COURT FILE NO.: 14553/17

DATE: 20181106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Dusan Bijelic, Pasqualino Flammia, William Martin & Roberto Medeiros Clementino

Applicants

Kester Yeh and Chris Walsh, for the Respondent (Crown)

Nicole Rozier, for the Applicant Flammia Ferishta Saboor, for the Applicant Bijelic

HEARD: September 10, 11, 12, 17, 2018

Reasons for Decision: Application Seeking Declaration that Search Warrants Invalid

Sections 8 and 24(2) of the Charter

Justice S. J. Woodley

OVERVIEW

[1] In September 2015, the Durham Regional Police Service (DRPS) began an investigation into the trafficking of cocaine, BZP, and marijuana, in the Region of Durham and the Toronto area. The investigation was named “Project Neebing”.

[2] As a result of this investigation, Pasqualino Flammia (Flammia) and Dusan Bijelic (Bijelic) (the Applicants) are charged with two others on a twenty-three count indictment alleging that they committed multiple offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (C.C.).

[3] Central to the case against the Applicants is the validity of three judicial authorizations issued on February 10, 2016, February 22, 2016 and February 29, 2016.

[4] The Applicants challenge the three judicial authorizations, arguing that the affiant was not full, frank and fair and that each authorization lacked reasonable grounds to issue. The Applicants seek to exclude from their trial the evidence discovered as a result of execution of the authorizations.

[5] As a preliminary matter, the Applicants sought an order permitting cross-examination of Detective Constable (DC) Naccarato of the DRPS with respect to the affidavits sworn by him to obtain the warrants. In Reasons for Decision delivered September 13, 2018, as R. v. Bijelic, Flammia, et al, 2018 ONSC 5371, I denied leave to cross-examine.

[6] The Applicants seek the remaining relief:

1. A Declaration that the general warrant, and in particular the tracking warrant relating to the black Nissan Altima with license plate BYLC 877, issued on February 10, 2016 by Richards J. should not have issued, and having issued, the conduct carried out by the DRPS was in violation of the Applicants’ rights as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms (Charter);

2. A Declaration that the general warrant issued on February 22, 2016 by De Filippis J. for covert entry into the black Nissan Altima with licence plate BYLC 877, and for covert entry into the building located at 10 Hill Heights Road, Toronto, should not have issued, and having issued, the conduct carried out by the DRPS was in violation of the Applicants’ rights as guaranteed by s. 8 of the Charter;

3. A Declaration that the general warrant issued by De Filippis J. on February 29, 2016 be excised such that the objectionable information is removed from the said general warrant, rendering no remaining basis upon which the general warrant of that date would issue; and

4. An Order under s. 24(2) of the Charter excluding all evidence, both real and conscripted, direct and/or derivative, and seized and/or generated, pursuant to the violation of their rights as guaranteed against unreasonable search and seizure.

[7] These Reasons for Decision are restricted to the remaining relief sought by the Applicants.

ISSUES

[8] The issues are as follows:

1. Should any information be excised from the Informations to Obtain (ITOs) sworn in support of the tracking warrant dated February 10, 2016, the general warrant dated February 22, 2016, or the general warrant dated February 29, 2016?

2. Did the affiant provide full, fair and frank disclosure?

3. Should the tracking warrant dated February 10, 2016 have issued?

4. Should the general warrant dated February 22, 2016 have issued?

5. Should the general warrant dated February 29, 2016 have issued?

6. Were the Applicants’ s. 8 Charter rights breached? If so, should any or all of the evidence be excluded under s. 24(2) of the Charter?

FACTS

Overview of the Investigation

[9] In September 2015, members of the Drug Enforcement Unit initiated a drug investigation into Storm Henry (Henry) after receiving information from a confidential human source (CI). As a result of the information given to investigators, an undercover officer (DC Smith) was able to purchase cocaine from Henry on seven separate occasions and MDMA on two separate occasions from November 2015 to January 7, 2016.

[10] Surveillance coupled with information from DC Smith led the investigators to believe that Henry was purchasing cocaine from an unidentified male or males occupying and/or driving a black Nissan Altima in the area of The Queensway and Islington in Toronto.

[11] Further investigation including surveillance of Henry led police to believe that Henry’s suppliers were Flammia and Bijelic.

[12] Surveillance and other investigative techniques were used to identify multiple individuals who are alleged to be associated to Flammia and Bijelic. Two of these individuals are William Martin and Roberto Medeiros-Clementino.

[13] During the investigation, DRPS identified two vehicles associated with Bijelic and Flammia. The first vehicle is a 2005 black Nissan Altima with license plate number BYLC 877 (Nissan Altima). The second vehicle is a black Lexus with license plate number BYSC 761 (Lexus).

[14] The police also identified several residences associated with Flammia and Bijelic. The first two residences are condominium buildings located at 2200 Lakeshore Boulevard, Toronto (2200 Lakeshore) and 5 Valhalla Inn Road, Toronto (5 Valhalla Inn). The second two residences are apartment units located at 10 Hill Heights Road, Toronto (10 Hill Heights) with one unit being an un-numbered basement apartment and the other unit being apartment number 203.

[15] Throughout Project Neebing, numerous investigative techniques were used, including several general warrants, tracking warrants, production orders, transmission data recorder warrants, and two intercepted private communication authorizations.

The Warrants

[16] The current application challenges the validity of the three following warrants issued:

1. The February 10, 2016 tracking warrant that grants authority to track the location and movement of the Nissan Altima for 60 days;

2. The February 22, 2016 general warrant that grants authority to:

   i. Covertly enter the Nissan Altima;

   ii. Covertly enter the common area of 10 Hill Heights;

   iii. Obtain documents from 2200 Lakeshore for (a) all fob records pertaining to the entry and activity associated to Bijelic and/or Flammia between Feb. 16­­­­­ – 18, 2016; (b) surveillance video involving Bijelic and/or Flammia pertaining to the entry and activity between Feb. 16 – 18, 2016; and (c) all owner/tenant information related to the suite(s) identified to be associated with Bijelic and/or Flammia;

   iv. Obtain documents from 5 Valhalla Inn for (a) all fob records pertaining to the entry and activity associated to Bijelic and/or Flammia dated Feb. 16, 2016 from 4:00 p.m. – 4:45 p.m. Eastern Time; (b) surveillance video involving Bijelic and/or Flammia pertaining to the entry and activity between Feb. 16, 2016 from 4:00 p.m. – 4:45 p.m. Eastern Time; and (c) all owner/tenant information related to the suite(s) identified to be associated with Bijelic and/or Flammia; and

   v. Track the location and movement of the Lexus.

