Court File and Parties

Court File No.: 3525740 Date: 2018-12-03 Superior Court of Justice - Ontario

Re: R. v. Katsoulis

Before: Koehnen J.

Counsel: Helena Solin, for the Crown Maia Martin, for the Applicant

Heard: September 24, 25, 28, October 9, 11, 2018

Endorsement

[1] In the latter half of 2016 Toronto Police Services received an anonymous Crime Stoppers tip about the accused, George Katsoulis. The tipster said that Mr. Katsoulis trafficked powder cocaine, was currently storing cocaine inside his residence, provided a physical description and residential address for him, and said that he drove a black Mercedes.

[2] As a result, in February 2017, police conducted surveillance of Mr. Katsoulis over five days. Police summarized the tip and their surveillance in an affidavit (the “Information to Obtain” or “ITO”), on the strength of which they obtained warrants to search the personal residence of Mr. Katsoulis, his car and a second residence that Mr. Katsoulis had been observed visiting during the police surveillance. The search of his personal residence disclosed cocaine, marijuana and approximately $5000 in cash. Following the search, Mr. Katsoulis was arrested and charged with possession of cannabis and cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

[3] At the outset of trial, Mr. Katsoulis brought applications to: cross-examine the deponent of the ITO; reveal more of the ITO than was provided in the redacted version he received (the Garofoli application); and exclude the evidence obtained from the searches pursuant to sections 8 and 24(2) of Canadian Charter of Rights and Freedoms. During the course of arguing the Garofoli application, Mr. Katsoulis also sought an order appointing amicus curiae to assist with the issue of revealing redacted portions of the ITO.

[4] During the course of the trial I declined to order cross-examinations, excised certain portions of the ITO; provided a judicial summary of redactions in the ITO; found that the search warrant did not violate section 8 of the Charter and convicted Mr. Katsoulis based on an agreed statement of facts. These are my reasons for declining to order cross-examination, declining to appoint amicus and upholding the search warrant. I provided reasons for the balance of my orders during the course of trial.

A. Cross-examination

[5] The principles applicable to an application for leave to cross-examine the deponent of an ITO are as follows:

(a) The Defence cannot cross-examine a deponent of an ITO as of right: R. v Garofoli, [1990] 2 S.C.R. 1421 at para. 88. (b) The accused must establish a basis for the view that the cross-examination will elicit testimony tending to discredit the existence of reasonable and probable grounds to issue the warrant but need not demonstrate that the cross-examination will succeed: Garofoli, at para. 88. (c) Cross-examination is limited to questions directed to establishing that there was no basis upon which the authorization could have been granted: Garofoli para. 89. (d) Although the test for leave is not onerous, in deciding whether to grant leave “the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review: whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted:” R. v Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343 at para 40. (e) The court should not lose sight of the fact that a search warrant is an investigatory tool. At that stage, a reasonable belief that a warrant will produce evidence of an offence is sufficient. On further investigation the grounds relied upon in support of the warrant may prove to be false. That does not, however, retroactively invalidate an otherwise valid warrant Pires; Lising, at para. 41.

[6] The Defence submits that cross-examination would tend to elicit testimony that would discredit the existence of reasonable and probable grounds to issue the warrant because cross-examination would: (i) undermine statements in the ITO to the effect that the tip was credible; (ii) undermine statements in the ITO to the effect that the police corroborated the tip; and (iii) highlight differences between the description of an event in the ITO and the description of the same event in contemporaneous police notes. Implicit in all three grounds is the suggestion that the ITO was misleading on these points.

(i) Tipster credibility

[7] The Defence submits that the ITO characterized the tip as credible; a characterization that could not be accurate because the tip was anonymous and did not indicate whether it was based on first or second hand information. In addition, the ITO does not disclose when the tip was received, other than sometime in 2016. The ITO was delivered on February 22, 2017 but states that the tipster said the accused was “currently” storing cocaine at his residence. By February 2017 it may no longer have been accurate to say that the accused was “currently” storing cocaine.

[8] These alleged shortcomings must be read in the context in which they are found in the ITO.

[9] The reference to credibility is found in a heading which reads “The Tipster is Credible.” That heading is followed by two short paragraphs. The first paragraph states that the deponent has not had any contact with the tipster and that, due to the nature of the Crime Stoppers system he is unable to provide any criminal or other history of the tipster. The second paragraph states:

“In the investigation set out below, I believe the tipster is credible based on the corroboration by police investigation of the information they provided.”

