COURT FILE NO.: 1876-16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

James Clark, for the Crown

• and -

GREG MCLAREN GUTHRIE

Paul M. Cooper and Lalitha

Ramachandran for Greg Guthrie

RULING

RE: SECTION 8 and 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

RE: ITO OF CST. GIDDA SWORN OCTOBER 29, 2014

Fragomeni J.

[1] The Applicant, Greg Guthrie, seeks an order quashing the search warrant issued October 29, 2014 and thereby excluding the evidence obtained in the execution of the search warrant pursuant to s. 24(2) of the Charter.

Overview of the Allegations

[2] Project “OFocus” was an RCMP investigation into the connections between three shipments of cocaine that were intercepted at Pearson International Airport in 2014. In March, Annecia Morris arrived in Toronto from Port of Spain Trinidad. Accompanying her were her four children, and 8 bags, all of which had cocaine concealed within the lining. In total, approximately 40 kilograms was seized. In May, James Gibb and Jennifer Lucchetti arrived, also from Port of Spain, also with cocaine in the lining of their suitcases. This time the total was approximately 20 kilograms. Finally, in October, Pamela Grey and Anita Miller arrived in Toronto from Grenada. They had 30 kilograms of cocaine concealed in the lining of their suitcases. Morris, Gibb and Grey were all charged with importing cocaine. Based on the investigation, the Crown alleges that the applicant was the primary overseer for all 3 shipments. Delon Griffith is alleged to have assisted in organizing the Gibb/Lucchetti shipment. Separately charged is Webster Richards, who is alleged to have recruited Gibb.

[3] On October 29^th, 2014, members of the Toronto Police Service assisted the RCMP by executing the search warrant at the applicant’s residence at 202-123 Twenty Fourth Street, Toronto, ON. Inside the residence, police located over $50,000.00 in cash, a money counter, vacuum sealers, and drug packaging. They also seized multiple cell phones and a computer. Subsequent analysis showed one of the phones had been in contact with Annecia Morris’ phone. A hard drive on one of the computers seized contained images of the applicant. It contained an internet search for the very resort where Grey stayed in Grenada, at the time she was in Grenada.

Cross-Examination of Cst. Hardeep Gidda

[4] Cst. Gidda has been a member of the RCMP for the past 11 years. He has been assigned to the Toronto Airport Detachment, Plain Clothes, since 2011. He has not received training with respect to writing search warrants and the supporting Information to Obtain. (“ITO”).

[5] Exhibit 2 at this hearing is the ITO he signed in support of the search warrant. Cst. Gidda stated that he has written other warrants as the affiant prior to this one, including CSDA warrants while he was stationed in Kelowna, B.C. He has also written multiple warrants while he has been in Ontario.

[6] Cst. Gidda stated he determines what is relevant and includes in the ITO what he feels is important for the issuing justice to know. He knows he has to be accurate with the information.

[7] I will deal with each of the paragraphs that Cst. Gidda was questioned about in relation to the ITO:

Paras. 32 to 37 - The Previous Authorization Sought, Granted or Denied – these paragraphs only related to the address 72 Montebello Avenue, Vaughan. The address of Guthrie was not referenced nor was any other address.

Para. 23 - Cst. Gidda denied that his term “pattern of Guthrie’s travel to and from POS” was misleading. However, Cst. Gidda did not particularize the details of this travel and set out that in the October 2014 importation Grey and Miller were returning from Grenada, not POS.

Para. 29 - there is no mention in the ITO that Guthrie was not in Grenada.

Re: surveillance - Cst. Gidda reviewed the Guthrie surveillance reports but he did not review all of the officers’ notes. He trusted that the officers’ notes would be true and accurate.

Re: Kenny Langhorn - Cst. Gidda had no idea that Langhorn was a target on the Morris flight.

Para. 24 - Cst. Gidda felt that anyone going to 72 Montebello was suspicious. Cst. Gidda believed Guthrie was a drug organizer so what Guthrie was doing was seen and characterized as suspicious.

Para. 28 - Guthrie and Brissett were noted at Brisset’s house, 72 Montebello Ave. There is no link to or mention of Guthrie’s residence.

[8] Cst. Gidda stated that at no time did race ever factor into the preparation of the ITO.

Governing Legal Principles

Grounds for Review

[9] Before granting an authorization to search, a judge must be satisfied by the affidavit evidence that there are reasonable grounds to believe that a specific crime has been, or is being committed and the search will afford evidence of the crime.

[10] R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, p. 35, the Court stated that a review is not a review de novo. The test is this:

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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[11] In R. v. Adam, [2006] B.C.J. No. 534 (Q.L.) Justice Romilly states at paras. 16 and 29:

Consequently, as I review the statements and conclusions set out in the Affidavit, I will not be assessing the validity of pinpointed passages in isolation of the broader context of the Affidavit and the overall investigation. I also reiterate that I do not stand in the same position as the authorizing judge on this review. I am seeking only the possibility that the statements and conclusions can be upheld, not a certainty or even a probability.

