent of his deliberate falsehoods should lead me to the conclusion that his evidence was not trustworthy. In my view, in this respect and with respect to other examples, this was unfair. Given the quality of the Boultbee Videos the most DC Grantham could fairly state was whether or not he believed the suspect to be white or black. Obviously he could not be accused of racial profiling. DC Grantham needed to make the most of the Boultbee Videos as that is all the evidence he had to go on at that time. Mr. Costain told police that he had no idea who the shooter was. In my view DC Grantham was doing his best to describe the suspect who shot towards Mr. Costain and to make other observations of that suspect. This is what we expect police officers to do.

[42] With respect to gloves, DC Grantham testified that it was his determination that the colour of the suspect’s face and hands was the same, and that therefore, he believed that this person was not wearing gloves. DC Grantham agreed however that he could not tell if the suspect was wearing a mask and white gloves. Mr. Holder pointed out to DC Grantham that his notes make no reference to the passenger not wearing gloves. To that, DC Grantham testified that he didn’t observe the passenger wearing gloves. This was another area where I found the suggestions put to DC Grantham to be unfair for the same reason I have already articulated. Although I found it difficult to observe what DC Grantham testified he observed from watching the Boultbee Videos, I accept his evidence that this is what he believed he saw when he watched the Videos.

[43] Mr. Holder also referred to the alleged flash of the gun that DC Grantham testified that he saw, and he submitted that DC Grantham admitted it could be a reflection from the side panel of the vehicle and that the suspect continued to walk after that. He submitted this was the commencement of a pattern of dishonesty. I disagree. Mr. Holder cross-examined DC Grantham on the fact that he had not made a note, that he saw a male discharge a firearm, and it was put to him that he did not actually see this on the Boultbee Videos. DC Grantham testified that he saw a round go through the lobby window, shattering the glass, that he saw the behaviour of the passenger who ran back to the vehicle, and that he saw an object in the hand of the passenger, which he believed to be a gun. At least on the Boultbee Videos, knowing that a shot was fired and knowing there were no other suspects in the area, DC Grantham testified that he believed that the male passenger who got out of the vehicle was the one who shot the firearm. He admitted, however, to Mr. Holder that he could not actually see this from this particular Video, but he maintained that he could see this from all of the Boultbee Videos and that he believed he saw a muzzle flash from the passenger who exited the vehicle. As I have already said this was something that Mr. Holder spent a lot of time trying to challenge. In my view DC Grantham truly believed that he saw a flash of a gun. He had no reason to lie about this. For reasons I have already given the evidence from the Boultbee Videos was clear that the passenger from the suspect vehicle fired one shot into the lobby of 10 Boultbee Avenue. This obviously may have influenced his belief but again I accept that this is what he believed he saw after carefully watching the Boultbee Videos.

[44] DC Grantham admitted in cross-examination that in his notes he said that the object was “shiny silver metallic” but that he did not know the object he saw in the passenger’s hand was in fact metallic, and that the object he saw could have been a lighter colour and even white, although had never seen a white handgun before. This was another area where in my view the cross-examination was unfair for the reason I have already articulated. DC Grantham fairly admitted that he couldn’t have “known” that the object was metallic. In answer to the question in re-examination as to what DC Grantham meant by this answer, he stated that he didn’t have the object in his possession so he could not say that he definitely observed a firearm in the Video but on the totality of the information he had based on the Boultbee Videos, given that there was a shooting and the passenger ran back to the vehicle, he believed the object was a firearm. Again, this obviously may have influenced his belief but I accept that this is what DC Grantham believed he saw after carefully watching the Boultbee Videos.

The observations of DC Leung

[45] On July 23, 2015, DC Grantham was advised that at approximately 3 pm, DC Norman Leung, an off-duty officer from 55 Division, had called into the station and reported that he observed Mr. Kabanga in the process of vacuuming out a vehicle at an Esso gas station at Lakeshore Boulevard and Carlaw Avenue. The vehicle was described to be a 2004 Pontiac Grand Prix with only a rear Ontario license plate. DC Leung had asked for someone to attend the gas station. Although DC Leung testified later during the course of the trial, at the time I was dealing with the s. 8 application, I had only his will-say setting out his observations. Of course that was something prepared later and was not available to DC Grantham or DC Elliot at the time the ITO was prepared.

[46] DC Grantham testified that he believed he received the information about the observations made by DC Leung from someone else who called him, as he was not at the station at the time DC Leung radioed this information in. He not able to say who it was that gave him this information. DC Grantham testified that he did not speak to DC Leung about this until Mr. Kabanga attended at the police station on the day of his arrest; July 31, 2015.

[47] When asked about the ICAD report created at the time DC Leung called the information in to the station, DC Grantham acknowledged that it included the license plate number that DC Leung called in, and that this would have been important information for him to look into prior to July 25, 2015. DC Grantham did not recall being advised of a license plate number on the vehicle that DC Leung had observed and there is no number in his notes. DC Grantham was then shown the will-say prepared by DC Leung, which states that the vehicle had a marker BMJR309. DC Grantham testified that he did not recall being given that information. He said that had he received the license plate number he would have run the plate. I accept that evidence as in my view this is clearly something he would have done as the officer in charge of this investigation. The fact that DC Grantham did not record the license plate number in his notes may also be why DC Elliot came to the conclusion that it could not be determine that the vehicle DC Leung saw was Mr. Kabanga’s.

The seizure of the Vehicle by DC Grantham

[48] On July 25, 2015, DC Grantham was assigned to do Pan Am Games call-backs. He was in the area of Lakeshore Boulevard, Cherry Street and Kingston Road. It was slow and so he checked the area where he believed the vehicle he was looking for might be located. He found what he believed was the suspect vehicle involved in the shooting incident parked in front of 55 Winifred Avenue, which is a four-minute walk from the Louvain Address.

[49] DC Grantham testified that he formed this belief based on the fact that this vehicle was a 2004 Pontiac Grand Prix in the same silver colour that he saw in the Boultbee Videos, and like the vehicle in those Videos, this vehicle had no front license plate or holder, had heavy tinting on the windows, black molding down the side of the vehicle and the same five point rims that he believed was unique to this vehicle. DC Grantham was able to see the VIN number and he testified that he believed that he ran the VIN number of the vehicle at the scene and that it came back as a match to the VIN Number of Mr. Kabanga’s Vehicle; the same results he got when he ran the VIN number that he had been given by DC Petrakis. Based on these results, DC Grantham knew that the vehicle was Mr. Kabanga’s Vehicle. He also knew that it was registered to a different plate and that it was not supposed to be driven on the road with that license plate. DC Grantham said that he also relied on the information that the vehicle was registered to an owner living in the area who had a history of firearms and drug offence. DC Grantham testified that this was the basis upon which he determined that this Vehicle was the same vehicle involved in the shooting at Boultbee Avenue and so he decided to seize the Vehicle.

[50] DC Grantham testified that he observed that the license plate on the rear of this vehicle; BNJK309, was held on by two large, oversized silver washers. I accept DC Grantham’s evidence that he had seen this before in cases where the license plate had been removed by force, leaving two large holes in the plate, requiring larger washers to affix it to a vehicle. When asked how this factored in, DC Grantham testified that this in itself was suspicious as it meant that the owner of the vehicle was trying to obscure who the true owner of the vehicle was. This suggested to him that the license plate was a stolen plate and this was corroborated by the information he received from a search on the plate.

[51] DC Grantham testified that when he located the vehicle he contacted dispatch by radio so that they could do a Ministry of Transportation search of this license plate as he had no computer in his vehicle. Although he has no note of this, he insisted that he did so and testified that this is standard practice. DC Grantham admitted that the ICAD report makes no reference to his calling in this request but he testified that this would not always appear on the ICAD report. DC Grantham testified that he also ran the license plate on PC Peerwani’s computer once he arrived and that this was when he made his notes about the results of the search. I accepted that evidence.

[52] The results from the search came back that this license plate; BNJK309 had the status of “missing” and had been removed from a green 2004 Ford Explorer, registered to a person named Rocio Arceta di Lopez and reported missing as of July 18, 2015. This license plate had clearly been stolen by someone and put on Mr. Kabanga’s Vehicle sometime between July 18, just two days before the shooting incident and July 25, 2015 when the Vehicle was seized. We know from the JP towing business records that when the Vehicle was impounded on July 12, 2015 it had a different license plate; E11 HFL.

[53] DC Grantham testified that after he received this information he contacted PC Peerwani to come to seize the Vehicle as he had no police seals in his vehicle. He admitted that at this time he had decided to seize the Vehicle and request a tow truck.

[54] DC Grantham testified that he instructed his officers to seize this Vehicle without a warrant because he believed it would afford evidence that would advance his investigation of the shooting incident. He saw the Vehicle as best evidence to gain further evidence to advance the investigation. DC Grantham testified that he had reason to believe that the Vehicle contained a firearm. His objective at this point was to get a search warrant to authorize a search of the Vehicle in order to obtain any evidence of the shooting that might still be inside the Vehicle and, in particular, gunshot residue (“GSR”) and any firearms or firearm related components. He had reason to believe that the Vehicle could contain a silver firearm. As for fingerprints, DC Grantham testified that if they were located on the firearm or items like the magazine, or if there was GSR in the Vehicle, that would be important to his investigation.

[55] DC Grantham testified that he did not enter the Vehicle and he did not even believe that he tried the door handle. He was asked how he knew the Vehicle was locked as he had stated in his notes and in evidence at the preliminary inquiry that he didn’t touch the Vehicle other than to put police seals on it. DC Grantham testified that he saw a flashing LED light, which caused him to believe the Vehicle was locked, but he did not try the door.

[56] DC Grantham testified that before the Vehicle was towed, he prepared an inventory of what he could see inside the Vehicle by looking through the windows of the Vehicle with just his eyes. His inventory included a temporary Royal Bank of Canada (“RBC”) bank card, which had the name “Jessy Muanza” and an account number handwritten on it. DC Grantham testified that he was able to read this through the window and record this information in his notes. He said he was standing right up next to the window looking through it. His notes in this regard are accurate as to what was written on the bank card. It was suggested to him that there was no way he could make those observations, to which he disagreed. It was put to DC Grantham that he opened the door to the vehicle, removed the panel from the end of the dashboard on the driver’s side and moved the RBC bank card to the back seat of the Vehicle; and that was the only way that he could have read the name and number on the card. DC Grantham totally disagreed with these suggestions. I agree that it is difficult to believe that DC Grantham was able to observe the account number on the RBC bank card through the tinted windows of the Vehicle, but it was daytime and he testified that he put his face right next to the window. In my view by doing so I could not determine that he would not have been able to make out the number.

[57] I accepted all of this evidence of DC Grantham. I totally rejected the suggestion that he removed the panel from the end of the dashboard and put it on the floor of the Vehicle. If he was the type of officer who would do such a thing, which I specifically do not find, then he would have seen the firearm. It would have made more sense for him to put the firearm in a place where he could allege he had seen it through the windows of the Vehicle, much in the same way that it was suggested to him that he did with the RBC bank card. Furthermore, there would have been no reason for DC Grantham to risk his long career as a police officer by conducting an illegal search of the Vehicle as he intended to get a search warrant. He would have had no rational reason to believe at the time that he decided to seize the Vehicle that search warrant would not authorize the search for a firearm.

[58] DC Grantham was asked about a note he made of a resident exiting from 55 Winnifred Avenue. He agreed that the time this occurred and who it was would be helpful. All he could say was that it was during the time that he was with the Vehicle and waiting for PC Peerwani. The only reason this information would have been relevant was to determine how long DC Grantham was alone with the Vehicle before PC Peerwani arrived, given the Defence theory that he illegally searched it. It appears from the ICAD report that DC Grantham called in to the station for a tow truck at 8:42 am and that he requested that an officer from 55 Division attend at 8:43 am. DC Grantham testified that he needed another officer to attend to seal the Vehicle, as he did not have police seals in his vehicle. PC Peerwani was dispatched to attend at 8:46 am and he arrived on scene at 8:53 am. I found that nothing turned on any of this evidence.