The duration of the general warrant was 60 days.

3. The February 29, 2016 general warrant that grants authority to:

   i. Covertly enter into the basement unit at 10 Hill Heights; and

   ii. Covertly enter into the Lexus.

The duration of the general warrant was 60 days.

[17] DC Naccarato of the DRPS is the affiant on all of the above mentioned authorizations.

Chronology of Events

Details of ITO Sworn February 10, 2016

[18] With respect to issuance of the February 10, 2016 tracking warrant for the Nissan Altima, as a result of the investigation, undercover police work, and surveillance, DC Naccarato became aware of information that appeared to link drug trafficking to the owner/occupier of the Nissan Altima. The facts relied upon by DC Naccarato to obtain the tracking warrant are contained in his affidavit at paras. 23 – 33 and are as follows:

Undercover Sales to Storm Henry

1. November 6, 2015 was the date of the first undercover (UC) traffic between Henry and DC Smith. On this date, Henry sold 1.18 g of MDMA to DC Smith for $60.00.

2. November 12, 2015 was the date of the second UC traffic between Henry and DC Smith. On this date, Henry sold 3.35 g of cocaine to DC Smith for $240.00.

3. November 19, 2015 was the date of the third UC traffic between Henry and DC Smith. On this date, Henry sold 3.66 g of cocaine to DC Smith for $240.00.

Information that Dealer was a White Siberian Guy from Toronto

4. November 25, 2015 was the fourth UC traffic between Henry and DC Smith. On this date, Henry sold 7.3 g of cocaine to DC Smith for $410.00. During this meeting, Henry told DC Smith that “he is getting his cocaine from a white Siberian guy from Toronto, who get his cocaine straight from Russians and it is pure”.

5. December 3, 2015 was the fifth UC traffic between Henry and DC Smith. On this date, Henry sold 7.6 g of cocaine to DC Smith for $420.00. During this meeting, Henry told DC Smith that he was going into Toronto to go see “fire” (high quality cocaine). Henry then attended a hemp store, gentlemen’s club, and restaurant in downtown Toronto after meeting with DC Smith. Henry was with two other males during these visits. Henry was not observed meeting with anyone else.

Information Regarding Henry’s Cocaine Purchases from his Dealer

6. December 17, 2015 was the sixth UC traffic between Henry and DC Smith. On this date, Henry sold 2 ounces of cocaine to DC Smith for $3000.00. During this meeting, Henry told DC Smith that when he purchases a kilogram or ½ kilogram of cocaine, he brings extra people and carries a “strap”.

7. December 31, 2015 was the seventh UC traffic between Henry and DC Smith. Henry sold 29 g of MDMA to DC Smith for $750.00.

The Informational Link to the Nissan Altima

8. On January 6, 2016, surveillance was conducted on Henry. At 1:55 p.m., Henry and an unknown passenger were observed attending the Kelsey’s restaurant, located at 1011 The Queensway, in his Mustang. At 3:47 p.m., Henry parked trunk to trunk with the Nissan Altima at the north side of the Cineplex movie theatre parking lot. Henry was observed entering the Nissan Altima. The driver of the Nissan Altima exited the vehicle and opened the trunk. This male then closed the trunk and returned back to the driver’s seat. Officers did not observe what was taken out of the trunk.

9. At 3:52 p.m., Henry exited the rear passenger side of the Nissan Altima with a rectangular package in his hand the size of a box of golf balls inside a plastic bag. Henry placed this bag inside his trunk and both vehicles separated. The two occupants of the Nissan Altima were described as Eastern European decent, such as Polish or Russian. The passenger of the Nissan Altima had a chinstrap beard.

Further Undercover Buys from Henry

10. January 7, 2016 was the eighth UC traffic between Henry and DC Smith. Henry sold 3 ½ ounces of cocaine to DC Smith for $6000.00. Later on, police found out that it was 10 g short. Henry and DC Smith agreed to meet the next day.

11. January 8, 2016 was the ninth and final UC traffic between Henry and DC Smith. Henry gave 5 g of cocaine to DC Smith.

Further Contact with the Nissan Altima

12. On February 2, 2016, there was a second meet observed through police surveillance between Henry and the Nissan Altima. At 10:01 p.m., Henry entered an orange Kia. At 11:06 p.m., Henry and the unknown driver of the Kia attended the Tim Hortons, located at 152 Park Lawn Road, Toronto.

13. At 11:13 p.m., the Nissan Altima pulled into the Tim Hortons parking lot and parked directly beside the orange Kia Henry was in. An unknown male exited the Nissan Altima with a small square package in his hands and entered the rear seat of the Kia.

14. At 12:02 a.m., this same male exited the rear of the Kia with nothing in his hands and returned to the Nissan Altima. This male was described as having a shaved head and a thin beard.

[19] The tracking warrant was issued on the basis of the information contained in the ITO sworn February 10, 2016, including the information noted above.

Details of ITO Sworn February 22, 2016

[20] DC Naccarato further swore an ITO on February 22, 2016 for a general warrant.

[21] This ITO is 24 pages in length and contains information that was personally known to the affiant obtained through investigation, surveillance, review of officers’ notes, information data base searches, as well as information obtained from other sources, including a CI and discussions and interviews with fellow identified officers.

[22] The information contained in the February 22, 2016 ITO, at paras. 21 – 24 of the affidavit, is identical to the information summarized at para. 18 above.

[23] Additionally, at paras. 25 – 29 and 35 of the affidavit, the affiant added the following additional information:

1. On February 3, 2016, DC Davies conducted checks on the Nissan Altima. These checks showed that D.W. was the registered owner of the vehicle. A DRPS local check on D.W. showed that D.W. and a male with an Eastern European name, Dusan Bijelic, were in a previous relationship.

2. On February 16, 2016, there was further surveillance conducted that recorded a third meet between Henry and Flammia.

3. At 1:50 p.m., Henry’s Mustang was located near the Milestones at Islington Avenue and The Queensway in Toronto. The Nissan Altima arrived and a passenger was dropped off near the Mustang.

4. At 2:01 p.m., the Nissan Altima went to 10 Hill Heights, and parked at the rear of the building.

5. At 3:00 p.m., Flammia went into the trunk of the Nissan Altima, then drove back to the same Milestones at 3:04 p.m. At 3:04 p.m., Bijelic and Isenor exited the Milestones with Henry and an unknown male. Isenor and Bijelic entered a BMW BXXP 839. Henry and the unknown male entered Henry’s Mustang.