[10] Read in its proper context, the passage does not make a general, misleading assertion about the tipster’s credibility. The deponent states quite clearly that he has had no contact with the tipster and cannot opine to his or her credibility. He then provides his belief that the tipster is credible because the police investigation corroborated the information the tipster provided. The sentence quoted above serves as a transitional phrase that directs the reader to the details of the police investigation which follow shortly thereafter in the affidavit. Put another way, it is a signal to the reader to judge for him/herself whether the tipster is credible, based on the fruits of the investigation. In this more fulsome context, references to the tipster’s credibility do not tend to discredit the existence of reasonable and probable grounds to issue the warrant.

[11] The reference to the accused “currently” storing cocaine does not tend to discredit the existence of reasonable and probable grounds either. The reader of the ITO would know full well that the phrase “currently” refers to the time at which the tip was received, not to the date of February 22, 2017.

[12] It is also worth repeating here that the tip did not lead directly to the warrant. Instead, it led the police to investigate. The fruits of the investigation in turn provided the more detailed information on which someone could form reasonable and probable grounds to issue a warrant.

(ii) Corroboration

[13] The second basis for cross-examination is that the ITO suggests that the police had “corroborated” the tipster’s information in their own investigation. The defence takes issue with this because the police surveillance recorded Mr. Katsoulis meeting with a number of people in cars over the five day surveillance period. The Defence says the police could not have corroborated the sale of cocaine because they did not witness the hand-off of any substances, did not interview any of the people they saw meeting with the accused and had no concrete evidence that the meetings were held for the purpose of selling drugs.

[14] To say that the ITO suggests the police had corroborated the sale of drugs does not reflect the full context of the document.

[15] The ITO sets out the results of the police surveillance in some detail.

[16] It records eight instances of people entering and leaving Mr. Katsoulis’ car, mostly in parking lots, including meetings with the same person on subsequent days. On five occasions, it records Mr. Katsoulis removing a duffel bag from the trunk of his car, bringing it into a home, leaving the home and returning the bag to the trunk. On three occasions it records Mr. Katsoulis leaving the driver’s seat of his car while parked in a parking lot, opening the trunk of his car and then returning to the driver’s seat. On one occasion it records Mr. Katsoulis meeting with someone in a black Infinity. The driver of the Infinity is seen removing a knapsack from his trunk and re-entering his car. Mr. Katsoulis is seen leaving the Infinity approximately 30 minutes later with the same knapsack that the driver had removed from the trunk of the Infinity. Mr. Katsoulis is then seen putting the knapsack into the trunk of his own car.

[17] The ITO concludes that the police believed these to be drug transactions.

[18] This is not a simple statement that the tip was corroborated. Rather, it is a qualified statement that the police believed these were drug sales, which are then set out in greater detail in the ITO. The Defence submission focusses on a short form, summary sentence in the ITO but ignores the more detailed basis for the statement found in the balance of the ITO.

[19] The fact that cross-examination would be expected to confirm that there was no corroboration of an actual drug sale or that it is possible that the meetings in cars were for something other than drug sales, does not discredit the existence of reasonable and probable grounds in the particular circumstances of this case. The volume, nature and circumstances surrounding the police observations summarized in paragraph 16 above, amount to reasonable and probable grounds to issue the warrant even in light of the expected admissions on cross-examination.

(iii) Differences Between ITO and Police Notes

[20] The final reason for which the Defence submits cross-examination is warranted arises out of the difference between the way certain matters are described in the ITO and the way they are described in the daily reports prepared by the officers who conducted the surveillance. The defence pointed to three examples.

[21] First, paragraph 12 of the ITO states that, on February 13, 2017, the accused “was observed completing what were believed to be drug transactions.” The Defence points to the more detailed surveillance report of February 13, 2017 and notes that it refers to only a single transaction. As a result, the Defence takes issue with the use of the plural “transactions” in the ITO.

[22] Here too, more context is required.