[59] Although PC Peerwani actually affixed the seals to the Vehicle, because it was his first time doing so, DC Grantham assisted him. All points of entry to the Vehicle were sealed. The Vehicle was towed to 2050 Jane Street, accompanied by PC Peerwani, where it was held at a police facility pending the search warrant. At some later point, the Vehicle was transported to 330 Progress Avenue.

[60] Before the Vehicle was towed, DC Grantham made several observations of damage that he had not observed initially on the Boultbee Videos. In particular he observed that the most significant damage was to the left front corner of the bumper/fog light area that had a large dent which appeared to be recent; a significant depression, which was distorting the direction of the fog light. He also saw what he described in his notes as a heavy scuff or scrape on the right front corner of the bumper and a dent and a scuff on the passenger side front bumper that also appeared to be recent. Although his notes refer to a dent and scuff on the front passenger door and that this panel was dislodged, that is not obvious from the photographs of the Vehicle taken by DC Hubbard and entered into evidence. The same is the case for what DC Grantham stated was a minor hole/dent/crack that he noted in the rear bumper cover above the rear right side exhaust; it cannot be seen in the photographs. DC Grantham admitted that once he saw the damage to the Vehicle, he agreed it was a unique distinguishing feature.

[61] DC Grantham admitted that when he reviewed the Boultbee Video from 20 Boultbee frame by frame that he did not initially observe the damage to the Vehicle that he saw later when he seized the Vehicle. He confirmed that had he noticed this damage, he would have made a note of it. He explained that his attention was drawn to the license plate, or lack thereof, on the front bumper and he was focused only on the fact that the Vehicle was involved in an attempted murder/shooting, and so he was attempting to identify the Vehicle.

[62] DC Grantham testified that after he observed this damage and arranged for the tow of the Vehicle, he went back to the station to review the Boultbee Videos and other images again, but this is not in his notes. In cross-examination he was taken to his notes where he did state that after the seizure of the Vehicle he returned to Pan Am call-back duties. To this, DC Grantham testified that he went to the station before he returned to patrol. It was then suggested to DC Grantham that he reviewed the Boultbee Videos after he returned to the station, which he also disagreed with. He testified that he went back to review the Video since he observed damage on the Vehicle and he wanted to review the Videos to “bolster his grounds” that the Vehicle was the vehicle that was involved in the shooting incident. When asked why he did not arrange for a police officer to stand by the Vehicle while he did this, DC Grantham testified that having an officer wait in an uncontrolled environment not knowing who was going to come back to the car and all sorts of factors was not the best option.

[63] DC Grantham testified that when he reviewed the Boultbee Videos again he then observed the damage to the left front fog light of the vehicle, which he had not noticed originally. This evidence was also challenged in cross-examination. It was put to DC Grantham that it was not reasonable for anyone to see the damage to the Vehicle on the Boultbee Videos and that he was using “after the fact” justification to see it. DC Grantham insisted that after the Vehicle was seized and he reviewed the Boultbee Videos again that he could see the damage to the left front fog light, but he acknowledged that this was after he knew of the damage. I noted that Mr. Holder did not show the Boultbee Videos to DC Grantham in order to challenge him using those Videos. Mr. Holder submitted that DC Grantham’s evidence that he could see the damage to the Vehicle in the Boultbee Videos was “outrageous testimony”. I carefully reviewed those Videos and although it is not easy to see any damage given the poor quality of the Videos, I certainly could not conclude, knowing where the damage was to the Vehicle when it was seized, that it is not at all visible on the Videos. I had no reason to reject DC Grantham’s evidence on this point.

The search warrant

[64] DC Grantham advised DC Elliot to obtain a search warrant over the phone on July 25, 2015. He explained that he was doing the Pan Am call-backs on an overtime shift and he was not back on duty until July 30, 2015, which was after the search warrant was obtained on July 27, 2015.

[65] Although DC Elliot had given some evidence the day before the last day that Mr. Holder was cross-examining DC Grantham[^2], DC Grantham was not asked about what information he provided to DC Elliot about the investigation or whether or not they reviewed the Boultbee Videos together, as DC Elliot testified that they did.

[66] On July 31, 2015, Mr. Kabanga attended 55 Division to report that his Vehicle had been stolen. DC Leung called DC Grantham to advise him that Mr. Kabanga had come into the station and was in the lobby. DC Grantham attended the lobby and Mr. Kabanga was arrested at that time.

[67] On August 3, 2015, DC Grantham prepared and submitted a "Report to a Justice" pursuant to s. 489.1 of the Criminal Code advising that Mr. Kabanga's vehicle was seized as offence related property pursuant to s. 489(2)(9c) of the Code as it would afford evidence in respect to the shooting incident on July 20, 2015. DC Grantham admitted that he did not indicate in this document that he seized the Vehicle because there was something wrong with the plates.

The examination of the Vehicle in August 2014 by PC Ingley

[68] Ms. Laine called PC Paul Ingley who testified about an examination he did of Mr. Kabanga’s Vehicle a year earlier on August 3, 2014. She relied on his evidence on the s. 8 application in order to rebut the suggestion put to DC Grantham by Mr. Holder that he planted the firearm in the dashboard of the Vehicle.

[69] PC Ingley testified that on August 3, 2014 he was called to attend Blong Avenue where he found a grey 2004 Pontiac with a Quebec license plate E09 FWN. When he did a police computer check, the VIN number returned to Mr. Kabanga and his date of birth. That VIN number was the VIN number of Mr. Kabanga’s Vehicle that was seized by DC Grantham.

[70] PC Ingley examined the interior of Vehicle and as a result of a loose heating vent on the passenger side, which appeared to the officer to be a place where someone might hide something, he checked other panels, including a panel which he described as the left dashboard access panel on the driver’s side. PC Ingley testified that he “pried” this panel off with his hands, but he could not recall how loose or secure it was. He located an item inside the cavity behind this panel. Photographs of the interior of the Vehicle and what PC Ingley saw during his examination of the Vehicle were entered into evidence. Based on this evidence I found that the panel which PC Ingley had pried off the driver’s side of the dashboard was the same panel that DC Hubbard found on the driver side door mat of Mr. Kabanga’s Vehicle when he searched it.

[71] This was important evidence which established that as of August 2014, Mr. Kabanga’s Vehicle had been used to hide an item inside a cavity behind the left dashboard access Panel on the driver’s side; the same cavity where DC Hubbard found the firearm. The place that the firearm was found was clearly not a place that DC Grantham created for the purpose of planting evidence.

Evidence on the Garofoli Application

The ITO

[72] On July 26, 2015, DC Elliot prepared the Information to Obtain ("ITO") judicial authorization for the search of Mr. Kabanga's Vehicle. On July 27, 2015, the search warrant was issued, authorizing the search of Mr. Kabanga’s vehicle for trace evidence and GSR.

Reasons for Decision on granting leave to cross-examine Affiant DC Elliott

[73] DC Elliot did not testify at the preliminary inquiry nor were his notes provided to the Defence. On the voir dire two pages of his notes were disclosed. There are only a few lines on each page. The first page date July 23, 2015 records that DC Elliot was briefed by DC Grantham. That note includes a note “1247 KABANGA arrestable”. The second page, a note made the same day, records that DC Elliot met with DC Leung at an Esso and that he took control of the scene at 15:48.

[74] I requested that Mr. Holder set out his proposed areas of cross-examination of DC Elliot, in writing, which he did. After some argument it was agreed that the first issue on his list could not be pursued. That left the issue of the lack of notes produced by DC Elliot, the assertion that DC Elliot had deceived the issuing Justice about specific observations that were made while observing the Boultbee Videos and about information received from DC Rinkoff and finally the failure to disclose the information received from DC Leung. Mr. Holder did not raise the issue that I was concerned about at that time; namely that the issuing Justice was not given the necessary information to determine if the seizure of the Vehicle was lawful. Mr. Holder argued that issue separately from the issues he raised with respect to the ITO although he did challenged the statements in the ITO that that Mr. Kabanga’s Vehicle was the suspect vehicle in the Boultbee Videos.

[75] After hearing one day of evidence from DC Grantham, and hearing submissions from counsel on the Defence application seeking leave to cross-examine DC Elliott, I advised counsel that I would grant leave. On August 14, 2018 I gave brief oral reasons and set out the areas of questioning that I would permit. I advised the parties that more fulsome reasons for this decision would be set out in my s. 8 decision. My reasons are as follows.

[76] The test for leave to cross-examine was set out by Sopinka, J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at paras. 88 and 89 and again fifteen years later in R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 3 and 40 where the Court held:

[3] There is no question that the right to cross-examine is of fundamental significance to the criminal trial process. However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context. The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. […]

[40] […] The Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

[77] It was the Crown’s position that the specific areas Mr. Holder sought to cross-examine on would do no more than establish insignificant errors or omissions that would not go to undermine a precondition for the warrant’s authorization. As such she submitted cross-examination would not be relevant or material to the ultimate issue before this Court. Ms. Laine relied on Pires, supra, where the Supreme Court at para. 68, adopted the following view expressed by Finch, C.J.B.C., of the British Columbia Court of Appeal:

In my view, the appellants have not met this threshold. At most, the appellants have shown a basis to believe that cross-examination will elicit testimony that tends to discredit Detective Richards' credibility on the peripheral matter of the polygraph examination results. This, however, is insufficient. The appellants have not shown any basis to conclude that cross-examination will tend to impugn Detective Richards' credibility on any of the statements in his affidavit that form the essential basis for issuing the authorization. Nor does the misleading statement in para. 11 create any reasonable possibility that cross-examination of Detective Richards would elicit testimony that casts so much doubt on his credibility that the reliability of his entire affidavit would be tainted. Accordingly, and unlike Garofoli, supra, the misleading statement in para. 11 does not go to the foundation of the authorization. It is, rather, as in Vukelich, supra, unrelated to "the essence of the case".

[78] Mr. Holder however argued that cross-examination should be permitted as he intended to argue that the “affiant deliberately, or at least recklessly, misled the issuing justice, rendering the entire ITO unreliable as a basis upon which to issue a warrant”; R v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, leave to appeal refused [2017] S.C.C.A. No. 93 at para. 26. Mr. Holder submitted that in these circumstances the court has a residual discretion to find that the search of Mr. Kabanga’s vehicle was unlawful. Mr. Holder referred me to the decisions of R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused [2017] S.C.C.A. No. 81 and R. v. Majeed, 2017 ONSC 2912, where Nakatsuru J. applied the residual discretion discussed by Watt J. in Paryniuk in deciding to grant leave to permit cross-examination of the affiant.

[79] In Paryniuk, Watt J.A. stated at paras. 69 and 70:

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 … [emphasis added]

These same authorities, both in Ontario and elsewhere, describe the standard to me met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process: [citations omitted, emphasis added].

[80] I was attentive to the concerns that Nakatsuru J. expressed in paragraph 17 of his decision that this residual discretion not be invoked for what appears to be inadvertent or non-material errors in the ITO. For example, the fact that PC Elliott stated that the unknown suspect “ran” to the apartment building seems to be innocent on its own and would not justify an order granting leave for Mr. Holder to cross-examine DC Elliot. However I agree with the observation of Justice Nakatsuru as stated in para. 8 of his decision, that “cross-examination directed at proving the subversion of the search warrant process challenges the validity of the warrant as much as the existence of reasonable grounds.” He went on to refer to R. v. Green, 2015 ONCA 579, 22 C.R. (7th) 60, at para. 36 where Doherty J.A. observed that in Pires, supra at para. 63, the court held that if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO, cross-examination should generally be allowed.

[81] In my brief oral reasons I stated that in deciding to grant leave, my biggest concern from what I read in the ITO as compared to the evidence of DC Grantham was the fact that the ITO did not give the issuing Justice full and frank disclosure to decide for himself whether or not the Vehicle that had been seized was in fact the vehicle involved in the shooting. DC Elliott stated that as a fact at paragraph 5 of the ITO. At paragraph 30 of the ITO, he stated: “I believe there is compelling and substantiated evidence linking this motor vehicle to the offence of attempted murder”.

