Court File and Parties

Court File No.: CR-18-0518 Date: 2019-08-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Marco Maric, Giovanni Raimondi, Ethan Eckstein, Abdul Shahin, Vartevar Ed Brounsuzian and Tang Hien Quanh, Defendants

Counsel: Brendan Gluckman and Amanda Hauk, for the Crown Gary Grill, for the Defendant Marco Maric Greg Lafontaine and Carly Eastwood, for the Defendant Giovanni Raimondi Robert Yasskin, for the Defendant Ethan Eckstein Enzo Battigaglia, for the Defendant Abdul Shahin Peter Zaduk, for the Defendant Vartevar Ed Brounsuzian Leonard Hochberg, for the Defendant Tang Hien Quanh

Heard: September 14, 17, 18, 20, 21, 25, 27, 28, October 1, 2, 3, 4, 5, 10, 11, 12, 15, 16, 17, 18, 19, 22, 26, 29, 31, November 1, 5, 6, 7, 8, 9, 13, 15, 16, 19, 20, 21, 2018

REASONS FOR JUDGMENT

PRE-TRIAL CHARTER APPLICATION OF MARCO MARIC

M. F. BROWN J.

BACKGROUND

[1] Five of the six defendants on this indictment (Mr. Maric, Mr. Eckstein, Mr. Shahin, Mr. Brounsuzian, and Mr. Quanh) brought pre-trial Charter applications before me seeking exclusion of certain evidence at trial pursuant to s. 24(2) of the Charter. Four of the five accused, Mr. Maric, Mr. Eckstein, Mr. Shahin and Mr. Brounsuzian, brought Garofoli[^1] applications before me challenging the constitutionality of various searches and the interception of private communications conducted under the authority of various wiretap authorizations, general warrants and search warrants.

[2] On November 20, 2018 I gave brief oral reasons dismissing the five defendants’ Charter applications. At that time, I held that I was not satisfied that the evidence sought to be excluded by the various defendants should be excluded under s. 24(2) of the Charter. As well, I indicated that in order not to delay matters, I would provide more detailed written reasons at a later date. These are those reasons.

[3] Previously, on June 26, 2019, I released my written reasons regarding Mr. Quanh’s pre-trial Charter application where I found there was no violation of his s. 9 Charter rights when he was arrested or his s. 8 Charter rights when the police searched Mr. Quanh incident to his arrest or subsequently obtained evidence from the search of a Toyota RAV4 motor vehicle. That decision is now reported at R. v. Quanh, 2019 ONSC 3887.

[4] In this case, all four defendants who brought Garofoli applications challenged various authorizations and warrants on both a facial and sub-facial basis. I granted leave to the four defendants to cross-examine certain affiants and, in some cases, sub-affiants of the various warrants and authorizations. I also granted the “Step Six” Garofoli application of the Crown to permit me to rely upon certain information that had been redacted in the original warrants and authorizations despite the inability of the four defendants to access it. See R. v. Crevier, 2015 ONCA 619 at para. 2.

[5] All four Garofoli applications were heard together by me as pre-trial applications. In order to make my reasons more manageable I am releasing four separate judgments today regarding the Garofoli applications of Mr. Maric, Mr. Eckstein, Mr. Shahin and Mr. Brounsuzian. I recognize that there will be some overlap in issues of fact and law given the submissions of counsel and the evidence admitted on the four applications. The citations for my reasons regarding the pre-trial Charter applications of the four defendants are: R. v. Maric, 2019 ONSC 4478; R. v. Eckstein, 2019 ONSC 4479; R. v. Shahin, 2019 ONSC 4480; and R. v. Brounsuzian, 2019 ONSC 4481. This judgment is in regard to Mr. Maric’s application.

OVERVIEW

[6] At the commencement of this pre-trial application, Mr. Maric (“the defendant”), stood charged on an indictment before me with two counts of conspiracy to traffic in cocaine, two counts of possession of cocaine for the purpose of trafficking and one count of trafficking in cocaine.

[7] The defendant submits that there have been violations of his Charter rights in relation to the following impugned authorizations and warrants and seeks to exclude, on the basis of s. 24(2) of the Charter, the evidence obtained pursuant to the following authorizations and warrants:

i. The wiretap authorization dated April 7, 2016;

ii. The general warrant dated May 3, 2016;

iii. The wiretap authorization and general (video) warrant dated June 2, 2016; and

iv. The search warrant dated June 27, 2016.

[8] As indicated earlier, I granted the Crown’s “Step Six” Garofoli application in regard to certain redacted portions of various affidavits and ITOs (Informations to Obtain) the Crown sought to rely upon in this Garofoli application. See Exhibits KK(1), KK(3a), KK(2a) and KK(5). As required by Crevier, at paras. 88 and 90, in objectively assessing the affidavits and ITOs in this case, I have taken into account that the defendant could not see the redacted portions of the affidavits and ITOs and directly challenge them. In this case the Crown has conceded a violation of s. 8 of the Charter in regard to the general warrant of May 3, 2016 in relation to 85 Queen’s Wharf Rd., unit 3802.

[9] I will deal with each impugned authorization or warrant in order.

A. WIRETAP AUTHORIZATION OF APRIL 7, 2016

[10] Sometime in June 2015, the Toronto police began investigating a man by the name of Kevin Er as the leader of a large scale criminal organization involved in the importation and distribution of controlled substances. Through many investigative techniques, including various warrants (both general and search warrants) the Toronto police felt they were positioned as of April 4, 2016 to request a wiretap authorization in relation to Mr. Er’s criminal organization.

[11] An affidavit in support of the wiretap authorization was prepared by Officer Tait of the Toronto police dated April 4, 2016. The wiretap authorization was granted on April 7, 2016. In paragraph 3(a) of the authorization a principal known person was listed as “a male known as “Marco” described as Serbian”. There was also a “resort to clause” at paragraph 5(m) of the authorization which permitted the police to intercept the communication of a device or telecommunication service they believed on reasonable grounds to be used by any known person named under para. 3(a) of the authorization.

[12] The defendant submits that by April 4, 2016 the Toronto police had built a compelling case against Kevin Er and many of his associates and that the Toronto police were exceptionally well positioned to request a wiretap authorization in respect to his criminal organization. Specifically, the defendant concedes, and no issue is taken with respect to either investigative necessity or the ability of the police to seek a wiretap authorization for Kevin Er’s criminal organization.

[13] The defendant takes no issue with the general lawfulness of the first wiretap authorization of April 7, 2016. He submits that Kevin Er and his associates were part of a criminal organization involved in the importation and distribution of controlled substances. He submits that five generally credible confidential sources had given consistent and compelling information about several of the leaders and members of the organization, much of which the police had corroborated through various police techniques and warrants. He further submits that reasonable grounds existed to believe that several criminal offences were committed by this criminal organization and that the wiretap authorization would reveal evidence in relation to those offences.

[14] The defendant submits that what is at issue in this application regarding the authorization of April 7, 2016 is a) whether Marco was properly named and therefore properly the subject of an interception, b) whether the police had reasonable grounds to believe that the interception of Marco’s communications may assist in the investigation of the offence and c) after the authorization of April 7, 2016 was issued, whether the police had reasonable grounds to believe that Marco was the defendant in order to have used the “resort to clause” in paragraph 5(m) of the authorization in order to intercept the defendant’s communications. I will deal with each issue separately.

(a) Was Marco a properly named person?

[15] As previously noted, the defendant submits that Marco is not sufficiently identified and therefore Marco is not a known person and was not properly intercepted. The defendant submits that knowing the identity of the person and place where the police wish to intercept private communications is a fundamental and necessary precondition to the issuance of a valid authorization. To that end, submits the defendant, knowing the identity of the person must be based on reasonable grounds. The defendant submits that despite the relatively high credibility of the confidential informant CHS[^2] #1, at its highest, the sum of the information provided about Marco is the type of bald assertion and conclusionary statement that Justice Martin cautioned against as referenced in R. v. Debot 1989 13 (SCC), [1989] 2 S.C.R. 1140 at para. 55.

[16] The defendant submits that the affidavit in support of the authorization is devoid of any detail sufficiently identifying who Marco is. The use of quotation marks in the affidavit suggests Marco may not even be the person’s actual name. The occupation of the individual is unknown. The address of the person is unknown. The defendant submits that there is no information that CHS #1 knew Marco personally or could identify him. The defendant submits that, having regard to the totality of the circumstances and applying the Debot factors, all that was known about the person that the police wished to intercept was that Marco was a Serbian male from London. The defendant submits that the information identifying Marco was not compelling. There was either a complete absence of police corroboration or worse, concealed evidence, that the phone number was not in existence. The defendant submits that although CHS #1 was credible, strength in one factor cannot compensate for weaknesses in others. The information about Marco’s identity was not reliable.

[17] The Crown, on the other hand, submits that Officer Tait was full, frank and fair in the affidavit in support of the authorization. The Crown submits that the threshold for naming a known person is not an onerous burden. It does not require that reasonable grounds exist to believe that a person is involved in the offences or that the interceptions will afford evidence of the offences. The Crown submits that the totality of the circumstances set forth in the affidavit of Officer Tait provided a reasonable basis upon which the issuing justice could conclude that the police knew of the existence of Marco.

[18] Before embarking on an analysis of this issue, a brief review of the general legal principles in regard to s. 185(1)(e) of the Criminal Code and the scope of a Garofoli application may be of assistance.

(i) General Legal Principles

a. Section 185(1)(e)

[19] Section 185(1)(e) of the Criminal Code requires the affidavit to include “the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence”. The test for naming involves two components. The first has to do with identity and the second with investigative assistance. The requirements are cumulative. If a person meets both of these criteria at the time the authorization is sought, he or she is a “known” person. If it is later proposed to adduce that person’s intercepted private communications as evidence, that person must be described as a “known” person in the authorization. See R. v. Chesson, 1988 54 (SCC), [1988] 2 S.C.R. 148, at p. 164.

[20] The threshold for describing a person as a “known” in the supportive affidavit is a modest one. Investigators need not have reasonable and probable grounds to believe that the person was involved in the commission of an offence being investigated. Provided investigators know the identity of the person and have reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence, that person is a “known” person for the purposes of s. 185(1)(e). See R. v. Mahal, 2012 ONCA 673 at para. 71.

[21] The investigative assistance component in s. 185(1)(e) does not require that investigators determine (in advance) precisely how the “known” persons’ communications may assist in the investigation. Investigative omniscience or clairvoyance is unnecessary. It is enough that investigators have identified the person, and from the available evidence, have reasonable and probable grounds to believe that interception of his or her private communications may assist in their investigation. See Mahal at para. 72.

[22] For the purposes of s. 185(1)(e), a person is “unknown” if she or he does not meet the identity and investigative assistance requirements of the paragraph: Chesson, at p. 164. Admission of intercepted private communications of an “unknown” will depend on the inclusion and terms of a basket clause. See Chesson, at pp. 164-5.

[23] It is s. 185(1)(e) that enacts the standard to be applied to determine whether a person is “known” for the purposes of the supportive affidavit. That standard is met, and the person should be described as a “known”, when investigators know of the existence of the person and have reasonable and probable grounds to believe that intercepting that person’s private communications may assist the investigation for which authorized electronic surveillance is sought. See Mahal at para. 81.

b. The Standard and Scope of Review on a Garofoli Hearing

[24] A Garofoli hearing is held to determine whether a wiretap authorization or a warrant complies with s. 8 of the Charter. At trial, the defence may challenge the constitutionality of a wiretap authorization or a search conducted under the authority of a search or general warrant by demonstrating that the contents of the ITO relied on to obtain the authorization or warrant could not justify its issuance. If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter. The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter: See R. v. Pires, 2005 SCC 66 at para. 8.

[25] Warrant review is an integral part – a first step – in an inquiry into the 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. The review is simply an evidentiary hearing to determine the admissibility of relevant evidence. See R. v. Ebanks, 2009 ONCA 851 at para. 21; R. v. Sadikov, 2014 ONCA 72 at para. 86.

[26] Warrant review begins from a premise of presumed validity. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it. See Sadikov at para. 83.

[27] Challenges to the validity of an authorization or warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the authorization or warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The validity of the authorization or warrant must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue an authorization or warrant. See R. v. Shivrattan, 2017 ONCA 23 at para. 26.

[28] When the information to support the authorization or warrant comes from a confidential informant, the totality of the circumstances inquiry focuses on three questions. Does the material before the reviewing judge demonstrate that the confidential informant’s information was compelling? Does the material demonstrate that the confidential informant was credible? And does the material demonstrate that the confidential informant’s information was corroborated by a reliable independent source? See Debot at para. 53; Shivrattan at para. 27.

[29] The first question addresses the quality of the confidential informant’s information. For example, did the informant purport to have first-hand knowledge of events or was the informant reporting what he or she had been told by others? The second question examines the confidential informant’s credibility. For example, does the informant have a long record which includes crimes of dishonesty, or does he or she have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the confidential informant that offers some assurance that the confidential informant provided accurate information. The answers to each of the questions are considered as a whole in determining whether the authorization or warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the confidential informant’s credibility. See Crevier at paras. 107-108; Shivrattan at para. 28.

[30] The central consideration on the review of an authorization or a warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the affidavit or ITO excised, there remains a sufficient basis upon which the authorization or warrant could be issued. Police conduct is clearly relevant to this consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. See R. v. Nguyen, 2011 ONCA 465 at para. 57.

[31] Warrant or authorization review requires a contextual analysis. Inaccuracies in the affidavit or ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or intent to mislead, much less to provide a basis on which to set aside the authorization or warrant. See Sadikov at para. 87. The review of the record is not a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences. See R. v. Nero, 2016 ONCA 160 at para. 68.