Gresham stated that through his review of CPIC, he learned that Cox contacts Morin on this cellular phone number. The Accused argue that the issuing judge would need to know more about the basis for this statement in CPIC before accepting this assertion to be true. I do not find this to necessarily be the case. If affiants were required to exhaustively set out the basis for every statement, including those relying on the work of other, sometimes anonymous fellow officers, the wiretap authorization process would be cumbersome indeed. It is certainly available to the issuing judge to challenge any statement and trace it back to first principles, but this right will not always be exercised. In this case, I accept that there was sufficient evidence available to support the conclusion that Morin is associated with this second number.

[12] In R. v. Riley, 2009 7177 (ON SC), [2009] O.J. No. 738 (QL) the defence reviewed each fact of the affidavit. In particular, the defence focused on the unreliable nature of much of the informer information set out in the ITO. The trial judge rejected this approach as undermining the totality of circumstances approach, which should be taken during the reviewing process. The court set out the following at paras. 118-121 and 126-127:

In the course of his very thorough argument, Mr. Midanik reviewed the information in the affidavit piece by piece, and argued that much of the information I have outlined cannot be relied on to establish reasonable and probable grounds because it is unreliable informer information, and even where it is not informer information, it is often still unreliable because it is unsourced and conclusory. I do not agree with this approach.

Obviously Mr. Midanik was not wrong to examine the information in the affidavit piece by piece. The significance of the evidence collectively cannot be assessed without such an examination. But in my view a reviewing judge should not simply remove pieces of information from consideration because those pieces, examined individually, are untested, unsourced, lacking in detail or conclusory. Instead, the pieces should also be examined in light of the overall constellation of information in the affidavit and assessed collectively, bearing in mind their various strengths and weaknesses.

Of course, insofar as the information provided by the various informants in this case is rumour, speculation or conjecture, it obviously can form no part of the reasonable grounds. But that is not an apt description of most of the information.

Most commonly, the frailty in the informer information stems from the fact that the informer had no track record of providing reliable information in the past, the affiant's failure to disclose the informant's source of knowledge, and the lack of detail in the information. This is not unusual in wiretap affidavits, particularly having regard to the duty placed on the affiant to make full and frank disclosure. These frailties undoubtedly affect the weight that can be placed on the individual pieces of information. But none of these frailties necessarily result in the information having no value. The same is true for the unsourced information from individuals who are not confidential informants. The case law mandates a different approach to the assessment of reasonable grounds than the one advanced by Mr. Midanik, whether or not the information includes informer information.

The totality of the circumstances approach endorsed by the Supreme Court generally, and in relation to informant information in particular, does not require me, as the reviewing judge, to examine each piece of information provided by each of the informants individually and consider whether each is sufficiently sourced, detailed or otherwise shown to be reliable to be taken into account in assessing the existence of reasonable and probable grounds. Fulfilling such a task in the circumstances of this application would be endless, and I will not pretend to have done it.

It must be remembered that this case is not a classic example of the sort of reliance on a tip contemplated in Debot, Greffe and Garofoli. No one told Comeau that Riley killed Charlton. There is no such tip to assess in the precise manner described in Debot. Instead, a number of informants provided pieces of the puzzle to the police that cumulatively are capable of leading to that conclusion. The correct approach to the consideration of this sort of information, in my view, is to examine the totality of the evidence, and to take into account whether, and to what extent, the informers are tested, or their information is sourced, detailed, or confirmed.

[13] In R. v. Alvarez, 2009 48828 (ON SC), [2009] O.J. No. 3825 (QL) (SCJ), at paras. 20-23 and 110 the Court stated:

Almost inevitably in an investigation as extensive as this one and with a record of the magnitude that was before the authorizing judge here, there will be some errors in the material filed. A standard of perfection is not required. As was stated by Nordheimer J. in R. v. George, [2003] O.J. No. 4825 (S.C.J.) at para. 40:

The fact that there are inaccuracies in the information cannot be ignored. Nor is such conduct to be even tacitly approved of. It is an important aspect of the role of an officer seeking a warrant to ensure that the information provided to the judicial officer is complete and accurate to the degree possible. Having said that, however, it strikes me as both unfair and unreasonable to engage in a word by word dissection of the information with a healthy dose of 20/20 hindsight in an effort to draw out every conceivable inaccuracy or matter of interpretation regardless of the insignificance with a view of lining up all such occurrences for the purpose of then suggesting that the sheer number of such matters must invalidate the warrant.