[82] I noted as well that from the way the ITO was drafted, it suggested that the damage to the Vehicle was apparent to DC Grantham on July 20, 2015 when he first viewed the Boultbee Videos, which he admitted was not the case. The ITO also referred to the damage to the vehicle that can be seen in the Freshco video, which DC Grantham was also not aware of when he decided to seize the Vehicle.

[83] In my oral reasons I stated that the evidence linking Mr. Kabanga’s Vehicle to the shooting depended on what DC Grantham described as the strength of the identifying features without including the damage to the front of the Vehicle. However, I concluded during my final deliberations on the s. 8 application that this statement was incorrect because by the time the ITO was drafted, DC Grantham had reviewed the Boultbee Videos and the Freshco video and he had determined that the damage to the Vehicle, at least to the front left bumper around the fog light, was visible on the video taken from 20 Boultbee and the Freshco video. As such, this was information that could be included in the ITO and in fact that information very much strengthened DC Grantham’s position that the Vehicle he seized was in fact the vehicle on the Boultbee Videos. In making this error, I believe that at the time I was confusing what evidence I would need to consider in determining whether or not DC Grantham had reasonable grounds to seize the Vehicle because of his admission that at that time he made that decision he had not yet checked the Boultbee Videos again to see if they showed the damage that he could see once he located the Vehicle.

[84] In granting leave I was also concerned by the fact that DC Grantham received an email from Officer Petrakis that was not referred to in the ITO, given DC Grantham’s position that this is how he determined the suspect vehicle was the one owned by Mr. Kabanga. The ITO also did not refer to the observations DC Leung made, which Mr. Holder argued was deliberate and that had the issuing Justice known that the Vehicle had been cleaned he may have concluded that it was too late to search it for trace evidence.

[85] I also stated in my oral reasons that the real issue of whether or not the seizure of the Vehicle by DC Grantham was lawful was not an issue that the issuing justice could consider as that issue was not flagged. That is an issue I will come back to.

[86] Finally I also ruled that cross-examination should be allowed on the more traditional basis set out in Garofoli at para. 88:

Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds.

[87] Here the question of the visibility of the damage to the Vehicle went to the reasonable and probable grounds that DC Elliott had, as contrary to what the Crown submitted, he was not just someone who compiled the information. He stated in para. 11 of the ITO that he reviewed the Boultbee Videos and confirmed all of the details DC Grantham had provided to him, and at para. 13 that he watched the video from Freshco and made certain observations.

[88] For these reasons I granted leave to the applicant to ask certain questions of DC Elliott. I ruled on whether or not I would permit the specific questions set out in Mr. Holder’s list of questions that he wanted to ask DC Elliot. I do not propose to set those questions out here.

The evidence of the Affiant DC Elliot

[89] I will review most of the evidence of DC Elliot related to what he stated in the ITO when I come to my analysis of the issues raised by the applicant as to why the search warrant could not have been issued. The other evidence that he gave is as follows.

[90] For reasons that are not material to this decision, DC Elliot did not have access to the ITO or his source documents in order to prepare to give evidence. All that DC Elliot found of his notes were the two pages that were produced to the Defence, which I have already referred to. Overall my impression was that DC Elliot was a fair and credible witness; his demeanor did not change in cross-examination and he was responsive to the questions asked. I did however have certain concerns with respect to his evidence, which I will come to later, particularly with respect to the reliability of some of his evidence given that he did not have notes he could use to refresh his memory of the steps he took to prepare the ITO.

[91] DC Elliot had been a police officer for seven or eight years by the time he prepared this ITO and he had written many ITOs in the past. He testified that at the time when he was drafting this ITO, he kept case notes in a folder in a desk he shared with another officer. The last time he saw his notes in his desk was in July 2015 and DC Elliot said that he had no idea where his notes were, suggesting that some of his notes had been lost. Neither counsel asked him how many more notes he would have made when preparing this ITO.

[92] DC Elliot testified that in preparing the ITO, he was attempting to be fulsome and fair by advising the issuing Justice of all pertinent details of the investigation. He asserted that the information he provided in the ITO was “100% truthful”. In cross-examination he expanded a bit on his role when preparing an ITO and agreed that his obligation was to be full, frank and fair, truthful, honest and complete and that even if information was exculpatory he would absolutely include it in his affidavit.

[93] In preparing the ITO, DC Elliot testified that he believed his first day back at work was July 23, 2015 and he said that this is when he was briefed by DC Grantham and started working on the ITO, which is consistent with the first page of his notes. What I did not appreciate until I considered how I would deal with the application was that this date must have been in error as DC Grantham did not seize the Vehicle until July 25, 2015 and his evidence was that this was when he asked DC Elliot to prepare the ITO. I don’t know that anything turns on this discrepancy.

[94] DC Elliot testified that he had some conversations with DC Grantham, both in person and by phone about the investigation as a whole; for example that he had located the Vehicle, but that he did not get any information from DC Grantham apart from what was in DC Grantham’s notes. He did not recall any of the specifics.

[95] With respect to DC Elliot’s note that Mr. Kabanga was “arrestable”, PC Elliot testified that that information came from DC Grantham. However he did not remember what DC Grantham said as to the grounds for arrest. DC Grantham testified that he only determined that Mr. Kabanga was arrestable after he seized the Vehicle and the firearm was found. He was taken to DC Elliot’s note and he testified that this was the first time that he had seen this note. Mr. Holder put to DC Grantham that DC Elliot had testified that DC Grantham had told him this, to which DC Grantham responded that at that time there were grounds to seize the Vehicle, but he did not recall telling DC Elliot that Mr. Kabanga was arrestable at that time. It was only once the firearm was found that he came to that conclusion. DC Grantham testified that if he had determined that Mr. Kabanga was arrestable on July 23, 2015, he would have instructed officers to attempt to locate him or get a warrant for his arrest. On this issue I preferred the evidence of DC Grantham and came to the conclusion that DC Elliot`s note must be incorrect. I expect he simply misunderstood what DC Grantham said.

[96] In terms of source documents that DC Elliot relied upon in preparing the ITO, he could not recall if he saw the Bulletin prepared by DC Grantham. He did not recognize the email from Officer Petrakis sent to DC Grantham on July 21, 2015 and had no memory of speaking to Officer Petrakis. DC Elliot did recall that he had access to the Report prepared by DC Grantham and he obtained information from Officers Rinkoff and Leung about their observations on July 21 and 23, 2015. DC Elliot also testified that he watched one of the two Boultbee Videos, being the one facing north towards the lobby of 10 Boultbee that would have been the Video taken from 20 Boultbee. He also testified that he watched the Freshco video. DC Elliot testified that he watched these videos with DC Grantham. DC Grantham was not asked about this. Whether or not they watched the Videos together is not something that I could determine but I did accept that DC Elliot reviewed the Videos before finalizing the ITO.

The search of the Vehicle by DC Hubbard

[97] The search warrant was obtained on July 27, 2015 and DC Hubbard searched the Vehicle on July 28, 2015. I heard his evidence as part of the s. 8 application and after he testified Mr. Holder abandoned his challenge of this search. I was not surprised as DC Hubbard was a very fair, credible and reliable witness. I accepted all of his evidence without hesitation.

[98] The only evidence from DC Hubbard that is relevant to this decision related to the suggestion that DC Grantham had opened the Vehicle and conducted a search, removed the panel that would otherwise hide the firearm and moved the RBC bank card to the back seat. The evidence of DC Hubbard that was part of my decision to accept the evidence of DC Grantham that he did not do an illegal search of the Vehicle was as follows.

[99] After an examination of the exterior of the Vehicle, DC Hubbard testified that he pulled the driver’s door handle and the door opened but it triggered a car alarm. He opened the door fully at that point so that he could look into the Vehicle to find the release for the hood so that he could disconnect the battery to turn off the alarm. He saw a plastic panel on the driver’s floor mat and as he leaned into the Vehicle to reach the toggle by the brake pedal and as he pulled it back to release the hood latch he observed that a panel from the end of the dashboard on the driver’s side was missing. It was at this point that he saw the rear grip section of a firearm inside the cavity at the end of the dashboard. The evidence from the photographs and as confirmed by DC Hubbard is clear that this panel would ordinarily cover the opening at the end of the dashboard on the driver’s side.

[100] DC Hubbard was not asked about whether or not there was a flashing LED light suggesting that the driver’s door of the Vehicle was locked but clearly the alarm would have been triggered if DC Grantham opened the Vehicle as it was suggested he did. This evidence of DC Hubbard corroborated DC Grantham’s belief that the Vehicle was locked.

Analysis

ISSUE 1: WAS MR. KABANGA’S VEHICLE SEIZED UNLAWFULLY IN VIOLATION OF S. 8 OF THE CHARTER?

Did DC Grantham have authority pursuant to s. 489(2)(c) of the Criminal Code to seize the Vehicle?

(i) Standing

[101] A court's analysis of any s. 8 Charter claim requires two distinct inquiries: The first is whether the defendant has a reasonable expectation of privacy. The second is whether the search was a reasonable intrusion on that right to privacy. The first inquiry is a threshold matter, such that the second need only be undertaken if the first is answered in the affirmative. The onus of proof of a reasonable expectation of privacy, to a probability standard, lies on the applicant. As Justice Finlayson wrote in R. v. Pugliese, (1992), 1992 CanLII 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A.) at para 21, where an applicant has no standing to object to a search and seizure, the conduct of the police is irrelevant.

[102] By way of a telephone call to the Toronto Police non-emergency number on July 30, 2015, a caller, who identified himself as Jessy Muanza, claimed that “his” vehicle was stolen sometime between the 13th and the 24th of July, 2015. There was no admission that the caller was in fact Mr. Kabanga. For reasons set out in my Judgment I found that the caller was Mr. Kabanga and that he was referring to his Vehicle, although in coming to that conclusion I relied in part on evidence that I heard after the s. 8 application was argued.

[103] The position of the Crown was that the fact Mr. Kabanga had reported his Vehicle stolen reduced his expectation of privacy in his Vehicle and that this submission was relevant to a s. 24(2) Charter analysis. For the purpose of the s. 8 application the Crown conceded that Mr. Kabanga had standing to challenge the seizure and search of the Vehicle. As I found there was no breach of Mr. Kabanga’s s. 8 Charter rights, I did not have to deal with this argument.

(ii) The Law

[104] A warrantless seizure is presumptively unreasonable and contrary to s. 8 of the Charter. There was no dispute that the onus was on the Crown to establish on a balance of probabilities that the seizure of the Vehicle was authorized by law, that the law itself was reasonable, and that the manner in which the seizure occurred was reasonable: R v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p. 278.

[105] The applicable law in question with respect to this seizure is s. 489(2) of the Criminal Code which states the following:

(2) Every peace officer … who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) …

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament. [Emphasis added]

[106] As already stated, in his Report to a Justice pursuant to s. 489.1 of the Criminal Code, DC Grantham stated that Mr. Kabanga's Vehicle was seized as offence related property pursuant to s. 489(2)(c) of the Code as it would afford evidence in respect to the shooting incident on July 20, 2015.

[107] Before I get to the substance of this issue, counsel disagreed as to when in time I had to consider the lawfulness of the seizure. Mr. Holder argued that it was when DC Grantham made the decision to tow the vehicle and Ms. Laine submitted that it was when the vehicle was actually towed. This issue was only potentially relevant to Mr. Holder’s submission that DC Grantham did not know there was any issue with the license plate when he decided to seize the vehicle. As I have already stated, I did not accept that submission as I have found that DC Grantham received this information before PC Peerwani arrived when he asked for the license plate to be run over the radio.

[108] In any event, in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, the relevant time for determining whether or not grounds existed is when the actual seizure took place (para. 48). In my view, this is when Officer Peerwani had arrived, the police seals were put on the Vehicle and it was towed to a police property. It was not when DC Grantham first made his decision to seize the vehicle. In this case, however, given my finding, it makes no difference to the analysis.

[109] No case was brought to my attention that deals with the meaning of “believes on reasonable grounds” in the context of s. 489(2) of the Criminal Code, although counsel did refer to cases that deal with the meaning of the same phrase in s. 495(1)(a) of the Code, which provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence.

