Court File and Parties

COURT FILE NO.: CV-17-586883 DATE: 20190416 ONTARIO SUPERIOR COURT OF JUSTICE (TORONTO)

BETWEEN :

Attorney General of Ontario Applicant

and

$164,300 in Canadian Currency and $810 in United States Currency (in rem) Respondent

BEFORE: Justice Edward P. Belobaba

COUNSEL: Fredrick Schumann and Owen Wigderson for the Moving Party Daniel Guttman, Ravi Amarnath and Sara MacDonald for Responding Party

HEARD: March 26, 2019

Motion to Exclude Seized Currency

[1] Enrique Kachuka moves under ss. 8 and 24(2) of the Charter of Rights and Freedoms to exclude the evidence obtained by Toronto police when they arrested him and searched his vehicle and apartment. The motion pertains to a pending application brought by the Attorney General of Ontario under the Civil Remedies Act for the forfeiture of the $164,300 in Canadian currency and $810 in American currency that were seized when the police searched Mr. Kachuka’s apartment.

Background

[2] Sometime in April 2017, the actual date remains unclear, Toronto Police received a tip from a confidential informant (“CI”) that a man known as “Henry,” and described by the CI as “a white male, mid-60s, medium build, with short brown hair and moustache,” was selling Oxycodone inside and outside the Ice Queen Restaurant on Roncesvalles Avenue. The CI told police that “Henry” transported the drugs in his vehicle; that he parked the vehicle “in close proximity” to the Restaurant and also lived “in close proximity” to this Restaurant.

[3] On April 16, 2017, Detective Constable McCabe, an experienced drug investigator, conducted a brief surveillance outside the restaurant and saw Mr. Kachuka engage in what appeared to be two hand-to-hand drug transactions within an 18 minute time-frame. In short order, police confirmed that the person in question was Enrique Kachuka; that he parked his vehicle, a brown Jeep Compass, near the Restaurant and lived in an apartment in the immediate area.

[4] Three days later, the police arrested and searched Mr. Kachuka. They found a pill container in his jacket, some Oxycodone tablets and $600 in cash.

[5] Having obtained two telewarrants from a Justice of the Peace the night before authorizing the search of Mr. Kachuka’s vehicle and apartment, the police proceeded to search the Jeep Compass. The police found an Oxycodone tablet and a notebook that appeared to contain debt lists.

[6] The police then searched Mr. Kachuka’s apartment at 1570 King Street West and found, amongst other things, empty pill containers, about 5 grams of Oxycodone and Oxycocet tablets, a notebook that appeared to contain debt lists, bank account records showing about $239,000 on deposit, and a shoebox that contained $164,300 in Canadian currency (most of it bundled and held together with elastic bands) and $810 in US currency. I will refer to the cash found in the shoebox as the Impugned Funds.

[7] Mr. Kachuka was charged with an array of possession and trafficking offences. As it turned out, all of the charges were withdrawn.

[8] The Attorney General of Ontario has now commenced an application under the Civil Remedies Act (“CRA”) for the forfeiture of the Impugned Funds.

[9] Mr. Kachuka brings this motion to lay the groundwork for the return of the Impugned Funds. He argues that the Information to Obtain (“ITO”) was legally insufficient to obtain the two search warrants; that the vehicle and apartment searches were therefore unreasonable and thus in breach of s. 8 of the Charter; and that the evidence obtained from the searches should be excluded under s. 24(2) of the Charter and not available for use in the upcoming CRA application.

Focus

[10] The forfeiture of the Impugned Funds is clearly the focus of the pending CRA application. On this motion, Mr. Kuchaka casts a wide net. He contests the legitimacy of his arrest, the search of his person incident to the arrest, the search of his vehicle and the search of his apartment. However, because he is no longer in any criminal jeopardy, (the charges were withdrawn), it is obvious that his primary concern is the search of his apartment and the seizure of the Impugned Funds.

The applicable law

[11] The applicable law is not in dispute. When a judge is asked to review the sufficiency of an ITO used to secure a search warrant, the judge must not approach the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified on the review motion, whether the issuing justice could properly have issued the search warrant. R. v. Eftekhari, 2012 ONSC 5140, 266 C.R.R. (2d) 213, at para. 3. See also R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1451-1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 40 and 50-61; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-43; James A. Fontana & M. David Keeshan, The Law of Search and Seizure in Canada, 10th ed. (Markham: LexisNexis Canada, 2017), at s. 9(3).

[12] The question is not whether the reviewing judge would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were "reasonable grounds" justifying the issuance of the search warrant. While this standard is not akin to "proof beyond a reasonable doubt" or even establishment of a "prima facie case," it does require "reasonable probability" or "reasonable belief." Ibid.