[32] Like the authorizing justice, the reviewing judge is entitled to draw reasonable inferences from the contents of the ITO. That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent is of no moment. The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the authorization or warrant could have issued. See Nero at para. 71.

[33] The standard of “reasonable grounds to believe” does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. Rather, the statutory and constitutional standard is one of credibly-based probability. At the same time, it requires more than an experienced based “hunch” or reasonable suspicion. See Sadikov at para. 81; R. v. Boussoulas, 2014 ONSC 5542 at para. 21.

(ii) Analysis – Was Marco a properly named person?

a. Was Officer Tait full, frank and fair in the affidavit of April 4, 2016

[34] The defendant submits that Officer Tait was not full, frank and fair in the affidavit of April 4, 2016 filed in support of the authorization of April 7, 2016. The defendant submits that Officer Tait had an obligation to advise the issuing justice that the police had tried and failed to corroborate the phone number of Marco and tried and failed to find any connection with that number and the phone records of Kevin Er.

[35] In my view there is no merit in this submission. There was no material omission on the part of Officer Tait in failing to advise the issuing justice of the failure of the police to corroborate the number 226-985-1847 or to connect it with Kevin Er. Officer Tait testified that he did not advise the issuing justice because he thought it was obvious. I accept his evidence on this point. The obligation on the affiant is not to commit the error of material non-disclosure. There is no obligation on affiants to anticipate and to explain away in advance every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take. See Nguyen at para. 51. Nor in my view was the affiant required to outline to the issuing justice all of the evidence the police did not have.

[36] At paragraph 225 of the affidavit Officer Tait made it clear that he had not yet been able to identify who “Marco” was. In my view, Officer Tait was full, frank and fair in the information he provided to the issuing justice in his affidavit of April 4, 2016. He was not intending to mislead the issuing justice. He was acting in good faith.

b. Confidential Informant

[37] In Officer Tait’s affidavit of April 4, 2016 in support of the wiretap authorization of April 7, 2016 he relies on the information from CHS #1. As noted earlier, when the information to support an authorization comes from a confidential informant, the totality of the circumstances inquiry focuses on three questions as set out previously: Does the material before the reviewing judge demonstrate that the confidential informant’s information was compelling? Does the material demonstrate that the confidential informant was credible? And, does the material demonstrate that the confidential informant’s information was corroborated by a reliable, independent source? See Debot at para. 53; See Shivrattan at para. 27.

[38] The defendant submits that the affidavit in support of the authorization is devoid of any detail sufficiently identifying who Marco is. The use of quotation marks in the affidavit suggests Marco may not even be the person’s actual name. The occupation of the individual is unknown. The address of the person is unknown. The defendant submits that there is no information that CHS #1 knew Marco personally or could identify him. The defendant submits that, having regard to the totality of the circumstances and applying the Debot factors, all that was known about the person that the police wished to intercept was that Marco was a Serbian male from London. The defendant submits that the information identifying Marco was not compelling. There was either a complete absence of police corroboration or worse, concealed evidence, that the phone number was not in existence. The defendant submits that although CHS #1 was credible, strength in one factor cannot compensate for weaknesses in others. The information about Marco’s identity was not reliable.

[39] In beginning the analysis, it may be useful to consider separately each of the three questions and the evidence pertaining to them before addressing the totality of the circumstances.

i. Was the information compelling?

[40] The affidavit indicates that CHS #1 advised that a male named Marco purchases controlled substances from Kevin Er and that Marco’s phone number is 226-985-1847. The judicial summary of the redacted portion of Exhibit “XI” of the affidavit at Exhibit YY(1) indicates that CHS #1 provided the following information: 1) CHS #1 advised that “Marco” who purchases large quantities of controlled substances from Kevin Er’s organization and has a phone number 226-985-1847 is a Serbian male from London 2) CHS #1 advised of further details regarding “Marco” and Kevin Er 3) CHS #1 provided information regarding Marco on specific dates in 2016 prior to the ITO being sworn 4) the source of CHS #1’s knowledge, generally, is provided and 5) in relation to certain information, the affiant has further specified the source of CHS #1’s knowledge (e.g. firsthand observation). On balance and considered as a whole, I am satisfied the material in the affidavit demonstrates that the information of CHS #1 was compelling.

ii. Was the confidential informant credible?

[41] As set out in the judicial summary, CHS #1 is carded and/or registered as an informant with the Toronto Police Service. This provides some degree of comfort with respect to his/her credibility in the sense that he/she was not an anonymous informant. See R. v. Choi, 2013 ONSC 291 at para. 34. As set out in the judicial summary, the confidential informant has provided information to the primary handler in the past, which has led to several arrests and seizures of scheduled substances. On the occasions that the source has provided information to the police, it has been corroborated and found to be reliable. A summary of these past instances, including the disposition of the resultant charges, if any, is provided. CHS #1’s motivation for providing information to the police is provided, including whether consideration or compensation was sought or arranged. CHS #1 is immersed in the drug subculture, which is relevant to his/her character. Whether or not CHS #1 has a criminal record and/or past or present criminal charges, and the nature of any criminal conviction or charge, is provided.

[42] In his written submissions, at paragraph 47, the defendant concedes that in relation to the Debot analysis, CHS #1 was a relatively credible source. I also am of the view that on balance and considered as a whole, I am satisfied the material in the affidavit demonstrates that the CHS #1 was credible.

iii. Was the information corroborated?

[43] Reliability of an informant may be established by past performance as an informant or by confirmation from other investigative sources of part, or all, of the information provided by the informant. See R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.), aff’d 2008 SCC 65, [2008] 3 S.C.R. 451. Certainly, in this case as set out in the judicial summary at Exhibit YY(1), CHS #1 has provided information to the primary handler in the past which has led to several arrests and seizures of scheduled substances. On the occasions that the source has provided information to the police, it has been corroborated and found to be reliable. A summary of these past instances, including the disposition of the resultant charges, if any, was provided and available to the issuing justice.

[44] In this case there is no direct corroboration of the information of CHS #1 regarding Marco which is relevant to the weight to be given to the information. It is clear, that to constitute corroboration of a source’s allegation of criminal conduct, it is not necessary that what is offered relate specifically to the criminality of the allegation. See R. v. Lewis, 1998 7116 (ON CA), 38 O.R. (3d) 540 (C.A.) at para. 22. At the same time, it is important to keep in mind that the confirmation of innocuous, general information is only of limited value in this analysis. Such information could be easily gathered by anyone familiar with the target of the investigation and provides no confirmation that the target has been engaged in the criminal activities alleged. See R. v. Zammit, 1993 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont. C.A.) at paras. 117 and 121. The question is whether it strengthens a belief in the credibility or reliability of the confidential informant. Whether it does is to be determined on a consideration of the totality of the circumstances.

[45] Because information relied upon in the ITO emanated from a confidential informant, I must carefully consider whether the information was compelling, whether the confidential informant was credible and whether the information the confidential informant provided was corroborated by the police. As noted in Debot at para. 53 these are not separate tests. Weaknesses with respect to one may be compensated by strengths in relation to the others. In this case the material before me in the affidavit demonstrates that the confidential informant’s information was compelling and the confidential informant was credible. While there was no direct corroboration of the information regarding Marco, there was a basis for the issuing justice to evaluate the credibility and reliability of CHS #1.

[46] After considering the totality of the circumstances set forth in the affidavit, I am satisfied that the information provided by CHS#1 was relevant and reliable and was properly taken into account by the issuing justice in determining whether the wiretap authorization of April 7, 2016 should issue in regard to the named person “Marco”. See R. v. Wiley, 1993 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) at p. 171. Although I have reviewed all the information provided by the other confidential informants CHS #2-5, given my findings in regard to CHS #1, in my view it is unnecessary for me to determine whether the information provided by other confidential informants corroborates the information of CHS #1 or strengthens a belief in the reliability or credibility of CHS #1. Nor have I relied on the information from the other confidential informants for that or any other purpose. I will note, however, that nothing in the information provided by CHS #2-5 undermines or contradicts the information provided by CHS #1.

[47] As noted in R. v. Beauchamp, 2015 ONCA 260 at para. 105, the threshold for naming a person in an affidavit and authorization is not onerous. A named target of a wiretap authorization need not be implicated in the offence under investigation, unlike at the later stage of arrest. The target of a wiretap may even be an entirely innocent third party, provided that seizure of their communications may somehow further the investigation. See R. v. Abdirahim, 2013 ONSC 7420, [2013] O.J. No. 6170 at para. 50.

[48] In all of the circumstances, based on the record as it existed before the issuing justice, I am of the view that there was a basis in the affidavit upon which the issuing justice could have been satisfied that there were reasonable grounds for the police to know of the existence of Marco. Accordingly, the first component of the threshold for describing a “known” person has been met.

(b) Were there reasonable grounds to believe that the interception of “Marco’s” communications may assist in the investigation?

[49] The defendant submits that it has always been conceded that investigative necessity need not be proven in relation to each individual or that each target must be a member of the criminal organization being targeted. However, submits the defendant, having regard to the stated purpose of the authorization, where the person stands in relation to the organizational structure will be a relevant consideration in determining whether there are reasonable grounds to believe that the interception may assist the investigation.

[50] The defendant submits that nowhere in the affidavit of April 4, 2016 does Officer Tait explain why intercepting Marco would assist in the investigation. The defendant submits that it is clear from the affidavit that Marco is not alleged to be a member of the criminal organization. He is alleged to be a purchaser. The defendant submits, having regard to the wide ambit of s. 467.11 of the Criminal Code, it is possible to see how the interception of a large scale buyer may afford evidence related to the stated purpose of identifying all individuals who are members of the organization as well as all of their associates. However, submits the defendant, the real question is whether based on the information provided by CHS #1, there were reasonable and probable grounds to believe that Marco was a large scale purchaser from Kevin Er. Only then, submits the defendant, could it logically flow that the interception of this communication might assist the investigation.

[51] The defendant submits that the information about Marco was unreliable and incapable of providing reasonable grounds to believe that he was a large scale purchaser from Kevin Er. The defendant submits that having regard to the totality of the circumstances, the information about Marco being a purchaser was weak and uncorroborated. When one factors in the failure of the police to be full and frank with the issuing justice, the defendant submits it cannot be said that one could have concluded that there were reasonable grounds to believe that there was a Marco. Therefore, submits the defendant, no reasonable grounds existed to believe that the interception of Marco’s communications may have assisted the investigation.

[52] I will not repeat my analysis regarding the information provided by CHS #1 regarding Marco. As I indicated, after considering the totality of the circumstances set forth in the affidavit, I am satisfied that the information provided by CHS #1 was relevant and reliable and was properly taken into account by the issuing justice in determining whether the wiretap authorization should issue. Those findings apply to this issue as well.

[53] As noted previously, the threshold for naming a person in an affidavit and authorization is not onerous. Reasonable grounds to believe that a person is involved in an offence under investigation are not required. The judicial summary at Exhibit YY(1) states that CHS #1 advised that “Marco” who purchases large quantities of controlled substances from Kevin Er’s organization and has phone number 226-995-1847 is a Serbian male from London. Also, the judicial summary states that CHS #1 advised of further details regarding “Marco” and Kevin Er.

[54] In all of the circumstances, based on the record as it existed before the issuing justice, I am of the view that there was a basis upon which the issuing justice could have been satisfied that there were reasonable grounds to believe that the interception of Marco’s private communications may assist in the investigation of an offence. Accordingly, the second component of the naming requirement has been met. Marco was a properly named known person in the authorization of April 7, 2016.

(c) Were the police justified in using the “Resort To” clause in the authorization of April 7, 2016

[55] The defendant submits that objectively the police did not have reasonable grounds to believe that the defendant was “Marco” and therefore could not have used the “resort to” clause in para. 5(m) of the authorization of April 7, 2016. The defendant submits that the Toronto police began to intercept his cell phone on April 18, 2016 without any reasonable and probable grounds and that the alleged identification of the defendant as Marco by CHS #1 was simply after the fact justification by the police to explain why they did so.

[56] The defendant submits that much turns on whether the police actually showed a photograph of the defendant to CHS #1. If they did not, the defendant submits the police had no lawful authority to intercept the communications of the defendant using the “resort to” clause. Even if they did, the defendant submits that the circumstances of that identification were so weak as to be virtually worthless. The defendant submits that the police acted without reasonable and probable grounds in using the “resort to” clause.

[57] The defendant submits that the evidence does not support the assertion that the police actually showed a photograph of the defendant to CHS #1. The defendant submits that without any identification that Marco was the defendant, the police intercepted the defendant’s cell phone on April 18, 2016 based on nothing but a similarity in name and city. As noted, the defendant submits that the assertion by the police that CHS #1 identified the defendant as Marco was to justify, after the fact, the unlawful wiretapping which had already occurred.

[58] The defendant submits that even if the court is not prepared to make the above finding, it should be concerned with the method used by the police in the identification process. The defendant submits it has long been the law that single photo identifications are nearly worthless having regard to the great potential to be suggestive.

[59] The defendant submits the crucial question for the reviewing court on this issue is whether the act of photo identification represents objective reasonable grounds to believe that the defendant was Marco. While objective reasonable grounds are not a high bar, the defendant submits that the evidentiary record in this case is not sufficient to establish that this bar was met. The defendant submits that there is no basis to believe that the informant had the ability to identify “Marco” or had ever seen him.