[110] In R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at para. 18, Doherty J.A. held:

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 [emphasis added].

[111] I do not accept Ms. Laine’s submission that DC Grantham had to act quickly in the same manner than he might have to do if he was arresting someone. She argued that if he waited for a warrant “who knows what could have happened to the car”. However, DC Grantham had shown no particular urgency in looking for and seizing the Vehicle and there was no reason to think that Mr. Kabanga was going to remove it from the area where it had been seen on more than one occasion over the prior five days. However, I agree with the observations of Shultlz J. in R. v. Didehcko, 2015 ABQB 642, 27 Alta. L.R. (6th) 290, at para. 70 that s. 489(2) of the Criminal Code does not impose a burden on the seizing peace officer to demonstrate “exigent circumstances”.

[112] Although the context within which DC Grantham exercised the power to seize the Vehicle is different than an arrest, the nature of the power exercised is arguably the same since by seizing the Vehicle, DC Grantham was taking the Vehicle into police custody. Mr. Holder relied on the test for a lawful arrest without warrant, referring to R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 and so that is the basis upon which I proceeded. However, I make no finding that this is the appropriate test for the seizure of a vehicle given that the issue was not argued before me.

[113] In R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), a para. 61, a case involving the requirements for an investigative detention, Doherty J.A. referred to R. v. Storrey and stated at para. 61:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R v. Storrey [citation omitted] and serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a “hunch”.

[114] Reasonable grounds have both a subjective and objective component. As Cory J. wrote in Storrey at para. 17:

[…] 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. [Emphasis added.]

[115] In R. v. Lawes, 2007 ONCA 10, the court stated at para. 4 that in considering the lawfulness of an arrest,

[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience: see R. v. Golub…

In my view, this objective assessment also applies to a seizure of a vehicle, bearing in mind that the dynamics may be very different.

[116] As a matter of law, in considering the objective standard, the “reasonable person” is presumed to be “standing in the shoes of” DC Grantham; see R. v. Johnson (2006), 2006 CanLII 18353 (ON CA), 213 O.A.C. 395 (C.A.) at para. 7. Furthermore, as the Court of Appeal stated at para. 61 of R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641: “a trained police officer is entitled to draw inferences and make deductions drawing on experience. […] The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds” [citations omitted]. The court went on to state that what must be assessed are the facts as understood by the peace officer when the belief was formed and that the issue is not whether the officer could have conducted a more thorough investigation: Bush, supra at paras. 66 and 69.

[117] Mr. Holder argued that even on the lower “reasonable suspicion” standard, a “police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard”: R. v. Chehil 2013 SCC 49, [2013] 3 S.C.R. 220, at para 47.

[118] Another issue that arose between counsel was whether or not in this case I must consider the lawfulness of the seizure of the Vehicle based only on what DC Grantham knew at the time he decided to seize the Vehicle or whether I can also include information that was available to him had he taken the time to review the Boultbee Videos again; in other words, can I also consider his evidence that once he reviewed the Boultbee Videos again he was able to confirm that they show the damage to the front left fog light of the Vehicle even though he did not appreciate that when he reviewed these Videos initially.

[119] In Golub, supra at para. 21, Doherty J.A. stated that in deciding whether reasonable grounds exist the officer must take into account all information “available to him”. Similarly in R. v. Yi, [2006] O.J. No 1315, aff’d at 2007 ONCA 185, M.F. Brown J. considered this issue at paras. 16 to 20. He reviewed some of the case law and stated at para. 20 that:

[…] the trial judge was not precluded from considering evidence in the objective component of the test simply because the officer did not articulate it as one of her grounds. The objective test is not what is articulated by the arresting officer but whether the officer’s opinion is based on facts known by or available to the officer at the time the officer formed the requisite belief [emphasis added].

[120] Based on this authority the Crown argued that the fact the Boultbee Videos showed the damage to the front of the Vehicle was clearly a very distinguishing feature, and even though DC Grantham did not appreciate this at the time, that information was “available to him at the time” he decided to seize the Vehicle.

[121] Counsel did not draw my attention to any case that considered the specific issue before me as the cases I was referred to seem to suggest that information known to the officer and simply not articulated to by the officer was a basis for his or her reasonable grounds. Certainly the plain meaning of the words “available to him” as used by Justice Doherty in Golub, supports the Crown’s position. Mr. Holder submitted that this approach would permit after-the-fact justification for a warrantless seizure but I disagree. Clearly DC Grantham could not justify his seizure of the Vehicle on the basis that a firearm was discovered inside. That information was not available to him until after the seizure and the search of the Vehicle. It is a very different situation however to justify the seizure of the Vehicle in part on information that was available to DC Grantham at the time he made the decision to seize the Vehicle but was not known to him. Ultimately I did not have to resolve this issue.

(iii) What information was known to DC Grantham at the time the Vehicle was seized?

[122] The information that was known to DC Grantham at the time the Vehicle was seized was as follows:

• A shooting took place on July 20th, 2015 at approximately 1:00 a.m. at an apartment building located 10 Boultbee Avenue in Toronto;

• Mr. Costain was located in the vestibule area of this building;

• The Boultbee Videos were seized from this location;

• On the Boultbee Video that is taken from 20 Boultbee, a silver-grey four door sedan (sedan) can be seen circling the roundabout, passing in front of the vestibule of 10 Boultbee and stopping near the garbage dumpsters a short distance away;

• The driver’s door of this sedan opened; movement can be seen between the driver and passenger; the driver's door then shuts;

• The passenger then exited the sedan and made his way in the direction of the vestibule of 10 Boultbee, stopping at the roundabout;

• Within seconds this passenger ran back towards the sedan he exited from, which then departed the scene;

• As this person was running back to the waiting sedan, according to DC Grantham a shiny metallic object could be seen in his hands;

• For reasons already stated I accepted DC Grantham’s evidence that the passenger fired one shot in the direction of Mr. Costain;

• The sedan, as depicted on the Boultbee Videos, had certain distinguishing features: it was a four door sedan, silver-grey in colour; and, based on an Internet search, the sedan appeared to DC Grantham to be a Pontiac Grand Prix, 7th Generation, manufactured between 2004-2008. It had what DC Grantham believed to be after-market heavily tinted windows; dark molding running horizontally along both sides of the vehicle; silver "5 point" rims with hubcaps; and no front license plate or front license plate holder, which in DC Grantham’s experience was uncommon in Ontario;

• DC Grantham also had certain biographical information; namely that Mr. Kabanga’s Vehicle had been seen in the same area at Lakeshore and Leslie, that his last known address was the Louvain Address and that Mr. Kabanga was a tenant there. The Louvain Address is reasonably close to 10 Boultbee;

• DC Grantham knew that Mr. Kabanga had a criminal record including firearm and firearm related offences;

• DC Grantham located a vehicle registered to Jessy Kabanga-Muanza on the 25th of July at approximately 8:40 a.m. parked outside of 55 Winnifred Avenue, about two km (a four minute walk) away from 10 Boultbee Avenue. The Vehicle seized can be described as follows: 2004 Pontiac Grand Prix; silver in colour; no front license plate or license plate holder, a rear plate only that was registered to another person and another vehicle and had been reported as missing. The plate was affixed to the Vehicle in a manner consistent with it having been forcefully removed from a vehicle, the vehicle was registered to an address in Quebec (a province in which only rear plates are mandatory); it had what DC Grantham believed to be after-market heavily tinted windows. It had dark molding running horizontally along both sides of the vehicle and silver "5 point" rims with hubcaps.

(iv) Did DC Grantham subjectively believe that Mr. Kabanga’s Vehicle was the suspect vehicle involved in the shooting incident?

[123] The issues with respect to the seizure of the Mr. Kabanga’s Vehicle were twofold: 1) Were there reasonable grounds to believe that Mr. Kabanga’s Vehicle was the vehicle seen in the Boultbee Videos? and 2) Were there reasonable grounds to believe that Mr. Kabanga’s Vehicle “will afford evidence” with respect to the shooting incident?

[124] Mr. Holder argued that given the obvious damage DC Grantham observed on the Vehicle at the time of seizure, damage he had not observed at the time he watched the Boultbee Videos or the Freshco video initially, that DC Grantham did not subjectively or objectively have reasonable grounds to seize the Vehicle before he reviewed those Videos again.

[125] This is the argument that gave me the most difficulty. I have already reviewed DC Grantham’s evidence and have explained why I accepted his evidence that when he went back to the station and reviewed the Boultbee Video taken from 20 Boultbee he then observed the damage to the left front fog light of the vehicle, which he had not noticed originally. I have also explained why, despite the challenge to that evidence in cross-examination, I accepted DC Grantham’s evidence on this point.

[126] The issue I grappled with was whether by his actions DC Grantham demonstrated that he did not subjectively have reasonable grounds to believe that the vehicle that he ordered be seized was the vehicle in the Boultbee Videos.

[127] I concluded that DC Grantham’s decision to review the Boultbee Videos again after he decided to seize the Vehicle did not undermine my finding that his subjective belief was that he had found the vehicle involved in the shooting incident. I accepted his evidence that he did so to bolster his grounds, and that he was referring to his grounds for the search of the Vehicle since he had already made the decision to seize it.

[128] My conclusion was strengthened by the fact that there was no improper motive here. There was no evidence that DC Grantham had ever had any dealings with Mr. Kabanga before. The fact Mr. Kabanga had a criminal record was relevant but this officer had not been involved in any earlier investigations of Mr. Kabanga. DC Grantham did not seize the vehicle in order to obtain evidence against Mr. Kabanga per se, but rather to determine if there was evidence related to the shooting in the vehicle.

[129] I also accepted DC Grantham’s evidence that he believed Mr. Kabanga’s Vehicle would afford evidence that would advance his investigation of the shooting incident and that this is why he decided to seize the Vehicle. Although I appreciate that five days had passed since the shooting incident, and DC Grantham believed that DC Leung had observed Mr. Kabanga vacuuming his Vehicle, he was not asked if that would have caused him to believe all trace evidence was gone. I will deal with this further but in my view it was reasonable for DC Grantham to believe that there might be fingerprints, DNA and/or GSR found in the Vehicle that could advance his investigation. Furthermore he believed that the firearm used in the shooting might be found in the Vehicle. Whether or not any evidence would necessarily connect Mr. Kabanga to the shooting incident does not matter as the purpose of the seizure was not to connect Mr. Kabanga to the shooting incident but rather to find evidence that would advance DC Grantham’s investigation.

(v) Was DC Grantham's Belief Objectively Reasonable?

[130] Mr. Holder argued that DC Grantham's grounds to believe that Mr. Kabanga’s Vehicle was involved in the shooting incident were objectively unreasonable. He submitted that all DC Grantham had was that Mr. Kabanga's vehicle had a “generic similarity” to the suspect vehicle and that the “level of speculation is so abnormally high that it cannot be deemed to be objectively reasonable given the circumstances”. He argued that DC Grantham could not say that the heavy tint on the windows of the suspect vehicle was “aftermarket” and that the dark side molding and the five-point rims were not distinctive. He submitted that the fact that Mr. Kabanga resided a short distance from 10 Boultbee Avenue did not mean that on July 20, 2015 a different vehicle was not driven there from anywhere in Canada and beyond; including an area in closer proximity to the scene of the shooting than where Mr. Kabanga resided.

[131] In my view it was reasonable for DC Grantham to confine his search for a silver 7th generation (2004-2008) Pontiac Grand Prix, at least initially, to the areas of the police division connected to Mr. Costain and the division that covered the location of the crime. The officers in both divisions would have been looking for a vehicle that matched the descriptors he set out in the Bulletin. They were not generic but as specific as DC Grantham could be, based on the evidence that he had: the Boultbee Videos.