The material filed in support of an application for a wiretap authorization should be even-handed in its tone and should not be argumentative or contain inflammatory language. Further, it should set out the evidence for the propositions stated, and not simply conclusory statements or opinions by police officers. It is not improper, however, for police officers to draw inferences or offer opinions, particularly on issues that are outside the knowledge of an untrained person, provided the basis for those conclusions are set out: Garfoli; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont.Ct.Gen.Div.) at para. 20.

First-hand information is always preferable; but, hearsay information is admissible and can be used to establish reasonable grounds. Where the supporting affidavit relies upon hearsay information, such as a tip from an informer, the affidavit should also set out the underlying circumstances disclosed by the informer, the degree of detail provided by the informer, the informer's source of knowledge, and any other indicia of the informer's reliability such as past performance or confirmation from other investigative sources: Garafoli at page 191; Debot at pp. 215-219. It is for the authorizing judge to determine, based on such circumstances, whether the information is sufficiently reliable to form part of the basis for granting the authorization.

Where there is erroneous information in the affidavit, it is relevant to consider how that information came to be there. An intentionally false statement, or one that was made in reckless disregard for the truth, is more serious than an honest mistake or inadvertence. Even the existence of fraud or deliberate misrepresentations will not automatically vitiate the authorization, although it is far more likely to lead the reviewing judge to the conclusion that the evidence so obtained should be excluded. However, where the erroneous information is a simple mistake, the incorrect information should be excised from the affidavit. The reviewing judge must then consider whether the record, without the erroneous material, or as amplified with the correct information, continues to provide a sufficiently reliable basis upon which the authorization could have been granted: Garafoli; Araujo; R. v. Bisson, [1994] 3 S.C.R. 1097, 1994 46 (S.C.C.).

That is not to say that there are no errors in the affidavit. Clearly there are. However, I am satisfied that these were simply inadvertent. There was no intent to mislead. Neither was there the kind of negligence in drafting that suggests an indifference or recklessness towards telling the truth. In a document of this magnitude with this number of targeted individuals and the extensive reference to facts involved, there will inevitably be some mistakes.

[14] In R. v. Bisson (1994), 1994 46 (SCC), 94 C.C.C. (3d) 94, the Supreme Court of Canada clarified that in cases where the applicant demonstrates material non-disclosure and/or misleading or false information in the ITO, there is no automatic vitiation of the authorization.

[15] The court in R. v. Morris 1998 1344 (NS C.A.), (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, p. 553, follows the guiding principles set out in Bisson.

[16] Accordingly, material non-disclosure of information or the inclusion of false or misleading information will not vitiate an authorization, if on review of the remaining affidavit material, there exists reasonable grounds to sustain the issuance of the order.

[17] In R. v. Caissey (2007), 2007 ABCA 380, 227 C.C.C. (3d) 322, the defence challenged the search warrant. The court upheld the validity of the search warrant, acknowledging that an error in the authorization is not fatal. The effect is merely to excise any mistaken evidence from consideration of the issuing justice. The court held at paras. 12 and 24:

In challenging the validity of the search warrant, the appellant attacks Cst. Cruise's sworn statement, which erroneously indicated that all of the informant's information had been verified. While Cst. Cruise erred in his statement, this is not fatal. Erroneous information may be excised or amplified on review to show the true facts, provided it results from an error and is not a deliberate attempt to mislead the authorizing judge: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 58. Here, Cst. Cruise provided details of what had been confirmed, making it obvious that some of the information obtained from the informant had not been confirmed. The trial judge committed no error in finding that the misinformation was due to poor draftsmanship rather than any deliberate attempt to mislead. The trial judge did not err in expunging that information, rather than declaring the search warrant invalid.

We agree with the Crown's submission that the trial judge applied the correct test and made no error in concluding that the search warrant could have been issued on the evidence provided. The trial judge considered whether the information provided was "sufficiently detailed to preclude the possibility that it's based on mere rumour." Regarding the aspect of reliability of the informant, the trial judge relied on the evidence confirming some aspects of the information provided. In this respect, she stated: "We are looking for this confirmation because if the tipster is proven correct about some details it might be safe to rely on other information provided." The trial judge examined the factors set out in Garofoli and correctly referred to the standard of review. She acknowledged that she could not overturn the search warrant simply because she might not have granted it. The trial judge concluded that the authorizing judge could have issued the search warrant based on the record before him, as amplified on review, as there was some information that might reasonably be believed. She based this finding on the information that the informant had recently been in the appellant's apartment and had personally witnessed the drugs in the appellant's possession.

[18] And at para: 25:

The trial judge committed no error. With reference to the three factors set out in Debot, the information provided by the informant was detailed and compelling, and was based on his/her personal knowledge that had been recently obtained while in the appellant's apartment. Although the informant had not previously provided confidential information to the police, he/she was known to the police officer, and the police independently confirmed a number of details, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle. Confirmation of this information tended to substantiate the reliability of the informant's information, and was sufficient in the context of the other factors to meet the reasonable probability test. While the police did not obtain any confirmation of the fact that the appellant possessed marijuana, such confirmation is not necessary in the circumstances of this case. The trial judge correctly stated and applied the law.