(i) The Allegation that CHS #1 was Never Shown a Photograph of the Defendant

[60] I will deal first with the allegation that CHS #1 was never shown a photograph of the defendant. Before doing so, a brief review of the evidence on the Garofoli hearing is required.

a. Officer Pavoni

[61] Officer Pavoni of the London police testified that he called Officer Bachus of the Toronto Police Drug Squad on April 14, 2016 about the defendant. He made the call in anticipation of his dog handler training ending the following week and then him getting back to the investigation of Mr. Shahin, Mr. Eckstein and the defendant. The purpose of his call was to advise Officer Bachus that the London police were investigating the defendant and it was the belief of London police that the defendant was getting his cocaine from Toronto. Officer Pavoni testified that it was typical for police services to let neighbouring police services know if they were going to be investigating targets within their city. He said it was more of a courtesy call, which is absolutely typical. Officer Pavoni testified he obtained Officer Bachus’ number from Chad Reid, a former Toronto police drug officer whom he thought was still working in the drug squad.

[62] Officer Pavoni had a brief conversation with Officer Bachus. He identified himself and told Officer Bachus he was investigating the defendant. Officer Bachus said that the Toronto police knew the defendant as Marco and that they had a wiretap interception on Marco’s line. According to Officer Pavoni, it was clear throughout their conversation that they were talking about the same person.

[63] Officer Pavoni described his conversation with Officer Bachus in an affidavit he swore on April 21, 2016, in support of a production order. In the affidavit, he said that Officer Bachus told him that Marco Maric is a sub target of a large scale investigation that the Toronto police were conducting and that they had information obtained through Part VI authorized wiretaps that his supplier is a group of Asian males who are providing Marco Maric with ten kilograms of cocaine at one time. Officer Pavoni said he was provided with limited information related to their ongoing investigation but was advised that Marco Maric was not a primary target of their investigation and that the London police were free to investigate and arrest him if grounds existed through their own investigation.

[64] The conversation was very one-sided according to Officer Pavoni. Officer Bachus basically said go ahead and do your investigation. He said he received very little information from Officer Bachus. Officer Pavoni said he had the defendant’s phone number prior to his phone call with Officer Bachus on April 14, 2016. He said during his phone call, Officer Bachus did not ask him for a phone number for the defendant. Officer Pavoni denied that sometime between April 14 and April 21 he provided Toronto police with the defendant’s phone number and that the Toronto police said that they were going to go up on that number now and would give him the fruits of their investigation if they obtained any. He denied London police needed information about the defendant and he was asking Toronto police to get it for them. He denied he was tasked by the Toronto police to get a good number for the defendant because they did not have one.

b. Officer Bachus

[65] Officer Bachus said he did not have any notation of speaking to any London police officer nor did he have any notation about Marco Maric. He said he had no recollection of a cell phone call about Marco Maric. He said it became cloudy for him as to when he became aware of Marco Maric. He said on April 12, 2016 the name Marco was familiar to him because he was aware that CHS #1 had mentioned an individual named Marco who was buying kilos of cocaine from Kevin Er. He said at that point Marco was a small dot on his radar in relation to the whole investigation. At the time, the information was that Marco was a receiver of drugs and the focus of the entire investigation was on a bigger group at that time.

[66] He said that ideally if someone had called him about Marco Maric he would have put it in his notes or advised someone about it. Unfortunately, he said that it is not in his notes. He was dealing at the time with the kidnapping of Kevin Er, which occurred on the second day they were up on the wiretap interceptions regarding this project. The police were trying to solve that kidnapping which was a top priority for him. He said he was preoccupied with the kidnapping and follow-up investigation of the kidnapping of Kevin Er. Marco was not a huge part of his state of mind in regard to the project at that time. He testified that during that period he was receiving many calls. The Toronto police had four surveillance teams out in relation to the investigation of the kidnapping of Kevin Er.

[67] Unfortunately, he said, if he did receive a call it did not go into his notes. He said that he would have liked to have put it in his notes, but he also could have advised somebody to look into Marco Maric too, which eventually he did when he sent Officer Tait out to the meeting with London police. He believed the meeting to be about Marco Maric. He said he first heard the name Marco Maric at some point prior to the meeting with the London police on April 21, 2016.

c. Officer Tait

[68] Officer Tait testified that he first heard the name Marco Maric on a date between April 7 and April 14, 2016. One of the project detectives, Detective Zeleny or Detective Bachus, told Officer Tait that he had received a call from London police that Marco Maric, a London drug trafficker, was travelling to Toronto.

[69] He said it was not unusual for police from other police services to call the Toronto Drug Squad to ensure there was no cross-over regarding investigative targets. Officer Tait testified that to his knowledge the other handler for CHS #1 had shown CHS #1 an MTO (Ministry of Transportation of Ontario) photo of Marco Maric on April 14 and that CHS #1 had identified him as the person known to CHS #1 as Marco. Officer Tait had then typed this information into the “XI” Appendix he was preparing for the wiretap authorization that was eventually submitted and authorized on June 2, 2016.

[70] Officer Tait testified that while he could not specifically recall searching the MTO database for the Marco Maric MTO photograph, if the MTO database indicated he had searched for the photograph, he had done so. He had a designated password to access the database that he never shared with anyone else. Officer Tait testified he was responsible for updating the “X” appendices. He said that in the course of preparing for the second wiretap authorization he began updating Appendix XI and wrote that CHS #1 had identified Marco Maric by an MTO photograph as Marco. Officer Tait denied that whatever he said in the Appendix XI indicating Marco Maric had been identified by an MTO photo shown to CHS #1 was a post facto fabrication to explain why the police had intercepted the defendant’s cell phone on April 18, 2016.

[71] Officer Tait disagreed with the suggestion that somebody had got some information about a Marco Maric in London, and because the Toronto police were investigating a Marco in London that was good enough for him. It was suggested to him that the date of April 14, 2016 as the date that CHS #1 was shown a photograph of Marco Maric did not make any sense because the handler’s notes indicate a different date. Officer Tait testified that if it’s a different date in the handler’s notes there are reasons why the date could be wrong. He said he could have typed it incorrectly. He did not recall specifically looking at the handler’s notes or if it was information he received on the basis of a conversation he had with the handler. He could not say specifically how that information came to him.

(ii) Analysis – Were the police justified in using the “Resort To” Clause?

[72] On the record before me, I am not satisfied that the defendant has established any fraud or misrepresentation in regard to the decision of the police to resort to s. 5(m) of the authorization of April 7, 2016 in order to intercept the private communications of the defendant’s cell phone. That section provided that the police could intercept, in addition to the number 226-985-1847 (the number the police had for the male known as Marco), any other device that the police believed on reasonable grounds to be used by Marco. In my view, on April 18, 2016 when the police began to intercept the communications of the defendant’s cell phone they were authorized to do so by the authorization of April 7, 2016 because reasonable grounds existed for them to believe that the defendant was Marco.

[73] I find there existed on the record before me reliable evidence that might reasonably be believed on the basis of which reasonable grounds existed for the police to believe the defendant’s cell phone to be used by the named person Marco in paragraph 3(a) of the authorization. In other words that the defendant is the same person as the Marco named in the authorization. Officer Tait testified that CHS #1 was shown an MTO photograph of the defendant by the handler and positively identified him as the male known to CHS #1 as Marco. This information was then put into the affidavit that he was preparing in support of the second wiretap authorization which was subsequently authorized on June 2, 2016. This information appears in the judicial summary of the redacted Appendix XI of Officer Tait’s affidavit of May 31, 2016 at Exhibit YY(3). I accept the evidence of Officer Tait in this regard. Therefore, the intercepted communications of the defendant’s cell phone commencing on April 18, 2016 were lawful pursuant to the authorization of April 7, 2016 and the “resort to” clause of paragraph 5(m) of the authorization.

[74] I recognize that there are inconsistencies between the evidence of Officer Tait and the notes of the other handler of CHS #1. The handler’s notes indicate that on April 13, 2016, CHS #1 identified Marco Maric as Marco and that Officer Tait provided the police handler with the MTO photograph of Marco used for the identification. In the judicial summary of the redacted Appendix X1 in the affidavit of May 31, 2016 at Exhibit YY(3), the date CHS #1 was shown the defendant’s photo was April 14, 2016. There also appears to be an inconsistency between the dates when Officer Pavoni said he phoned Officer Bachus (April 14, 2016) and the date the handler indicated in his notes that CHS #1 identified the MTO photograph of the defendant as Marco (April 13, 2016).

[75] However, any inconsistencies as to the dates among the police officers, in my view, are not fatal to the reliability of the evidence of Officer Tait. As he said, he may have typed the date incorrectly, and he could not recall specifically how that information came to him. Officer Tait’s evidence is also supported by the evidence of the MTO records which provide independent confirmation that Officer Tait searched the MTO driver’s licence database for misspelled (and then correctly spelled) variations of the defendant’s name on April 12, 2016 and viewed the MTO photograph of the defendant on April 12 and 13, 2016. This is some evidence that an MTO photograph of the defendant was found by the police and supplied to the handler to show CHS #1.

[76] I also accept the evidence of Officer Pavoni and Officer Bachus. The fact that Officer Bachus did not have a recollection of a phone call with Officer Pavoni was understandable. As he testified, Marco was a small dot on his radar in relation to the whole investigation. As well, at that time, Officer Bachus was dealing with the investigation of the kidnapping of Kevin Er which the police were trying to solve and which was a top priority for them. At that time, Officer Bachus was receiving many calls.

[77] The defendant argues in the alternative that even if the police actually showed a photograph of the defendant to CHS #1, the circumstances of the identification were so weak as to be worthless. I do not agree with the submission of the defence. The courts have long sought to prevent a Garofoli hearing being turned into a trial. See World Bank v. Wallace, 2016 SCC 15 at paragraph 122. Similarly, as noted earlier, warrant review 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. The review is simply an evidentiary hearing to determine the admissibility of relevant evidence. See Sadikov at paragraph 86. The inquiry begins and ends with an assessment of whether the affidavit or ITO contains reliable evidence that might reasonably be believed on the basis on which the warrant could have issued. See Nero at paragraph 71.

[78] In these circumstances, Officer Tait has in my view provided reliable evidence that might reasonably be believed that CHS #1 positively identified a photograph of the defendant as the male known to the confidential informant as Marco. For reasons I have just explained, that evidence was sufficient to provide reasonable grounds for the police to believe that the defendant was Marco and the defendant’s cell phone to be used by the named person Marco. Accordingly, the interception of the defendant’s cell phone pursuant to the authorization of April 7, 2016 and the “resort to” clause found at paragraph 5(m) was properly authorized and was not a violation of the defendant’s s. 8 Charter rights.

B. GENERAL WARRANT OF MAY 3, 2016

[79] A general warrant was obtained by the Toronto police on May 3, 2016 in search of a number of different properties including 85 Queen’s Wharf Rd., unit 3802 in Toronto.

[80] As noted earlier, the Crown in this case has conceded a violation of s. 8 of the Charter in regard to the general warrant of May 3, 2016 in relation to 85 Queen’s Wharf Rd., unit 3802. The Crown’s concession was not made on the basis of police negligence, bad faith or fraud. Officer Chase provided the grounds for his belief that the defendant had an apartment unit on the 38th floor of 85 Queen’s Wharf Rd. in which evidence of drug offences would be found. He failed, however, to set out his grounds for the particular unit 3802.

[81] The Crown took the position that the error of Officer Chase was not a minor, technical error in drafting the affidavit as referred to in R. v. Araujo, 2000 SCC 65 at para. 59 and therefore amplification was not available at the Garofoli review. The Crown submitted that the identification of the unit is a material aspect of the application and cannot be remedied as a minor drafting error. As a result, the Crown conceded that the general warrant in relation to 85 Queen’s Wharf Rd., unit 3802 could not have issued. The covert searches of unit 3802 pursuant to that general warrant on May 4, May 10, May 25 and May 26, 2016 were therefore in violation of Mr. Maric’s s. 8 Charter rights.

[82] Pursuant to the automatic rule in R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 the Crown submitted that the evidence obtained through the covert searches of the unit on the authority of the general warrant must consequently be excised from the subsequent affidavit of Officer Tait of May 31, 2016 in support of the authorization of June 2, 2016 and the ITO of Officer Chase of June 27, 2016 in support of the search warrant of June 27, 2016. See also R. v. Lam, 2015 ONSC 2131 at para. 55; R. v. Jaser, 2014 ONSC 6052 at paras. 26-33.

[83] In light of this admitted s. 8 Charter breach, the defendant seeks to exclude under s. 24(2) of the Charter, the evidence obtained through the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the May 3, 2016 general warrant including the observations made by the police during surreptitious entries, evidence seized during surreptitious entries and photographs and videos produced during surreptitious entries.

[84] I will address the s. 24(2) issues regarding the May 3, 2016 general warrant later in these reasons when I deal with s. 24(2), but because other issues were raised by the defence regarding the general warrant including alleged misrepresentations and omissions as well as negligent and fraudulent conduct of the police, I will deal with those issues now because the defendant submits this conduct impacts the subsequent wiretap authorization and general (video) warrant of June 2, 2016 and search warrant of June 27, 2016.

(a) Was the warrant judicially authorized?

[85] The defendant submits that on the record before me it was not possible that Justice Zuker would have had time to read the unredacted ITO of May 3, 2016 before he authorized it and, on that basis alone, the warrant should be quashed quite apart from the Crown’s concession of the s. 8 Charter breach. The defendant submits that on the basis of the evidence before me, the defendant has demonstrated that the general warrant was issued by means of process that amounted to little more than a judicial rubber stamp and that having rebutted the presumption of regularity, the general warrant of May 3, 2016 should be quashed. See R. v. Morton (1992), 1992 12800 (ON SC), 70 C.C.C. (3d) 244 at paras. 32-33.