[132] Mr. Holder argued that DC Grantham's grounds to believe that Mr. Kabanga’s Vehicle was involved in the shooting incident were objectively unreasonable because, although the Vehicle matched the descriptors of the suspect vehicle in the Boultbee Videos, this did not eliminate other similar vehicles from the equation that could also have had the same descriptors. Mr. Holder submitted that DC Grantham had “tunnel vision” and quickly concluded that the suspect vehicle was the Vehicle owned by Mr. Kabanga, to the exclusion of other possible vehicles. He referred to CanadianOxy Chemicals. Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 742 and R v. Spackman, [2009] O.J. No. 1528. These cases, however, speak to the problem when “tunnel vision” results in only a search for evidence that incriminates a particular suspect, and other suspects are eliminated whom should have been investigated, sometimes resulting in lost evidence. The concern is to avoid wrongful convictions. That is not this case. There is no evidence that other vehicles that matched the description of the suspect vehicle came to the attention of DC Grantham and were not investigated. DC Grantham issued the Bulletin and although all officers in 51 and 55 Divisions were asked to be on the lookout for a silver 7th generation (2004-2008) Pontiac Grand Prix with no front license plate, the only two reports that he received in the five days after the shooting were of Mr. Kabanga’s Vehicle.

[133] Mr. Holder also argued that DC Grantham did not exclude, as a possibility, that the vehicle observed in the Boultbee Videos was potentially any other model that resembled the vehicle seen in the surveillance; such as the Pontiac Grand Am. He submitted that DC Grantham singled out a particular model despite an absence of visual indicators to that effect and that clearly demonstrated the limited scope of his investigation and left several other similar vehicles out of consideration.

[134] I did not accept these submissions. There was no evidence to suggest that the vehicle DC Grantham believed to be a Pontiac Grand Prix, based on his experience as a police officer and his internet searches, was flawed. Notably Mr. Holder did not suggest a particular vehicle that DC Grantham should have considered instead of a Pontiac Grand Prix. He did not put a picture of a Pontiac Grand Am to DC Grantham. Although Mr. Costain believed he saw a Honda, Mr. Holder did not suggest to DC Grantham that any other type of vehicle or any particular Honda model could have matched the description of the vehicle seen in the Boultbee Videos. He submitted that DC Grantham had the responsibility to look for other vehicles and to compare them to the surveillance. I disagree. Based on the photographs entered into evidence from internet searches, there is no doubt in my mind that the vehicle in the Boultbee Videos was in fact a Pontiac Grand Prix as DC Grantham came to believe.

[135] Mr. Holder argued that generally, s. 489(2) of the Criminal Code has been used to seize vehicles when they are found at the scene of an incident, such as a fatal collision, and it is clear that the suspect vehicle would provide evidence of the offence under investigation. In other cases a defendant is stopped in his vehicle and the police have reason to believe that the vehicle will afford evidence of an offence; often of a drug or firearms offence. I agree that in the case at bar, DC Grantham did not have the benefit of the immediate circumstances of the offence itself to connect the vehicle to the crime. That however does not mean that Mr. Kabanga’s Vehicle was not subject to seizure if the requirements of s. 489(2) were met.

[136] As I have already stated, Mr. Holder also argued that given the obvious damage DC Grantham observed on the Vehicle at the time of seizure, damage he had not observed at the time he watched the Boultbee Videos or the Freshco video, DC Grantham did not subjectively or objectively have reasonable grounds to seize the Vehicle before he reviewed those Videos again.

[137] I have already given my reasons for why I have found that DC Grantham did subjectively believe that he had reasonable grounds to seize the Vehicle before he reviewed the Boultbee Videos again. Having made that finding, I must consider whether or not objectively he had reasonable grounds to seize the Vehicle notwithstanding the damage that he observed for the first time when he saw the Vehicle on July 25th. In my view, a reasonable person, knowing what DC Grantham knew at the time, would include the fact that the quality of the Boultbee Videos was not great and they did not clearly show the suspect vehicle in a way that would suggest that Mr. Kabanga’s Vehicle was not the suspect vehicle. The quality of the Boultbee Videos was not such that the actual condition of Mr. Kabanga’s vehicle excluded it as the suspect vehicle. Mr. Holder actually argued that the damage to the front left fog light of the Vehicle was not even visible in the Videos.

[138] Furthermore, reasonable grounds do not require certainty. DC Grantham did not have to first determine conclusively that the Vehicle to be seized was in fact the vehicle in the Boultbee Videos. In my view objectively, DC Grantham was acting on more than a hunch or suspicion. I rejected Mr. Holder’s submission that DC Grantham used after-the-fact justification to support his decision. He did not consider any irrelevant factors and I concluded that the identifiers he relied on were sufficiently unique that there was a constellation of objectively discernible facts known to DC Grantham, which gave him reasonable cause to suspect that Mr. Kabanga’s Vehicle was the vehicle involved in the shooting incident.

[139] Although in coming to this conclusion I did not consider the evidence available to DC Grantham from the Boultbee Videos when he went back to them and was able to see the damage to the front left fog light, had I done so, obviously that would have enhanced his grounds for the seizure even more.

[140] Mr. Holder also argued that even if DC Grantham had reasonable grounds to believe that Mr. Kabanga’s Vehicle was used in the shooting incident, his belief that Mr. Kabanga's Vehicle would afford evidence in respect of the shooting incident as required by s. 489(2)(c) of the Criminal Code was unreasonable. I received no expert evidence on the subject. The Crown argued that the onus to call such evidence was on the Defence, but I disagree as the onus was on the Crown to justify the seizure. I did have the very compelling evidence of DC Hubbard who spent a great deal of time searching the vehicle for such evidence. It was not suggested to him by Mr. Holder that he was wasting his time. Furthermore, both counsel relied on case law that is consistent with evidence I have heard on these issues.

[141] Mr. Holder cited case law that supports the proposition that DNA and fingerprint evidence cannot be dated, and therefore their presence at a crime scene cannot be the sole basis upon which a person is convicted. In fact I understand that DNA can remain on an object for decades; see for example R. v. Ahmed, 2015 ONCA 848 at para. 5. However I agreed with Ms. Laine that that submission missed the point. To employ s. 489(2)(c) of the Criminal Code, it need not be demonstrated that the evidence afforded could support proof beyond a reasonable doubt in relation to the offence in question. Rather, the officers simply had to have the objective belief that it would afford some evidence in respect of the offence. This evidence could be corroborative; for example, Mr. Kabanga’s DNA or fingerprints would be corroborative of his ownership and use of the vehicle. The evidence could also be used as a lead into further investigation; for example, DNA and/or fingerprints in and around the passenger seat might provide the police with a lead into ascertaining the identity of the unknown passenger of the vehicle through further evidence. The evidence need not, on its own, provide proof capable of supporting identification of either party.

[142] As for the GSR evidence, Mr. Holder argued that based on the evidence of DC Leung, it would not be present because the Vehicle had been vacuumed although he later modified his position to assert that it could potentially be there but it would not be possible to connect it to a particular firearm used in a shooting six days earlier. Neither counsel called expert evidence on the point. Furthermore DC Hubbard was not asked about this. Instead both counsel referred to cases where such evidence had been led.

[143] In my view DC Hubbard clearly was of the view that there might be relevant GSR evidence still present in the Vehicle with respect to a shooting that had occurred several days before as he took steps to search for GSR. There was clothing found on the back seat of the Vehicle which was visible to DC Grantham before he decided to seize the Vehicle and DC Hubbard testified that he took swabs for GSR from this clothing. In my view it was reasonable for DC Grantham to believe that there might be GSR in the Vehicle that would assist his investigation of the shooting incident.

[144] The Crown conceded that on its own GSR evidence would not have been enough for a conviction but she argued that the presence of GSR in a vehicle that was strikingly similar to the vehicle utilized in the shooting would certainly provide corroboration and further the proposition that Mr. Kabanga’s Vehicle was involved in the crime. I agreed. It is the corroborative value of this type of evidence that is essential, and it is the value of this type of evidence that gave DC Grantham reasonable grounds to believe that the Vehicle would afford evidence related to the shooting incident.

[145] I had already found that DC Grantham subjectively believed that the Vehicle would afford evidence that would advance his investigation. For these reasons I also concluded that his belief was objectively reasonable.

[146] I found that it was also important to consider that DC Grantham was very clear that he believed that the firearm used in the shooting incident might be in Mr. Kabanga’s vehicle. The Defence asserted that there was no reasonable basis upon which DC Grantham could have concluded that a gun might be located in Mr. Kabanga's Vehicle at the time of the seizure. Mr. Holder argued that according to DC Grantham's theory, the gun would have been in the front passenger's possession shortly after the shooting and that there was absolutely no evidence, whether direct or circumstantial, that a firearm would have been stored in the vehicle believed to belong to Mr. Kabanga. He submitted that despite speculative observations relating to some movement within the vehicle prior to the alleged shooting, there were no observations of what happened within the vehicle once the passenger returned and that the very idea that the firearm would be located in the vehicle was nothing more than conjecture.

[147] I disagreed. Although I appreciated that the issuing Justice did not authorize a search in the Vehicle for a firearm, given what DC Grantham observed from the Boultbee Videos it was reasonable to believe that the gun used in the shooting offence was transported in the vehicle and as such might be found therein. In seizing the vehicle, DC Grantham was not obliged to be certain that any particular evidence (whether it was a gun, GSR or trace evidence) would be found in the vehicle. Rather, he simply had to have reasonable grounds to believe that the Vehicle would afford evidence related to the shooting. In my view that was an objectively reasonable belief given what he observed on the Boultbee Videos given the movement of the occupants.

[148] For these reasons, I found that DC Grantham had reasonable grounds to believe that the Vehicle would afford evidence in respect of the shooting incident.

Was Mr. Kabanga’s Vehicle lawfully seized pursuant to s. 221 of the Highway Traffic Act, R.S.O. 1990, c. H8 (“HTA”)?

[149] As already stated it was the Crown's position that the police had the authority to seize Mr. Kabanga’s Vehicle pursuant to s. 221(1) of the HTA, which reads in part:

A police officer ... who discovers a vehicle ... without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.

[150] As the Ontario Court of Appeal noted in R .v. Nicholosi, (1998), 1998 CanLII 2006 (ON CA), 127 C.C.C. (3d) 176 (Ont. C.A.) at para 12, s. 221(1) of the HTA empowers the police to remove, transport for storage, and store any vehicle which is on a public roadway without a proper license plate. That case goes on to discuss the powers to search a vehicle after it is taken into police possession.

[151] The Crown’s position was that in the event I found DC Grantham did not have authority to seize the Vehicle pursuant to s. 489(2) of the Criminal Code, the seizure of the Vehicle could have been authorized under s. 221(1) of the HTA. This was because DC Grantham knew at the time of the seizure of the Vehicle that it was not properly plated. On this basis, the Crown argued that s. 221(1) of the HTA could be relied upon to conclude that the seizure was lawful even though at the time that was not the reason that DC Grantham articulated for why he seized the Vehicle.

[152] In this regard the Crown relied on R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 and R v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A), leave to appeal refused [1985] S.C.C.A. No. 222. These cases dealt with “dual purpose” searches and whether or not a dominant legitimate regulatory purpose of the search could sanitize an unlawful criminal law purpose. I found, however, that these cases were not directly on point as DC Grantham was clear that he did not consider using his authority to seize the vehicle pursuant to s. 221(1) of the HTA at all, and certainly not as a pre-text to seize the Vehicle for the purpose of getting a search warrant.

[153] The Crown also relied on R v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at para. 61 where Simmons J.A. stated that Nolet does demonstrate that the presence of a criminal law purpose for conducting a search, (or in this case a seizure), does not, of itself, preclude the existence of a valid regulatory purpose. She then went on to state, at para. 62, however, that the issue was whether or not the officer “actually formed a legitimate intention initially to search the tractor-trailer for regulatory purposes (whether he possessed a concurrent criminal law purpose or not), and if he did, whether that legitimate intention was still subsisting when [the officer] opened the trailer doors” [emphasis added]. This passage suggests that DC Grantham must have actually formed an intention to seize the Vehicle pursuant to s. 221 of the HTA at the time, which was clearly not the case.