6. At 3:09 p.m., Flammia parked the Nissan Altima next to Henry’s Mustang. Bijelic exited the BMW and walked over to the driver’s side of the Mustang. Bijelic spoke to Henry who was seated in the Mustang. Flammia exited the Nissan Altima, took a white bag out of its trunk and placed it into the trunk of Henry’s Mustang. Flammia joined the conversation with Bijelic and Henry. All three then shook hands prior to separating.

7. After the meet with Henry at 3:09 p.m., the Nissan Altima attended 10 Hill Heights, with Bijelic and Flammia in it. At 4:00 p.m., Bijelic and Flammia left in the Nissan Altima and arrived at 5 Valhalla Inn at 4:13 p.m. At 4:35 p.m., both left and went back to 10 Hill Heights. At 5:17 p.m., Flammia drove Bijelic in the Nissan Altima to a condo at 2200 Lakeshore. At 5:30 p.m., Bijelic exited the Nissan Altima and entered 2200 Lakeshore and Flammia returned to 10 Hill Heights. Flammia left the address shortly after with a female in the Nissan Altima, but was misplaced.

8. At 6:50 p.m., Bijelic’s Lexus was located at the rear of 10 Hill Heights.

9. At 7:44 p.m., the Nissan Altima returned to 10 Hill Heights. Ten minutes later, Flammia left with the female and drove to the parking lot located at Islington Avenue and The Queensway.

10. At approximately 8:30 p.m., Flammia drove to the Sobeys on The Queensway. Flammia, the female and Labarge exited the Sobeys and drove to 10 Hill Heights, arriving at 8:59 p.m.

11. At 9:05 p.m., Flammia walked to the trunk of the Nissan Altima and placed a white bag into it. Flammia and Labarge then drove to 2200 Lakeshore, parked in the underground and walked into the condo at 9:11 p.m.

12. At 9:15 p.m., Flammia walked to the trunk of the Nissan Altima and placed a yellow bag into the trunk. Flammia and Labarge then drove in the Nissan Altima to the above ground parking lot. At this time the officers observe Flammia and Labarge at the trunk of the Nissan Altima with its trunk open. A Mazda was parked beside it and had its trunk open too. No exchange was observed.

13. At 9:32 p.m., they then went to the Metro grocery store, which is located in the same parking lot as 2200 Lakeshore.

14. At 9:45 p.m., Flammia and Labarge went back to the Nissan Altima and drove back to the underground parking. The Nissan Altima was located in spot number C122.

15. At 10:06 p.m., Flammia retrieved the yellow bag from the trunk of the Nissan Altima and both walked to the condo entrance.

16. At 10:59 p.m., Flammia and Labarge returned to the Nissan Altima. Flammia placed a mustard coloured gift bag in the trunk.

17. At 11:03 p.m., Bijelic entered the rear of the Nissan Altima and all three drove to 10 Hill Heights. All three attended the area of the trunk of the Nissan Altima where it was opened. They then closed the trunk and walked toward 10 Hill Heights.

Identification of Bijelic

18. On February 17, 2016, Bijelic was identified. The affiant reviewed the report by DC Davies and noted that Bijelic and D.W. were in a prior relationship in 2010. The affiant conducted further checks on a DRPS local check and Ministry of Transportation check on Bijelic with a date of birth of 1990-02-24 and found as follows:

    i. Bijelic has an address of 410 Maybank Avenue, Toronto.

    ii. Bijelic has no criminal convictions.

    iii. Bijelic is associated to Pasqualino Flammia (1992-08-15).

    iv. Bijelic has a photograph with the Ministry of Transportation. The affiant reviewed this photograph and compared it with the surveillance video when Bijelic met with Henry on February 16, 2016 and identified him to be the same person.

Identification of Flammia

19. The affiant conducted a Ministry of Transportation, CPIC and DRPS local checks on Flammia with the date of birth of 1992-08-15 and found as follows:

    i. Flammia has an address on CPIC of 225 Main Street North, Uxbridge.

    ii. Flammia does not have any criminal convictions.

    iii. Flammia has an address of 23 Clyde Road, Toronto on DRPS local system.

    iv. Flammia has a photograph with the Ministry of Transportation. The affiant reviewed this photograph and compared it with the surveillance video from February 16, 2016 and believe it is the male driving the Nissan Altima.

20. There was also an anonymous tip received in January 2016 that advised the police that Pat Flammia is selling drugs for Dusan Bijelic in the Uxbridge and Port Perry area. Pat delivers for Bijelic and drives him around collecting debt.

21. On February 17, 2016, there was further surveillance conducted of Bijelic and Flammia that revealed as follows:

    i. At 5:22 p.m., Bijelic arrived at 10 Hill Heights in the Lexus with Labarge as a passenger. Flammia arrived in the Nissan Altima. Bijelic removed a large black bag from the Lexus and went into 10 Hill Heights with Flammia and Labarge.

    ii. At 9:03 p.m., Flammia and Labarge attended at McDonald’s restaurant in Belleville. Flammia went to the back seat of the Nissan Altima, took a bag from the rear seat and went into McDonald’s. Shortly after, Flammia exited the McDonald’s without the bag and Labarge. Labarge was located inside the McDonald’s with a bag in his hands.

[24] On February 20, 2016, a tracking device was installed on the Nissan Altima.

[25] A general warrant was issued based on the information contained in the February 22, 2016 ITO and on February 25, 2016 a tracking device was installed on the Lexus.

Details of ITO Sworn February 29, 2016

[26] On February 29, 2016, DC Naccarato swore a further affidavit in support of a further general warrant.

[27] At paras. 19 – 27 and 33 of his affidavit, DC Naccarato disclosed the same information summarized above at paras. 18 and 23. At paras. 34 – 35 of his affidavit, he added the following information:

1. On February 22, 2016, there was further surveillance of Bijelic and Flammia. At 8:15 p.m., Bijelic and Isenor arrived at 2200 Lakeshore.

2. At 9:05 p.m., Flammia exited an apartment located in the basement of 10 Hill Heights, on the north side, first apartment west of the lobby stairs with a reusable grocery bag. This apartment is not numbered.

3. At 9:12 p.m., Flammia met with a Mercedes Benz in the parking lot and at 9:14 p.m., Flammia separated from this Mercedes Benz and entered the Lexus with a bag. Flammia left in the Lexus but was not followed.

4. At 9:40 p.m., Flammia exited the same basement apartment, located at 10 Hill Heights and went to the trunk of the Nissan Altima for a short period of time before leaving in the Lexus.

