COURT FILE NO.: CRIM J (F) 600/1736/14 DATE: 2018 11 23 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DEXTER GRIFFITH Defendant

COUNSEL: B. Puddington for the Crown M. Rieger for the Defendant

HEARD: November 14, 2018

Ruling on Defence s. 8 and 24(2) Charter Application

THE CHARGE

[1] Mr. Griffith was charged with possession of cocaine for the purpose of trafficking.

THE APPLICATION

[2] The Defence brought a Garofoli Application seeking to cross-examine the affiant of the information to obtain (ITO) dated September 30, 2015 for a search warrant (Search Warrant) for, among other things, the search of Apartment 611, 3 Rowntree Road, Toronto (the Searched Premises).

[3] The Search Warrant was executed on October 6, 2015. Mr. Griffith was arrested.

[4] The Defence also brought an Application to exclude the evidence seized during the search of the Searched Premises alleging a s. 8 Charter breach and relying on 24(2) of the Charter to exclude the seized evidence.

[5] Prior to the hearing of the Garofoli Application, counsel agreed the ITO affiant, Constable Browne, would be cross-examined on certain areas set out in the Application. As a result, it was not necessary for this court to deal with the Garofoli Application.

[6] The issues to be decided are whether there was a breach of Mr. Griffith's s. 8 Charter rights and whether the items seized during the execution of the Search Warrant ought to be excluded under s. 24(2) of the Charter.

THE LAW

Requirements of an Information to Obtain

[7] The ITO must establish reasonable grounds to believe that:

• an offence(s) has or will be committed;
• the things to be searched for exist;
• the things will be at the identified location; and
• the things will afford evidence of the specified offence(s).

R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.)

[8] Reasonable grounds are not established with bald assertions, suspicion or purely conclusory narrative. See R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.). The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. See R. v. Jacobson (2006) C.C.C. (3d) Ont. C.A. at para. 22. In R. v. Baron, [1993] 1 S.C.R. 416, at paras. 43 and 47, the Supreme Court stated that reasonable grounds require credibly-based probability, not a mere possibility.

[9] To determine whether there are reasonable and probable grounds for a search warrant to issue:

a) the officer must, on a “subjective basis”, believe there are reasonable grounds to believe an offence(s) is/will occurring and that what is being sought is evidence of the offence(s) that will be found at the place to be searched; and b) The second part of the inquiry is the “objective” component which requires the affiant’s belief of the existence of reasonable probable grounds be objectively reasonable.

See R. v. Storrey, [1990] 1 SCR 241 at 250

Disclosure

[10] The standard of disclosure by the ITO affiant is high. The legal obligation on anyone seeking a search warrant, an ex parte procedure, is that they must make full and frank disclosure of all material facts. See R. v. Araujo, 2000 SCC 65 at para. 46.

[11] The disclosure obligation does not require the ITO affiant to include all facts, only those that are material or relevant, be they favourable or unfavourable to the belief held by the ITO affiant that an offence is being committed and the search will provide evidence of the offence. The police have no obligation to set out every detail of their investigation. See Araujo supra at para. 46.

Challenge To the Validity of a Search Warrant

[12] A summary of the law relating to challenges to the validity of search warrants was summarized by Justice Campbell in R. v. Boussoulas, 2014 ONSC 5542:

[8] Challenges to search warrants may be launched on the basis of the facial validity of the ITO. In such circumstances, the applicant contends that the substantive contents of the ITO, on their face, are such that the justice could not have issued the search warrant. Alternatively, such a challenge may be advanced on a sub-facial basis, with the accused attacking the accuracy and/or the reliability of the substantive content of the ITO. Each of these types of search warrant challenges requires a different type of review.

[9] When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. The record that is examined for the purpose of determining the facial validity of the search warrant is the ITO – and only the ITO. The record is not enlarged or amplified by any additional evidence. See R. v. Araujo, at paras. 19, 36, 40, 50; R. v. Wilson, at para. 39; R. v. Sadikov, at para. 37.

[10] Where the applicant attacks the validity of a search warrant on a sub-facial basis, such challenge involves an amplified record. The reviewing judge must undertake a more contextual analysis and must consider, on the basis of the record before the justice, as amplified on review, whether there is sufficient reliable information that might reasonably be believed upon which the authorizing justice could have issued the warrant. See R. v. Araujo, at para. 50-54; R. v. Garofoli, at p. 1452; R. v. Wilson, at para. 40; R. v. Sadikov, at paras. 38, 87.