[13] Reasonable inferences are permitted. As the Supreme Court noted in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, “the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO … the information need not underline the obvious". Ibid., at para. 16.

The redacted ITO

[14] The ITO that is before me is heavily redacted to safeguard the CI’s identity. The validity of the search warrant for the apartment must therefore be assessed solely on the basis of the information provided in the ITO as redacted. For ease of reference, I will refer to the redacted ITO that is before me as the ITO.

[15] I agree with counsel for Mr. Kachuka that the ITO could have been drafted in an a more readable fashion, setting out who knew and did what when, in a chronological narrative that would have been easier to follow. The ITO also contained some typos - the Tuesday in question was April 18, not April 17 and the vehicle in question was a brown Jeep Compass, not a white Jeep Compass. However, it is obvious from what is said about the relevant dates and the colour of the Jeep Compass throughout the ITO, that the typos just noted are genuine typographical errors that are not fatal.

[16] As the Court of Appeal noted in R. v. Nguyen, 2011 ONCA 465, 281 O.A.C. 118, flaws in an ITO that do not go to the heart of the application before the issuing justice will not be a basis for a breach of s. 8 of the Charter. Ibid., at para. 57-59. Also see R. v. Prosser, 2016 ONCA 467, at para. 22, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 327. Police officers “are not legal draftspersons and cannot, in an ITO, be expected to ‘spell out things with the same particularity of counsel.’” R. v. Ngo, 2011 ONSC 6676, at paras 34-35. Also see R. v. Durling, 2006 NSCA 124, 249 N.S.R. (2d) 229, at para. 19 and R. v. Sanchez (1994), 20 O.R. (3d) 468 (Gen. Div.) at p. 364. Indeed, it is not surprising that an ITO will have some flaws – “[f]ew applications are perfect.” Nguyen, supra, note 7, at para. 58. The question is whether the core substance of the ITO could support the JP’s exercise of discretion to issue the warrant.

Analysis

(1) What the police knew before they applied for the search warrants

[17] In his notes, DC McCabe states that he was on general patrol travelling southbound on Roncesvalles when he noticed a brown Jeep Compass (licence number noted) parked on the east side of the street across from the Restaurant. He further notes that “veh (sic) and owner – Kachuka, Enrique – known to me from previous investigations.”

[18] DC McCabe stopped and conducted a 20-minute surveillance. He saw Mr. Kachuka engage in two almost identical interactions outside the Restaurant, about 18 minutes apart, with two different males: Mr. Kachuka shook hands with the man and the man then walked away looking down at his hand.

[19] The ITO states that DC McCabe, described as a trained investigator who is experienced in the investigation and observation of drug trafficking, believed that he witnessed two drug transactions between Mr. Kachuka and the two unknown males.

[20] The fact that DC McCabe knew Mr. Kachuka and his vehicle from previous investigations is not explicitly mentioned in the ITO. Instead, the ITO states that after further investigation “it was determined” that Mr. Kachuka was the person who had engaged in the two hand-to-hand drug transactions. The ITO refers to police databases and states that Mr. Kachuka’s identity was confirmed (or reconfirmed?) using his vehicle licence number and his physical description (via the photograph in the Intellibook database).

[21] The fact that Mr. Kachuka lived at 1570 King Street West and that his apartment was “in close proximity” to the Restaurant was confirmed by a follow-up police investigation. Google Maps (which both sides agreed I could review and take judicial notice of) shows that EK lived within four blocks of the Restaurant.

[22] My point is this. Before the police submitted the ITO to the JP for the telewarrants, they had reasonable grounds to believe from their own investigations that it was Enrique Kachuka who had engaged in two hand-to-hand drug transactions outside the Restaurant and lived at 1570 King Street West “in close proximity” to this Restaurant.

(2) Oxycodone

[23] The only piece of information provided by the CI relevant to the apartment warrant that the police did not corroborate with their own independent investigation is that Mr. Kachuka was selling Oxycodone outside the Restaurant, as opposed to some other drug. In my opinion, the police-observed hand-to-hands were enough to justify Mr. Kachuka’s arrest and search of his person. The precise identification of the drug that was actually being sold was not required for either the arrest or the ITO.

[24] If I am wrong in this regard, then I must assess the strength of the CI’s tip. The law is clear that where the police rely upon information from a confidential informer, consideration must be given to whether the information is compelling, credible and corroborated by police investigation. Eftekhari, supra, note 3, at para. 21. And see: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-219, affirmed, , [1989] 2 S.C.R. 1140, at pp. 1168-1171.

[25] In my view, the detailed information provided by the CI was compelling – the exact location of the drug deals, the drug dealer’s physical description, his first name, the particular drug that was being sold, and the fact that he parked his car close to the Restaurant and also lived nearby.