5. At 10:11 p.m., Flammia and Labarge arrived in the underground parking, located at 2200 Lakeshore. Flammia retrieved a bag from the back seat, walked away from the Lexus in the underground and entered condo unit 3710 at 10:11 p.m.

6. At 10:17 p.m., Flammia exited unit 3710 and at 10:21 p.m., he was observed walking back to the Lexus and attended the trunk. At 10:30 p.m., Flammia returned back into the building and entered unit 3710.

7. At 10:41 p.m., Flammia exited unit 3710 of 2200 Lakeshore with a weighted down green bag. Bijelic was observed at the door way when Flammia left. At 10:43 p.m., Flammia entered the Lexus and left the area.

8. At 10:53 p.m., Flammia arrived at 10 Hill Heights and entered the same basement apartment with a black bag and shoulder bag. One minute later, he exited with no bags.

9. At 11:13 p.m., Flammia returned to the same basement apartment and entered with two reusable grocery bags, using a key. One minute later, Flammia exited the apartment with the bags in his hands and attended the end of the hallway on the basement floor and came back to the unit with a bag. He then entered the same apartment unit for one minute then left again with no bag.

10. At 11:19 p.m., Bijelic exited the front doors of 2200 Lakeshore and entered a Mercedes BTZJ 259. Approximately one minute later, Bijelic exited the Mercedes and returned to 2200 Lakeshore.

11. At 11:35 p.m., Flammia came back to 2200 Lakeshore in the Lexus. Shortly after that, he was misplaced and not followed.

12. At 12:34 a.m., Flammia was observed again attending 2200 Lakeshore in the Lexus. Bijelic and Labarge exited the building, placed an item into the trunk then entered the Lexus.

13. At 1:51 a.m., Flammia, Bijelic and Labarge attended 10 Hill Heights and at 1:54 a.m., Flammia and Labarge left 10 Hill Heights in the Lexus.

14. On February 23, 2016, there was further surveillance of Bijelic and Flammia.

15. At 5:16 p.m., Flammia, Bijelic and an unidentified male exited 10 Hill Heights and left in the Lexus. At 5:22 p.m., all three attended 2200 Lakeshore. Bijelic exited the Lexus and entered into a white Jeep BVCZ 249. Flammia left with the unidentified male in the Lexus and was misplaced shortly after.

16. At 8:11 p.m., Flammia returned to 10 Hill Heights. He entered the building, attended the second or third floor for a brief period of time before coming back down and letting Bijelic and an unidentified male in. All three then entered the same un-numbered basement apartment.

17. At 8:19 p.m., Flammia exited the basement apartment and left in the Lexus. He attended the Montana’s parking lot located at Islington Avenue and The Queensway.

18. At 8:46 p.m., Flammia met with Labarge in the Lexus for one minute before Labarge left and walked towards the Montana’s restaurant. Flammia sat in his vehicle for approximately one hour before Labarge returned to the Lexus.

19. At 10:13 p.m., Flammia was followed to 10 Hill Heights where he entered the same basement apartment. At 10:16 p.m., Flammia exited the basement apartment and left in the Lexus.

20. At 10:42 p.m., Bijelic and the unidentified male exited the same basement apartment and left.

Position of the Parties

[28] The Applicants challenge the validity of the three warrants and argue:

1. information should be excised from each of the ITOs sworn in support of the warrants – and following excision the warrants could not issue;

2. the affiant was not full, frank and fair and the warrants should be quashed for failure to comply with his duties in seeking an ex-parte order;

3. the February 10, 2016 tracking warrant should not have issued;

4. the February 22, 2016 general warrant should not have issued;

5. the February 29, 2016 general warrant should not have issued; and

6. the searches were in breach of the Applicants’ s. 8 Charter rights and the evidence should be excluded pursuant to s. 24(2) of the Charter.

[29] The Respondent Crown submits that the application should be dismissed for the following reasons:

1. the affiant made no misrepresentations, errors, or omissions. There is nothing to excise from the warrants. There were reasonable grounds to issue each of them;

2. the February 10, 2016 tracking warrant required only reasonable suspicion, which was clearly established by the evidence stated in the supporting affidavit, including Henry’s description of the supplier and two apparently confirmatory transactions/exchanges involving the Nissan Altima;

3. the February 22, 2016 general warrant was clearly justified by the evidence stated in the supporting affidavit, including the surveillance evidence tying Bijelic and Flammia to apparent drug deals to the location authorized;

4. the February 29, 2016 general warrant was clearly justified by the evidence stated in the supporting affidavit, including the surveillance evidence tying Bijelic and Flammia to apparent drug deals to the location authorized; and

5. there is no merit to the application and it should be dismissed.

THE LAW

Standard of Review

[30] Warrants are presumptively valid court orders. The tracking warrant and the two general warrants in this case were issued by judges of the Ontario Court of Justice.

[31] The law relating to the standard to be applied by a reviewing judge is well established.

[32] The proper standard of review is: based on the record before the authorizing judge, as amplified by the record before the reviewing judge, could the authorizing judge have granted the authorization.

[33] The reviewing judge does not conduct a de novo hearing nor substitute her view for that of the authorizing judge. The law is clear that the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there was no basis for the authorization: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at paras. 67 – 68.

Onus for Challenge

[34] The onus is upon the Applicants to demonstrate that the warrants (which are presumptively valid court orders) should not have been issued. The Applicants may do this by challenging the warrant’s facial or sub-facial validity.

Facial and Sub-facial Challenges

[35] A facial challenge asks whether the contents of the affidavit could support an authorization. A sub-facial challenge attacks the underlying reliability of the contents of the affidavit.

[36] After excising false, misleading, or erroneous information and amplifying the record with any material omissions, the reviewing justice should review the ITO in its entirety to determine whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54.

[37] The question according to the Supreme Court of Canada as noted in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, is whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[38] In conducting the within application, it must be remembered that the hearing is not a trial. It is an application in relation to the admissibility of evidence. As a result, it is not intended to test the merits of any of the allegations in respect of the offences. The truth of the allegations is to be tested at the trial proper: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. This is an important distinction.

Standards to Be Applied for Warrants to Issue

[39] With respect to the tracking warrant, the affidavits are required to provide reasonable grounds to suspect that the searches as authorized by the warrant may assist the investigation into the offences specified; this is a lower standard than reasonable grounds to believe: see R. v. Sadikov, 2014 ONCA 72, 300 C.R.R. (2d) 308, at para. 81.