[86] In my view, the defendant has not rebutted the presumption of regularity. It must be presumed that Justice Zuker read the unredacted ITO that appears in sealed Exhibit Q at Tab 2. As Justice Dambrot noted in R. v. Riley 2009 7177 (ON SC), [2009], O.J.No. 738 at para. 299 “one can never know whether a judge who grants an order actually examined the material placed before him or her, actually read some or all of it, or fully understood it. This is where the presumption of regularity comes into play. It is presumed that the judge reviewed the record that was filed in support of an order.”

[87] Of course, this presumption is rebuttable. The burden is on the defendant to displace the presumption of regularity by the introduction of evidence. See R. v. Young (1999), 1999 1522 (ON CA), 138 C.C.C. (3d) 184 (Ont. C.A.) at para. 7.

[88] Based on the record before me the defendant has not met his onus to rebut the presumption of regularity. I accept the evidence of Officer Chase that he could not give a definitive answer as to when he dropped off the materials for the general warrant to Justice Zuker at Old City Hall. He said he knew it was before noon on May 3, 2016. He has a note in his notebook that the general warrant was authorized at 2:00 p.m. He testified he picked up the materials at 2:30 p.m. At a minimum that provides two hours for Justice Zuker to have read the materials.

[89] For reasons that I will explain when dealing with the evidence of Officers Chase, Swart and Hildebrand later in these reasons in regard to discovering the defendant’s connection to 85 Queen’s Wharf Road, unit 3802, I believe Officer Chase was being truthful in his evidence regarding the timing of when he dropped off the general warrant materials for Justice Zuker on May 3, 2016. As noted, he testified it was before noon on May 3, 2016. The defendant submits that the 218 page ITO, plus an unknown number of pages for each of the seven confidential informants, could not have been read in less than one hour and a half let alone understood and scrutinized before authorizing searches of five residences. I have examined the length of the unredacted ITO in sealed Exhibit Q at Tab 2. There is no doubt that the ITO was lengthy and that it would take some time to review it. However, as I indicated, on the evidence before me, I find that Justice Zuker had at least two hours to do so. In my view, this two hour time period, while not a great deal of time in these circumstances, was sufficient for Justice Zuker to read the ITO. The evidence in these circumstances does not rebut the presumption of regularity. The general warrant of May 3, 2016 was judicially authorized.

(b) Multiple entries

[90] The defendant submits that there was no limit placed on the number of times surreptitious entries could be conducted under the general warrant of May 3, 2016. The defendant submits that this would have been the responsibility either of Officer Chase or of Justice Zuker and in its absence is another indication that the general warrant was neither prepared nor authorized in a manner consistent with Charter scrutiny.

[91] For the reasons that I have explained more fully in my reasons regarding Mr. Brounsuzian, who raises a similar argument in regard to the general warrant of May 3, 2016, I am of the view that the wording of the general warrant authorizes multiple entries. See R. v. Lucas, 2009 43418 (ON SC), [2009] O.J. No. 3415 (Ont. S.C.) at para. 7, aff’d R. v. Lucas, 2014 ONCA 561. There was no impropriety on the part of Officer Chase in failing to limit the number of multiple entries. He specifically requested multiple entries at paragraph 64(g) of the general warrant.

(c) Misrepresentation of the footage viewed by Officer Ho

[92] The defence submits that Officer Chase’s description of Officer Ho’s observations on April 29, 2016 in the ITO did not include the fact that, as Officer Ho testified, when the defendant and Mr. Eckstein got off at the 38th floor they turned to the left away from unit 3802. The defendant submits that this information was known to the police and would have been highly relevant on the general warrant application. This again, submits the defendant, is part of a pattern of negligence on the part of the police.

[93] In my view, this was a good faith error on Officer Chase’s part. I accept the evidence of Officer Chase. Officer Chase testified that he did not recall Officer Ho ever telling him that based on his observations he thought the unit associated to 85 Queen’s Wharf Rd. was 3807. He never heard the information that, based on the way that Mr. Maric and Mr. Eckstein turned out of the elevator, it would have been one of the units on the left side. He said he had not seen Officer Ho’s report at Tab 18 of Exhibit G until after the affidavit had been drafted.

[94] In speaking with Officer Ho, at no point did Officer Ho tell Officer Chase which units were to the left if one went off the elevator and which units were to the right. Officer Chase testified that when he was drafting the ITO, he was not aware of the actions of the defendant and Mr. Eckstein when they got off the elevator at the 38th floor. He had not seen Officer Ho’s report when he was drafting the ITO.

(d) Duty to take care

[95] The defendant submits that the mistakes in the ITO for the general warrant speak to the negligence and carelessness that attended this particular ITO. The defendant submits the ITO was a mess and would have baffled even a justice who had days to review it. Included in the complaints about the ITO were the following: the fact that the affiant failed to properly number the paragraphs; the numerous duplications, word for word, throughout the ITO; the inclusion of a vast timeline appendix that had no obvious purpose; the decision to include multiple unrelated addresses in a single application; the fact that the affiant worked to complete the ITO in a single 30 hour session without sleep; the inclusion of seven appendices and then only citing six of them; the error in summarizing an occurrence report involving the arrest of Mr. Eckstein and the defendant; and incorrectly stating he was the co-handler of CHS #1.

[96] In my view, while Officer Chase made some mistakes in drafting the ITO, which is not to be condoned, I would not view the conduct of Officer Chase as negligent. Nor do I find that Officer Chase intended to mislead the issuing justice. As mentioned earlier, the review of a warrant is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions and embellishing those flaws to the point where it is the police conduct on trial rather than the sufficiency of the evidence in the application. See Nguyen at para. 57; R. v. Lao, 2013 ONCA 285 at para. 54. In my view Officer Chase was acting in good faith. Officer Chase was attempting to concisely summarize a very large investigation and in the course of that process he made some mistakes. As the Court of Appeal for Ontario noted in Nguyen at para. 58, few applications are perfect.

(e) Failure of affiant to specify duration of interceptions

[97] The defendant submits that the affiant had an obligation to include in the ITO the fact that the police had been listening to the defendant’s phone calls for two weeks and there had been no connection to Kevin Er and no evidence of any drug dealing revealed. The defendant submits this was important and material exculpatory evidence. The defendant submits that the failure of the police to provide this information to the issuing justice was serious police misconduct.

[98] In my view, this omission by Officer Chase was not material. The obligation on an application for a warrant is not to commit the error of material non-disclosure. There is no obligation on the police to anticipate, and to explain away in advance, every indication of crime they did not see or sense. See Nguyen at para. 51. In my view, the above cited omission does not amount to material non-disclosure.

(f) Prior knowledge of police regarding 85 Queen’s Wharf Rd.

[99] The defendant rejects the submissions by the Crown that because unit number 3802 was known to the police by lawful means before the ITO was submitted, the error made by Officer Chase in failing to include the information regarding unit 3802 in the ITO was one of good faith. The defendant submits that the claim that the police knew of unit 3802 before they sought the ITO is far-fetched and is inconsistent with the evidence. Even if believed, submits the defendant, the Crown was negligent in relation to the unit number. The defendant submits that the rushed manner in which the ITO was put together at the last minute by the police to attempt to include unit 3802 can only be described as negligent. The defendant submits that negligence cannot be equated with good faith.

[100] Before dealing with this issue, a brief review of the evidence at the hearing pertaining to the activities of the police in the morning of May 3, 2016, before the ITO was submitted to Justice Zuker, is required.

(i) Evidence of Officer Hildebrand

[101] Officer Hildebrand said he arrived at Queen’s Wharf Rd. at 10:10 a.m. on May 3, 2016. It was a follow up regarding the surveillance the Toronto Police had done on April 29, 2016 and, as well, a follow up on information Officer Ho had obtained from the day before on May 2, 2016.

[102] He believed Officer Ho had provided information to him on May 2, 2016. Officer Ho told him he had attended 85 Queen’s Wharf Rd. and the defendant and Mr. Eckstein had taken the elevator to the 38th floor and that possibly they had gone to unit 3807. Officer Hildebrand testified he was there to investigate further.

[103] Officer Hildebrand said he attended at 85 Queen’s Wharf Rd. and waited to get into the underground garage. He said the purpose in going to the underground was to identify a unit number and to identify any of the target vehicles that were in the building. He said he drove in looking for the target vehicles and he located Mr. Eckstein’s red Acadia. It was parked in spot 56. He then exited the underground garage and went to the property management at 75 Queen’s Wharf Rd. He spoke to property management and he was advised that spot number 56 where Mr. Eckstein’s vehicle was parked was associated to unit 3802. The listed tenants for unit 3802 were Amanda Dismore and Shondel Johnson. The property manager did a search of visitor parking permits that had been registered with unit 3802 and Officer Hildebrand was advised that the vehicle associated with the defendant had received a visitor parking pass for unit 3802 on April 16, 2016. He also asked if another vehicle that was associated with the defendant’s girlfriend had received any parking passes and was advised that no passes for that vehicle had been given in the past two weeks.

[104] Upon exiting the building Officer Hildebrand relayed the information regarding unit 3802 over the radio. At some point he went back down in the underground parking garage and saw that the red Acadia associated to Mr. Eckstein was still parked in spot 56. He said he was not able to say what time he did so, apart from saying that it was prior to 12:40 p.m.

[105] There is a discrepancy between Officer Hildebrand’s notes which he made on a steno pad contemporaneously and other notes that Officer Hildebrand prepared later as well as the central notes of the surveillance team (see Exhibits A, B1, and B2). In his steno pad notes at Exhibit B2, Officer Hildebrand noted at 11:12 a.m. he was checking the underground whereas on the central notes (Exhibit A) and his other notes (Exhibit B1) there is an indication that at 10:16 a.m. he is checking the underground parking garage.

[106] When asked about this discrepancy, Officer Hildebrand said he was unsure when he arrived if it took up to an hour to get into the underground parking garage, or if the time should have been 10:12 a.m. on his steno pad notes. In cross-examination Officer Hildebrand admitted that when he found Mr. Eckstein’s vehicle it could have been 10:12 a.m. or 11:12 a.m. He said it seemed unlikely it would take him an hour and two minutes to find one vehicle in an underground as opposed to a few minutes, but he admitted it could have been 11:12 a.m. He said he was not sure how long it took him to get all of the information he received from the property manager before he radioed it over the air. He also said it is very possible that there was some lag time between radioing the information that he just received and going back down to the underground. He said he could not recall how long after spotting Mr. Eckstein’s vehicle he was speaking with the property manager. He believed it was right after. Narrowing it down, he said it was five minutes.

[107] In terms of seeking permission of building management to go into the underground parking garage, Officer Hildebrand testified he would assume that because of the fact an officer had gone to the building since the initial surveillance of that building on April 29, 2016 and that officer received information and reviewed videos, that officer would have asked permission and if there was no permission he would have let them know. He said nobody specifically told him that they had consent, but it would have been regular practice to know beforehand.

(ii) Evidence of Officer Swart

[108] Officer Swart testified that he was detailed by his detectives on May 3, 2016 to attend at 85 Queen’s Wharf Rd. He said if the police could confirm the unit number, then they would be applying for a general warrant at 85 Queen’s Wharf Rd. He testified that he knew police had been at 85 Queen’s Wharf Rd. on April 29, 2016. He said he was not present, nor did he do anything in relation to the address at Queen’s Wharf Rd. on April 30, May 1 or May 2, 2016. He said he started shortly after 10:00 a.m. on May 3, 2016. He was the road boss controlling the surveillance team that day. He was briefing his team on the road. The briefing was complete at 10:10 a.m. At 10:16 a.m. he received information from Officer Hildebrand that a red Acadia associated to Mr. Eckstein had been located at the underground at 85 Queen’s Wharf Rd. at spot 56 and was registered to unit 3802. That’s the information that was passed on to him. He assumed Officer Hildebrand got that information from security or property management.

[109] He denied that the police were already aware of unit 3802 at 10:16 a.m. He said he detailed the team to try and figure out what the unit number at Queen’s Wharf Rd. was. It was anticipated that if they found the unit number the police would then apply for general warrant.

(iii) Evidence of Officer Chase

[110] Officer Chase said he got the information about unit number 3802 from Officer Swart around 10:00 a.m. He testified he got the information before he left the office to go have the general warrant of May 3, 2016 signed by Justice Zuker. He said it was around about an hour between getting the information from Officer Swart and dropping off the ITO with Justice Zuker. He said he had written down what Officer Swart had told him in his notebook about the unit number. He also said he had put the headings in the ITO in regard to unit 3802, but he did not put the information Officer Swart told him in the ITO. He said in his haste in drafting the ITO he failed to put in the ITO the information about unit 3802 that he knew from speaking to Officer Swart. Specifically, that investigative techniques were conducted which identified unit 3802. He failed to add that paragraph to the ITO.

[111] He testified his best recollection was that it took 30 to 40 minutes to adjust the ITO to add the new address. He said it took 20 to 30 minutes to get to Old City Hall from where he was located drafting the ITO. He said it then took five to seven minutes to get to the judge’s chambers at Old City Hall after parking his vehicle. He testified that he dropped the ITO off at Justice Zuker’s office before noon at the Old City Hall. He said he got the warrant back at 2:30 p.m. He has a note in his memo book that the general warrants were authorized at 1400h or 2:00 p.m.

[112] I accept the evidence of Officer Chase. In particular, I accept his evidence that he only received the information regarding unit 3802 on May 3, 2016 when he spoke to Officer Swart. I also accept his evidence that he had information regarding unit 3802, but in his haste, he failed to include it in the ITO. The error was not the kind of behaviour that negates a finding of good faith. In my view in this case the police conducted themselves in a manner that is consistent with what they subjectively, reasonably, and non-negligently believed to be the law. See R. v. Saeed, 2016 SCC 24 at paras. 135-138. Officer Chase had the information about unit 3802 but through inadvertence, he simply failed to put it in the ITO. In my view this was an error made in good faith. I recognize that there was an inconsistency in the notes of Officer Hildebrand whose steno pad notes taken at the time indicate that he was checking the underground at 11:12 a.m. whereas in his later notes he has 10:16 a.m. as the time he is checking the underground.