[23] The surveillance report of February 13, 2017 records a number of observations by four different officers as follows: The accused parked at the Scarborough Bluffs parking lot with a passenger in his car. The accused got out of the car, opened the trunk and then returned to the car. The accused left the car again, put something into the trunk and returned to the driver’s seat. The accused left the car again brushed something off his pants and returned to the driver’s seat. The accused and the passenger remained in the parking lot for approximately 40 minutes. The accused and the passenger drove to a parking lot at a strip mall where an unidentified male got into the rear passenger seat of the accused’s car and left five minutes later. The accused pulled into a back corner of a parking lot on Danforth Road, left the car for his trunk and returned to the driver’s seat of the car. The accused and the passenger remained in the parking lot for approximately one hour before leaving and letting the passenger out a few minutes later.

[24] After listing these observations over the space of five pages, the surveillance report contains nine point form lines of text under the heading “Debrief at TDS office”. The point form items referred to some of the observations described in the previous paragraph in even more summary form. One of those line items states:

“suspect met with the same male he met on February 11, 2017 in the same location of 2050 Lawrence Ave. E. and completed what was believed to be a drug transaction”

[25] Whether the use of the plural “transactions” in the ITO was meant to refer only to the single item described in the debrief as “a drug transaction” or to more than one of the observations made on February 13, 2017 is unknown. Even if I assume that the use of the plural was incorrect, the misuse of a plural instead of a singular in an overview paragraph that summarizes one day’s surveillance does not mislead the reader of the ITO and does not tend to discredit the existence of reasonable and probable grounds to issue a warrant. There were ample grounds on which one could form a reasonable belief that the warrant would produce evidence of an offence, regardless of the use of the singular or plural form of “transaction” in the sentence at issue.

[26] Second, the Defence points to the surveillance of February 14, 2017. The ITO records the accused picking up an unknown woman and driving westward along the QEW. Surveillance officers stop following the accused at the Mississauga/Oakville border. The defence submits that this is included in the ITO in order to create suspicion. At the preliminary hearing, one of the officers conducting the surveillance testified that there was nothing suspicious in the accused’s trip along the QEW.

[27] This provides no basis to cross-examine. The police conducted surveillance of the accused over five days. The ITO records the observations of the police on each of the five days. The surveillance along the QEW was the only surveillance recorded that day. I agree that there is nothing suspicious about it, nor does the ITO create suspicion about it. Indeed, had there been anything suspicious, one would expect the officers would have continued and not broken off their surveillance.

[28] Third, defence counsel contrasts the summary descriptions of the length of three interactions in the ITO with the actual timing recorded in the surveillance reports or as testified to at the preliminary hearing.

[29] Sub-paragraph 25(o) of the ITO describes the accused meeting someone in a parking lot, leaving his car, opening his the trunk, returning to his car and leaving the parking lot “shortly after”. The surveillance notes record Mr. Katsoulis leaving the parking lot 45 minutes after opening the trunk of his car, not “shortly after” doing so.

[30] Sub-paragraphs 30(l) - (o) of the ITO describe the meeting between Mr. Katsoulis and the driver of the black Infinity referred to in paragraph 16 of these reasons. The ITO records Mr. Katsoulis leaving the Infinity with the knapsack “a brief moment” after the Infinity driver had retrieved the knapsack from his trunk. The surveillance notes record Mr. Katsoulis leaving the Infinity approximately 30 minutes after the Infinity driver retrieved the knapsack from the trunk.

[31] Paragraph 30 (q) of the ITO records that, on February 21, 2017, Mr. Katsoulis had a meeting in a parking lot in the same Dodge Ram he had met on February 11. The ITO states he was in the truck “for a short period of time.” At the preliminary hearing, the officer conducting surveillance said Mr. Katsoulis was in the truck for 15 minutes.

[32] While care should be taken to ensure that the ITO is accurate and contains full and fair disclosure, it is also necessary that it summarize the results of an investigation rather than produce its work product verbatim. While it may be important in some cases to be rigorously precise about the lapse of time, this is not one of those cases. Whether the ITO describes the Mr. Katsoulis as being in the Dodge Ram for a “short period of time” or for 15 minutes or whether it says he left a parking lot after a short time or after 45 minutes is of no particular importance in this investigation.