[40] The term reasonable suspicion has been interpreted by the Supreme Court in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75 as follows: “suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. To justify a search the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

[41] With respect to the general warrants, the affidavits need not disclose reasonable and probable grounds to charge the Applicant with any of the named offences. It is sufficient if the affidavits provide reasonable grounds to believe that the searches as authorized by the warrants may assist the investigation into the offences specified: see R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, leave to appeal to SCC refused, [2010] S.C.C.A. No. 84, at para. 33.

[42] The affidavit must disclose more than suspicious conduct: see Morelli, at paras. 94 – 95. There must be more than a hope that the searches might disclose some possible future offence: see R. v. Lee, 2001 BCSC 1649, 2001 CarswellBC 3334, at para. 74.

[43] As stated in R. v. Grant (1998), 1998 CanLII 17678 (MB CA), 131 Man. R. (2d) 36 (Man. C.A.), at paras. 26 – 27, authorizations cannot be used to uncover evidence of unknown crimes or to prevent criminal activity in the future.

[44] The police cannot use authorizations to engage in a fishing expedition in relation to hypothetical or imaginative offences. However, when the police are applying for an authorization, they are still in the investigatory stage. It is therefore unrealistic to expect great particularity: see R. v. Della Penna, 2012 BCCA 3, 251 C.R.R. (2d) 183, at para. 25.

[45] The authorization may only be set aside if the reviewing judge concludes that there was no basis for the issuing justice to authorize a warrant.

Issue #1: Excision - Should information be excised from the ITOs?

[46] The Applicants seek to excise certain information from the ITOs sworn to obtain the February 10, 2016 tracking warrant, and the February 22, 2016 and February 29, 2016 general warrants.

[47] In particular, the Applicants seek to excise opinion evidence and comments, boilerplate language, anonymous source information, and other information claimed by the Applicants to be erroneous, misstatements, and/or misleading.

[48] The Crown submits that there was no erroneous information in any of the authorizations, no misstatements or misleading information and no other information capable of excision.

The Law Regarding Excision

[49] The law dictates that a review judge can only excise erroneous information. In Ebanks, MacPherson J.A. writing for the court stated the following, at para. 28:

It is settled law that a reviewing judge must exclude erroneous information from an affidavit supporting a wiretap authorization: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 56-58. However, there is no authority for a reviewing judge to exclude correct information. Instead, the proper approach is for the reviewing judge, after excluding the erroneous information, to assess the affidavit as a whole to see whether there remains a basis for the authorization in the totality of the circumstances: see Garofoli at p. 1454, Araujo at paras. 54-60, and Pires and Lising at para. 30.

[50] The same point was emphasized again in Sadikov, where Watt J.A. writing for the court stated the following, at para. 86:

Warrant review is an integral part – a first step – in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored: Ebanks, at para. 21. In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts the information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.

[51] With respect to the use of opinion information contained in an affidavit, it is to be noted that the existence of reasonable grounds has both subjective and objective components. The subjective component will be satisfied where the police officer honestly believes the suspect has committed an offence and that evidence of the offence will be found at the place proposed to be searched. Relative to the objective component, the question becomes whether the officer’s opinion is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that reasonable grounds existed. If the opinion of the officer is not supported by the facts then it is erroneous and may be excised.

[52] As for the objection relating to the use of “boilerplate language”, in Araujo, the Supreme Court held, at para. 47, that corollary to the requirement that an affidavit be full and frank is that it should never attempt to trick its readers. The court opined that boilerplate language at best adds extra verbiage and seldom anything of meaning and at worst it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although use of boilerplate language will not automatically prevent a judge from issuing an authorization, the court held that judges should deplore it.

Excision: Analysis and Review

[53] To aid with the review of the ITOs – I have noted the specific paragraph or item sought to be excised by the Applicants and have provided my analysis and decision regarding the excision request beside the specific paragraph or item sought to be excised.

The February 10, 2016 ITO

[54] Turning first to the affidavit sworn February 10, 2016, the Applicants seek excision of the following information found at:

1. Page 12 (italics): this opinion is based on objective facts obtained from uncover police work coupled with work experience. There is no basis for excision.

2. Page 15 (italics): this opinion is based on objective facts from uncover police work and surveillance coupled with work experience. There is no basis for excision.

3. Page 16 (italics): this opinion is based on objective facts from uncover police work and surveillance coupled with work experience. There is no basis for excision.

4. Page 26 (para. 85): this opinion which is stated as a conclusory statement is based on objective facts from uncover police work and surveillance coupled with work experience. The inference suggested by the officer is reasonable and the authorizing justice had more than sufficient information to make an independent determination regardless of the officer’s opinion. There is no basis for excision.

5. Boilerplate language at p. 21 (paras. 56 – 66): this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary. There is nothing objectionable contained in the paragraphs. There is no basis for excision.

[55] All opinion evidence proffered by the officer was based on objective facts which had been obtained through “old fashioned” police work — which in this case included uncover police work, investigation, informational searches, and surveillance. The information is reliable and the inferences suggested by the police officer are reasonable.

[56] As for the “boilerplate language”, this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary.

The February 22, 2016 ITO

[57] Turning next to the affidavit sworn February 22, 2016, the Applicants seek excision of the following information found at:

1. Page 6 (para. 18): the information is based on objective facts obtained from surveillance, uncover police work coupled with work experience of the officers involved. There is no basis for excision.

2. Page 7 (para. 22): the information is based on objective facts obtained from uncover police work and in the circumstances may be deemed to be reliable. There is no basis for excision.

3. Page 8 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

4. Page 9 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

5. Pages 12 and 13 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

6. Page 15 (italics) and paras. 29 and 29a: the information is based on a tip from a CI; the officer pointedly says he cannot attest to their credibility. The information provided by the tip seems to be inconsistent with the information that the Applicants are alleged to be selling drugs in the Toronto area. Inclusion of the inconsistent information is part of the full, frank and fair disclosure required of the affiant. Although I would not excise the information as I have no reason to believe that it is erroneous — if it were excised, the excision would in no way affect the strength of the information contained in the affidavit.

7. Page 16 (italics): this information is based on information received from the Kingston Police Service and is not otherwise corroborated. The information does not provide any grounds and, as noted by the officer, is included as part of his obligation to provide full, frank and fair disclosure. There is no evidence that the information is incorrect — and in any event excision would not affect the strength of the information contained in the affidavit.

8. Page 18 (italics): this information is based on surveillance and work experience. There are objective facts to support the opinion. There is no basis for excision.

