COURT FILE NO.: 15-G5314

DATE: 2019/01/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen (Respondent)

v.

Omar Abukar (Applicant)

BEFORE: Justice R. Laliberté

COUNSEL: Jessica Corbeil, Counsel for the Respondent

Elizabeth Warren, Counsel for the Applicant

RULING: CHARTER APPLICATIONS

LALIBERTE, J.

Introduction

1The accused Omar Abukar has brought two (2) separate applications.

2In the first application, he seeks an order under sec. 24(2) of the Charter excluding evidence on the basis that his right to be free from reasonable search and seizure and arbitrary detention as provided for under ss. 8 and 9 of the Charter were infringed by the police.

3The second application is predicated on the argument that the warrant issued by Justice of the Peace Soulière on February 27^th, 2015 under s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) could not have been issued on the amplified record and therefore, its execution amounted to an unreasonable search and seizure breach of s. 8 of the Charter. As such, the evidence should be excluded under s. 24(2) of the Charter.

4The record will show that on October 17^th, 2018, the Court had dismissed the accused’s application to cross-examine the affiant, Constable Bujold. The Court was of the view that the evidentiary record has presented did not establish that the accused had standing to challenge the warrant as it did not disclose that he had a reasonable expectation of privacy in unit 2008 located at 251 Donald Street.

5It was noted by the Court that even if there was a reasonable expectation of privacy, there was no basis to find a reasonable likelihood that cross- examination could serve to undermine the grounds upon which the warrant was issued.

6My view on the issue of the cross-examination of Constable Bujold remains notwithstanding the evidentiary record that I am now provided which in my opinion, supports a finding that the accused had a reasonable expectation of privacy in unit 2008.

7I raised this issue with counsel on January 7^th, 2019. I am not going to repeat what I said but simply confirm that the evidentiary recorded provided to me now provides a basis for a finding that the accused has standing to challenge the warrant. Reference should be made to my comments on January 7^th and the evidence pointed out by me.

8I will firstly deal with the accused’s application referred to as “resulting from execution of the search warrant”. I will refer to it as “Application #1”.

Application #1: “Resulting from Execution of the Search Warrant”

9The accused’s position is found at Tab 2 of his Charter Application Record.

10I understand the argument to be based in good part on the facial validity of the information sworn by Constable Bujold. The following points are raised:

− that the information does not satisfy any of the pre-conditions allowing for the issuance of a search warrant under s. 11 of the CDSA;

− it is argued that it does not reveal reasonable and probable grounds that:

(1) the target, Ms. Diaz was engaged in drug trafficking;

(2) that she was in possession of drugs; and

(3) that drugs would be found in the unit at the time of its execution.

− the information does not provide a basis for Ottawa Community Housing Staff Frank Landriault’s belief that drugs may have been trafficked from the unit; he is the one who had alerted the police initially;

− the information does not include exculpatory observations made during the surveillance;

− there are no observations in regards to Ms. Diaz, the main target, being involved in trafficking;

− para. 23 of the Factum states that there was no basis, meaning reasonable and probable grounds, to arrest the accused since:

• at no point prior to his arrest was he identified as being involved in trafficking;

• the only reason he was arrested was because he was present and allegedly in a relationship with the only target, Ms. Diaz.

11The end result should be the exclusion of the Crown’s evidence since:

(1) there were no reasonable and probable grounds for the issuance of the warrant;

(2) there were no reasonable and probable grounds to justify his arrest.

12It is argued that the principles set out in R. v. Grant are such that the admission of the evidence would bring the administration of justice into disrepute.

13The Crown’s position is that the accused’s ss. 8 and 9 rights were not breached by the police. Crown counsel’s argument is set in her Factum filed on October 5^th, 2018. I note the following points:

− there were reasonable and probable grounds to issue the search warrant;

− the measure in such a review is whether the authorizing justice could grant the search warrant and not whether he or she should have granted same;

− there were reasonable grounds to arrest the accused as an occupant of a dwelling in which the occupants were involved in the traffic of crack cocaine; he was therefore not arbitrarily detained;

14The Crown maintains that even if the accused’s Charter rights were breached, the circumstances are such that exclusion is not warranted having regard to the factors set out in R. v. Grant.