[33] The import of the ITO is that Mr. Katsoulis seems to have had a series of meetings in parking lots in which people got in and out of his car, exchanged knapsacks with him, and during which he went back and forth between the driver’s seat and the rear trunk. An experienced drug investigator believed these to be drug transactions. He may have been right or wrong in that assessment. The ITO does not mislead the reader about the accuracy or inaccuracy of the officer’s belief.

[34] When considering whether these alleged discrepancies provide grounds to cross-examine, I must, in the words of the Supreme Court of Canada, “remain strictly focused on… whether there is a basis upon which the authorizing judge could grant the order:” Pires; Lising at para. 40. Cross-examination should be limited to questions that are “directed to establish that there was no basis upon which the authorization could have been granted”: Pires; Lising, at para. 45.

[35] While I have of necessity analysed the various grounds for cross-examination individually above, when I consider them collectively they do not change my view. Even collectively they do not mislead the reader of the ITO and do not tend to discredit the existence of reasonable and probable grounds to believe that evidence of an offence would be found on the premises to be searched.

[36] As a result of the foregoing I initially declined to order cross-examination before I had reviewed the unredacted ITO. After reviewing the unredacted ITO and providing judicial edits to it, I allowed the defence to re-argue the issue based on any new information disclosed by the judicial summary as suggested in R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 at para. 86. The Defence was of the view that the judicial summary provided no additional information on which to argue the cross-examination.

B. Appointing Amicus

[37] As part of its application, the Defence challenged redactions to the ITO. In doing so, the Defence submitted that I should appoint amicus curiae to assist the court in determining whether the redactions were appropriate. I ruled against the appointment of amicus during the course of the trial.

[38] The Defence relied on a number of cases which hold that it is appropriate to appoint amicus in particularly difficult cases to prevent an unjust balancing of the interests between the Crown and the Defence. See for example R. v. Mediati, [2018] O.J. No. 3583 at para. 48; R. v. Basi, 2009 SCC 52 at para. 57.

[39] It is equally clear, however, that the appointment of amicus is the exception, not the rule, that the burden is on the party applying for the appointment to justify it and that it is reserved for particularly difficult cases: R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210 at paras. 65 – 66.

[40] This is not a case in which the appointment of amicus would serve any purpose. The Defence agreed that I should look at the unredacted ITO when considering the appointment of amicus. I did so and am satisfied that this does not fall into the category of particularly difficult cases. The redactions were simple and obvious.

[41] During the course of the hearing I gave oral reasons for some minor changes to the redactions and gave the Defence a judicial summary of the redactions. It is fair to say that neither the changes to the redactions nor the judicial summary made any material difference to the ITO in its redacted form.

C. The Challenge to the Warrant

[42] The Defence submits that the warrants amounted to an unreasonable search and seizure under the Charter. Mr. Katsoulis advances three grounds for this submission: First, that it was based on an anonymous Crime Stoppers tip the credibility of which could not be tested. Second, that the small number of interactions the police observed are insufficient to ground a search warrant. Third, that the ITO was misleading.

[43] The principles relevant to an application to challenge a search warrant are well established:

(a) The warrant is presumed to be valid. The onus of proving that the warrant is improper lies on the accused: R. v. Paryniuk 2017 ONCA 87 at para. 42. (b) The reviewing judge should not conduct a de novo review of the materials used to support the warrant. Instead, he or she determines whether the ITO provides “a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that evidence of an offence would be found at the specified place”: R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210 at para. 25. (c) The level of evidence required to establish reasonable and probable grounds is less than the civil standard of the balance of probabilities. Evidence that would not be admissible at trial is admissible for the purpose of granting a search warrant. The balance between potential prejudice and probative value on a search warrant differs from that which is to be applied at trial because liberty is not at stake: R. v. Debot, [1989] 2 S.C.R. 1140 at para. 57- 58; R. v. Grant 2015 ONSC 1646 at para. 92. (d) It is not necessary for the police to confirm each detail in an informant’s tip so long as the sequence of events generally observed conforms sufficiently to the anticipated pattern of conduct to remove the possibility of innocent coincidence: Debot at para 63. (e) Where the warrant is based on an informant’s tip, a greater degree of verification may be required where the credibility of the tipster cannot be assessed: Debot at para. 63. (f) A warrant will stand when credibly based probability replaces suspicion: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 167. To determine whether this is the case does not involve a mathematical assessment arrived at by parsing facts. Instead, it involves an assessment of whether the search was reasonable in all of the circumstances using a non-technical, common sense approach: R. v. Campbell 2010 ONCA 588 at para. 52 citing R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 129. (g) The assessment of the warrant is contextual: Paryniuk at para. 45. The existence of reasonable and probable grounds should be considered cumulatively and not evaluated individually in isolation: R. v. Campbell, 2010 ONCA 588 at para. 57.