9. Boilerplate language: pp. 19 – 20 (paras. 36 – 46): this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary. There is nothing objectionable contained in the impugned paragraphs. There is no basis for excision.

[58] As with the February 10, 2016 affidavit, the opinion evidence proffered by the officer was based on objective facts which had been obtained through “old fashioned” police work — which in this case included uncover police work, investigation, informational searches, and surveillance. The information is reliable and the inferences suggested by the police officer are reasonable.

[59] As for the “boilerplate language” — again — this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary.

The February 29, 2016 ITO

[60] Lastly, turning to the affidavit sworn February 29, 2016, the Applicants seek excision of the following information found at:

1. Page 6 (para. 16): the information is based on objective facts obtained from surveillance and uncover police work. There is no basis for excision.

2. Page 7 (para. 20): the information is based on objective facts obtained from uncover police work and in the circumstances may be deemed to be reliable. There is no basis for excision.

3. Page 8 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

4. Page 9 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

5. Pages 12 and 13 (italics): the information is based on objective facts obtained from surveillance, undercover police work coupled with work experience. The inferences drawn are objectively reasonable. There is no basis for excision.

6. Page 15 (italics) and paras. 27 and 27a: the information is based on a tip from a CI; the officer pointedly says he cannot attest to their credibility. The information provided by the tip seems to be inconsistent with the information that the Applicants are alleged to be selling drugs in the Toronto area. Inclusion of the inconsistent information is part of the full, frank and fair disclosure required of the affiant. Although I would not excise the information as I have no reason to believe that it is erroneous — if it were excised, the excision would in no way affect the strength of the information contained in the affidavit.

7. Page 16 (italics): this information is based on information received from the Kingston Police Service and is not otherwise corroborated. The information does not provide any grounds and as noted by the officer is included as part of his obligation to provide full, frank and fair disclosure. There is no evidence that the information is incorrect — and in any event excision would not affect the strength of the information contained in the affidavit.

8. Page 18 and 19 (italics): this information is based on surveillance and work experience. There are objective facts to support the opinion. There is no basis for excision.

9. Page 21 (italics): this information is based on surveillance, information obtained from uncover police work and work experience. There are objective facts to support the opinion. The inferences drawn by the officer are objectively reasonable. There is no basis for excision.

10. All information obtained as a result of the February 22, 2016 general warrant including pp. 21 – 22 (para. 35): for reasons provided herein I find that the February 22, 2016 general warrant was validly issued. The information provided by para. 35 is based on surveillance obtained in furtherance of a valid warrant. The information is objective and reliable. There is no indication that it is erroneous or misleading. There is no basis for excision.

11. Page 22 (italics): this information is based on surveillance and work experience. There are objective facts to support the opinion. There is no basis for excision.

12. Boilerplate language: pp. 24 – 25 (paras. 45 – 55): this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary. There is nothing objectionable contained in the impugned paragraphs. There is no basis for excision.

[61] As with the February 10, 2016 and the February 22, 2016 affidavit, the opinion evidence proffered by the officer was based on objective facts which had been obtained through “old fashioned” police work — which in this case included uncover police work, investigation, informational searches, and surveillance. The information is reliable and the inferences suggested by the police officer are reasonable.

[62] As for the “boilerplate language” — again — this information was used to describe the investigative plan for covert entry into the vehicle. The language utilized was concise, informative and necessary.

[63] As a result of my review — I find that there is nothing to excise from the information contained in the affidavits of the affiant sworn February 10, 2016, February 22, 2016 and February 29, 2016.

Issue #2: Full, Frank and Fair Disclosure - “The Omissions”

[64] The Applicants submit that the affiant withheld information about trips Henry made to Toronto that did not involve a meeting with Bijelic, Flammia or the Nissan Altima. The Applicants also reference a trip to a strip bar outside of Toronto. The Applicants submit that these facts should be viewed as material facts that should have been disclosed to the authorizing justices.

[65] The Crown submits that the information that the affiant provided was full, frank and fair — in addition to being clear and concise. The Crown submits that the information alleged to have been omitted from the affidavit by the affiant was immaterial and was excluded in furtherance of the affiant’s duty. The Crown submits that all material facts were disclosed to the authorizing justices as per the affiant’s duty.

The Law Regarding Full, Frank and Fair Disclosure

[66] The duty of an affiant in an ex parte application is not only to be full, frank and fair, but also to be clear and concise.

[67] This duty was clearly delineated by the Ontario Court of Appeal in Ebanks, at para. 43, as follows:

In preparing an affidavit, an affiant should be not only full and frank but also “clear and concise”: see Araujo, at para. 46. While the trial judge acknowledged this requirement, he ignored its effect when inferring from the omissions that they were committed intentionally. The affiant must exercise some judgment in deciding what should and should not be included in a good and effective affidavit. This must admit of some discretion on the affiant’s part.

[68] In certain circumstances, courts have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds to issue, where non-disclosure was for some improper motive or to mislead the issuing judicial officer.

[69] Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal to SCC refused, [2010] S.C.C.A. No. 371, at para 40.

[70] The conduct necessary to engage this discretion is “so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed”: R. v. Vivar, 2009 ONCA 433, at para 2.

Full, Frank and Fair: Analysis and Review

[71] In the present case, the affiant acknowledged the following in each of his affidavits:

I understand this is an ex parte application and I am obligated to provide full, frank and fair disclosure of all available information in seeking this warrant. I have fulfilled this obligation by including all relevant material that relates to this investigation and which is necessary to establish, or detract from, the grounds for the issuance of the requested order. I have not, however, included every single detail of the investigation which does not impact the information relied upon to seek the order requested.

In the interest of producing a clear and concise affidavit, I have summarized the relevant material which, I believe relates to this investigation and its necessary to establish, or detract from, the grounds of the issuance of the requested order, while at the same time providing full, fair and frank disclosure.

[72] As noted by my Reasons for Decision in R. v. Bijelic, Flammia, et al, 2018 ONSC 5371, at paras. 41 – 43, no basis was presented to show how the information, or lack thereof, would discredit the existence of one of the pre-conditions of the authorization.

[73] With respect to the gentlemen’s club located in Toronto, the affiant noted that Henry went into the club — and was with two other males. The fact that the club was not specifically named is of no consequence.

[74] With respect to the gentlemen’s club located in the vicinity of Islington Avenue and The Queensway — the officer noted Henry’s location. The fact that Henry was in a different gentlemen’s club — that was not identified — is of no consequence and does not diminish or detract from the evidence contained within the four corners of the affidavit.