The Law (Application #1)

15In deciding the issues raised in this Application, the Court is guided by the following principles:

(i) Issuance of a warrant

16Section 8 of the Charter states that:

“S. 8: Everyone has the right to be secure against unreasonable search or seizure.”

17Section 11(1) of the Controlled Drugs and Substances Act provides as follows:

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it…

18Reasonable grounds to believe is understood to mean the following:

− it is a belief based on “credibly – based probability”;

− suspicion will not suffice;

− there must be a probability that the relevant facts in support of the issuance of the warrant are true;

− the affiant must honestly and subjectively believe the relevant facts;

− the basis for the belief is such that a reasonable person would come to the same conclusion.

19These base principles are found in a number of pivotal cases including:

− Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145

− R. v. Debot 1989 CanLII 13 (SCC), [1989] 52 C.C.C. (3d) 193

− R. v. Storrey 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.

20I also note Justice Paciocco’s decision, as to he then was, in R. v. Floyd [2012] O.J. no 3133 which was part of the material provided by defence.

21As to the standard for reviewing a warrant, the base principle is explained as follows by Justice Watt in R. v. Sadikov 2014 ONCA 72, [2014] O.J. no 376, at paras. 83 and 84. He states the following:

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

84The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.”

(ii) Police Officer’s authotiy to arrest a person without a warrant

22Section 9 of the Charter provides:

“S. 9: Everyone has the right not to be arbitrarily detained or imprisoned.”

23Section 495 of the Criminal Code provides, in part as follows:

495(1) A peace officer may arrest without warrant:

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence.

24Again, the measure is the existence of “reasonable grounds to believe”. As discussed earlier:

• it must be grounded on “credibly-based probability”;

• the officer must have an honest belief and a reasonable person would come to the same conclusion.

25The Supreme Court of Canada stated the following in R. v. Storrey [1991] 1 S.C.R. 241

“…an arresting officer must subjectively have reasonable grounds to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the same position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest…on the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest”.

26As noted in R. v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460, the legal burden rests on the individual claiming a breach of his or her s. 9 right not to be arbitrarily detained in the context of an arrest.

(iii) Exclusion of evidence under s. 24(2) of the Charter

27Dealing now with s. 24(2) of the Charter and the exclusion of evidence, if the Court finds that evidence was obtained in a manner that infringed on a right or freedom under the Charter, the Court shall exclude the evidence so obtained if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

28It is the Applicant for exclusion under s. 24(2) who must ultimately satisfy the Court on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. (see R. v. Sandhu 2011 ONCA 124).

29The Court’s tasks, as set out in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, is to assess and balance the following considerations:

(i) the seriousness of the Charter-infringed state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused;

(iii) Society’s interest in an adjudication on the merits.

Discussion (Application #1)

30Having considered all of the circumstances and the relevant principles, the Court comes to the following conclusions on the issues raised in this Application:

(1) In regards to the basis for the issuance of the warrant, the information sworn by Constable Bujold provided the Justice of the Pease with sufficient credible and reliable evidence to permit a finding of reasonable grounds to believe that a controlled substance (crack cocaine) was possessed and trafficked from unit 2008-251 Donald Street and that evidence of that offence would be found therein on February 27^th, 2015.

This conclusion is based on the following considerations:

− Constable Bujold clearly sets out his subjective belief that crack cocaine is being sold from the unit;

− the officer provides a detailed account of the observations made by the police through surveillance on February 4^th, 5^th, 23^rd and 26^th of 2015;

− it is noted that in “10 hours and 11 minutes of surveillance over 4 days, individuals, some of which were identified as known drug addicts, attended this unit and either entered the unit or interacted with person(s) from that unit on 20 occasions for an approximate average of 2.1 minutes per visit…”

− individuals are described as attending a stairwell and lighting up a glass pipe after interacting with people exiting and entering the unit;

− he describes items being exchanged between individuals who attend the unit door and people inside the unit

− Constable Bujold is an experienced police officer assigned to the Drug Unit;

− he clearly articulates his reasons for believing that the things sought will be inside the unit; these reasons are set out in para. 14 of his information.