[11] Of course, search warrants may be attacked on both a facial and sub-facial basis. The accused in the present case has challenged the validity of the search warrant in both ways. In such circumstances, the reviewing court must stay focused on the ultimate test, namely, whether on the basis of the record before the issuing justice, as amplified on review, but without reference to any excised information, there remains a sufficient basis upon which the justice could have issued the search warrant. The focus of the inquiry is on whether the record contains reliable evidence that might reasonably be believed, and on the basis of which the warrant could have issued. See R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at paras. 23-25; R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21, at paras. 9-10; R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341, at para. 34; R. v. Sadikov, at para. 69, 85-86, 88.

[12] In considering the contents of an ITO on a challenge to the validity of a search warrant, it is important to appreciate that such warrants are statutorily-authorized investigative aids that are typically issued before any criminal proceedings have been commenced, and are almost invariably drafted by police officers – often under tight time constraints and without the assistance of any legal advice. Accordingly, the courts have recognized that it is unrealistic and inappropriate to measure the quality of the drafting of such documents by the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings. In short, “reasonable latitude” should be accorded to the drafter of an ITO in considering the precision of the language that was used in the document. Few search warrant applications are perfect. See Re Lubell and The Queen (1973), 11 C.C.C. (2d) 188 (O.H.C.J.), at pp. 190-191; Re Times Square Book Store and The Queen (1985), 21 C.C.C. (3d) 503 (Ont.C.A.), at p. 512; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont.Ct.Gen.Div.), at p. 364; R. v. Nguyen, at paras. 57-58. At the same time, however, a police officer drafting an ITO must always act with integrity and reasonable diligence, being mindful of his or her duty to make full and frank disclosure in ex parte proceedings, and being careful to guard against making inaccurate statements or exaggerated assertions likely to mislead the reviewing justice. See R. v. Araujo, at paras. 46-47; R. v. Morelli, at paras. 99-103.

[13] If it appears to the court reviewing the validity of the impugned search warrant, however, that some of the information provided in the ITO was erroneous, this erroneous 2014 ONSC 5542 information must be excised and excluded from consideration on the review. On the other hand, the reviewing court may properly consider, within reason, additional evidence that may be tendered on the voir dire proceedings to correct such errors in the ITO. While this amplification evidence can be used to correct “good faith errors” by the affiant in the preparation of the ITO, it cannot be employed to cure “deliberate attempts to mislead” the authorizing justice. Further, the amplification evidence must be evidence that was available to police investigators at the time the ITO was sworn – not information that was acquired later. See R. v. Araujo, at paras. 57-58; R. v. Morelli, at paras. 41-43; R. v. Ebanks, at para. 28; R. v. Farrugia, at paras. 26-29; R. v. Sadikov, at paras. 85-86.

[14] The court reviewing the ITO is also obliged to consider information that was not disclosed to the issuing justice, keeping in mind the fact that search warrant applications are ex parte proceedings and that police officers seeking such warrants are obliged to make full, fair, and frank disclosure of all material facts – whether they implicate the target of the investigation or not. In circumstances in which relevant information has, inadvertently, not been properly disclosed in an ITO, the issue for the reviewing court is whether the issuing justice, having been apprised of the omitted information, could judicially have issued the search warrant. See R. v. Araujo, at para. 46-47, 57; R. v. Morelli, at paras. 44, 55, 58-60, 96, 102, 131; R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont.C.A.), at pp. 391-394; R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont.C.A.), at paras. 40-41; R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont.C.A.), at para. 31; R. v. Nguyen, at paras. 48-51.

[15] Importantly, as Watt J.A. observed in R. v. Sadikov, at para. 87, inaccuracies in an ITO, on their own, are “not a sufficient basis on which to ground a finding of bad faith or an intent to mislead,” much less a basis on which to quash a search warrant. Rather, the existence of fraud, non-disclosure, and/or misleading evidence in an ITO, together with new evidence, are all relevant on the review of the validity of a search warrant, but they are “neither a prerequisite to, nor dispositive of, the review.” As Watt J.A. noted, at para. 93, the existence of even “material errors or omissions” in the ITO “is not dispositive” of the review of the validity of the search warrant. See also R. v. Bisson, at p. 1098; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), at pp. 552-555; R. v. Araujo, at para. 54; R. v. Garofoli, at p. 1452; R. v. Pires; R. v. Lising, at para. 30; R. v. Ebanks, at para. 20; R. v. Nguyen, at paras. 23-25; R. v. Evans, at paras. 11, 17.