[75] With respect to Henry’s attendance at a further gentlemen’s club — that is only recorded in the officer’s notes — and is not otherwise included in any of the affidavits — again, the fact that Henry was in yet another and different gentlemen’s club — that was not mentioned or identified — is of no consequence — nor does it diminish or detract from the evidence contained within the four corners of the affidavit.

[76] The Applicants repeated assertions that Henry entered the strip clubs to view or purchase cocaine is simply not supported by the evidence. However, even if I were to accept the Applicants’ inference (which I do not) — this inference does not diminish or detract from the evidence presented by the police officer within the four corners of the ITO nor would the inference tend to discredit the existence of one of the preconditions of the authorizations.

[77] The information, or lack thereof, concerning the gentlemen’s clubs are immaterial and could not undermine any of the authorizations. As noted by Blair J.A. in R. v. Nguyen, 2011 ONCA 465, 237 C.R.R. (2d) 288, at para 51:

The obligation on applicants for a search warrant is not to commit the error of material non-disclosure. “Materiality” is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter: R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event. Here, for the most part, the impugned “omissions of fact” relied upon by the trial judge fall into the latter type of category, or they are simply immaterial, or were not omissions at all.

[78] The affiant properly exercised his discretion in this instance to be full, fair and frank and at the same time clear and concise.

[79] In the circumstances, the Applicants’ objection that the affiant did not provide full, frank and fair disclosure is not supported by the evidence.

Issues #3 - 5: Should the Warrants Have Issued?

The Law – Issuance of General Warrants

[80] Section 487.01(c) of the C.C. restricts general warrants to cases where “there is no other legislation that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.”

[81] As noted by Moldaver J. in R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 80, general warrants are to be used “sparingly” when the investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision. Section 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions”.

[82] The Court of Appeal in R. v. Jodoin, 2018 ONCA 638 and R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751, leave to appeal to SCC refused, [2009] 3 S.C.R. viii (note) specifically considered the proper use of the s. 487 warrant in situations where other warrants, including the s. 11 CDSA warrant, could also issue.

[83] In Jodoin, the court, comprised of Watt, Pardu, and Roberts JJ.A., held as follows, at paras. 12 and 19:

We agree that a warrant to be executed in the future upon the occurrence of a specified contingency is not a procedure contemplated by the conventional search warrant. While a conventional search warrant could have been obtained here, on the basis that there were reasonable grounds to believe that prohibited grounds were likely to be found in the premises, this procedure might not have linked the drugs to the appellant. As noted above, s. 11 of the CDSA provides that where there are reasonable grounds to believe there has been a contravention of the law relating to controlled substances, and that a controlled substance is in a place, a warrant may issue to search that place and size the substance.

We agree that prospective execution of a search, based on a future contingency, together with the simultaneous execution of related searches are not contemplated by a conventional search warrant. The general warrant was properly issued in this case, where the investigative technique proposed was not simply to seize the drugs but to link them to the accused and where there is no issue of evasion of a more stringent statutory regime.

[84] In Ha, the court comprised of Doherty, MacPherson, and MacFarland JJ.A. held, at paras. 41 and 43, as follows:

The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert entries and searches on private property over a two-month period.

The focus in the s. 487.01(1)(c) analysis is not on whether there are other investigative techniques that might accomplish the purported investigative purposes or goals of the police; rather, the focus is on the particular investigative technique or procedure that the police seek to utilize and whether it can be properly be authorized by another provision in the Code or any other federal statute. In this case, the police sought to obtain authorization to conduct an unlimited number of covert entries and searches on private property over a two-month period. Except for s. 487.01 of the Code, there is “no other provision in…any other Act of Parliament” that could potentially accomplish this goal.

[85] In R. v. Christiansen, 2017 ONCA 941, the court found that the general warrant was issued, in substance, for the same investigative technique available under s. 11 of the CDSA, namely to search the unit. The court found that the police could not satisfy the requirements for a search under s. 11 of the CDSA because they did not have reasonable and probable grounds to believe there was evidence at the unit. The court further found that, in effect, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant. The warrant was quashed.

[86] The Applicants rely on Christiansen in support of their assertion that the s. 487.01 general warrant should not have issued and instead the police should have obtained the s. 11 CDSA warrant.

[87] The Crown asserts that Christiansen does not stand for the proposition urged upon the court by the Applicants but rather stands for the proposition that where an ITO fails to satisfy the preconditions for issuance — the warrant cannot issue. The Crown submits that the court in Christiansen found that the ITO provided no basis to enable a reasonable issuing judge to conclude that s. 487.01(c) was satisfied. As this information was absent from the ITO — the warrant could not have issued and was quashed.

[88] The Crown further submits that the s. 487.01 “sneak and peak” warrant is entirely the appropriate warrant in the circumstances of this case where the police sought to make covert entries into the common space of an apartment to determine what apartment was being utilized by the Applicants.

[89] The Crown’s alternative argument is that if the February 22, 2016 general warrant is quashed — the observations of the officers obtained through the use of the general warrant relating to the common area of 10 Hill Heights are not tainted and may be relied upon in furtherance of the February 29, 2016 warrant as no warrant is required for surveillance of common areas: see R. v. Brewster, 2016 ONSC 4133, at para. 124.

Review of the February 10, 2016 Tracking Warrant

[90] The February 10, 2016 tracking warrant grants the authority to track the location and movement of the Nissan Altima for 60 days.

[91] The preconditions of the tracking warrant are:

1. there are reasonable grounds to suspect that an offence has or will be committed; and

2. that the tracking the location or movement of a thing, including a vehicle, will assist in the investigation of the offence.

[92] Section 492.1(1) of the C.C. establishes that the precondition for issuing a tracking warrant is one of “reasonable suspicion”.

[93] The Superior Court of Justice in R. v. Edwards, 2014 ONSC 6323, 322 C.R.R. (2d) 101, noted that the low standard of reasonable suspicion is easily satisfied. The court wrote the following, at paras. 26 – 27:

As can be seen, s. 492.1 filled the gap left by Wise, and did so on the basis of a lower standard than reasonable grounds to believe because of the minimal privacy interest engaged, and with the comfort of the prospective approval of the Supreme Court of Canada of such a lower standard…As a result, I am entirely satisfied that the “reasonable grounds to believe” test has no application to s. 492.1. The justice was entitled to conclude that the unconfirmed tip of a confidential informant was sufficient to satisfy the low test of “reasonable grounds to suspect” at least on the narrow issue of the identification of the cellular telephone numbers used by the target of the warrant.