The probability that the items sought would be found is based on the following reasoning:

(1) the unit was probably being used to traffic crack cocaine;

(2) the use of the unit was probably continued during February 2015 and at least to February 27^th;

(3) common sense suggests that you can’t traffic in crack cocaine unless you possess the substance and items allowing such trafficking;

(4) the sale of the substance will probably generate money.

− the whole of the information sworn by the officer provides a credible probability on the elements required for the issuance of a warrant under s. 11 of the CDSA;

− there is no basis to question the honesty of the officer’s belief;

− a reasonable person would likely come to the same conclusions;

− the fact that the information does not provide a basis to believe that Frank Landriault was truthful is not a significant consideration since:

• his disclosure to the police of his belief that drugs were being trafficked from the unit is not presented as part of the reasonable grounds;

• it is part of the narrative and explains how the investigation was triggered;

• the affiant does not suggest that he is relying on the truth of the information given by this individual;

− the fact that Vanessa Diaz is the only person named as a target in the information does not detract from the Court’s findings; her name was mentioned as she was the sole registered tenant of the unit; the Justice was told that other individuals were involved in the transactions; a s. 11 CDSA warrant is directed at searching a place; the naming of individuals is not an essential element; Justice Watt in R. v. Sadikov, op. cit. at para. 80 states that s. 11(1) CDSA requires reasonable grounds to believe that the following is in a place described in a warrant, namely:

• a controlled substance or precursor in respect of which the CDSA has been contravened;

• anything in which a controlled substance is contained or concealed;

• offence-related property; or

• anything that will afford evidence in respect of a CDSA offence or a related proceeds of crime.

Therefore, there is no requirement for evidence that the “target” was committing an offence involving a controlled substance.

− There is no question that s. 8 protects people and not places. However, this ultimate constitutional purpose does not change the essential elements required for the granting of prior judicial authorization to enter premises, search and seize evidence under s. 11 of the CDSA.

− The Supreme Court of Canada in Hunter v. Southam set out the minimum standard as follows:

“In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8, for authorizing search and seizure…”

− Section 11 of the CDSA and the information sworn to by Constable Bujold reflects this minimum standard.

− There is no mention by the Supreme Court that the standard requires the naming of an individual and evidence that this individual committed the offence linked to the place to be searched.

31Therefore, the Court’s view is that the accused has not shown that the warrant could not have been granted on the basis of Constable Bujold’s sworn information. There is no s. 8 Charter breach.

(2) On the issue of the basis for the accused having been arrested, the Court finds that there were reasonable grounds to believe that he had committed the offence of possession of a controlled substance (crack cocaine) for the purpose of trafficking. He has not established that his arrest amounted to arbitrary detention. There was a credibly-based probability that he had been involved in the commission of the said offence. This finding is based on the cumulative effect of the following considerations:

− as already discussed, there was a reasonable basis to believe that the unit was being used to traffic cocaine;

− the accused was probably closely connected to this unit at the relevant time

• his girlfriend was the registered tenant;

• the belief was that he was residing with her;

• he had been connected to the unit in 2014 on a few occasions;

• in January 2015, the police had spoken to him and Ms. Diaz in regards to the use of this unit.

Those factors certainly provide a probable basis for the said connection between the accused and the unit.

− Ms. Diaz and the accused, as occupants of this unit, were made aware by Constable Lorette in January 2015 of the concerns relating to drug trafficking from this unit;

− the ongoing, frequent and repetitive nature of the drug transactions seen by the police through the surveillance in connection with this unit prior to the arrest, make it such that it was more probable than not that the known occupants, which included the accused, were involved in the commission of the offence being investigated by the police; that is certainly not the only possible conclusion as for example, an apartment take over where the occupants acquiesce by reason of fear; however, willful and free participation in the trafficking of crack cocaine was certainly a reasonable probability;

− as already noted, the police are not required to establish a prima facie case for conviction before making the arrest;

− possibilities, even reasonable possibilities do not detract from reasonable and objective probabilities.