[113] I accept the evidence of Officer Swart who testified that he received the information from Officer Hildebrand regarding his observations in the underground parking garage at 10:16 a.m. I also accept the evidence of Officer Chase who testified that he received the information from Officer Swart in regard to unit 3802 about 10:00 that morning. He did not have any notes about the actual time he received the information, but he was in the process of drafting the ITO he later submitted to Justice Zuker. I also accept his evidence that he submitted the materials to Justice Zuker before noon. In light of all of the evidence before me I find that Officer Hildebrand recorded the time of 11:12 a.m. incorrectly in his steno pad note which he recognized as a possibility given his evidence that it seemed unlikely it would take him an hour and two minutes to find one vehicle in the underground as opposed to two minutes. As he acknowledged in his evidence, he was unsure when he arrived if it took up to an hour to get into the underground parking garage or the time should be 10:12 on his steno pad notes. On all the evidence, it appears more likely that the observations he made in the underground garage were made earlier, at 10:12 a.m. instead of 11:12 a.m. Clearly, if he only made the observations at 11:12 a.m., it would not have been possible for Officer Chase to have received that information, finish drafting the ITO and get to Old City Hall by noon. However, for the reasons I have explained I accept the evidence of Officer Chase that he did so.

[114] On all the evidence, I accept the Crown’s submission that notwithstanding its concession that there was a breach of s. 8 of the Charter, the police were nevertheless acting in good faith when they sought the general warrant for 85 Queens Wharf Rd., unit 3802. In seeking to obtain the general warrant the police were not acting fraudulently, negligently, or in bad faith. I will return to these issues again when dealing with s. 24(2) of the Charter regarding the general warrant of May 3, 2016 in regard to 85 Queens Wharf Rd., unit 3802.

C. WIRETAP AUTHORIZATION AND GENERAL (VIDEO) WARRANT OF JUNE 2, 2016

[115] As I indicated earlier, the Crown concedes a s. 8 Charter breach with respect to the general warrant of May 3, 2016 in regard to 85 Queen’s Wharf Rd., unit 3802. The Crown accepts that any evidence obtained by way of the execution of that warrant should be excised from the subsequent affidavit of Officer Tait of May 31, 2016 in support of the authorization of June 2, 2016 and the ITO of Officer Chase of June 27, 2016 in support of the search warrant of June 27, 2016. The defendant submits that the elimination of the information obtained from the execution of the general warrant of May 3, 2016 deals a crushing blow to the affidavit in support of the June 2, 2016 wiretap authorization and general (video) warrant. The defendant submits that the authorization of June 2, 2016 relies heavily on the results of the search pursuant to the May 3, 2016 general warrant. Once all the evidence obtained from the execution of the May 3, 2016 general warrant is excised, the defendant submits that there remains no evidence that provides a sufficient basis to target unit 3802. The defence submits that for the same reasons that the May 3, 2016 general warrant is deficient, so too is the wiretap authorization and general (video) warrant of June 2, 2016. The defendant submits that with the fruits of the May 3, 2016 general warrant excised, there is no objectively grounded evidence whatsoever. Post-excision, submits the defendant, the affidavit of May 31, 2016 does not establish any reasonable grounds to believe that any evidence would be found either through video monitoring of unit 3802 or through the interception of communications that took place in unit 3802.

[116] In addition, the defendant submits that the observations of Officer Ho at 85 Queen’s Wharf on April 29, 2016 and May 2, 2016 were made in violation of the defendant’s s. 8 Charter rights. The defendant submits that the observations of Officer Ho were a warrantless search and prima facie unreasonable and therefore the evidence obtained from his unlawful entry into 85 Queen’s Wharf Rd. should also be excised from the affidavit of May 31, 2016.

[117] As well, the defendant submits that the reference to the wiretapped calls involving the defendant at paragraph 156 of the affidavit of May 31, 2016 were selective, summarized incompletely and designed to mislead the issuing justice. In addition, the defendant submits that Officer Tait had a duty to disclose to the issuing justice the lack of connection between the defendant and Kevin Er. In short, the defendant submits that post-excision, little remains of the affidavit to justify the issuance of the authorization of June 2, 2016.

[118] I will first deal with the issue of whether the actions of Officer Ho at 85 Queen’s Wharf Rd. on April 29, 2016 and May 2, 2016 violated the defendant’s s. 8 Charter rights.

(a) Did Officer Ho breach the defendant’s s. 8 Charter rights?

[119] The defendant submits, relying on R. v. White, 2015 ONCA 508, that the observations of Officer Ho in the common areas of 85 Queen’s Wharf Rd. on April 29, 2016 and then on May 2, 2016 viewing the elevator videos of 85 Queen’s Wharf Rd. of April 29, 2016 was a violation of the defendant’s s. 8 Charter rights. Therefore, submits the defendant, the reference to those observations should also be excised from the affidavit of May 31, 2016. As I indicated in my oral reasons of November 20, 2018, I am of the view that Officer Ho did not breach the defendant’s s. 8 Charter rights. In order to explain my conclusion in this regard I will briefly review the evidence of Officer Ho on the Garofoli hearing and some general legal principles regarding s. 8 of the Charter and the reasonable expectation of privacy.

(i) Evidence of Officer Ho

[120] Officer Ho of the Toronto Police Service testified that he was doing surveillance on April 29, 2016. He and other members of the surveillance team had a briefing in the area of 85 Queen’s Wharf Rd. at around 4:45 p.m. It was his understanding that Mr. Eckstein had been followed by the London police from London to that location. He then took over the surveillance of Mr. Eckstein. At 6:15 p.m. the vehicle associated to Mr. Eckstein pulled into the front roundabout at 85 Queen’s Wharf Rd. and parked. Officer Ho was detailed to provide some foot surveillance if Mr. Eckstein were to get out of his car. Officer Ho set up inside of the lobby of 85 Queen’s Wharf Rd. At that point he observed Mr. Eckstein enter into the front lobby doors where he was met by the defendant. Both of them walked together through the building and walked towards the area of the elevators.

[121] Officer Ho was walking behind both of the individuals and an unknown female. Officer Ho waited for the elevator and entered into the elevator with the defendant, Mr. Eckstein and the unknown female. By going into the elevator, Officer Ho was attempting to establish a floor associated to Mr. Eckstein or the defendant. He wanted to see what floor they exited on.

[122] The defendant pressed the 42nd floor button. The female pressed the 31st floor button and Officer Ho pressed 7th floor button. Officer Ho said he knew that there were cameras in the elevator. He said he pushed the 7th floor button in order to act naturally. Also, he thought he could rely on the video from the elevator at a later date. He said his whole point of following Mr. Eckstein into the building was to establish some sort of address associated to him or the defendant. Officer Ho then exited the elevator on the 7th floor.

[123] On May 2, 2016 Officer Ho re-attended the area of 85 Queen’s Wharf Rd. and located the property management office which is located in the adjacent building at 75 Queen’s Wharf. He spoke with the property manager. He asked her if the police could conduct surveillance in the common areas of the building, meaning the lobby and hallways. The property manager gave her consent. He also asked for permission to review the video surveillance from 85 Queen’s Wharf Rd. for April 29, 2016, which was also granted. Officer Ho then reviewed the videos of the front entrance lobby and the hallway in front of the elevators and inside of the elevators. There were no cameras on the individual floors. On the video he observed the defendant press the 42nd floor button, the unknown female pressed the 31st floor button and he pressed the 7th floor button. He observed himself exit on the 7th floor and then he observed the unknown female exit on the 31st floor. After he and the unknown female had exited the elevator, Officer Ho observed the defendant press the 38th floor and that is where the defendant and Mr. Eckstein got off the elevator and they turned left. In reviewing the video his purpose was to attempt to narrow down a unit or residence and that information could and would have been forwarded to Officer Chase for the application of the general warrant. He did know that the information that he was providing would in all likelihood be used towards some sort of search warrant.

[124] On April 29, 2016 Officer Ho had not spoken to property management. The first time he did so was on May 2, 2016. He agreed that when he followed Mr. Eckstein and the defendant into 85 Queen’s Wharf Rd., he did not have the permission of property management to be on the property at that point. He also agreed that when he went into the elevator in 85 Queen’s Wharf Rd. he did not have permission of property management to be there. It was only after May 2, 2016 that he obtained that permission. He said April 29, 2016 was a Friday and that his team did not work on Saturday and Sunday, so he went back to 85 Queen’s Wharf Rd. on the next day he was working which was Monday, May 2, 2016 to speak with the property manager.

[125] On May 2, 2016 after reviewing the videos, Officer Ho went up to the 38th floor to check the units on the left hand side because the defendant and Mr. Eckstein turned to their left when they exited the elevator. He observed that the units to the left when one exists the elevator on the 38th floor are units 3805-3809.

(ii) General Legal Principles – Section 8 of the Charter and the Reasonable Expectation of Privacy

[126] The scope of the protection afforded by s. 8 of the Charter was determined by the decision of the Supreme Court of Canada in Hunter v. Southam Inc. (1984) 1984 33 (SCC), 14 C.C.C. (3d) 97 at pp. 108-109.

[127] In considering whether there has been an unreasonable search, it is first necessary to decide whether the police investigative technique constituted a “search”. That question is answered by determining whether the person had a reasonable expectation of privacy. If the person alleging a breach of s. 8 of the Charter had no reasonable expectation of privacy, then whatever occurred was not a search and s. 8 could not have been violated. The factual matrix is all important when assessing a reasonable expectation of privacy.

[128] This limitation on the right guaranteed by s. 8 of the Charter, whether it is expressed negatively as freedom from unreasonable search and seizure, or positively as an entitlement to a reasonable expectation of privacy, indicates that an assessment must be made whether in particular situations, the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. This assessment must be made in light of the totality of the circumstances of a particular case.

[129] When deciding whether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s. 8 claimant. It is the defendant who bears the burden of demonstrating this expectation on a balance of probabilities. See R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at para. 45.

[130] In Edwards at para. 45 Justice Cory enumerated several considerations that are relevant to this inquiry:

i. Presence of the accused at the time of the search;

ii. Possession or control of the property or place searched;

iii. Ownership of the property or place;

iv. Historical use of the property or item;

v. The ability to regulate access, including the right to admit or exclude others from the place;

vi. The existence of a subjective expectation of privacy; and

vii. The objective reasonableness of the expectation.

(iii) Analysis

[131] In my view, the White decision does not require the police to obtain a search warrant for the type of investigative technique employed by the police in this case. White must be considered in light of the particular facts of that case. In White, the Ontario Court of Appeal found that multiple police entries into the common areas of a condominium building resulting in observations of the contents of the defendant’s storage locker and the eavesdropping of conversations inside the unit, were so intrusive that it could not be said that there was no reasonable expectation of privacy in the building’s hallways and common areas.

[132] I agree with Justice Code’s comments in R. v. Brewster, 2016 ONSC 4133 (Brewster #1) at para. 110 that White did not change the law but simply applied the pre-existing law to a set of facts where the police acted in an egregious manner. Similar sentiments have been expressed by other judges of this court in R. v. Barton, 2016 ONSC 8003 at para. 67 and R. v. Samuel, [2018] O.J. No. 932 at para. 19. As Justice Huscroft said in White at para. 44, the lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit none of them is dispositive. The Edwards factors must be considered as a whole having regard to the particular circumstances of each case.

[133] In Brewster #1 at paras. 110-114, Justice Code set out an extensive analysis relating to certain kinds of police observations made in the common areas of multi-unit buildings. Justice Code’s conclusion from that analysis was that the current law is that there is no reasonable expectation of privacy (or a very low privacy interest) in common areas like parking garages, lobbies, elevators and hallways provided that police do not conduct intrusive surveillance of activities inside the apartment or condominium unit from their vantage point in the common areas. The current state of the law suggests that the warrant requirement is generally not engaged in the common areas of multi-unit buildings. See R. v. Brewster, 2016 ONSC 8038 (Brewster #2) at para. 62. I am of the view that Justice Code has accurately stated the law as it currently exists in regard to the reasonable expectation of privacy in the common areas of multi-unit apartments in both of his decisions in Brewster.

[134] As set out above in Edwards, a reasonable expectation of privacy has both a subjective and objective element. An individual must first subjectively hold an expectation of privacy in a place or thing to be searched or seized in order for s. 8 of the Charter to be engaged. At the same time, however, that expectation must be objectively reasonable.

[135] In this case there was no direct evidence of a subjective expectation of privacy by the defendant. However, at the subjective stage of the test for establishing a reasonable expectation of privacy, the question is whether the defendant had or is presumed to have had an expectation of privacy. This is a low hurdle to overcome and for the purposes of this inquiry I am prepared to presume that the defendant had such a subjective expectation of privacy. See R. v. Patrick, 2009 SCC 17 at para. 37.

[136] As noted earlier, a person’s subjective belief in an expectation of privacy in a particular case must be objectively reasonable. In the circumstances of this case I find that there was no objective basis for the existence of a reasonable expectation of privacy on the part of the defendant in relation to the observations of Officer Ho.