Onus

[13] The judicial review of the search warrant begins from a presumption of validity.

[14] When an accused seeks the exclusion of evidence obtained through the execution of a search warrant, the burden is upon the accused to establish, on the balance of probabilities, that:

(a) the police search was conducted in violation of the accused’s right to be secure against unreasonable search and seizure, contrary to s. 8 of the Charter; and (b) the evidence seized by the police as a result of the search should be excluded pursuant to s. 24(2) of the Charter.

See Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 35, 83; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14.

The Test for a Review of an Information to Obtain

[15] The standard of review of an ITO in support of a search warrant was set out by the Supreme Court in R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 56. The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. See Garofoli, at p. 1452; R. v. Bisson, [1994] 3 S.C.R. 1097, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8, 30.

[16] The test was repeated 20 years later in R. v. Morelli, 2010 SCC 8 at the following paragraphs:

[39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168).

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but 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.

(Emphasis added)

[17] In approaching the review of the sufficiency of the ITO, the reviewing court must appreciate that the justice who issued the impugned search warrant made his or her decision based upon the contents of the ITO as a whole, and approached his or her assessment of the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of the ITO. See R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16.

[18] An issuing justice is entitled to draw reasonable inferences from the stated facts. Hunches, guesses or mere speculation are not permitted. R. v. Sanchez (1995), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at para. 20.

[19] Provided the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have issued. See Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 167; R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250.

A Confidential Informant's Information

[20] In R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) the Supreme Court set out the need for considering an informant’s information by looking at whether the information is compelling, credible and/or confirmed.

[21] The more information about and from an informant the better the assessment of the weight to be given to the tip by the judicial authorizing officer. Very little information will no doubt negatively affect the weight to be given to the tip. More information may bolster the weight to be given to the tip. In a perfect world, all the information would be available. However, it is not a perfect world. The authorizing judicial officer must look at what is available and what is not available in considering the weight to give to the tip. In either case, the tip is to be considered along with all of the other evidence in the ITO, which may also affect the weight and inferences, if any, to be given to the information by the judicial authorizing officer:

[22] The reliability of the information from the CI and weight to be given to the information will depend on a contextual analysis of all the relevant factors in the circumstances. It is the totality of the evidence which must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in other areas. Debot, at para. 63 There is no formulaic test as to what an assessment of the totality of the circumstances entails. See: R. v. Garofoli, [1990] 2 SCR 1421.

Police Officer's Experience

[23] Some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person. Sanchez, at para. 20, Jacobson, supra, at para. 22.

THE ITO

The Police Investigation

[24] This was an extensive police investigation, uncovering what appeared to be a large drug importation and distribution enterprise involving a number of individuals.

[25] As the investigation progressed, the police obtaining numerous successive warrants. There is no challenge to the prior warrants. A list of these warrants is in the ITO.

[26] As the investigation continued, the group of suspects grew. Mr. Martelly is one of the other persons suspected of being part of the drug enterprise.

[27] During the course of the investigation, a confidential informant (referred to as Source #3 in the ITO) provided information to the police including that:

a) Mr. Griffith was part of the “crew” involved in this drug enterprise; b) Mr. Griffith was the “main guy” for “moving drugs” for the "crew"; and c) cell phones were used to communicate the drug dealings between the suspects in the drug enterprise.

[28] Mr. Griffith's role in the drug enterprise became the subject of targeted surveillance and wiretap intercepts. The police conducted targeted surveillance on Mr. Griffith between June 18, and July 23, 2015. That is not to say that Mr. Griffith was also not observed during surveillance of other suspects. He was. Of particular importance is surveillance on September 17, 2015, details of which are set out below. The police also intercepted phone call communications between Mr. Griffith and other suspects such as Mr. Martelly.