[19] R. v. Nguyen and Nguyen, 2011 ONCA 465, Blair J.A. set out the following at paras. 23-25:

The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.

Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown’s submission that this question appears to have been lost in the trial judge’s focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.

In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]

[20] R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 deals with what constitutes “misleading statements”. Firstly, at paras. 40-41 the court sets out the test to be applied by the reviewing Court:

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 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.

The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[21] Further at paras. 44-45 the court deals with the concept of full and frank disclosure, stating:

The deficiencies of the ITO in this case must be addressed in some detail before determining whether it could support the issuance of the warrant. In particular, there are erroneous statements that must be excised, and there are numerous omissions that violate “[t]he legal obligation on anyone seeking an ex parte authorization [to make] full and frank disclosure of material facts” (Araujo, at para. 46 (emphasis in original)). Once these flaws are taken into account, it becomes clear that the ITO, as reduced and amplified, could not possibly have afforded reasonable and probable grounds to believe that the accused possessed child pornography and that evidence of that crime would be found on his computer at the time the warrant was sought or at any time.

First, it is necessary to excise several misleading passages in the ITO that suggested Mr. Hounjet had actually viewed illegal pornography on the computer, rather than suspiciously labelled bookmarks (“Favourites”). In particular, para. 5 of the ITO, the first to adduce specific facts in support of the application, contains two glaring and misleading inaccuracies. It states, first, that “[o]nce on the computer HOUNJET observed ‘Lolita Porn’ on the screen”, and then that Mr. Hounjet “returned the next day to find the porn removed”.

[22] At paras. 48-50 the court states:

There is no reasonable basis for assuming that the justice of the peace would have understood these clear and misleading statements to refer exclusively to the icons mentioned in para. 10. The natural reading of the ITO is that pornographic images of children were actually seen on the computer. This is an entirely false claim, and these statements must therefore be excised from the ITO.

Aside from false statements, the ITO in several places gave an incomplete and misleading account of the facts, in contravention of the informant’s duty to make full and frank disclosure of all material information.

For example, the voir dire revealed that the two bookmarks described in the ITO — the bookmarks labelled “Lolita Porn” and “Lolita XXX” — were “just scattered through the favourites” among additional links pointing to “regular adult material” (Testimony of Adrian Hounjet at the voir dire, A.R., at pp. 98-100). This is not mentioned at all in the ITO.

[23] At paras. 58 and 59 in Morelli the court deals with the issue of a misleading ITO:

In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

[24] In R. v. Ebanks, 2009 ONCA 851 MacPherson J.A. deals with the issue relating to sufficiency of information to support an authorization of an ITO at paras. 30-33 as follows:

In my view, the trial judge erred in so concluding. I repeat what Sopinka J. said in Garofoli at p. 1452 about the standard of review to be applied by a reviewing judge:

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.

In Araujo at paras. 51 and 54, Lebel J. stated the test in this fashion:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [Emphasis in original.]

Applying this test to the authorization in this case, I am of the view that the affidavit, properly considered with the correct information intact, disclosed more than ample grounds to support a wiretap authorization. The affidavit set out the following facts:

• three anonymous tips identified either the respondent or Campbell as being involved in Osborne’s murder;

• two witnesses told police that word on the street was that the respondent was involved in the murder;

• there was evidence of motive, namely, that Campbell and the victim had had a falling out despite having been friends at some point, and that the Osborne murder was related to the murder of the respondent’s brothers four months earlier;

• two witnesses saw the respondent at the party where Osborne was shot; and

• there was substantial cell phone communication between the respondent and Campbell, with Campbell being very near the murder scene immediately before Osborne’s murder.

The Crown concedes that the evidence did not disclose sufficient grounds on which to charge the respondent with Osborne’s murder. However, the test on a review of a wiretap authorization is not whether there were reasonable grounds to lay charges against the individual but rather whether there were reasonable grounds to believe that interception of his communications may assist in the investigation of the offence: see R. v. Finlay and Grellette 1985 117 (ON C.A.), (1985), 52 O.R. (2d) 632 (C.A.), at p. 656; R. v. Schreinert 2002 44932 (ON C.A.), (2002), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43. In my view, the facts set out in the previous paragraph easily satisfy this test. It was not necessary for the trial judge in effect to conduct a trial as to whether the reliability of the anonymous tipsters, the reliability and veracity of what the witnesses told the police, and the other evidence could be established beyond a reasonable doubt.