[26] The credibility component on the face of the ITO, however, is not as strong. The ITO states, somewhat baldly, that the CI is a “credible source” whose previous tips “have been well-documented to be honest and truthful” and further that “the CS has provided information in the past which has been very helpful and vital in the identification of other drug dealers.” No further particulars are provided – nothing about how the CI came by the information; the motivation behind the tip; the existence of any criminal record; and the success of any previous tips.

[27] Even if there are these deficiencies in the credibility analysis, it is important to note that five of the six pieces of information that are in play on this motion and that were provided by the CI – the description of the purported drug dealer; that he was selling drugs inside and outside the Restaurant; that he was known as “Henry” (the anglicized version of Enrique); and that he both parked his car and lived in close proximity to the Restaurant - were independently corroborated by the police and proven to be true. In my view, it is not a stretch for the police to reasonably conclude that if the CI was right about five of the six pieces of information provided that he was also probably right when he tipped the police that the drug that was being sold was Oxycodone.

(3) The nexus issue

[28] The question that I must answer is this. Given that the identity of the drug-dealer, the fact that he appeared to engage in two hand-to-hand drug transactions outside the Restaurant, that he was probably selling Oxycodone and that he lived nearby were all reasonably established and set out in the ITO for the JP’s consideration, could she have issued the search warrant for the apartment? Did she have reasonable grounds to believe that drugs (Oxycodone) and drug-sale proceeds (cash) would be found in Mr. Kachuka’s apartment?

[29] In my view, she did.

[30] Courts have been understandably vigilant in their effort to protect the sanctity of one’s home and guard against unreasonable search and seizure. Where the target is seen to be engaging in what appears to be hand-to-hand drug transactions and the police seek a search warrant for the target’s house or apartment, there has to be a reasonable connection between the drug sale’s location and the apartment. It is not enough to assume that “the drugs have to be stored somewhere, so why not in his apartment.” There must be a good reason to believe this is indeed the case.

[31] In R. v. Soto, 2010 ONSC 1734, 209 C.R.R. (2d) 191, for example, where the police observed two hand-to-hands, the issuance of a search warrant for the target’s apartment was upheld because the target had been under police surveillance from the moment he left his apartment to the moment he engaged in the two hand-to-hands. This court noted that the target “had not stopped anywhere else in between” and concluded as follows:

At the end of the day, the point is that there were reasonable and probable grounds in the circumstances to think that Mr. Soto had drugs on his person when he left [his apartment] and got into [his vehicle] and a reasonable inference that, as a dealer, he would have had a supply in the apartment. Ibid., (S.C.), at para. 20

[32] The Court of Appeal found this reasoning to be “sensible” because there was:

[A]n obvious nexus among a person, drug and location [in that] if a person leaves his residence, then almost immediately engages in two drug transactions, it follows that there is a good chance that there are drugs in his residence. Ibid., (C.A.), at para. 5

[33] In Eftekhari, supra, note 3, the target was under continuous police surveillance from the time he left his apartment to the moment when the police saw him engage in what appeared to be two successive hand-to-hand drug transactions. This court concluded as follows:

As the accused did not stop at any other locations in the intervening period, it stands to reason, just as it did in R. v. Soto, that there were reasonable grounds to believe that there were drugs in the accused's apartment. Eftekhari, supra, note 3, at para. 27

[34] In R. v. Balouch, [2016] O.J. No. 2210 (S.C.), this court noted that there was no evidence from the CI himself that connected the target with his apartment – the grounds for entry into the apartment “rely entirely upon the investigation conducted by the police.” Ibid., at para. 5. Mr. Balouch was under police surveillance from the moment he left his underground parking garage to the moment he engaged in what appeared to be several drug transactions. This court concluded as follows:

It was a reasonable inference that evidence of criminal activity would be found in the apartment unit. The inference that Mr. Balouch had a connection to that unit is a reasonable one. Such an inference arises from the police checks and the surveillance. The drugs had to be stored somewhere and it is reasonable to infer they might have been stored in apartment unit #711 at 236 Albion Road. He left the parking garage of [this] address before participating in what appeared to be drug transactions on July 16 and 24, 2012. Ibid., at para. 50

[35] Here, of course, Mr. Kachuka was not under police surveillance from the moment he left his apartment on April 16 to the moment when DC McCabe saw him engage in what appeared to be two hand-to-hand drug transactions.

[36] Is there nonetheless a reasonable basis to infer that drugs and drug sale proceeds would be found at Mr. Kachuka’s apartment? In my view, there is. Given that the police had observed what they reasonably believed to have been two hand-to-hand drug transactions outside the Restaurant, the issuing JP could have reasonably inferred that if Mr. Kachuka’s apartment was “in close proximity” to the Restaurant that a supply of drugs was probably being stored at the apartment and not at some other intermediate location in between.