[29] Prior to the ITO being prepared, the relationship between Mr. Griffith and other suspects, including Mr. Martelly, was confirmed through surveillance and numerous intercepted phone calls. In addition, the police intercepted phone calls where Mr. Griffith appeared to be discussing drug transactions. Of particular note are the intercepted calls involving Mr. Griffith and other suspects set out in para. 82 of the ITO where substantial volumes of drugs were being discussed to be transacted. Lastly, the police observed Mr. Griffith and Mr. Martelly conduct a drug transaction.

[30] The police investigation determined that:

a) Mr. Griffith's registered address, as of early 2015, was 4 Kirkham Drive, Ajax; b) Mr. Griffith owned a Land Rover and an Infiniti; c) Mr. Griffith’s girlfriend is Natasha Ruddock; d) Mr. Griffith and Ms. Ruddock were seen at 2 Eva Court in June, July and subsequently; e) In early July 2015, Ms. Ruddock changed her address (with the MTO) to the Searched Premises; f) Mr. Griffith and Ms. Ruddock were also seen at 3 Rowntree Road at several times;

[31] Prior to September 17, 2015, the police intercepted phone calls involving Mr. Griffith regarding the purchase of drugs. On September 17, 2018, police observed Mr. Griffith and Mr. Martelly purchase drugs, believed to be approximately 4.5 ounces of heroin. After purchasing the drugs, Mr. Griffith, Mr. Martelly and Ms. Ruddock drove to 3 Rowntree Road. The three persons went into the apartment building.

[32] While the police's interest in Mr. Griffith may have arisen because of the CI information, the police's subsequent investigation confirmed Mr. Griffith's role in the drug enterprise. Aside from explaining historically how and why Mr. Griffith became a suspect, the CI information did not and was not necessary or material as to whether a search warrant could issue for the Searched Premises.

[33] Officer Browne sets out in the ITO the basis for his belief that Mr. Griffith was involved in this drug enterprise, particularly trafficking drugs.

[34] Officer Browne also sets out, in the ITO, the basis for his belief as to why a search of the residences would likely find an ample supply of drugs on hand, associated items used in the drug transactions and cell phones used (as uncovered in the intercepts) and related items, used by the suspect for drug trafficking at their residences.

[35] By September 30, 2015 (the date the ITO was sworn) the police believed that Mr. Griffith lived at the Searched Premises based on their investigation (as described above).

[36] The ITO specifically sets out the police’s belief and reasons why a search of Mr. Griffith's residence would uncover evidence of the offences in relation to the drug importation and distribution of the drug enterprise including:

a) cocaine; b) scales; c) packaging; d) cash/currency; and e) cell phones (numbers identified), other communication devices and documentation regarding the purchase or use of the cell phones.

[37] The Search Warrant was granted to search the Searched Premises.

[38] The police executed the Search Warrant on October 6, 2015.

ANALYSIS

Breach of Mr. Griffith’s Charter rights

[39] Constable Browne was not shaken during cross-examination. I am not persuaded that there were any material omissions or material misrepresentations in the ITO.

[40] Let me deal with each of the primary issues raised by the Defence.

The Belief that Mr. Griffith Resided at the Searched Premises

[41] Central to the Defence submissions was that there was no reasonable basis to believe that Mr. Griffith resided at the Searched Premises. The Defence points to:

a) Mr. Griffith's registered address at 4 Kirkham Drive; and b) The surveillance at 3 Eva Court consistent with Mr. Griffith residing there.

[42] The Defence submits it was materially misleading not to disclose this additional information regarding Kirkham Drive and Eva Court in the ITO. The Defence submits that, had the issuing justice known of this evidence, it would have raised serious concerns whether 3 Rowntree Road was Mr. Griffith's residence.

[43] I reject this submission and find that on September 30, 2015, Constable Browne reasonably believed (both subjectively and such belief was objectively reasonable) that Mr. Griffith resided at the Searched Premises.

[44] First, let me say that much of the Defence submission presumes that, if Mr. Griffith had another residence, such as 2 Eva Court, he could not also be a resident at the Searched Premises. I reject this supposition. Having one residence does not exclude having a second residence.

[45] The Defence points to an Occurrence Report, dated April 15, 2015, which shows Mr. Griffith's residence as 4 Kirkham Drive, Ajax. Mr. Griffith's vehicles were registered to that address. There had been targeted surveillance on Mr. Griffith (including surveillance at the Kirkham Drive address on June 18, 2015) and he was never seen going to or coming from the Kirkham address. Mr. Griffith’s vehicles were not seen at the Kirkham address. The Kirkham address was easily and properly discounted by the police as not Mr. Griffith’s residence. I am satisfied there was a reasonable basis for the police to believe this was no longer Mr. Griffith's residence on September 30, 2015. The Kirkham address was therefore not material and need not have been included in the ITO.