[25] In R. v. Pham, 2009 60792 (ON SC) Justice Hill notes the following at para. 87, when dealing with the scope of review of an ITO:

Constitutional review of Part VI orders invokes a menu of instructive guidelines:

(1) The reviewing court does not stand in the same place and function as the authorizing judge – there is no rehearing: Araujo, at para. 51.

(2) Assessment of statutory and constitutional compliance calls for a more restrictive role as described in R. v. Garofoli 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 (S.C.C.) at para. 56, 62:

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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she must be satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

See also: R. v. Rosenfeld 2009 ONCA 307, (2009), 94 O.R. (3d) 641 (C.A.) at para. 12 (appl’n for leave to appeal filed, [2009] S.C.C.A. No. 407); R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 (C.A.) at para. 11-12; R. v. Blais 2004 8466 (ON C.A.), (2004), 182 C.C.C. (3d) 39 (Ont. C.A.) at para. 10 (“The standard of review before the trial judge was a narrow one”); Durling, at para. 15 (whether order could have been issued…”) (emphasis of original).

(3) The appropriate approach for judicial review of the facial validity of search order documentation is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph (“totality of circumstances” to be considered avoiding “deconstruct[ion]” into individual parts and not to review as though “correcting a student’s term paper”: R. v. Saunders 2003 NLCA 63, (2003), 181 C.C.C. (3d) 268 (Nfld. & Lab. C.A.) at para. 9, 11, 15 (aff’d 2004 SCC 70, (2004), 189 C.C.C. (3d) 436 (S.C.C.)). Reference to all data within the four corners of the sworn application, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant 1999 3694 (ON C.A.), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168); R. v. Chan, 1998 5765 (ON CA), [1998] O.J. No. 4536 (C.A.) at para. 4; R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.) at para. 36 (leave to appeal refused [2009] S.C.C.A. No. 165); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (C.A.) at para. 15-18; Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 984 (BC CA), 2 B.C.A.C. 73 at 79.

(4) Part VI evidence is not rendered inadmissible simply on account of error in the authorization process. Error, coming in a variety of forms including “inelegant language” (R. v. Shoghi-Baloo, [1999] O.J. No. 325 (C.A.) at para. 7 (leave to appeal refused [1999] S.C.C.A. No. 297 )), “incomplete” material (Knight, at para. 18), “lack of care and precision” (R. v. Kesselring 2000 2457 (ON C.A.), (2000), 145 C.C.C. (3d) 119 (Ont. C.A.) at para. 32) and “deficient” sourcing (Agensys International Inc., at para. 44-5)) do not “in and of themselves…vitiate the authorization” without the reviewing court considering “the nature of the errors and the underlying purpose of such”: R. v. Lajeunesse et al., 2006 11655 (ON CA), [2006] O.J. No. 1445 (C.A.) at para. 8. Errors, even fraudulent ones, do not automatically invalidate an order: R. v. Morris 1998 1344 (NS C.A.), (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 553 (quoted with approval in Araujo, at para. 54); Agensys International Inc., at para. 32.

(5) Excission, deletion or exclusion of erroneous or improper text from the sworn affidavit is generally appropriate in order to determine whether the unredacted material would, in any event, have supported issuance of the order as described in R. v. Bisson 1994 46 (S.C.C.), (1994), 94 C.C.C. (3d) 94 (S.C.C.) at para. 2:

As stated in R. v. Garofoli 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 , [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the wire-tap authorization as was done by the trial judge. The trial judge should have examined the information in the affidavit which was independent of the evidence concerning Eric Lortie, in order to determine whether, in light of his finding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, 1994 5328 (QC CA), 87 C.C.C. (3d) 440 , [1994] R.J.Q. 308, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit after excluding the paragraphs directly affected by the retraction. On the basis of this analysis, we are satisfied that there was sufficient independently verifiable information which was not affected by the trial judge's finding and upon which an authorization could reasonably be based.

Also see Araujo, at para. 57-8; Agensys International Inc., at para. 38.

(6) However, deliberate errors on material matters in the application, in effect those designed to mislead, may justify a reviewing court concluding that “the conduct of the police in seeking prior authorization was so subversive” of the process that the court ought not to look to saving the issued order on the basis that the application, excluding the impugned parts, could have justified issuance of the order: Morris, at 553 (as approved in Araujo at para. 54); R. v. Donaldson 1990 630 (BC C.A.), (1990), 58 C.C.C. (3d) 294 (B.C.C.A.) at 311-2 (as approved in R. v. Plant 1993 70 (S.C.C.), (1994), 84 C.C.C. (3d) 203 (S.C.C.) at 216); Kesselring, at para. 31-3; R. v. Readhead, [2008] B.C.J. No. 861 (C.A.) at para. 2; Agensys International Inc., at para. 45, 47; and as described in the following authorities:

That said, there is no doubt that there was an ample basis for granting the warrant after excising the impugned references. The issue then is whether the inclusion of those references was so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed. See R. v. Morris 1998 1344 (NS C.A.), (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) approved in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

(R. v. Vivar, 2009 ONCA 433, [2009] O.J. No. 2126 (C.A.) at para. 2)

It is clear from Araujo that if non-disclosure of a material fact is strategic on the part of the police (as in based on an improper motive or intended to mislead or deceive the authorizing justice) that omission is capable of invalidating the warrant, notwithstanding the existence of reasonable and probable grounds for the warrant to issue. No issue of improper motive or intention to mislead or deceive arose on the facts of the case before us.