[94] In Kang-Brown, the Supreme Court explained reasonable suspicion, at para. 75, as follows:

“Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-126]

[I]n Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted “reasonable suspicion” with reasonable grounds of belief (or, what the U.S. lawyers call “probable cause”):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

[95] The information contained in the affidavit sworn by DC Naccarato on February 10, 2016 is summarized above. No information was excised from the affidavits.

[96] Upon review and consideration of the facts contained in the affidavit it is clear that the facts provided to the authorizing justice are sufficient to form reasonable suspicion that drug trafficking has been committed and that the tracking warrant could have been issued.

Review of the General Warrants

The February 22, 2016 General Warrant

[97] On February 22, 2016, the police sought a general warrant pursuant to s. 487.01 of the C.C. to enter the property to conduct physical surveillance located at 10 Hill Heights and for covert entry for the Nissan Altima.

[98] The affiant swore that he believed that the use of the requested warrants and Orders would afford evidence relevant to the investigation of the offences of trafficking a scheduled substance and possession of a scheduled substance.

[99] The affiant swore that the purpose of the general warrant was to enter on the property of 10 Hill Heights without permission from the landlord or property management. The goal was to conduct physical surveillance inside the building including the hallways and other common areas only. The objective was to identify any apartments or storage locations that Bijelic or Flammia were using to assist in identifying any residences or stash apartments that were being used to facilitate their drug network within 10 Hill Heights.

[100] Investigators intended to gain access to the building by following another resident into the building or by using other means that did not cause damage. Investigators would not be identifying themselves as police officers to anyone inside the building including any property management to protect the investigation from being compromised. Investigators were aware that the building is owned by one person and the person lives inside the building. Investigators were aware that there were 34 units in the building and it is possible that other tenants were associated to Flammia and Bijelic as it is a smaller building.

[101] The authorization sought to allow officers to attend inside the building at any time during day or night while Bijelic and/or Flammia or any associated persons identified were inside the building.

[102] The affiant further swore that he believed that issuance of the requested warrants would assist in the investigation and allow investigators to identify Bijelic and Flammia’s drug network.

The February 29, 2016 Warrant

[103] On the February 29, 2016 ITO, the police sought a general warrant for a covert entry to be authorized for a residence located at 10 Hill Heights in the unit located on the basement level on the north side, first apartment west of the lobby stairs with no number. The police also sought covert entry for the Lexus.

[104] The goal was to search for items related to the investigation of the offences listed such as information related to cellular telephone numbers, weigh scales, drug packaging and other drug paraphernalia and currency. If any of the above was located within, investigators sought to examine or sample the item, photograph or videotape the item, and/or place an identifying mark on the item for future positive identification by investigators.

[105] It was the intent of investigators to enter the residence without causing any property damage but if they located a large cache of drugs, money or a weapon, they may choose to cause damage and/or leave the property in a manner which resembles a break and enter or theft, deflecting police involvement. The plan was that the place not be entered more than five times during the term of the order.

Review and Analysis

[106] The preconditions for issuing a general warrant are:

1. there are reasonable and probable grounds to believe that an offence has been or will be committed;

2. information concerning the offence will be obtained through the use of the investigative means authorized in the warrant;

3. the issuance of the warrant is in the best interests of the administration of justice; and

4. no other provision in the Act or other federal legislation provides for a warrant authorizing the investigative means sought to be used.

[107] The Applicants submit that the s. 487.01 warrants should not have issued because other warrants were available and thus a precondition for issuance was not met.

[108] The Applicants argue that Christiansen stands for the proposition that use of the s. 487.01 “sneak and peak” warrant permitting covert entry into premises is impermissible in the present case where a CDSA s. 11 warrant could issue.

[109] I disagree entirely with this submission.

[110] The Court in Christiansen quashed the s. 487.01 warrant as the ITO provided no basis for the issuing judge to reasonably conclude that the warrant could issue. Christiansen does not create new law nor does it conflict with the Court of Appeal’s decisions on this issue in Ha and Jodoin.

[111] It is these two cases (Ha and Jodoin) that are relevant to the present analysis. Both Ha and Jodoin review and analyze the use of the s. 487.01 general warrant in situations where the investigative techniques require covert entries. Both decisions confirm that general warrants are the only warrants available that provide for use of multiple covert entries thus satisfying the precondition found at s. 487.01(c).

[112] The Supreme Court in Telus Communications, at paras. 77, 79 – 82, commented on Ha and warned that there must be a balancing of interests such that the use of the technique for covert entries does not become the hall pass to obtain a s. 487.01 warrant without consideration of the actual substance of the warrant.

[113] The standard of a general warrant is reasonable and probable grounds to believe. The standard of reasonable and probable grounds is one of “credibly-based probability”: see Sadikov, at para. 81.

[114] The Supreme Court of Canada in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 54 stated that the standard of proof for reasonable grounds for a search is one of “reasonable probability” not “prima facie case”.

[115] In Sadikov, Watt J.A. explained the statutory standard as follows, at para. 81:

“[R]easonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para 7. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[116] In the present case, and having applied the test established by Moldaver J. in Telus Communications to ensure that the use of the general warrant was not a means to avoid more stringent requirements, I am of the view that while a conventional search warrant could have been obtained here, the investigators required a warrant that permitted multiple covert entries to the various properties — and this type of technique was only available through the use of a general warrant.

[117] In the present case, the police sought information linking the accused to the property. The warrant that was sought is commonly known as the “sneak and peak”. The investigative technique differs from the s. 11 CDSA warrant and the s. 487 warrant. The police sought further information to tie the premises to the accused. They sought covert entries on numerous occasions to obtain the information. No other warrant provides for this technique. The preconditions for the issuance of the warrant were contained in the ITO and the use of the s. 487.01 warrant was proper in the circumstances of this case.

[118] The February 10, 2016 tracking warrant, February 22, 2016 general warrant and February 29, 2016 general warrant were all properly issued and the resulting evidence is admissible.

Issue #6: Charter s. 8

[119] The Applicants bear the burden to show that their rights under s. 8 of the Charter were violated and that the evidence should consequently be excluded.

[120] In the present case I have concluded that the three warrants were all properly issued and as such there was no breach of the Applicants’ s. 8 Charter rights.

[121] The evidence obtained as a result of the searches conducted pursuant to the warrants is admissible.

Disposition

[122] For the reasons above, the application is dismissed and the trial shall proceed on its merits.

Justice Susan J. Woodley

Released: November 6, 2018