[137] On the totality of the circumstances before me, taking into account the factors set out in Edwards, I am of the view that the defendant did not have a reasonable expectation of privacy in the common areas of 85 Queen’s Wharf Rd. Therefore, Officer Ho’s observations on both April 29, 2016 and May 2, 2016 including viewing the elevator videos from April 29, 2016 did not violate the defendant’s s. 8 Charter rights. Officer Ho’s actions did not constitute a search and therefore the defendant’s s. 8 Charter rights were not engaged. See Brewster #1 at para. 114 and Samuel at para. 20. In coming to this conclusion I rely on the following considerations:

(a) The observations of Officer Ho were non-intrusive. He did not observe the inside of unit 3802 or that of any other units in the building. There were no cameras in the hallways of the buildings.

(b) 85 Queen’s Wharf Rd. was a large high-rise condominium building (at least 42 floors) with numerous units.

(c) There was no evidence that the defendant owned unit 3802 or was even a registered tenant in unit 3802.

(d) While Officer Ho did not initially seek and obtain permission to enter the common areas of the building, he subsequently did so, and permission was granted. See Brewster #1 at para. 112. Permission was also granted for him to review the videos. As well, there was evidence from Officer Ho that he knew there was a camera in the elevator. Property management was therefore conducting surveillance in the elevator inferring that the residents had given up control over certain expectations of privacy in certain common areas in order to achieve the goal of collective security. See Brewster #1 at para. 112.

[138] As well, as noted by the Ontario Court of Appeal in R. v. Saciragic, 2017 ONCA 91 at para. 31, in assessing whether an individual has a reasonable expectation of privacy it is necessary to look not only at the immediate information sought by the police but the further information that it ultimately reveals. A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access. On the record before me, there were no particular circumstances that would indicate a reasonable expectation of privacy in the defendant’s connection to unit 3802. The defendant made use of a condominium unit in a relatively large apartment building with common areas. There was no evidence to suggest a reasonable expectation that the defendant’s comings and goings would not be observed by others or the fact of these observations divulged to the police. See Saciragic at para. 33.

[139] For all these reasons, on the totality of the circumstances, I am of the view that the defendant did not have a reasonable expectation of privacy in the common areas of 85 Queen’s Wharf Rd. that were observed by Officer Ho. Section 8 of the Charter was therefore not engaged and there was no violation of the defendant’s s. 8 Charter rights. No excision from the ITO is required.

[140] However, even if I am wrong, and the defendant had some reasonable expectation of privacy in the common areas of 85 Queen’s Wharf Rd. and Officer Ho’s actions constituted a search that engaged s. 8 of the Charter, I am still of the view that the facts of this case do not involve a situation where a search warrant was required. If there was a warrantless search by Officer Ho that engaged constitutional scrutiny, such a warrantless search was reasonable within the meaning of s. 8 of the Charter. See R. v. Collins 1987 84 (SCC), [1987] 1 S.C.R. 265 at p. 278. See also Samuel at para. 20. Reasonableness in this context means that the particular search was authorized by law, the authorizing law itself was reasonable and the manner of execution was reasonable.

[141] An applicant alleging a breach of s. 8 of the Charter bears the initial onus of establishing that a search was warrantless. If that onus is met, the Crown must then demonstrate, on a balance of probabilities, that the search was nonetheless reasonable. See R. v. Orlandis-Habsburgo, 2017 ONCA 649 at para. 38. In my view, the Crown has established that any warrantless search by the police was authorized by law in that consent was given to Officer Ho by property management. As well, I am satisfied that the authorizing law itself was reasonable and the manner of the execution was reasonable. In all the circumstances there was no violation of the defendant’s s. 8 Charter rights by the conduct of Officer Ho. Given my conclusion that there was no violation of s. 8, it follows that the observations of Officer Ho on April 29, 2016 including his subsequent review of the elevator video on May 2, 2016 need not be excised from the ITO of May 31, 2016.

(b) Misleading Characterization of Wiretap Calls

(i) The “site” calls

[142] The defendant submits that the intercepted calls that Officer Tait makes reference to at paragraph 156 of his affidavit of May 31, 2016, must be excised because the summary of the intercepted calls by Officer Tait was designed to mislead the issuing justice. The defendant submits that Officer Tait left out a reference to a “marketing flyer” in his summary of one of the conversations indicating a conversation that related to a legitimate business interest. He also failed to reference, submits the defendant, other calls which would clearly show that the reference to “sites” would not have been code for drugs but rather, again, legitimate business interests. The defendant submits that Officer Tait failed to make full, frank and fair disclosure of material matters that would have allowed the issuing justice to come to the different and more likely conclusion that the calls were not drug related.

[143] I accept the evidence of Officer Tait who testified that he interpreted the calls and the reference to “sites” as a guarded, coded conversation about drugs. He testified that he based his belief on all the information he had including the content of the calls, the context of the other calls and the information he had from the confidential source. Officer Tait specifically denied that he purposely left out a certain call regarding a legitimate business discussion in order to make it look like the other calls were nefarious when they were not. He said he did not make any reference to the “marketing flyer” in one call because he was trying to keep it concise and he did not think adding the reference to “marketing flyer” changed the contents of the conversation that much. In my view, it was open to Officer Tait to interpret the intercepted calls as he did. His summary of the calls was not intended to mislead the issuing justice. He was acting in good faith. The references to the calls do not require excision.

(ii) The arrest of Brent Wonnacott

[144] The defendant submits that the defendant was not involved in the arrest of Brent Wonnacott and it was misleading to have a heading in the affidavit to that effect at paragraph 157. Also, the relevance of this paragraph, submits the defendant, is incredibly tangential. The defendant submits that this irrelevancy is particularly glaring given the fact that so many relevant and exonerating details were omitted by Officer Tait. In my view, Officer Tait’s reference to calls relating to the arrest of Brent Wonnacott was not irrelevant nor was the heading or the contents of paragraph 157 misleading. This paragraph does not require excision.

(iii) Conspiracy with Matijevic, Batac, and Ayoub

[145] The defendant submits that calls that are referenced at para. 158 of the affidavit of May 31, 2016 under the heading “Conspiracy with Matijevic, Batac, and Ayoub” have nothing to do with the defendant and are misleading. The defendant submits that this section can be easily interpreted as a description of a conspiracy that included the defendant.

[146] Officer Tait testified that this section in the affidavit had nothing to do with the defendant. He acknowledged that it appears under the Marco Maric heading but he did not put it there to make it look like the conspiracy was in relation to the defendant. He testified that he was unsure why it was placed there, but he thought it might have been because it was the last summary he did in relation to the intercepted calls. I accept the evidence of Officer Tait. It is clear from a review of the contents of paragraph 158 that this conspiracy has nothing to do with the defendant. It does not mention 85 Queen’s Wharf Rd. The focus was on other individuals. The issuing justice would not have been misled nor was there an intention to mislead the issuing justice by Officer Tait. No excision is required.

(iv) Lack of connection between the defendant and the Kevin Er organization

[147] The defendant submits that by the time of the affidavit of May 31, 2016, it was clear that no connection existed between the defendant and Kevin Er.

[148] Notably, the defendant submits that in the affidavit of May 31, 2016, and despite the lack of any corroboration of this bald assertion, the defendant had graduated at paragraph 323 to be a “member” of the Kevin Er organization. The defendant submits that this reference and all references to the defendant being associated in any way to the criminal organization should be excised.

[149] In my view, Officer Tait did not mislead the issuing justice. As he testified, based on the information that was provided by CHS #1, he believed that the defendant was a member of the Kevin Er criminal organization. In his affidavit of April 4, 2016, at paragraph 19(a)(iv), the nature of the association is clearly set out. “Marco” was described as a Purchaser/Associate from the criminal organization. No excision is required.

(c) Did reasonable grounds exist after the appropriate excision?

[150] The defendant submits that after the excision from the authorization of the reference to the evidence obtained through the execution of the general warrant of May 3, 2016, there does not exist reasonable grounds to believe that any evidence would be found either through video monitoring of unit 3802 or through the interception of communications that took place in 3802. In addition, submits the defendant, the excisions requested in the affidavit, including the observations of Officer Ho at 85 Queen’s Wharf Rd. on April 29 and subsequently on May 2, 2016 further strengthens the position of the defendant on this point.

[151] As noted earlier, the central consideration on the review of an authorization is whether, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the affidavit excised, there remains a sufficient basis upon which the authorization could be issued. For the reasons I have explained, I do not believe the observations of Officer Ho referenced in Officer Tait’s affidavit of May 31, 2016 should be excised. Nor, for the reasons I have expressed, should the affidavit of May 31, 2016 be excised as requested by the defendant. In my view, even with the excision of the reference to the evidence obtained from the covert searches pursuant to the general warrant of May 3, 2016 on May 4, May 10, May 25 and May 26, 2016, I am satisfied there remains a sufficient basis upon which the wiretap authorization and general (video) warrant could issue. In my view, post-excision there remains at least some evidence that might reasonably be believed on the basis of which the wiretap authorization and general (video) warrant could have issued. See Araujo at para. 51. I say so for the following reasons.

[152] The defendant conceded that the probable cause and investigative necessity were made out with respect to the investigation as a whole as of the date of the wiretap authorization of April 7, 2016. The requirements were made out in relation to the second wiretap authorization of June 2, 2016 as well. In addition, the police knew of the defendant’s existence and had reasonable grounds to believe that the interception of his communications would assist in the investigation of the offences. As well, even after excision of the offending portions of the affidavit, there was a basis upon which the issuing justice could have been satisfied that there were reasonable grounds to believe that drug offences had been or would be committed and that video observations made at 85 Queen’s Wharf Rd. would afford evidence of those offences. There was a credibly-based probability that evidence of drug trafficking would be observed. In this regard, there were a number of items of relevant evidence set out in the affidavit of May 31, 2016.

[153] In paragraph 180(c)(ii) of the affidavit of May 31, 2016 there is the reference to the police surveillance reports involving the defendant and Mr. Eckstein in the elevator of 85 Queen’s Wharf Rd. on April 29, 2016 including Officer Ho’s observations of the elevator videos where Mr. Eckstein and the defendant get off at the 38th floor. An additional reference to the above surveillance is made at paragraph 327 of the affidavit where there is a reference to surveillance being conducted on the defendant. The defendant was observed meeting with Mr. Eckstein in the lobby of 85 Queen’s Wharf Rd. It was determined that the two attended the 38th floor. At paragraph 346 of the affidavit Officer Tait states that surveillance was conducted on Mr. Eckstein. Mr. Eckstein was observed meeting with the defendant at 85 Queen’s Wharf Rd. It was determined that the fob that was used at 85 Queen’s Wharf Rd. was for unit 3802.

[154] In addition there was the information of confidential informant CHS #1. I have already indicated earlier when dealing with CHS #1 regarding the first wiretap authorization that in the totality of the circumstances the information provided by CHS #1 was relevant and reliable. As set out in the judicial summary of the redacted Appendix X1 of the affidavit of May 31, 2016 at Exhibit YY(3), on April 14, 2016 CHS #1 was shown an MTO photograph of Marko Maric. CHS #1 positively identified the male in the photo as the Serbian male from London known to CHS #1 as Marco, who purchases large quantities of controlled substances from Kevin Er’s organization. CHS#1 advised of further details regarding Marco and Kevin Er.

[155] In the judicial summary at Exhibit YY(3), it is stated that subsequent to the first wiretap authorization, the affiant became aware that CHS #1 may have been involved in the commission of an offence that he/she did not admit to his/her handler. Full details of the offence and CHS #1’s potential involvement are provided. Based on this information, the affiant reassessed the reliability of all of the information provided by CHS #1. The affiant found the information to be supported by corroborative evidence and continues to believe that the information provided by CHS #1 is reliable.

[156] I have already indicated earlier when dealing with CHS #1 regarding the first wiretap authorization relating to the defendant that after considering the Debot factors, in the totality of the circumstances, the information provided by CHS #1 was relevant and reliable. In this case, the material before me in the affidavit of May 31, 2016 also demonstrates that CHS #1’s information was compelling and that CHS #1 was credible. While there was no direct corroboration of the information provided by CHS #1 regarding Marco there was a basis for the issuing justice to evaluate the credibility and reliability of CHS #1. After considering the totality of the circumstances, I am satisfied that the information provided by CHS #1 set forth in the affidavit was relevant and reliable and was properly taken into account by the issuing justice in determining whether the wiretap authorization and general (video) warrant should issue. See Wiley, at p. 171.

[157] Before leaving this issue, I want to address a matter that came up in the Garofoli hearing regarding CHS #1. On September 13, 2018 Crown counsel e-mailed defence counsel and advised that recent information from CHS #1 had been received describing criminal activity engaged in by the confidential informant during the course of the investigation that was not disclosed to the handlers at the time. That e-mail was marked as Exhibit V. The information from the handler was marked as Exhibit U and sealed. As well, on October 3, 2018 Crown counsel e-mailed defence counsel and advised them that the police handler for CHS #1 received further information from CHS #1 regarding further criminal conduct engaged in by CHS #1 during the course of the investigation that was not disclosed to the handler at the time. That e-mail was marked as Exhibit MM1. The information from the handler was marked as MM2 and sealed. In both e-mails marked as Exhibits U and MM1, it is disclosed how the information received from CHS #1 would have affected the affiants’ reliability assessment of CHS #1’s information had it been known by the affiants.

[158] The position of the Crown in this matter is that as the affidavit on a Garofoli review is “tested against the affiant’s reasonable belief at the time” and not the “ultimate truth”, this new information found in Exhibit U and MM2 is immaterial to the issues to be determined at the Garofoli hearing. See World Bank v. Wallace, 2016 SCC 15 at paras. 121-122.

[159] The Crown submits that on a sub-facial challenge, the focus is on the reasonableness and honesty of the affiant’s belief as to the existence of the requisite grounds and not on the ultimate accuracy of the information relied on by the affiant. See R. v. Green, 2015 ONCA 579 at para. 34.