(R. v. McElroy, 2009 SKCA 77, [2009] S.J. No. 416 (C.A.) at para. 30

(leave to appeal refused, [2009] S.C.C.A. No. 281))

(7) Amplification of the application record by way of clarification, correction or explanation respecting a material fact, most often in circumstances of a “minor” or “technical” error, may be appropriate where (1) after excision, the record has insufficient information upon which the order could have issued and (2) where the erroneous information result[ed] from a simple, good faith error and not from a deliberate attempt to mislead the authorizing judge”: Araujo, at para. 57-60; see also, Grant (S.C.C.), at 544; Plant, at 216-7; Hosie, at para. 11; Knight, at para. 39; R. v. Stabner, [2008] S.J. No. 693 (C.A.) at para. 11 (leave to appeal refused [2008] S.C.C.A. No. 500).

[26] In R. v. Spackman, 2012 ONCA 905, A. Watt, J.A. set out the following at paragraphs 221 to 226:

[221] As I will explain, I would give effect to this ground of appeal. The reviewing judge erred in concluding that, on the record before the authorizing judge, as amplified on review, there was no reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have granted the authorization.

[222] First, despite his statement of the proper standard of review at the outset of his reasons, the balance of the reviewing judge’s reasons, read as a whole, betrays the proper application of this standard. What appears, rather, is a de novo review, on an item-by-item basis, of each investigative procedure undertaken and a critique of the investigating officer’s conclusions about its efficacy. It is not the role of the reviewing judge to micromanage homicide investigations.

[223] Second, the piecemeal approach followed by the reviewing judge is incompatible with his obligation to review the affidavit material as a whole, and to acknowledge the authority of the authorizing judge to draw reasonable inferences from the contents of the supportive affidavit.

[224] Third, the reviewing judge failed to articulate the basis upon which he rested his conclusions about the state of mind, purposefulness, and lack of understanding of the authorization process demonstrated by the affiant: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at paras. 37 and 42.

[225] Fourth, the reviewing judge seems to have lost sight of the common sense reality of the specific criminal inquiry in which investigators were engaged. A drug dealer, pressing others for a return of funds advanced or delivery of drugs purchased, was stabbed to death, his body dumped in the snow. No murder scene. No eyewitnesses. No weapon. A group of buyers, sellers and others disinclined to offer assistance.

[226] Finally, in stating his conclusion on the validity of the authorization, the trial judge misstated the standard of review:

Given the nature of these misrepresentations and the role they played in the authorizing Justice’s decision, it cannot be said that, in their absence, the authorization would nonetheless have been given. Consequently, the authorization of April 27, 2005 is set aside. [Emphasis added.]

The relevant standard is whether, based on the record before the authorizing judge, as amplified on the review, the authorization could have been granted, not whether it would have been granted: Garofoli, at p. 1452.

Ground #4: The References to Wrongful Convictions and Miscarriages of Justice

[27] In R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No 376, Watt J.A. set out the following at paras. 81 to 86:

The statutory standard – “reasonable 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 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 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[82] The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; and Wilson, at para. 52.

The Standard for Warrant Review

[83] Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Sadikov.

[84] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.

[85] The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43.

[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 other information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.

And 93:

The warrant review here was reduced to a determination of whether the information contained in the amplified record, considered as a whole, could support a belief, based on reasonable and probable grounds, that evidence would be found in the second-floor, south-facing apartment at 306 Adelaide on execution of the warrant. This determination was to be made on an assessment of all the facts on the same practical, non-technical, common sense basis that was applied by the authorizing judge. Provided the evidence in the amplified record was sufficient to support a reasonable inference of evidentiary discovery, the warrant could have issued and the application to set it aside should be dismissed. The very existence of errors or omissions in the ITO, even material errors or omissions, is not dispositive on review. The crucial issue is the capacity of what remained to satisfy the standard required.

Position of the Applicant: Guthrie

[28] The Applicant submits that Cst. Gidda approached his task in a biased manner. Cst. Gidda stated that everything Guthrie did was suspicious. He proceeded on the basis that Guthrie was a drug organizer so Guthrie’s activities and conduct are seen through that lens.

[29] Guthrie argues that there is material non-disclosure as it relates to the surveillance observations. The ITO makes conclusions about suspicious activity without details to support those conclusions. Police instincts do not equate to reasonable grounds.