[154] A case that is on point is R v Wood, 2015 ONSC 919 where Gordon R.S.J. considered the lawfulness of a seizure of a vehicle without a warrant. He held:

21 Although I am satisfied that Constable Heffern seized the vehicle pursuant to the authority of section 489(2) relative to the offence of dangerous driving, the real purpose of the seizure was to preserve the property until a warrant could be obtained to have it searched for drugs. In my view, the distinction is of little consequence. Regardless of the real purpose of the seizure, it was authorized by law …. That the seizure ultimately served another investigative process is neither here nor there. The police are entitled to use all lawful measures available to them to further their investigations.

[155] In my view, this reasoning makes sense. I found that when DC Grantham came upon the Vehicle parked outside of 55 Winnifred Avenue, that he knew from the VIN Number that the Vehicle was registered to Mr. Kabanga. I have also found that he obtained the results of a check on the license plate; BNJK309, which he had already observed appeared to have been forcefully removed from another vehicle and he learned that it had the status of “missing” and had been removed from another vehicle and reported missing as of July 18, 2015. As a result it was clear given the difference between the registered owner of the license plate and the registered owner of the Vehicle, that the Vehicle was not properly plated. DC Grantham clearly could have lawfully seized the Vehicles pursuant to s. 221(1) of the HTA. DC Grantham also had the results from the search he ran on the VIN Number of Mr. Kabanga’s Vehicle which stated that the license plate, registered to the Vehicle was a Quebec plate; E11HFL. Those results included a warning that the Vehicle was “not authorized to circulate” and that the Vehicle was “prohibited from being put into operation (Quebec only)”.

[156] Given all of this information available to DC Grantham had I not found that he had reasonable grounds to seize the Vehicle pursuant to s. 489 (2) of the Criminal Code I would have easily concluded that it had been lawfully seized pursuant to s. 221(1) of the HTA.

Conclusion on Issue 1: Was the seizure of the Vehicle lawful?

[157] For these reasons I found that DC Grantham believed on reasonable grounds that he had authority to seize the Vehicle as offence related property pursuant to s. 489(2)(c) of the Criminal Code and reasonable grounds to believe that it would afford evidence in respect to the shooting incident on July 20, 2015. Mr. Kabanga’s Vehicle was lawfully seized.

[158] The issue of what information was available to DC Grantham at the time the Vehicle was seized was important because in my view, since I accepted his evidence that he could see the damage to the driver’s side fog light when he reviewed the Boultbee Videos a second time, arguably that information was “available” to him at the time the Vehicle was seized. I did not need to rely on this additional information to come to my conclusion that the seizure of Mr. Kabanga’s Vehicle was lawful but had that been necessary, assuming that I could have relied on this additional had evidence as information to support both DC Grantham’s subjective belief and whether or not that belief was objectively reasonable, it obviously would have strengthened his grounds to seize the Vehicle.

[159] In addition I have found that the seizure was lawful because DC Grantham could have seized the Vehicle pursuant to s. 221(1) of the HTA.

[160] For these reasons I did not find that there was a s. 8 Charter breach with respect to the seizure of Mr. Kabanga’s Vehicle and as such no need to do a s. 24(2) Charter analysis. Had that been necessary or if I am incorrect with respect to one of these conclusions, in my view the fact that one of these routes authorized the lawful seizure of the Vehicle would have led me to find pursuant to s. 24(2) of the Charter that any breach of s. 8 of the Charter with respect to the seizure of the Vehicle would not result in rendering the evidence found in the Vehicle inadmissible in this trial.

ISSUE 2: COULD THE SEARCH WARRANT FOR MR. KABANGA'S VEHICLE HAVE BEEN ISSUED?

Law-General Principles

[161] The search warrant issued on July 27, 2015, which authorized police to search Mr. Kabanga's Vehicle for trace evidence (including fingerprints and DNA) and GSR is a presumptively valid court order. Mr. Kabanga therefore bore the onus of proving, on a balance of probabilities, that the search of his Vehicle was unreasonable and in breach of s. 8 of the Charter: see Pires, supra at para. 8.

[162] The statutory preconditions to the issuance of a search warrant are found in s. 487(1) of the Criminal Code which provides in part as follows:

487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

[163] There was very little dispute between counsel as to the law that I must apply to resolve the issues on this part of the application. My review of the ITO and consideration of whether it could have been issued was governed by the principles set out in Garofoli, supra at para. 68. This “Garofoli test” has been re-articulated a number of times in subsequent decisions of the Supreme Court of Canada.

[164] As the reviewing judge I must not substitute my view for that of the issuing Justice and determine whether or not the warrant should have been issued. I must determine whether there was credible and reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16. If, based on the record which was before the issuing Justice as edited and/or amplified on this review, there was, or continues to be any basis on which the issuing Justice, acting judicially, could find reasonable and probable grounds to believe that an offence was committed and that evidence of the offence would be found in the Vehicle, I must dismiss the application: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, leave to appeal refused [2017] S.C.C.A. No. 93, at para 25.

[165] In R. v. Campbell, 2010 ONCA 588, at paras. 49-54, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549, the Court of Appeal considered the standard to be applied to whether the affiant had “reasonable grounds to believe” relevant evidence would be found. The court referred to R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (S.C.C.) at p. 1166, where Wilson J. referred to the standard of proof as being "reasonable probability" or “reasonable belief” and the dicta of Deschamps J. in Morelli, supra at para. 129 where she agreed with an approach taking by a US court that the issuing justice;

is simply to make a practical, common-sense decision whether, given all the circumstances … including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[166] When reviewing an ITO, the court must keep in mind that these documents are prepared by police officers, who are not legally trained draftspersons and who are sometimes forced to operate under time constraints with limited opportunity to organize and polish their writing. As the Court of Appeal stated in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para 35, few search warrant applications are perfect; it is not surprising to find some flaws:

… 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.

[167] As I have already stated in my reasons granting leave to the applicant to cross-examine the affiant, the applicant asserts that the affiant deliberately, or at least recklessly, misled the issuing justice, rendering the entire ITO unreliable as a basis upon which to issue a warrant. He argued that in these circumstances I should (1) exercise my residual discretion and find that the search warrant could not have issued and should be set aside; and (2) on that basis, find a s. 8 Charter breach and exclude all of the evidence obtained during the search of Mr. Kabanga’s vehicle. In support of this submission, the applicant relied upon Paryniuk, supra.

[168] If there was fraud that did not rise to the level that I ought to resort to this Court’s residual discretion, the “existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant but …their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: Garofoli, supra, at para. 56.

[169] Upon reviewing the grounds in support of the warrant, any false, misleading or erroneous grounds are to be excised from the ITO; Morelli, supra at para. 41. Save for one small point, the Crown did not seek to amplify the ITO. Nonetheless, Mr. Holder argued that I should consider some of the evidence called on the voir dire in making my determination of his application. I accept that submission is correct as a matter of law; this is assuming that I make a finding that DC Elliotdid not make full and frank disclosure on any particular matter. Where “the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO.” Morelli, supra at para. 60.

The Facial Challenge of the Search Warrant

[170] Facial validity refers to whether the warrant, exactly as drafted, could have been issued. It was Mr. Kabanga's position that the ITO that was before the issuing Justice did not provide a basis upon which the issuing Justice, acting judicially, could have issued the warrant. He accepted that in this analysis, the statements in the ITO are to be accepted as reliable and accurate and that the Defence bears the onus to demonstrate that the ITO on its face did not provide sufficient grounds for the beliefs outlined in s. 487(1) of the Criminal Code: R v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 73.

[171] The applicant asserted that a warrant could not have issued for the purpose of locating trace evidence because this type of evidence would be useless in proving the offence in question. I have already dealt with this issue in finding that DC Grantham had reasonable grounds to believe that Mr. Kabanga’s Vehicle would afford evidence with respect to the shooting incident. Those reasons apply here and so I will not repeat them.

[172] For these reasons I found that there was a reasonable basis upon which the warrant, exactly as drafted, could have issued.

The Sub-facial Challenge of the Search Warrant

(vi) Should Excisions be made to the ITO?

[173] I heard submissions from counsel with respect to the portions of the ITO that the Defence submitted should be excised as follows:

Running and Shooting vs Walking and Shooting

[174] Para. 2 of the ITO states that the unknown suspect exited the motor Vehicle, ran closer to the building and fired a handgun towards Mr. Costain. This is also found at para. 10(d) of the ITO where it is stated that the unknown suspect exits the vehicle from the front passenger door, runs toward the apartment building and fires a single round from what appears to be a silver handgun.

[175] Mr. Holder argued that these statements were distortions and that any impartial assessment of the Boultbee Videos would show that the unknown suspect walked from the vehicle to the grassy area in the direction of 10 Boultbee Avenue and that the Videos do not show the unknown suspect firing a gun. He argued on the highest quality version of the Videos, the suspect surveillance is completely obscured by a tree at the time of the shooting. It was argued that this information in the ITO gave the impression that the unknown male definitely fired at Mr. Costain. Mr. Holder submitted that had the information been correctly stated, the issuing Justice might have had a significant concern about the reasonable probability of locating anything connecting to the shooting in the vehicle because it would have been entirely possible that the unknown suspect had no idea a shooting was going to take place evidenced by his walking - not running - and that when he heard the sound of the gun, he ran back to the vehicle to avoid being hit.

[176] The Boultbee Videos are clear that the shooter walked towards the building and then ran back to the vehicle. DC Grantham’s notes stated that the passenger walked and his Report was silent on this point. I accept that the fact that the unknown suspect ran in the direction of 10 Boultbee Avenue is incorrect and that the word “ran” in para. 2 and “runs” in para. 10(d) should be excised. The Crown submitted that it would be entirely appropriate to excise the word "run" from para. 10(d) of the ITO and substitute it for "walk" as this is obviously a technical error, it can easily be rectified by excision. I agree. In my view this is consistent with a minor error on DC Elliot’s part and would have had absolutely no impact on the issuing Justice.

[177] I do not accept that the fact that this unknown suspect fired the gun should be excised. Although I have not been able to confirm with my own eyes that this is visible on the Boultbee Videos, for reasons already stated I do not reject DC Grantham’s evidence on this point and significantly I find that the unknown suspect was the one who fired the shot and he was clearly aiming towards Mr. Costain.

[178] With respect to the statement in para. 10(d) that the unknown suspect fired a single round from what appeared to be a “silver handgun”, in DC Grantham’s Report he stated that the shooter had a “silver handgun visible in right hand”. I have already reviewed DC Grantham’s evidence on this point and explained why I accepted his evidence on this point. For the same reason I accept DC Elliot believed this either from reading DC Grantham’s Report or from his own observations of the Boultbee Videos. Whether or not a silver handgun can be seen in those Videos would make no difference in my view to an issuing Justice. For reasons already stated, it was clear that the passenger from the vehicle shown by the dumpsters in the Video taken from 20 Boultbee fired one shot into the lobby of 10 Boultbee. He would have had to have a firearm to do so. What the colour of that firearm was would not be relevant to the question before the issuing Justice of whether or not to authorize a search of the Vehicle looking for that firearm.

The Vehicle from the Surveillance compared with the Vehicle seized

[179] Para. 5 of the ITO states that investigation revealed the motor vehicle [referring to the vehicle in the Boultbee Videos] belongs to Mr. Kabanga. Para. 10 (f) of the ITO states that the vehicle used to deliver and retrieve the unknown suspect is observed as a silver Pontiac Grand Prix 7th Generation model. The identifiers that DC Grantham observed are set out and then the ITO states that the vehicle also has damage to the driver side fog light area of the front bumper.

[180] DC Elliot testified that the statement in para. 5 of the ITO, was based on the totality of the facts that he was advised of at the time he drafted the ITO. Based on the damage to the vehicle and the matching description as compared to the Boultbee Videos he believed that the vehicle involved in the shooting was the one that was seized by DC Grantham and that it belonged to the Mr. Kabanga.

[181] With respect to the last sentence of para. 10(f) of the ITO, DC Elliot testified that he did not know if that information came from DC Grantham’s notes or Report or from a conversation with him. When it was put to DC Elliot that he was advising the issuing Justice that the suspect vehicle was observed to have had damage on the 20th, he stated that he had not spoken to DC Grantham on that date but that when he did speak to him on July 23rd and that he had a specific recollection of reviewing the Boultbee Videos with DC Grantham who pointed out a depression to him that altered the way the fog light was projected. He did not recall the specific conversation about this. He testified that he absolutely could see it although initially he would not have noticed such a minor detail but DC Grantham was able to point it out to him and he personally confirmed it by watching the Video.