[160] I agree with the Crown’s position on this issue. Since a sub-facial challenge hinges on what the affiant knew or ought to have known at the time the affidavit was sworn, the accuracy of the affidavit is tested against the affiant’s reasonable belief at that time. Testing the affidavit against the ultimate truth rather than the affiant’s reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something the courts have long sought to prevent. See World Bank at para. 122.

[161] Counsel for the defendant, in his oral submissions, did not take issue with the application of World Bank as the law regarding sub-facial challenges at a Garofoli hearing. However, the defendant submits that because he was unable to cross-examine the handler of CHS #1, the defendant was unable to develop the argument that the affiants ought to have known about the disclosed information. In my view, there is no evidentiary basis on the record before me that Officer Tait or any other affiant knew or ought to have known about the newly disclosed information regarding the criminal conduct of CHS #1 found in Exhibits U and MM2 at the time any affidavit or ITO was sworn in this case and presented to the issuing justices. I say that mindful of the information that I made reference to earlier that is disclosed in the original unredacted affidavit of Officer Tait of May 31, 2016 and referred to in the judicial summary of Appendix XI at Exhibit YY(3) where Officer Tait, subsequent to the first authorization, became aware that CHS #1 may have been involved in the commission of an offence that he/she did not admit to his/her handler. In my view, in all the circumstances, the information contained in the sealed Exhibits U and MM2 is not relevant to this Garofoli application.

[162] In addition to the information provided by CHS #1 there was information provided by CHS #6. The judicial summary of the redacted Appendix X6 from the affidavit of May 31, 2016 at Exhibit YY(2) indicates that CHS #6 provided the following information: (1) in relation to certain information, the affiant has expressly stated the source of CHS #6’s knowledge (e.g. firsthand observation) (2) CHS #6 has firsthand knowledge of Shahin’s drug dealing (3) in 2016, CHS #6 identified Abdul Shahin as a male who partners with Marko Maric (4) CHS #6 advised that Shahin and Maric sell cocaine (5) further details concerning Shahin’s and Maric’s drug dealing (6) Shahin lived with his parents on Philbrook (7) Shahin uses mobile telephone number 519-702-3855 (8) Shahin and Maric use stash houses to keep their drugs (9) Maric obtains his cocaine in Toronto where he spends considerable time. On balance and considered as a whole, I am satisfied that the material in the affidavit demonstrates that the information from CHS #6 was compelling.

[163] As set out in the judicial summary at Exhibit YY(2), CHS #6 is carded and/or registered as an informant with the police service handling him/her. This provides some degree of comfort with respect to his/her credibility in the sense that he/she was not an anonymous informant. As set out in the judicial summary, CHS #6 has provided information to his/her police handler in the past, which has led to several seizures of controlled substances. The seizures are summarized. On the occasions that the source has provided information to the police it has been corroborated and found to be reliable. The source of CHS #6’s knowledge is stated. The judicial summary indicates that CHS #6 is immersed in the drug culture, which is relevant to his/her character. Whether or not CHS #6 has a criminal record and the nature of any conviction is provided. Additionally, CHS #6’s motivation for providing information to the police is provided including whether consideration or compensation was sought or arranged. On balance and considered as a whole, I am satisfied that the material in the ITO demonstrates that CHS #6 was credible.

[164] In this case, there is some corroboration of the confidential informant’s information. The police subsequently confirmed, at least in part, the accuracy of some of the information provided by the confidential informant. For example: (1) According to MTO records, Mr. Shahin resided at 1629 Philbrook Drive, London (2) On September 3, 2015, members of the London Police Service executed search warrants in relation to 600 Proudfoot Lane, unit 403, London and 1629 Philbrook Drive, London. Officers placed Mr. Shahin under arrest after he was observed leaving 600 Proudfoot Lane. Mr. Shahin was found to be in possession of a quantity of currency. Officers searched Proudfoot Lane and located approximately 125 grams of cocaine and 40 grams of marijuana. Officers searched the Philbrook Drive location and located an electronic money counter and (3) On September 14, 2015 Mr. Shahin attended London Police Headquarters and provided his cellular telephone number of 519-702-3855 in compliance with his recognizance. In my view the police discovery of the accuracy of at least some of the information provided by the confidential informant adds some credibility and reliability to the information provided to the police by CHS #6. On balance and considered as a whole, I am satisfied that the material in the ITO demonstrates that some of the information from CHS #6 was corroborated by the police.

[165] In the totality of the circumstances as set forth in the ITO, I am satisfied that the information provided by CHS #6 was relevant and reliable and was properly taken into account by the issuing justice in determining whether the wiretap authorization and general (video) warrant should issue. See Wiley, at p. 171. As well the information of CHS #6 and CHS #1 mutually corroborates each other. See R. v. Abdirahim, 2013 ONSC 7420 at para. 62. Although I have reviewed the information provided by the confidential informant CHS #7, given my findings in regard to CHS #1 and CHS #6, in my view it is unnecessary for me to determine whether the information provided by CHS #7 corroborates the information of CHS #1 or CHS #6 or strengthens a belief in the reliability or credibility of CHS #1 or CHS #6. Nor have I relied upon the information from CHS #7 for that or any other purpose. I will note, however, that nothing in the information provided by CHS #7 undermines or contradicts the information provided by CHS #1 or CHS #6.

[166] I am satisfied that the combined force of the circumstantial evidence provided a basis upon which the issuing justice could be satisfied that the wiretap authorization and general (video) warrant of June 2, 2016 should issue. In my view, in all of the circumstances, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the affidavit excised, there was a sufficient basis upon which the wiretap authorization and general (video) warrant for unit 38025, 85 Queen’s Wharf Rd. could be issued. The police observations of the defendant and Mr. Eckstein attending at the 38th floor of 85 Queen’s Wharf Rd. and the determination that the fob associated with unit 3802 was used, provided a sufficient nexus to unit 3802. The wiretap authorization and general (video) warrant of June 2, 2016 were valid.

D. THE SEARCH WARRANT OF JUNE 27, 2016

[167] The defendant submits that the June 27, 2016 search warrant is unlike the previous warrants in that it does not mention the Kevin Er organization in detail. The defendant submits that this is a reflection of the fact that the affiant clearly did not believe that the defendant had anything to do with Kevin Er. The defendant also submits that after all excision of the references to evidence obtained by means of the May 3 general warrant and the evidence obtained from the second wiretap authorization and general (video) warrant of June 2, 2016, any reason to suspect unit 3802 rather than another unit is eliminated. In the alternative, the defendant submits that neither confidential informants relied upon in the ITO for the search warrant are Toronto based. It is the defendant’s submission that they cannot be seen as providing credible or compelling information about addresses or activities in Toronto.

[168] The defendant submits that if the above submissions are accepted and the video and audio surveillance from the inside of the unit 3802 is excised, there is a great deal of circumstantial material left but little of any clarity and certainly not sufficient evidence to support the search warrant.

[169] As I indicated earlier in these reasons, the wiretap authorization and general (video) warrant of June 2, 2016 were valid. Therefore, the evidence obtained from the wiretap authorization and general (video) warrant should not be excised from the ITO of the search warrant of June 27, 2016. In my view, even after the excision of the references in the ITO to the evidence located in unit 3802, 85 Queen’s Wharf Rd. through the covert searches pursuant to the general warrant of May 3, 2016, the search warrant ITO contains sufficient grounds for the June 27, 2016 search warrant to have issued in regard to unit 3802, 85 Queen’s Wharf Rd.

[170] Regarding the search warrant ITO of June 27, 2016, the affiant relies on the information from CHS #1. The defendant notes that in the summary of the redacted portion of paragraph 9(l) of the ITO there is reference in square brackets to corroborative information from “CHS #1” that is not the CHS #1 otherwise referred to in the ITO. As indicated in the summary, the Crown does not rely on this redacted information.

[171] It is stated in Exhibit KK(5) that confidential informant CHS #1 was referenced in the previous ITOs of Officers Tait and Chase as CHS #6. I have already provided an assessment of the reliability of the information provided by CHS #6 earlier in these reasons in support of the wiretap authorization and general (video) warrant of June 2, 2016. I indicated at that time that after considering the Debot factors, in the totality of the circumstances, the information provided by CHS #6 was relevant and reliable and properly taken into account by the issuing justice in determining whether the wiretap authorization and general (video) warrant should issue. With respect to this search warrant ITO, as set out in the judicial summary of the redacted Appendix X1 at Exhibit YY(5), among other things, CHS #1 identifies Abdul Shahin as a male who partners with Marko Maric. CHS #1 advised that Shahin and Maric sell cocaine and Shahin and Maric use stash houses to keep their drugs. The material before me in the ITO of June 27, 2016 demonstrates that the information of CHS #1 (formerly CHS #6) was compelling and that CHS #1 was credible. Also, the police discovery of the accuracy of at least some of the information provided by CHS #1 demonstrates that the information from CHS #1 was corroborated by the police. In the totality of the circumstances set forth in the ITO for the search warrant, I am satisfied that the information provided by CHS #1 (formerly CHS #6) was relevant and reliable and was properly taken into account by the issuing justice in determining whether the search warrant of June 27, 2016 should issue. See Wiley, at p. 171.

[172] Although I have reviewed the information provided by CHS #2 (formerly CHS #7), given my findings in regard to CHS #1 (formerly CHS #6), in my view it is unnecessary for me to determine whether the information provided by CHS #2 corroborates the information of CHS #1 or strengthens a belief in the reliability or credibility of CHS #1. Nor have I relied upon the information from CHS #2 for that or any other purpose. I will note, however, that nothing in the information provided by CHS #2 undermines or contradicts the information provided by CHS #1.

[173] In addition to the information provided by CHS#1, there was also other evidence in the ITO. Pursuant to the second wiretap authorization and general (video) warrant on June 7, 2016 the police observed the defendant in unit 3802, 85 Queens Wharf Rd. unsealing a “brick like object”, removing some of the contents, resealing the brick like object within a vacuum sealed bag, and place the sealed brick within a black bag. He then gave instructions to a male person to “Go to the gay bar, its 181” and “sometimes drive by 181 do a u-turn and look around.” As well, on June 8, 2016 the police viewed the defendant on video in the living room area of unit 3802. He walked out of view of the camera and the sound of a money counter being operated could be heard in the background. The defendant returned to the living room area with a clear or white plastic bag, which he placed on the couch. At one point the defendant could be heard saying “one hundred and thirty thousand.”

[174] The search warrant in this case is presumptively valid. The onus is on the defendant to establish that the information relied upon to obtain the search warrant did not provide a basis upon which the issuing justice could have concluded that there were reasonable grounds for its issuance. In my view, the defendant has not met his onus on this application regarding the search warrant.

[175] Officer Chase sought the search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act. In my view, in all of the circumstances, on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there was a basis upon which the issuing justice could have been satisfied that there were reasonable grounds to believe that 85 Queen’s Wharf Rd., unit 3802 contained, among other things, any thing that would afford evidence in respect of an offence under the Controlled Drugs and Substances Act. The combined force of the circumstantial evidence provided a sufficient basis upon which the issuing justice could be satisfied the search warrant should issue. The search warrant was valid.

[176] Accordingly, I find that there has been no breach of the defendant’s s. 8 Charter rights in the search of 85 Queen’s Wharf Rd., unit 3802 on June 28, 2016 pursuant to the search warrant of June 27, 2016.

E. EVIDENCE DISCOVERABLE THROUGH WIRETAP AUTHORIZATION AND GENERAL (VIDEO) WARRANT OF JUNE 2, 2016

[177] In addition to the principal issues I have already addressed, the defendant also sought exclusion of other evidence that the defendant submits was only discoverable through reliance on the June 2, 2016 wiretap authorization and general (video) warrant. Specifically, the evidence of cocaine located in the Toyota RAV4 and the Chevrolet Traverse vehicles that were referred to in regard to Mr. Quanh’s pre-trial Charter application. As I indicated in my oral reasons of November 20, 2018, given my findings that there was no s. 8 Charter violation in regard to the June 2, 2016 wiretap authorization and general (video) warrant, this application to exclude evidence found in the Toyota RAV4 and Chevrolet Traverse also fails. In any event, I am of the view that notwithstanding the defendant’s submissions to the contrary, the defendant has no standing to challenge the search of either the Toyota RAV4 or the Chevrolet Traverse because, on the record before me, he does not have a reasonable expectation of privacy in either of those two vehicles. Nor has the defendant sought to challenge the presumptively valid search warrants that were obtained by the police to search those vehicles.

F. RESIDUAL DISCRETION TO INVALIDATE THE AUTHORIZATIONS AND WARRANTS

[178] The defendant submits that given the magnitude of the fraud that has been perpetrated on the court, the court should exercise its residual authority to quash all the authorizations and warrants that were involved in the perpetuation of the fraud that “Marco” was Marco Maric and a member of the Kevin Er criminal organization. The defence submits it is clear that the court has the authority to quash a warrant when police conduct has subverted the process prior to judicial approval. See R. v. Strauss, 2017 ONCA 628 at para. 25.

[179] The defendant submits that if omitting facts is sufficient to quash a warrant, then it is clear that manufacturing a falsehood is also sufficient. The defendant submits that in order to exercise the residual discretion, there must be a finding that the police conduct amounted to a subversion or corruption of the pre-authorization process. The defendant submits there has never been a lawful reason to assert that “Marco” was Marco Maric. The police manufactured that connection for nefarious reasons and misled the issuing justices. The defendant submits that given this crucial point has been proven, there is residual authority to quash any authorizations or warrants that were created to mislead justices into believing that the defendant was a member of the Kevin Er criminal organization.