(i) The Anonymous Tip

[44] The defence relies heavily on Debot which requires a tip to be credible, compelling, and corroborated while noting that weakness in one of the three factors can be made up by strength in another. The Defence submits the tip was deficient in all three respects.

[45] The tip was not credible because it was anonymous. We do not know whether it came from someone honest, someone with numerous convictions for perjury or fraud or someone with an axe to grind.

[46] The tip was not compelling because, in its redacted form in the ITO, it alleges merely that Mr. Katsoulis is trafficking powdered cocaine, is currently storing cocaine inside his residence and drives a black Mercedes. In addition, the tip provides a physical description and residential address for him. The statements about Mr. Katsoulis trafficking and storing cocaine are bald allegations. Providing a physical description, address and car brand are equally uncompelling. Anyone with the most cursory knowledge of an individual could provide that information.

[47] I will address the issue of corroboration when dealing with the allegedly inadequate police observations.

[48] I agree that if the warrant had been based solely on the tip as set out in the redacted ITO, it could not stand. As noted earlier however, the tip prompted the investigation. It was the investigation into Mr. Katsoulis that led the police to obtain further information which provided reasonable and probable grounds for the warrant.

(ii) Allegedly Inadequate Police Observations

[49] The defence submits the tip was not corroborated because the police observed no hand-to-hand transactions and observed only a number of people entering and leaving Mr. Katsoulis’ car for varying intervals.

[50] Quite apart from the issue of corroboration, the Defence submits that the police surveillance does not establish reasonable and probable grounds to issue a warrant. In support of this submission, the Defence points to a number of cases which hold that a small number of interactions in an automobile is not necessarily evidence of drug dealing. Such behaviour could equally be evidence of meetings to complete Internet sales of tickets or baseball cards. See for example: R. v. Abdulatif, [2018] O.J. No. 1694; R v. Puma, [2016] O.J. No. 6035; R. v. Smith, [2011] O.J. No. 5320 (C. A.) (where one interaction was insufficient to issue a warrant); R. v. Gore, [2017] A. J. No. 217; R. v. Basanez, [2017] A. J. No. 179 (where two transactions were insufficient to issue a warrant); R. v. Sarchiz, [2015] O.J. No. 3976; R. v. Quach, [2014] A.J. No. 116 (where three interactions were insufficient to issue a warrant).

[51] In argument, the Defence submitted that, if a single interaction amounts to nothing, then 10 meetings amount to 10 times nothing. That analysis, however, isolates each individual fact and dismisses it as if it were standing on its own. This ignores case law that calls for a cumulative, contextual analysis of the facts: Campbell; Morelli.

[52] While the number of interactions is a relevant factor, assessing the legitimacy of a search warrant is not a mathematical exercise of keeping score or of setting some numerical threshold that the Crown must cross: Campbell; Morelli. All of the information in the ITO must be assessed as a whole and in context. In some circumstances, a single interaction might justify a search warrant. In others, a large number of interactions might not justify a warrant. Whether the number of interactions at issue does or does not justify a warrant depends on an overall contextual assessment of the ITO.

[53] The details of police observations are set out in paragraph 16 above. It is possible that the interactions the police observed involved something other than the sale of drugs. The ITO, however, sets out a number of circumstances that reduce this likelihood. These include the frequency of the interactions, their location in parking lots, the fact that some occurred with the same person a day or two later, trips back and forth to the trunk of the car and trips in and out of houses with duffel bags. When combined with the tip, these circumstances diminish the likelihood that Mr. Katsoulis was engaged in innocent transactions like the sale of baseball cards over the Internet.

[54] To use the language of the Supreme Court of Canada in Hunter v. Southam, when all of this evidence is taken as a whole, credibly based probability replaces suspicion to a sufficient degree that a justice could find reasonable and probable grounds to issue the warrant based on the redacted ITO and a standard of something less than a balance of probabilities.