[30] The designation by Cst. Gidda of a “pattern of travel” was misleading. He references only two occasions of travel when in fact there were twelve as set out in the PAXIS travel query.

[31] Guthrie submits that none of the information set out in the ITO establishes a link to the residence of Guthrie. There is no surveillance conducted on Guthrie’s home. All of this activity is associated to 72 Montebello Avenue, the Brissett residence. Guthrie argues that there is no nexus to Guthrie’s home.

[32] In these circumstances, Guthrie submits that there is no basis for the police to assert that evidence would be found in his home to support these allegations.

[33] At para. 83 of the ITO, Cst. Gidda sets out the following:

Based on my police experiences and conversations with senior drug investigators, drug organizers/overseers will pay courier(s) in cash. The drug organizer(s)/overseers will pay a portion of the pre-determined payment prior to the courier(s) departing to cover expenses during the trip. I believe that the offences in paragraph 2 have been committed. Over 40 Kg of cocaine was seized by RCMP from MORRIS on March 07, 2014; over 19 Kg of cocaine was seized from GIBB and LUCCHETTI on May 25, 2014. GIBB explained to police that he was given $1400 cash for expenses prior to his trip to Trinidad. GIBB was to be paid another $15 000 to courier bags back to Canada from Trinidad. GIBB also explained that he was contacted by phone upon his arrival at TPIA for an update of his current status within the airport by GUTHRIE. It is therefore my belief that drug organizers will be in possession of documents (including but not limited to: receipts, phone numbers, invoice, travel documents, pieces of paper with flight details). In addition, in today’s electronic/digital age it is not uncommon for any individual to use mobile phones, computers or electronic devices to communicate, organize and schedule travel arrangements and meetings to travel abroad. It is therefore my belief that it is not uncommon for drug organizers to use these devices and it is reasonable to believe that those items will be found at their residences.

[34] Guthrie submits that Cst. Gidda had no basis to make such a far-reaching statement. There is too big an inferential leap with insufficient evidence to fill the inferential gap.

[35] Guthrie submits that the issuing justice drew an improper inference that the enumerated items would be found at Guthrie’s residence.

Position of the Crown

[36] The Crown submits that there was ample evidence in the ITO upon which the authorization could have issued. The Crown points to the following as set out in the ITO:

The evidence

• Guthrie’s fingerprints were located within suitcases that

imported 40 kilograms of cocaine from Port of Spain

• Guthrie returned from Port of Spain one day before the

shipment arrived

• “Big Mac’ was involved in sending James Gibb to Port of

Spain and placing 20 kilograms of cocaine in his bags

• The description of “Big Mac” matched Guthrie

• Guthrie returned from Port of Spain 4 days before the

shipment arrived

• Guthrie returned from Jamaica, went to his residence, then

left his residence, and made suspicious hotel visits

• Guthrie was linked to Bernard Brissett, who was arrested in

connection with a seizure of 15 kilograms of cocaine and

multiple empty suitcases

• Guthrie travelled between his home and Brissett’s

residence on multiple occasions

• Guthrie was at the airport, speaking on the phone, and

driving suspiciously at the time Pamela Grey returned from

Grenada with 30 kilograms of cocaine in her bags

• Grey described the organizer as a person who matched

Guthrie’s description

• Guthrie returned from port of Spain 4 days before Grey

arrived, went to his residence, then went to Bernard

Brissett’s residence

• Guthrie made visits to various hotels upon his return from

Trinidad, leaving from and then return to his residence

[37] I agree with the position of the Crown that the ITO, considered in its totality was sufficient for the authorizing justice to issue the search warrant. It was open for the issuing justice to draw the inferences he did. In those circumstances, the issuing justice could find that there were reasonable grounds to think that a search of Guthrie’s residence would yield evidence in support of the allegations outlined.

[38] Even considering the chart prepared by Guthrie and filed as an aide memoire (Exhibit A), none of the concerns raised by Guthrie rise to a level that warrants a finding that the search warrant could not issue. The test is not whether the reviewing court would have authorized the warrant, but whether the issuing justice could have authorized the warrant.

[39] The review is not to conduct a piecemeal dissection of each paragraph or detail set out in the ITO. The review looks at the totality of the information contained in the ITO and determine whether or not with that body of information the warrant could have been issued. The reviewing court cannot substitute its views or assessment of the information.

[40] It is informative to reproduce Exhibit A to provide the list of concerns raised by Guthrie.