[37] In my view, this court’s analysis in Eftekhari applies herein:

However, in all of the circumstances, and viewing the nature of the transactions realistically, it is difficult not to draw the conclusion that the accused was selling drugs that evening. In any event, it was certainly an inference that was open to the police officers conducting the investigation. Likewise, the inference of drug trafficking by the accused was also an inference that was open to the justice in considering whether to issue the search warrant. In my opinion, this important corroboration of the key allegation of the confidential source provides a sufficient basis upon which the justice could properly have concluded that there were reasonable grounds in support of the requested search warrant. Eftekhari, supra, note 3, at para. 25

[38] The CI’s tip that Mr. Kachuka “transported” the drugs in his vehicle that he parked “in close proximity” to the Restaurant does not preclude the reasonable inference that drugs and cash proceeds (among other things) would nonetheless be found at his residence. Common sense suggests that a drug dealer could well decide to drive his car to and from a nearby sales location because this was safer than walking, risking being mugged, and losing the drugs and cash proceeds on his person. Common sense also suggests, same reasoning, that a careful drug dealer would not choose to keep his entire drug inventory and all of the cash proceeds accumulated over several days or weeks in his car – smarter and safer to store the bulk of the product and the accumulated cash at the apartment.

[39] In sum, I am satisfied that the issuing JP had reasonable grounds, based on the police surveillance and follow-up investigations, to believe that drugs (in particular Oxycodone) and drug sale proceeds would be found at Mr. Kachuka’s apartment. Approaching the ITO with “a common sense, practical, non-technical” R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 82 perspective that is required, I am satisfied that the authorizing JP could have issued the search warrant for Mr. Kachuka’s apartment.

[40] The onus was on Mr. Kachuka to show that the information relied upon to obtain the search warrant for his apartment did not provide any basis upon which the authorization could have issued. R. v. Campbell, 2010 ONCA 588, 270 O.A.C. 349, at para. 45, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549. He has not done so. Mr. Kachuka has not established that his rights under s. 8 of the Charter have been infringed because of a legally insufficient ITO.

(4) The delay in submitting the s. 487.1(9) report

[41] Mr. Kachuka also alleges that police breached his s. 8 Charter rights by submitting a report of the seized items fifteen days past the deadline prescribed in the Criminal Code and further that the subsequent report contained technical errors.

[42] The telewarrants were executed on April 19, 2017. Subsection 489.1(1) of the Criminal Code requires an officer who seizes anything under the authority of a warrant to make a report “as soon as is practicable.” Subsection 487.1(9) requires a follow-up report where a telewarrant is executed, “as soon as practicable but within a period not exceeding seven days after the warrant has been executed.”

[43] Mr. Kachuka points out that the police submitted a single report to satisfy both requirements. The report was signed on May 11, 2017, twenty-two days after the execution of the search warrants – well after seven days had passed and certainly much later than “as soon as practicable.” Further, the submitted report stated incorrectly that one of the telewarrants was issued on April 5, 2017 by JP Dombrowsky (rather than April 19 by JP Johnson as was the case) and that the warrants were executed on April 18 (rather than April 19 as was the case.)

[44] Referring to the decision of the Court of Appeal in R v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, Mr. Kachuka argues that even if the search of his apartment and the seizure of the cash were legal, a failure to comply with the reporting requirements should render the search and seizure unlawful and thus unreasonable under s. 8 of the Charter.

[45] In Garcia-Machado, however, the police seized blood and hospital records - property in which the accused had “a residual privacy interest.” Ibid., at para. 45. The Court of Appeal concluded that the failure to comply with the reporting requirements breached s. 8 of the Charter because the defendant’s “residual privacy interest was compromised.” Ibid., at para. 55. Not so here. Unlike blood or hospital records, there was no residual privacy interest in the cash found in Mr. Kachuka’s apartment. In my view, neither the twenty-two-day delay nor the typos noted above, by themselves, are enough on the facts herein to constitute a meaningful infringement of Mr. Kachuka’s rights under s. 8 of the Charter.

[46] The s. 487.1(9) argument does not succeed.

Disposition

[47] The motion to exclude evidence is dismissed. The CRA application will proceed as scheduled.

[48] I thank counsel for their additional written submissions.

[49] It is my recollection from comments made by counsel at the hearing that $10,000 would be a fair and reasonable costs award on this motion. If either side disagrees, they may forward a brief written submission to my attention within 14 days, with the other side responding within 14 days thereafter.

[50] Otherwise, counsel should draft the appropriate Order confirming the dismissal of this motion and including a provision fixing costs at $10,000 payable forthwith by Mr. Kachuka to the Attorney General of Ontario.

Justice Edward P. Belobaba Date: April 16, 2019