[180] I agree with the defendant that I have discretion to quash the authorizations and warrants despite grounds for their issuance when conduct leading up to their issuance has been subversive. See R. v. Paryniuk, 2017 ONCA 87 at para. 66. However, in my view for the reasons I have already explained, I do not consider the conduct of the police in regard to any of the authorizations or warrants to be subversive of the pre-authorization process. For the reasons I have explained, I do not find the police engaged in fraud or deliberate misrepresentation or acted in bad faith. In the circumstances, this is not an appropriate case for me to exercise my discretion to quash the authorizations and warrants.

G. EXCISION FOR THIRD PARTY BREACHES

[181] The defendant also argues that to the extent that other defendants establish that other evidence was unconstitutionally obtained, that evidence is to be excised from the affidavits or ITOs in support of authorizations or warrants in relation to the defendant. In my view that position only has merit, insofar as the defendant can establish a reasonable expectation of privacy. For reasons that I explain more fully in my reasons regarding Mr. Brounsuzian’s application, I do not agree with the defendant’s position regarding this matter. A defendant must demonstrate a violation of his or her own Charter rights in order to obtain a remedy under s. 24 of the Charter. A defendant is only entitled to excision from an affidavit or ITO of evidence unconstitutionally obtained in violation of his or her own personal right. If a defendant’s own s. 8 Charter right was not engaged in that he or she did not have a reasonable expectation of privacy, the defendant is not entitled to excision from an affidavit or ITO of evidence unconstitutionally obtained. There is no remedy for the violation of someone else’s reasonable expectation of privacy. In this case the defendant had no reasonable expectation of privacy in any location in this case other than 85 Queen’s Wharf Rd., unit 3802.

SHOULD THE EVIDENCE BE EXCLUDED UNDER S. 24(2) OF THE CHARTER?

[182] I will address the s. 24(2) issues in two parts. First, I will deal with the May 3, 2016 general warrant in respect of which the Crown concedes a s. 8 breach of the Charter. Second, I will deal with the other impugned warrants and authorizations where I found there to be no s. 8 Charter breach.

(a) General Warrant of May 3, 2016

[183] Given the concession by the Crown of a s. 8 violation in regard to the general warrant of May 3, 2016 in regard to 85 Queen’s Wharf Rd., unit 3802, I must go on to consider s. 24(2) of the Charter. The proper considerations under s. 24(2) of the Charter were established in R. v. Grant, 2009 SCC 32 at paras. 72-82. In determining whether evidence should be excluded under s. 24(2), the court considers (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the defendant’s Charter-protected interests, and (iii) society’s interest in an adjudication of the case on the merits. The party seeking to exclude the evidence bears the burden of proving its exclusion is required. See R. v. Fearon, 2014 SCC 77 at para. 89. As I indicated in my oral reasons of November 20, 2018, in all the circumstances, I was not satisfied that the evidence obtained through the execution of the general warrant of May 3, 2016 at 85 Queen’s Wharf Rd., unit 3802 should be excluded under s. 24(2) of the Charter.

(i) The Seriousness of the Charter-Infringing State Conduct

[184] Dealing with the first factor, the seriousness of the Charter-infringing state conduct, this factor focuses on the actions of the police. The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. See R. v. Paterson, 2017 SCC 15 at para. 43. The court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to disassociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See Grant, at paras. 72-75; R. v. Taylor, 2014 SCC 50 at para. 39.

[185] The defendant submits that the May 3, 2016 general warrant was drafted negligently. The defendant submits that negligence cannot be equated with good faith. The defendant submits that even if unit number 3802 was known to the police by lawful means before the ITO was submitted to Justice Zuker, it does not erase the fact that the police conduct was negligent in relation to the unit number. The defendant submits it does not matter that the police may have known about the unit number at 10:16 a.m. or at any other time on May 3, 2016. Their duty was to seek authorization from the issuing justice, not merely to satisfy themselves of the reasonable grounds. The defendant submits that the ITO for the May 3, 2016 warrant was authorized at the last moment. Officer Chase was rushed despite the absence of urgency or exigent circumstances. The defendant submits that this can only be categorized as a negligent ITO in relation to the Queen’s Wharf address.

[186] The Crown has conceded a violation of s. 8 of the Charter in regard to the general warrant of May 3, 2016. I agree with the Crown’s position that the error of Officer Chase was not a minor technical error in drafting as referred to in Araujo and therefore amplification was not available at the Garofoli review. That being said, for the reasons I have explained earlier, the error of Officer Chase was made in good faith and was not on the basis of police negligence or fraud. In his haste, Officer Chase simply failed to include the information regarding unit 3802 that he had received on the morning of May 3, 2016. As I indicated earlier, while mistakes were made by Officer Chase, which is not to be condoned, I would not view the conduct of Officer Chase as negligent. Nor do I find that Officer Chase intended to mislead the issuing justice.

[187] There is no doubt the ITO of May 3, 2016 of Officer Chase contained some errors. By Officer Chase’s own admission, he was putting the May 3, 2016 ITO together in some haste in an effort to meet the timeline within which he had to have the ITO taken care of. He said he pretty much worked through May 2, 2016 all the way to May 3, 2016 in preparation of the ITO with a two-hour break. He agreed he was exhausted. As a result, some mistakes were made. He agreed that it is not the way he would have preferred to draft the ITO. However, he denied he was reckless or careless. He admitted that he made an error by not including information that unit 3802 had been identified on the morning of May 3, 2016. Officer Chase also admitted to making other mistakes in the ITO of May 3, 2016.

[188] Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. What is important is the proper placement of the police conduct along the fault line, not the legal label attached to the conduct. They key is not so much whether the conduct fits within a compartment called good faith or bad faith but whether the police reasonably believed they were respecting the Charter. In my view, whatever errors there were in the ITO they were not intentional or deliberate and certainly did not rise to the level of unacceptable negligence as in R. v. Morelli, 2010 SCC 8 or R. v. Szilagyi, 2018 ONCA 695. As I indicated, in my view Officer Chase was acting in good faith. Officer Chase was attempting to concisely summarize a very large investigation and in the course of that process he made some mistakes. As the Court of Appeal for Ontario noted in Nguyen at para. 58, few applications are perfect.

[189] Officer Chase reasonably believed he had the necessary grounds for the general warrant when he submitted the ITO to the issuing justice. As well, the police in this case sought a warrant. As the Court noted in R. v. Rocha, 2012 ONCA 707 at para. 28, applying for and obtaining a warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. In my view, the seriousness of the Charter-infringing state conduct in this case regarding the general warrant of May 3, 2016 is at the lower end of the seriousness spectrum. This first Grant factor favours admission of the evidence.

(ii) The Impact of the Charter Breach on the Defendant’s Charter-Protected Interests

[190] As to the impact of any Charter violation on the defendant’s Charter-protected interests, the second factor of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the defendant. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See Grant at paras. 76-78.

[191] As to this second Grant factor, the Charter interest infringed was the privacy of the home which attracts a high expectation of privacy compared to other places. A search of a private residence, without reasonable grounds, indicates that the violation was serious from the perspective of the defendant’s Charter interests. This second Grant factor favours exclusion of the evidence. See Grant at paras. 81-83.

(iii) Society’s Interest in the Adjudication of the Case on the Merits

[192] Under the third factor in Grant, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See Grant, at paras. 79-84.

[193] The third factor acknowledges that the public has a keen interest in seeing cases adjudicated on their merits. With regard to this factor, the court looks to the truth-seeking function of the criminal trial and the impact of admitting or excluding the impugned evidence on the trial. A breach that undermines the reliability of evidence will point toward exclusion because the admission of unreliable evidence cannot enhance truth seeking. On the other hand, excluding reliable evidence that is key to the prosecution’s case is a relevant consideration militating against exclusion. See R. v. Spencer, 2014 SCC 43 at para. 80; Taylor at para. 38.

[194] As to the third Grant factor, the evidence gained through the May 3, 2016 general warrant searches of May 4, May 10, May 25 and May 26, 2016 at 85 Queen’s Wharf Rd., unit 3802 included real physical evidence and observations of the police of real physical evidence including samples taken of cutting agents and cocaine and photographs and videos of the police observations during the covert entries. This was reliable evidence that was very important to the Crown’s case against the defendant. Society has a strong interest in the adjudication of this case on its merits. The allegations against the defendant are serious. This third Grant factor favours admission of the evidence from the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016.

(iv) Overall Balancing

[195] The trial judge must consider each of the Grant factors and determine whether, having regard to all the circumstances, the admission of the evidence obtained as a result of the Charter breach would bring the administration of justice into disrepute. There is no overarching rule that governs how to balance these three factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed to encapsulate considerations of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of decision tree. See Grant at paras. 85-86.

[196] Balancing the three factors considered under Grant, I am of the view that, in all of the circumstances, the admission at trial of the evidence obtained from the searches of 85 Queen’s Wharf Rd., unit 3802, pursuant to the general warrant of May 3, 2016, would not bring the administration of justice into disrepute.

(b) Wiretap authorization of April 7, 2016, Wiretap authorization and general (video) warrant of June 2, 2016 and search warrant of June 27, 2016

[197] As I indicated in my oral reasons of November 20, 2018, even if I was wrong and there was a violation of s. 8 of the defendant’s Charter rights, in all the circumstances, I was not satisfied that the evidence obtained from: 1) the wiretap authorization of April 7, 2016; 2) the wiretap authorization and general (video) warrant of June 2, 2016 and 3) the search warrant of June 27, 2016 should be excluded under s. 24(2) of the Charter. As counsel addressed s. 24(2) of the Charter in their submissions and I indicated that even if a s. 8 Charter breach occurred, I would not have excluded the evidence under s. 24(2), I will give my reasons regarding the s. 24(2) issue.

[198] Dealing with the first factor, the seriousness of the Charter-infringing state conduct, in my view Officer Chase who drafted the ITO for the search warrant of June 27, 2016 was acting in good faith. As well, I am of the view Officer Tait was also acting in good faith in drafting the affidavits for the wiretap authorizations and general (video) warrants of April 7, 2016 and June 2, 2016. Notwithstanding the submissions of counsel for the defendant, for the reasons that I have explained neither of the affiants were attempting to mislead the issuing justices. Nor did they act negligently or fraudulently in discharging their duties. Both of the affiants reasonably believed that they had the necessary grounds for the affidavits and ITOs they submitted to the issuing justices. As well, for the reasons that I have explained, I am of the view that no other police officers involved in this matter were acting in bad faith nor did they act negligently nor fraudulently in discharging their duties. As well, the police in this case sought authorizations and warrants. As the Court noted in Rocha at para. 28, applying for and obtaining a warrant or authorization from an independent judicial officer is the antithesis of wilful disregard of Charter rights. In my view, if there was a breach of the defendant’s s. 8 Charter rights, the seriousness of the Charter-infringing state conduct in this case is at the low end of the seriousness spectrum. This first Grant factor favours admission of the evidence.

[199] Dealing with the second Grant factor, the Charter interest infringed was the privacy of the home which attracts a high expectation of privacy compared to other places. A search of a private residence and private communications without reasonable grounds, indicates that the violation was serious from the perspective of the defendant’s Charter interests. If there was a breach of the defendant’s s. 8 Charter rights, this second Grant factor favours exclusion of the evidence. See Grant at paras. 81-83.

[200] As to the third Grant factor, the evidence obtained pursuant to the first wiretap authorization of April 7, 2016 was phone calls and text messages. The evidence obtained through the June 2, 2016 wiretap authorization and general (video) warrant was phone calls and text messages and audio and video recordings made via an audio and video probe. The evidence obtained through the search warrant of June 27, 2016 included clothing items, drug paraphernalia, cutting agents, cocaine and marijuana. This was reliable evidence that was very important to the Crown’s case against the defendant. Society has a strong interest in the adjudication of this case on its merits. The allegations against the defendant are serious. This third Grant factor favours admission of the evidence.

[201] Balancing the three factors under Grant, I am of the view that, in all of the circumstances, the admission at trial of the evidence obtained through the 1) the wiretap authorization of April 7, 2016 2) the wiretap authorization and general (video) warrant of June 2, 2016 and 3) the search warrant of June 27, 2016 would not bring the administration of justice into disrepute.

CONCLUSION

[202] For all these reasons, I am of the view that the wiretap authorization of April 7, 2016, the wiretap authorization and general (video) warrant of June 2, 2016 and the search warrant of June 27, 2016 were valid. Accordingly, there was no violation of the defendant’s s. 8 Charter rights in the police execution of the above noted authorizations and warrants. However, if I am wrong and there was a violation of the defendant’s s. 8 Charter rights in the execution of any of the above noted authorizations and warrants, I am of the view that the admission at trial of the evidence obtained from the wiretap authorization of April 7, 2016, the wiretap authorization and general (video) warrant of June 2, 2016 and the search warrant of June 27, 2016 would not bring the administration of justice into disrepute. I am also of the view that the defendant’s s. 8 Charter rights were not violated in the search of the Toyota RAV4 or the Chevrolet Traverse. Although there was a violation of the defendant’s s. 8 Charter rights in the searches of 85 Queen’s Wharf Rd., unit 3802 pursuant to the general warrant of May 3, 2016, I am of the view that the admission at trial of the evidence obtained from those searches would not bring the administration of justice into disrepute.

[203] The defendant’s application under s. 24(2) of the Charter to exclude any evidence obtained pursuant to 1) the wiretap authorization of April 7, 2016 2) the general warrant of May 3, 2016 3) the wiretap authorization and general (video) warrant of June 2, 2016 4) the search warrant of June 27, 2016 and 5) any evidence discoverable only through the reliance on the June 2, 2016 wiretap authorization and general (video) warrant is dismissed.

M. F. Brown J.

Released: August 30, 2019

[^1]: See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. [^2]: Confidential Human Source