[46] Then, the Defence points to 2 Eva Court as Mr. Griffith's residence. The Surveillance Reports on June 18, 19, 23, 24, 2015, July 6, 7, 9 and 10, 2015 connect Mr. Griffith to the 2 Eva Court address. During these surveillance and intercepted phone calls, it appeared that Mr. Griffith and Ms. Ruddock were partners and lived together. They were seen driving vehicles registered to Mr. Griffith from/to this location. Had this been the extent of the information on Mr. Griffith’s residence available to the police on September 30, 2015, there would be merit to Defence submission. However, there is considerable additional credible and reliable evidence uncovered by the police (as set out in the ITO):

a) Mr. Griffith was seen going to the Rowntree Road apartments on July 7, 2015. He was able to gain access to the apartment building after stopping at the "security gatehouse". The obvious inference is that he has a connection with this location and was permitted access; b) The latter surveillance on July 20, and 21 2015 did not show Mr. Griffith as connected to the 2 Eva Court address. No subsequent surveillance (on any of the suspects) showed a connection between Mr. Griffith or Ms. Ruddock and the Eva Court address; c) A MTO search for Ms. Ruddock in early July showed her change of address to 611-3 Rowntree Road (the Searched Premises) as her residence. Given that Mr. Griffith and Ms. Ruddock were living together and continued to be seen together, it would be reasonable to infer that Mr. Griffith was also living at 611-3 Rowntree Road after this change of address; d) Mr. Griffith was seen at the 3 Rowntree Road address on July 23, 2015; and e) Mr. Griffith and Ms. Ruddock (along with Mr. Martelly) were seen entering the 3 Rowntree Road building on September 17, 2015, immediately after they conducted a drug purchase transaction.

[47] Clearly, the police subjectively believed that Mr. Griffith lived at the Searched Premises. They amended Mr. Griffith's residence, in the July 23, 2015 Surveillance Report, to show Mr. Griffith’s residence to be the Searched Premises. This is also consistent with the police conducting no further surveillance on the Eva Court address after early July.

[48] Given the above, particularly the connection with Ms. Ruddock, her change of address, the observations of Mr. Griffith at the Searched Premises including on September 17, 2015 (within 2 weeks of the swearing of the ITO), the police's belief was objectively reasonable.

[49] The failure to refer to the Kirkham Drive or Eva Court address was neither relevant nor material to the ITO on September 30, 2018.

Reasonable basis to believe Mr. Griffith committed the alleged offences

[50] The Defence submits that the ITO did not "demonstrate the requisite reasonable grounds to believe that the alleged offence" "had been committed by the Applicant".

[51] There is no merit to this submission.

[52] The CI information provided some information of Mr. Griffith's involvement in this drug enterprise. However, Mr. Griffith’s involvement with the drug enterprise was confirmed by the police by its own investigation. This includes the intercepts on August 23-24, 2015 where drug transactions were discussed by Mr. Griffith and other suspects. In addition, and more importantly, the ITO sets out details of the surveillance/intercepts of Mr. Griffith discussing and then conducting a drug purchase transaction on September 17, 2015.

[53] Even without the CI information, there was sufficient and ample grounds for Constable Browne's belief (and it was reasonable on an objective basis) that Mr. Griffith was involved in the illegal drug enterprise committing the offences set out in the ITO.

Evidence of the alleged offences would be found at the Searched Premises

[54] The Defence's other significant submission is that the ITO did not demonstrate "the requisite reasonable grounds to believe the location to be searched" - the Searched Premises - would contain evidence relevant to the alleged offences. The Defence asserts that there is no credible or reliable evidence to believe that evidence of the alleged drug offences would be found at 3 Rowntree Road.