[182] Mr. Holder submitted that the definitive statement that the vehicle belonged to Mr. Kabanga was inaccurate because neither the VIN Number nor license plate number could be seen on the Boultbee Videos. He argued that this meant that there was absolutely no notice to the issuing Justice that this could be an issue. He pointed out the model of the vehicle was not observed in that the name of the vehicle could not be seen and that DC Grantham had not observed any damage to the vehicle when he initially reviewed the Boultbee Videos. He also submitted that para. 14 of the ITO omitted any reference to the additional damage to Mr. Kabanga's vehicle that was not observed on the Boultbee Videos.

[183] It was Mr. Holder’s position that the ITO gave the impression that there was no doubt that the suspect vehicle belonged to Mr. Kabanga and he submitted that the statement that the suspect vehicle belonged to Mr. Kabanga should be excised.

[184] First of all there is no dispute that the vehicle that was seized by DC Grantham was in fact Mr. Kabanga’s Vehicle. There was no suggestion in the ITO that there was a VIN Number, license plate or model name observed on the vehicle on the Boultbee Videos. The Defence asserted that in denying the police the authority to search the Vehicle for a firearm it was clear that there was little evidence connecting Mr. Kabanga to the shooting incident. I agree with the Crown that there is no basis for this assertion. The issuing Justice indicated that the firearm was used by another suspect (the passenger). It is on this basis that the issuing justice did not allow for the search of the handgun. I also disagree with the Defence position that given the issuing Justice’s remarks on the firearm that it would logically follow that no search could have been authorized because trace evidence and GSR cannot place an individual on the scene, nor can it tell investigators when it was placed. That is an issue I have already dealt with.

[185] The only issue could be whether or not it was reasonable to state that the vehicle seized was the vehicle involved in the shooting incident. I note that at para. 14 (b) of the ITO it states that DC Grantham “believes the vehicle he located is the vehicle used to transport the Unknown Suspect to 10 Boultbee Ave for the purpose of shooting as …[Mr.] Costain”[emphasis added]. In para. 27 of the ITO DC Elliot set out in more detail why he and DC Grantham believed that Mr. Kabanga’s Vehicle was the vehicle involved in the shooting incident. This paragraph includes the fact that it is obvious from the mossing license plate attached to Mr. Kabanga’s Vehicle that he was attempting to conceal the identify of his car and concludes with the statement that DC Elliot believes that all of these factors prove “beyond a doubt that the vehicle seized by DC Grantham was the vehicle use” in the shooting incident. At para. 30 DC Elliot stated that he believed that there was “compelling and substantiated evidence linking this motor vehicle to the offence of Attempted Murder”. I recognize however that this is stated as a fact in the impugned paragraphs.

[186] When asked about this DC Elliot testified that he relied on the totality of the facts when he stated this including his observations of the vehicle used in the shooting incident as compared to Mr. Kabanga’s Vehicle and in particular, its description based on what can be seen in the Boultbee Videos, including the damage to the Vehicle that DC Grantham did not first observe.

[187] As I said when I granted leave to cross-examine DC Elliot, I was concerned that the issuing Justice was not given enough information to make his own assessment as to whether or not the seizure of Mr. Kabanga’s Vehicle was lawful. When the s. 8 application was later argued, I realized that this was not an issue for the issuing Justice. The seizure had already taken place and whether or not it was a lawful seizure would not have been something for him to determine. He was being asked to authorize a search warrant to search the vehicle. However, it was necessary for the issuing Justice to be satisfied that there were reasonable grounds to believe that it was reasonably probable the vehicle that had been seized was the vehicle involved in the shooting incident.

[188] Although the damage to Mr. Kabanga’s Vehicle was not relied upon by DC Grantham when he decided to seize the vehicle and so I did not consider it in determining whether or not he had reasonable and probable grounds to seize the Vehicle, by the time the ITO was prepared DC Grantham and DC Elliot had reviewed the Boultbee Videos and concluded that the damage to the left front fog light was in fact visible on the Videos as Mr. Holder admitted, the distinguishing feature of a depression on the bumper in the fog light area of Mr. Kabanga's vehicle could have been a striking similarity to the suspect vehicle from July 20, 2015 had it been observed on the surveillance. I have found that it was so observed albeit after the fact. That however was known to DC Grantham and DC Elliot by the time the ITO was sworn. The fact that the issuing Justice may have believed from the ITO that the damage was observable in the Boultbee Videos from the first time DC Grantham observed them was not a material distinction for his purposes in my view.

[189] In my view it was clear from the totality of the ITO that the vehicle as observed on the Boultbee Videos could be identified, from its physical appearance, as a Pontiac Grand Prix. There were a number of unique descriptors identified on the vehicle in the surveillance that matched that of the Mr. Kabanga’s Vehicle that was seized on Winnifred Avenue.

[190] I agree with the Crown’s submission that there was no distortion and therefore no remedy is required. In my view, the totality of the information available to DC Grantham and DC Elliot gave them reasonable grounds to believe that Mr. Kabanga’s Vehicle was the vehicle involved in the shooting incident. Although arguable it would have been better for DC Elliott to modify his statements in paras. 5 and 10(f) to make them consistent with the fact that this was DC Grantham’s belief, in my view this did not mislead the issuing Justice. Given the unique identifiers of the vehicle seen in the Boultbee Videos, including the damage to the front left fog light, there could be little doubt that the vehicle involved in the shooting incident was Mr. Kabanga’s.

[191] DC Elliot was asked about inconsistencies between the information in the ITO at para. 10(f), which Mr. Holder argued, based on the preamble of that paragraph, suggested that DC Grantham had observed that the Vehicle had damage to the driver side fog light area of the front bumper when he first reviewed the video from 10 Boultbee Avenue. DC Elliot testified that he obtained this information from DC Grantham’s notes and from speaking to him. He said that he watched the Boultbee video that showed the suspect vehicle with DC Grantham who was able to point out the depression and the way the fog light was projected. DC Elliot said he was able to see it when DC Grantham pointed it out to him and he was “absolutely” able to see it. DC Elliot could not recall the day that PC Grantham pointed out the damage to him. DC Grantham was not asked about this and it was never put to him that he reviewed the Boultbee Videos with DC Elliot.

[192] The difficulty I had with this evidence is that DC Grantham did not testify that he reviewed the Boultbee Videos with DC Elliott. I am not sure if DC Elliot was even working at the time of the shooting incident. Clearly their shifts overlapped on July 25th when DC Elliot was asked to prepare the ITO. I have no reason to disbelieve DC Elliot’s evidence on this point and in any event it is clear that he did personally review the Boultbee Videos and the Freshco Video for the purpose of preparing the ITO.

[193] I agree with Mr. Holder that this paragraph of the ITO could be interpreted as stating that DC Grantham had observed that the Vehicle had damage to the driver side fog light area of the front bumper when he first reviewed the video from 10 Boultbee Avenue. That said, it is not clear that this is not simply a statement of the fact that the Vehicle had this damage. What the ITO does not do is explain that DC Grantham only realized the Vehicle had this damage when he seized the Vehicle, which goes to the issue of whether or not DC Grantham could lawfully seize the Vehicle. As I have already stated that in my view was not an issue before the issuing Justice.

[194] DC Elliot believed that DC Grantham observed the damage to the vehicle that can be seen in the Freshco video on July 21, 2015 and that he reviewed this video with DC Grantham and that DC Grantham pointed out the damage to him. He was not entirely sure if this was after the vehicle was seized or not, however. Given DC Grantham’s evidence that he did not observe the damage to Mr. Kabanga’s Vehicle until July 25th when he decided to seize it, if they reviewed the video together it must have been on or after July 25th.

[195] DC Elliot never went to see the vehicle and did not know if he knew of all of the damage that DC Grantham later observed and noted in his notes on July 25, 2015. He testified that he did not remember if DC Grantham told him about this additional damage beyond the damage to the fog light. He remembered the damage to the fog light, since that was instrumental in determining that the vehicle seized was the vehicle involved in the attempted murder.

[196] I believe that DC Elliot that he had access to the notes DC Grantham made on July 25th setting out all of the damage to the Vehicle and so he would have seen a note of all of this damage before he finished the ITO. When asked why he did not tell the issuing justice about the extra damage to the Vehicle, PC Elliot testified he did not believe it to be relevant since the other identifying factors on the video matched the vehicle DC Grantham seized. This other damage was not part of the process that they used in identifying the Vehicle as the vehicle used in the shooting incident. I accept that evidence. As I have already reviewed, the fact that the Vehicle had a rear spoiler would not have been visible in the Boultbee Videos. The same is true of all of the other damage DC Grantham noted the Vehicle had.

[197] I asked DC Elliot why he said a couple of times in his evidence that he believed that the Vehicle seized was the vehicle used in the offence. He answered that he believed that the Vehicle seized was the vehicle that was used in the offence. He was trying to link the offence vehicle to the Vehicle that had been seized. He believed that DC Grantham had reasonable and probable grounds to believe that the Vehicle he seized was the vehicle that had been used in the offence and that the seizure was lawful.

Wearing gloves

[198] Para. 10(d) of the ITO states that the unknown suspect was not wearing gloves and in para. 25 of the ITO, DC Elliott stated that he personally watched the Boultbee Videos and that "it is clear the unknown suspect did not wear gloves while exiting or re-entering the motor vehicle” [emphasis added]. DC Elliot believed that this information came from DC Grantham’s notes, his Report or from speaking to him. He was not initially able to recall if he confirmed this detail himself when he reviewed the Video from 10 Boultbee but once he was taken to para. 25 of the ITO he admitted that in light of this statement it appeared that he personally did confirm that the suspect was not wearing gloves. He did not remember if DC Grantham pointed out that the suspect was wearing gloves or not. DC Grantham did believe that the shooter was not wearing gloves and he stated this in his Report but he did not say that this was clear in the Boultbee Videos.

[199] Mr. Holder submitted that any impartial assessment of the video footage would show that the hands of the unknown suspect, although visible to some extent are certainly not clear and that one cannot observe individual fingers. He also argued that it was impossible to tell whether or not the unknown suspect was wearing plastic gloves but in my view that takes this exercise too far. In my view an affiant is not required to see out every possible exculpatory fact to this extent.

[200] As the Crown points out however, there is no suggestion in the ITO that the absence of gloves would impact the presence and discoverability of GSR in the motor vehicle. Nor is the assertion that the absence of gloves would somehow impact the presence of DNA in the motor vehicle. However it was conceded by the Crown that wearing gloves might impact the presence of fingerprints in the Vehicle, depending on when the gloves were put on.

[201] I agreed with Mr. Holder that adding the word “clear” was an exaggeration as the quality of the Boultbee Videos is such that this could not have been clear. That word will be excised although I am not prepared to excise the fact that the unknown suspect was not wearing gloves. I have already reviewed DC Grantham’s evidence on this point and have explained why I have accepted it. Even if I had concluded otherwise, in my view the search warrant could still have issued even if the issuing Justice did not know whether or not the unknown suspect was wearing gloves. There was no evidence as to whether or not the driver of the vehicle was wearing gloves and trace evidence with respect to the driver could have been very relevant to DC Grantham’s investigation of the shooting incident. Furthermore, the statement at para. 26 of the ITO that based on the fidgeting and movement of the occupants in the vehicle immediately prior to the shooting meant that it was reasonable to believe the firearm was stored within the vehicle was a reasonable statement; one I note Mr. Holder did not challenge. Furthermore, given the nature of GSR, even if the unknown suspect was wearing gloves, assuming that he brought the firearm back into the vehicle, GSR might have been found inside the vehicle.