INFORMATION TO OBTAIN

Paragraphs

Issue

Comments

Conclusion

16

Misleading

• No details regarding why it is “suspicious” - Affiant acknowledged that there was no connection to a crime and it was “police instinct” that made Mr. Guthrie’s actions suspicious

Paragraph should be

excised

17

Misleading

• Mr. Guthrie is seen in a restaurant with a “large brown paper bag” according to surveillance report ─ ITO refers to this as a “package”

• Detective McCutcheon doesn’t even mention this in his notes

• Affiant acknowledged that the contents of that bag are unknown

• Crown, in his submissions for leave to cross-examine the affiant, said that this paragraph could be removed from ITO

Paragraph should be excised

23

Material

non-disclosure

• Use of term “pattern” when describing 2 occasions

• Affiant acknowledged that he did not include the fact that Mr. Guthrie travelled between Toronto and Port of Spain 12 times in total since 2010

• Use of term “pattern” should be excised

Paragraph should

be amplified to include this relevant information

24

Misleading

• No details regarding why the meeting was “suspicious”

• Affiant claimed that as he believed Mr. Guthrie was a drug organizer, any meetings were suspicious

Paragraph should be excised

25

Misleading

• Affiant said that anytime Mr. Guthrie even looked at anything, it was seen as suspicious

Paragraph should be excised

26

Misleading

• Affiant said that anytime Mr. Guthrie met with an unknown male or female, it was seen as suspicious

• Affiant acknowledged that he did not include this meaning of “suspicious” into the ITO

Paragraph should be excised

28

Misleading

• Mr. Guthrie is not seen with the suitcases

• Affiant acknowledged that there is no connection to Mr. Guthrie’s home

Paragraph should be excised

30

Misleading

• Use of term “counter-surveillance”

• Affiant said that he did not consider that this was the reaction of a person of color to being chased in a car

• Use of term

“counter-surveillance” should be excised

32-37

Material

non-disclosure

• It is not mentioned whether a warrant was ever sought and denied for Mr. Guthrie’s residence

• Affiant said that this was the first warrant that included Mr. Guthrie’s residence

Paragraph should be amplified to include this relevant information

39

Material

non-disclosure

• There is no mention of the other names Ms. Morris provided to t the police – Renee, Kenny, Melissa, Lexi

Paragraph should be amplified to include this relevant information

40-41

Material

non-disclosure

• There is no mention of the fact that Ms. Lucchetti gave a statement with conflicting information

Paragraph should be amplified to include this relevant information

56

Misleading

• Confusion regarding whether items held by Mr. Guthrie are plastic or paper – Corporal Rennie says it’s papers – Surveillance Report comment by Constable Waite says it’s plastic

• Reliability of officers is put into question

• Crown, in his submissions for leave to cross-examine the affiant, said that this paragraph could be removed from the ITO

Paragraph should be excised

73

Material

non-disclosure

-Not mentioned that Ms. Grey was either still or severely intoxicated hungover while giving her statement and therefore the information she provides is not reliable

Paragraph should be amplified to include this relevant information

79

Material

non-disclosure

• Affiant acknowledged that he did not include the fact that Grey/Miller/Sovey arrived from Grenada

Paragraph should be amplified to include this relevant information

80-82

Material

non-disclosure

• No indication whether Mr. Guthrie’s home has similar ties to drugs

• Not relevant to the grounds for authorization

Paragraphs should be excised

80-82

Misleading

• Firearms mentioned even though throughout the entire ITO, there is not one indication of anyone having a firearm

Paragraphs should be excised

[41] Each of the concerns raised by Guthrie have to be considered and analyzed within the context of the total body of information contained in the ITO. None of these concerns either individually or collectively detract from the totality of circumstances approach mandated by the authorities.

[42] I do agree with Guthrie that there are omissions made in the ITO which include the following:

• ITO does not include the fact that Grey/Miller/Sovey arrive in Canada from Grenada. No mention that Guthrie was not in Grenada

• No mention that Ms. Grey was either still intoxicated or severely hung-over when she provided her statement to police

• There is no mention that Gibb’s girlfriend, Ms. Lucchetti, gave conflicting information

• There is no mention that Ms. Morris provided the names Renee, Melissa, Kenny and Lexi when she spoke to police on March 6, 2014

• When referring to the term “pattern of travel” only two occasions are mentioned. No mention of Guthrie travelling to Port of Spain 12 times in total since 2010

[43] I am not satisfied, however, that any of these omissions affect whether the authorizing justice could have found reasonable and probable grounds when the ITO is considered in its totality.

Conclusion

[44] I am not satisfied, therefore, that in all of the circumstances, the Applicant has met his onus that his section 8 rights have been breached. The Application to exclude the evidence obtained as a result of the execution of the search warrant is hereby dismissed.

Fragomeni J.

Released: February 9, 2018

COURT FILE NO.: 1876-16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and –

GREG MCLAREN GUTHRIE

RULING

RE: SECTION 8 and 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

RE: ITO OF CST. GIDDA SWORN OCTOBER 29, 2014

Fragomeni J.

Released: February 9, 2018