[55] The first difficulty with this submission is that Mr. Griffith's cell phone and related documentation would likely be in his residence is a reasonable conclusion given that the police had already obtained intercepts where Mr. Griffith and other suspects were discussing drug related transactions on their cell phones. A search of Mr. Griffith's home would likely result in a seizure of Mr. Griffith's cell phones. In addition, the cell phone documentation like contracts, invoices and other such materials would tie Mr. Griffith to the cell numbers used and intercepted by the police where the drug transactions had been discussed by Mr. Griffith with Mr. Martelly and others. Such evidence would provide evidence supporting Mr. Griffith's use of the cell phone and therefore involvement in the drug transactions and the drug enterprise.

[56] As a result, the police reasonably believed that Mr. Griffith's cell phones, if seized, would provide evidence of the alleged offences. This alone would be sufficient for the issuing justice to believe that there were reasonable and probable grounds that evidence of the alleged offences would be found at the Searched Premises.

[57] Secondly, Mr. Griffith was observed carrying out a drug purchase transaction on September 17, 2015 (less than 2 weeks before the ITO was sworn) with Mr. Martelly and Ms. Ruddock. After the drug transaction Mr. Griffith immediately went to the 3 Rowntree Road address. This fact alone draws a reasonable, clear and distinct connection between Mr. Griffith's involvement in the drug enterprise and 3 Rowntree Road. It is not necessary for the police to show evidence that the purchased drugs were categorically left at 3 Rowntree Road. This information, along with the intercepts that Mr. Griffith was involved in the drug enterprise, the police information in the ITO was sufficient for a reasonable belief that evidence would be found at the Searched Premises.

[58] I find the grounds set out in Appendix M to the ITO to be, based on Constable Browne's experience, to be reasonable and reliable to base his subjective belief that evidence of the alleged offences would be found at the Searched Premises.

[59] In addition, I have no hesitation concluding that, in these circumstances, there was an objectively reasonable basis to believe that drugs, cell phones or documents related to the cell phones would be located at Mr. Griffith's residence.

There was no surveillance inside 3 Rowntree Road

[60] The Defence submits there was no surveillance inside the Rowntree Road apartment building, so the search warrant for apartment 611 could not have issued.

[61] This submission ignores the fact that Ms. Ruddock, Mr. Griffith's girlfriend and with whom he appeared to reside with, in early July 2015 changed her address to show her residence as 611-3 Rowntree Road. This coupled with the police observations of Mr. Griffith at 3 Rowntree Road and the continued observations that Mr. Griffith and Ms. Ruddock were together on September 17, 2015, were sufficient to identify the apartment building and unit number.

[62] This information identifies the building and the apartment satisfying the police’s subjective and objectively reasonable belief that 611-3 was the proper apartment to search without having had conducted surveillance inside the building.

Generalities in the ITO

[63] The Defence submits that the ITO contained generalities of supposed behaviour of persons involved in the drug trade making the information unreliable and not forming a basis for reasonable and probable grounds.

[64] The most significant generality is that persons involved in trafficking cocaine would have a supply of drugs on hand, likely in their residence. This is not a situation where the issuing judge simply relied on the police officer's experience for the belief drugs would be found at the Searched Premises. This court does not have to decide whether the police officer's experience that drug traffickers would have drugs on hand was, by itself, sufficient to establish an objectively reasonable belief.

[65] The evidence in this case establishes that Mr. Griffith, Mr. Martelly and Ms. Ruddock, purchased approximately $13,000 worth of drugs (likely heroin) and then went directly to the Searched Premises. This provides substantial support and a reasonable basis for Constable Browne's belief.

[66] Further, given the intercepted calls and the information obtained from those calls, the police had a reasonable basis to believe that the seizure of Mr. Griffith's cell phones would provide evidence of the alleged offences. The belief, to be reasonable, that “evidence” would be found at the Searched Premises is not limited to “drugs”. In this case, there was other evidence (such as the cell phones, cell phone documentation and drug related equipment) which formed the basis to reasonably believe evidence would likely be found at the Searched Premises.

[67] When added to Constable Browne’s experience, there was more than vague generalities in this case as the basis for his reasonable belief. This submission has no merit.

The ITO contained inflammatory and prejudicial material about Mr. Griffith

[68] The Defence points to the use of para. 117 (d) of the ITO to refer to Mr. Griffith's prior drug charge - for which he was not convicted - despite Constable Browne stating in the ITO preamble he would not use prior charges which had not resulted in convictions.