[202] Mr. Holder submitted that the statement that the suspect clearly did not wear gloves was extremely misleading. He argued that it was the very basis for the belief that trace evidence like fingerprints, DNA and even GSR might be found in the vehicle. He submitted that DC Elliot’s assertion in para. 21 of the ITO that fingerprints and DNA would assist in determining previous occupants of the Vehicle thereby identifying suspects that may have been involved in the attempted murder of Mr. Costain was not correct. It was Mr. Holder’s submission that obtaining trace evidence from a vehicle which may have had several individuals come in contact with it since its creation in 2004 could not reasonably assist in identifying occupants of that vehicle on a particular date - five days prior.

[203] The Defence also challenged DC Elliot’s statement in para. 22 of the ITO that locating GSR would provide compelling evidence that Mr. Kabanga's Vehicle was utilized by the unknown suspect for this offense. Mr. Holder argued that GSR does not attach to a particular gun and that there would be no way of determining whether particles located in the Vehicle were from the shooting incident or any other incident where a gun was fired. He argued that the location of GSR was not even compelling evidence that a firearm was used or touched by the occupants of Mr. Kabanga’s Vehicle because GSR can be transferred so easily from one surface to the next that it is virtually useless in the absence of additional evidence.

[204] I was not persuaded by either of these submissions. The Defence was asserting too high a standard for the issuance of the search warrant. Given that Mr. Kabanga’s Vehicle was the one observed in the Boultbee Videos and that the passenger exited from that Vehicle and fired a firearm, a search for trace evidence, even five days later was imminently reasonable. Whether it could have led to evidence that could be used to persuade a trier of fact beyond a reasonable doubt that a particular individual was the driver or the shooter was not what the issuing Justice was required to consider.

DC Rinkoff's alleged observations of Mr. Kabanga

[205] Para. 12 (a) of the ITO states that DC Rinkoff had investigated Mr. Kabanga previously and “would easily recognize him”. This was stated to support the statement that he had observed Mr. Kabanga driving his Vehicle on July 21, 2015.

[206] DC Elliot was challenged by the statement that DC Rinkoff “would easily recognize” Mr. Kabanga. DC Elliot Elliott testified was that was his belief from speaking to DC Rinkoff. He said that he asked DC Rinkoff if he was sure to which DC Rinkoff said that he was. DC Elliot Elliott testified that he believed DC Rinkoff to be honest in his conversation with him. He did not remember if he asked him when he last interacted with Mr. Kabanga or not, and did not remember if he went into any specifics.

[207] Mr. Holder complained that there was no information in the ITO as to when Mr. Kabanga was investigated by DC Rinkoff or the duration of the investigation and that had all of the details been obtained from DC Rinkoff and included in the ITO and that in the absence of this “critical information”, the issuing Justice may have believed that there were either recent encounters or a multitude of prior encounters between Mr. Kabanga and DC Rinkoff.

[208] As the Crown submitted, a sub-facial challenge on an ITO turns on what the affiant knew or ought to have known when the ITO was sworn. The ultimate truth of the facts is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted. When assessing a sub-facial challenge, although an affiant may not ignore signs that sub-affiants may have omitted material information, if there are no signs that something is amiss, an affiant does not need to conduct his/her own investigation: see World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 at para 123. In my view DC Elliot Elliott could rely on what he was told by a fellow officer-he did not need to challenge DC Rinkoff on how he knew Mr. Kabanga.

[209] I deal with the evidence of DC Rinkoff on this issue in my Judgment because then it was relevant to the issue of whether or not Mr. Kabanga was in possession of his Vehicle during the material time period. On the issues before the issuing Justice however, this information was merely a step in the investigation and was of no relevance to whether or not a warrant should be issued to permit a search of Mr. Kabanga’s Vehicle. The information from DC Rinkoff in no way impacted the basis upon which the authorization was granted. This information was not part of the material basis upon which the warrant could have issued. It did nothing to enhance the grounds upon which his Vehicle could be searched. This was not a warrant to authorize the arrest of Mr. Kabanga.

Omitting observations by DC Leung on June 23, 2015

[210] The ITO makes no reference to the observations made by DC Leung on July 23, 2015. Although he did not know who it was, given the other information DC Leung observed, it was reasonable to conclude that someone; possibly Mr. Kabanga was vacuuming his Vehicle.

[211] Mr. Holder submitted that the only inference that can be drawn from this deliberate omission is that DC Elliot did not want the issuing Justice to know that trace evidence and GSR might have been removed prior to the seizure of the Vehicle. He argued that if Mr. Kabanga's Vehicle was observed being cleaned after the shooting it further diminished the reasonable probability that the evidence sought would be located in the Vehicle. It was Mr. Holder’s position that the record should be augmented to reflect the totality of the circumstances.

[212] The Crown submitted that this evidence was not material to whether or not the warrant could have issued. There was no evidence before me to suggest that vacuuming a vehicle would have any impact on trace evidence and GSR. It was the Crown’s position that GSR and DNA evidence never degrade. They are both transferrable from surface to surface and can remain on fabric infinitesimally. They are both microscopic and therefore cannot be 'cleaned up' by use of the naked eye. In light of this, the absence of this information in the ITO is meaningless. The Crown submitted that it certainly cannot be said that the omission was deliberately done to hide the information from the issuing Justice, given that the evidence, without expert explanation, is inconsequential. As the Crown pointed out, this evidence cuts both ways. While it may suggest that some of that evidence might no longer be in the Vehicle, it might also be further potentially confirmatory evidence of Mr. Kabanga's involvement in the shooting incident, if the inference sought is that he was trying to destroy evidence.

[213] DC Elliot was asked about the fact that he did not include any of the information that DC Leung observed on July 23, 2015, while he was off duty and getting gas at an Esso station on the south side of Lakeshore Boulevard and Carlaw Avenue in the ITO.

[214] DC Elliot testified he met with DC Leung at the Esso station after he was told that DC Leung had observed Mr. Kabanga vacuuming out a vehicle. By the time DC Elliot got to the Esso station Mr. Kabanga was long gone. DC Leung briefly told DC Elliot what he had seen. DC Elliot was referred to DC Leung’s will say, which describes the driver of the vehicle by a description rather than by name. In response to this, PC Elliot testified that it appeared he was advised of this and that he erred when he said earlier that DC Leung had identified Mr. Kabanga by name.

[215] DC Elliot testified that he had no information that the individual was attempting to clean the vehicle other than vacuum it. He did not recall if DC Leung gave him any details about the vehicle and he did not specifically recall being told about the license place from DC Leung. He did not remember seeing any notes by DC Leung. DC Leung did not make any notes and that is why he prepared a will say which had not yet been prepared by the time he met with DC Elliott.

[216] DC Elliot testified that he was going to seize the debris from the vacuum that had been used on the vehicle but when he consulted with forensics he was told that the bag could not be tested. He was also not able to obtain any video surveillance.

[217] DC Elliot testified that he did not mention what DC Leung observed in the ITO because there was no way to ensure that the vehicle DC Leung observed was the vehicle used in the shooting. This is only credible evidence if he did not know what license plate DC Leung observed on the vehicle either from hearing the information DC Leung radioed in or information he received from DC Leung when he met with him. As I have already stated, DC Grantham did not believe that he was told about the license plate number and he did not record one in his notes.

[218] I have no information that DC Elliot was in his police vehicle or in another location where he would have heard the information radioed in but I would have expected him to ask DC Leung whether or not he saw a license plate. If DC Leung told DC Elliot what the rear plate that he observed on the vehicle was, DC Elliot would have known that the vehicle DC Leung saw had a rear license plate BMJK 309 and then he would presumably would have realized that this was probably the same vehicle DC Rinkoff observed Mr. Kabanga driving as he saw that the partial rear license plate was “309”.

[219] When DC Elliot was asked if he turned his mind to whether or not the fact that the vacuuming of this vehicle, if it was the vehicle used in the shooting incident, might have impacted the presence of trace evidence such as gunshot residue (GSR) and DNA, DC Elliot testified that it was his understanding that GSR consisted of microscopic particles that would remain after vacuuming and perhaps the same was true for DNA as well. DC Elliot would not agree with the suggestion put to him by Mr. Holder that vacuuming a vehicle could potentially remove fingerprints. He said it was his understanding that vacuuming would not remove fingerprints although he was not certain as he was not an expert in fingerprints.

[220] I was not able to conclude that DC Elliot contrived this explanation and in particular ignored information from DC Leung about the license plate that he observed which would have led to a reasonable conclusion that the car that was being vacuumed was Mr. Kabanga’s Vehicle. Had he intended to do so, I do not think that he would have testified initially that he understood that this was Mr. Kabanga who was vacuuming a vehicle. Furthermore, he clearly thought there was potentially some relevant evidence here since he thought about seizing the debris from the vacuum that had been used.

[221] Notwithstanding the Crown’s position, I agreed with Mr. Holder that the issuing Justice should have been told about DC Leung’s observations and that an unknown male was seen vacuuming Mr. Kabanga’s Vehicle or at least a vehicle that matched the description of his vehicle on July 23, 2015. I did not agree however that if the record was augmented with this information that the issuing Justice could not have still authorized the search warrant. I agreed with the Crown’s submissions on this point and I dealt with this issue when I considered whether or not DC Grantham had reasonable and probable grounds to believe that Mr. Kabanga’s Vehicle would afford evidence of the shooting incident even though it had been vacuumed and so there is no reason to repeat my reasons, which apply equally here.

Did PC Elliot Intend to Mislead the Issuing Justice?

[222] The final issue I considered, having come to these conclusions on what should be excised or included in the ITO, was whether or not DC Elliot made any attempt to deliberately mislead the issuing Justice. I have found that he should not have stated that the unknown suspect “ran” towards 10 Boultbee or that it was “clear” that the unknown suspect was not wearing gloves. I have also found that he should not have included the observations made by DC Leung, that Mr. Kabanga’s Vehicle was being vacuumed a few days after the incident although I was not able to conclude that he knew at the time that the vehicle DC Leung had seen was in fact Mr. Kabanga’s.

[223] In the end I was not able to conclude whether or not DC Elliot simple made errors in preparing the ITO because he was careless or that he was deliberately trying to mislead the issuing Justice. Even if I had been persuaded that he did intended to mislead, which I was not prepared to find, these concerns would not rise to the threshold of being subversive such that the search warrant should be struck. I agree with the observations of Nakatsuru J. in R. v. Majeed, supra at para. 9 that if I am to consider using my residual authority as discussed in Paryniuk, supra, I must be satisfied that the conduct of DC Elliot subverted the pre-authorization process in that it undermined, corrupted, weakened, destroyed or disrupted the integrity of that process: Paryniuk, at para. 74. At its highest there may have been some relatively minor deliberate exaggeration and non-disclosure with respect to the observations of DC Leung but there was no pattern of such conduct and in my view no serious impact on the integrity of the authorization process.

Conclusion on Issue 2: Could the Search Warrant Have Issued?

[224] For the reasons stated, even with the excisions to the ITO that I have ruled should be made and even if the observations of DC Leung were added to the information available to the issuing Justice, it was my conclusion that there was no doubt that the ITO could have issued for the search of Mr. Kabanga’s Vehicle for trace evidence. For these reasons I concluded that considering the totality of the circumstances, the Defence had not persuaded me that the issuing Justice could not have determined that the ITO established reasonable and probable grounds to believe that there was reasonable grounds to believe that a search of the Vehicle for trace evidence would afford evidence with respect to the shooting incident and in particular that an unknown person attempted to murder Mr. Costain by discharging a firearm contrary to s. 239(1) of the Criminal Code.

Disposition

[225] For these reasons I found that the applicant had not established a breach of his s. 8 Charter rights and I dismissed the Garofoli application. As a result, there was no need to address the remedy of exclusion of evidence pursuant to s. 24(2) of the Charter.

SPIES J.

Released: November 26, 2018

COURT FILE NO.: CR-16-7/711

DATE: 20181126

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

JESSY KABANGA-MUANZA

Defendant/Applicant

Ruling ON DEFENCE Section 8 APPLICATION

SPIES J.

Released: November 26, 2018

[^1]: Both of these officers gave viva voce evidence on the trial proper after I dismissed the s. 8 application.

[^2]: DC Elliot testified on August 14th and DC Grantham’s testimony finished on August 15, 2015. This was done on consent to accommodate scheduling of the witnesses.