[55] It is useful here to remind ourselves of the purpose at hand: we are not convicting or depriving anyone of liberty but determining whether the contents of the redacted ITO merit further investigation by way of a search warrant.

(iii) ITO Was not Misleading

[56] The Defence points to several instances where it says the ITO misleads the reader or was prepared with such carelessness as to warrant concern.

[57] The Defence relied in part on the same issues they raised in relation to credibility and corroboration which are discussed earlier in these reasons in the section dealing with leave to cross-examine. I find those arguments to be unpersuasive in relation to the challenge to the warrant for the same reasons that I found them to be insufficient to justify cross-examination.

[58] By the time I dealt with the challenge to the warrant, I had excised portions of the ITO to make it reflect the state of affairs more accurately. The excisions do not in any way affect my analysis about the validity of the warrant.

[59] In addition, I also excised from the ITO the last paragraph of appendix D which states:

“In this investigation I believe the tipster is credible based on the corroboration by police investigation of the information they provided.”

[60] I excised that paragraph because two of the principal allegations that the tipster provided were that Mr. Katsoulis stored cocaine at his residence and that he sold powder cocaine. The police did not corroborate the storage of cocaine at his residence. Similarly, while the police observed transactions that they believed to be sales of drugs, they did not actually corroborate the sale of powder cocaine.

[61] The inclusion of this paragraph in the original ITO did not mislead the issuing justice. It too refers to the fruits of the investigation corroborating information from the tipster. The fruits of the investigation are detailed in the ITO. One can expect an issuing justice to refer to the material portions of an affidavit when deciding whether to issue a warrant and not to one sentence headings or summaries that amount to little more than bald allegations when read in isolation.

[62] Lastly, the Defence submits that the ITO should be drafted to avoid boilerplate language and that judges should deplore its use: R. v. Araujo 2000 SCC 65 at para. 47. The Defence points to one instance where the ITO contains an error. It should have referred to Mr. Katsoulis but instead referred to another name, presumably another suspect in another investigation. The Defence submits that this is evidence of a significant level of carelessness and that the ITO was simply based on boilerplate language that had been cut and pasted from another case.

[63] The mistaken name must be taken in context. The review of the warrant is not an exercise in examining police conduct with a fine toothed comb or fastening on minor errors: R. v. Ngo 2000 1101 SC 6676 at para. 34 citing R. v. Nguyen, 2011 ONCA 465 at para. 57.

[64] It may well be that the police used a precedent from another file to prepare the ITO in this case. The use of a precedent is not inherently improper. Counsel do so all the time. Judges use precedents as guides to their own drafting for a variety of purposes. The mischief is not the mere use of a precedent. Mischief arises if use of a precedent misleads the reader. The passage in Araujo in which the Supreme Court of Canada deplores the use of boilerplate language does so because “it has the potential to trick the reader into thinking that the affidavit means something that it does not.” The mistaken reference to the name of a person who has nothing to do with this case does not trick the reader of the affidavit. It might lead the reader to ask a question but would not mislead them. Moreover, the mistaken name arises in a paragraph that summarizes in one sentence more detailed observations to the effect that Mr. Katsoulis was seen entering and leaving a particular address with a black duffel bag. The detailed paragraphs describing those observations all refer to Mr. Katsoulis.

[65] The question to ask when determining whether an ITO is misleading is whether it or the manner of its presentation so colours the material that the issuing Justice “would be overwhelmed and unable to form an independent reasonable conclusion”: R. v. Church of Scientology, (1987) 31 C.C.C. (3d) 449 at p. 500 (Ont. C.A.).

[66] Despite Ms. Martin’s very able arguments, I cannot conclude that the statements she impugns in the ITO would so overwhelm an issuing justice that he or she would be unable to form an independent, reasonable conclusion.

Conclusion

[67] The search warrant at issue was not based on a tip but on the overall evidence which included a tip but, more importantly, included five days of police surveillance. The passages to which Mr. Katsoulis objects in the ITO are more in the nature of transitions or introductions to more detailed sections of the affidavit which contain original information that do not create the misimpression that Mr. Katsoulis alleges.

[68] As a result of the foregoing I do not find that the issuance of the search warrants breaches Mr. Katsoulis’ rights under s. 8 of the Charter.

Koehnen J. Date: December 3, 2018