[69] The difficulty with this submission is that, even if this paragraph was excised, it would make no difference to the outcome of this Application. Without deciding whether this paragraph must be excised, even if excised, there remained reasonable grounds to believe Mr. Griffith committed the drug offences (and would continue to commit the drug offences) and there was a reasonable basis to believe evidence of Mr. Griffith's involvement in the drug enterprise would be found at the Searched Premises.

[70] I reject this submission.

The Confidential Informant's Information

[71] The Defence submits that the CI’s information was not probative since he was not in the “inner circle” of the enterprise and he did not know where the persons involved kept the drugs. As a result, the Defence submits the CI information could not assist in forming grounds to believe that evidence of the drug offence would be found at 3 Rowntree Road.

[72] As I read the ITO, and as stated above, at this stage of the investigation and after direct police investigation (such as surveillance and intercepts), the CI information was neither necessary nor material to the issuance of the search warrant for the Searched Premises.

[73] While the police's interest in Mr. Griffith may have arisen because of the CI, the police's subsequent direct investigation resulted in confirmation of Mr. Griffith's role in the drug enterprise and the alleged commission of the drug offences. Aside from explaining historically how and why Mr. Griffith became a suspect, the CI information did not and was not material as to whether a search warrant could issue for the search of the Searched Premises.

[74] This submission has no merit.

Reference to the 4.5 ounces of Heroin

[75] The Defence points to the reference in the ITO that the white plastic bag seen carried by Ms. Ruddock on September 17, 2015, after the drug transaction, was embellished by the police by saying it was "consistent with the size of 4.5 ounces of Heroin".

[76] I do not see this as erroneous or embellishment.

[77] As can be seen from the whole of paragraph 98 of the ITO, the suspects discussed buying $13,000 of heroin and, at the prices known to the police, this equated to approximately 4.5 ounces of heroin. All the police said in the ITO was that the size of the bag carried by Ms. Ruddock back to Mr. Griffith and Mr. Martelly was consistent with the size of a bag which might hold 4.5 ounces of heroin.

[78] There is nothing erroneous or misleading in this reference.

Could the Issuing Justice have granted the Search Warrant?

[79] It is not this court’s role to determine whether the search warrant was properly issued. Based on the above and considering the whole of the ITO, there is no doubt that the search warrant could have been issued by the issuing justice as it contained the necessary reasonable and probable grounds set out therein.

Conclusion on Breach of Mr. Griffith's Charter Rights

[80] Mr. Griffith’s Charter rights were not breached.

Section 24(2) Analysis

[81] Notwithstanding that there was no breach of Mr. Griffith’s Charter rights, I will deal with whether the seized items of the search would be excluded under s. 24(2).

[82] During the execution of the search warrant at the Searched Premises, the police seizure included:

a) cell phones and documents regarding ownership; b) digital scales; c) brown plastic vacuum sealed bag containing almost 1/2 kilogram of cocaine; and d) some crack cocaine.

[83] There is no allegation that the search warrant was improperly or unreasonably executed.

[84] In my view, the three lines of inquiry described in R. v. Grant, 2009 SCC 32, lead to the conclusion that the evidence would not be excluded.

(i) Seriousness of the Charter-infringing conduct

[85] The police believed they had a valid judicially authorized warrant when they executed it. There was no wilful disregard of Mr. Griffith’s Charter rights. There was no material misleading or erroneous information in the ITO. The police proceeded in good faith, in a proper fashion, seeking prior judicial approval and executed the search warrant in accordance with its terms. On the spectrum of seriousness, this would be at the lowest end and would strongly favour inclusion of the evidence.

(ii) Impact on the appellant’s Charter-protected interests

[86] As to the impact of the Charter protected interests of Mr. Griffith, this was Mr. Griffith’s residence which has a very high expectation of privacy. On the whole, this factor would favour exclusion of the evidence.

(iii) Society’s interest in the adjudication of the case on its merits

[87] Society’s interest in the adjudication on the merits in this case would strongly favour the inclusion of the evidence. The evidence is highly reliable and critical evidence to the Crown’s case.

(iv) Balancing the factors

[88] Balancing all of the factors, the Defence has failed to satisfy me that the admission of the evidence would bring the administration of justice into disrepute.

[89] As a result, even if there had been a Charter breach, the evidence would nevertheless have been admissible.

CONCLUSION

[90] The Defence Pre-trial Applications are dismissed.

Ricchetti, J. Released: November 23, 2018