(3) Assuming the Court is wrong in finding that the accused’s ss. 8 and 9 Charter rights were not infringed, the Court’s view is that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that admitting the impugned evidenced would not bring the administration of justice into disrepute. This is based on a balancing of the following considerations:

(i) the seriousness of the Charter-infringed state conduct

• there is no evidence to support a suggestion that the police did not act in good faith;

• the infringement, if any, is close to the line;

• there is no willful, flagrant and/or reckless disregard of the accused’s Charter rights;

• the accused’s reasonable expectation of privacy in this unit is predicated for the most part, up to now in the proceedings, on the Crown’s theory of the case as articulated by the Supreme Court in R. v. Jones, op. cit.; he has not, as of yet, provided evidence of a subjective expectation of privacy;

• exclusion of the evidence is not required to avoid a message that the Court condones serious state-misconduct; the police conduct is not severe or deliberate;

• it is not part of a pattern of abuse by the police.

(ii) the impact of the breach on the Charter-protected interests of the accused:

• as already noted, the accused has provided no evidence in regards to his subjective expectation of privacy in this unit;

• the transcript of the March 10^th, 2016 preliminary inquiry, which was filed at Tab 4 of the accused’s Application record for the Court’s consideration, suggests that he had very little, if any, interest in this dwelling unit; his counsel (not Ms. Warren) stated the following:

“…he was not a regular, uh, resident of the apartment either. He, we heard from Ms. Diaz that he would come once in a while…” (p. 89)

“…he had no physical control over the apartment…” (p. 89)

“If he’s only there once a week or so there’s a lot that goes on in a, in a bedroom on a day to day basis…and to know exactly, where, uh, everything is in a, in somebody else’s bedroom…” (p. 90).

(iii) Society’s interest in an adjudication on the merits:

• The accused is charged with a serious offence;

• The exclusion of the evidence would effectively put an end to the Crown’s case against the accused.

Conclusion

32The accused’s Application #1 described as “Resulting from Execution of the Search Warrant” is therefore dismissed.

Application #2: Subfacial Validity Search Warrant Challenge

33I will now deal with the accused’s second Application which is premised, in good part, on the argument that Constable Bujold leaving out salient issues in his sworn information.

34The argument is found at Tab 2 of the Application record.

35Counsel identifies the following facts which should have been included in the information presented to the Justice of the Peace:

− how the investigation was triggered, which includes the basis for Frank Landriault’s belief;

− there is no mention of the police having been involved in prior drug investigations in connection with this unit;

− the individuals who were involved in these prior investigations;

− the fact that these individuals had been charged and that Ms. Diaz and the accused had not been charged;

− the fact that the accused was staying in the unit;

− finally, the officer’s belief that the unit was being used as a “traphouse” where drugs are distributed as oppose to a “stashouse” where drugs are stored; this is said to go to the probability that drugs would be found in the unit in the absence of individuals other than Ms. Diaz and/or the accused.

36It is argued that the warrant could not have been issued on the amplified record. The submission is that these material omissions and the affiant’s failure to make full, frank and fair disclosure, make it such that the issuance of the warrant resulted in the violation of the accused’s s. 8 rights. Therefore, all evidence seized should be excluded pursuant to s. 24(2) of the Charter.

37Crown counsel’s position is that there is no merit to the accused’s subfacial challenge of the search warrant. She raises the following points:

− the individual targeted by a drug investigation is not relevant to the issuance of a search warrant under s. 11 of the CDSA;

− there is nothing misleading in the information sworn by Constable Bujold;

− the events of 2014 in connection to the unit were not relevant and it would have been speculation for the officer to include this as part of his reasons to believe;

− the inclusion of such dated events involving other individuals would invite the Justice to rely on “propensity reasoning” as a basis to grant a search warrant.

38The Court is reminded that the measure is not whether it would have issued the warrant but rather that the warrant could have been issued even in light of the amplified record.

The Law (Application #2)

39In deciding Application #2, the Court relies on the legal principles set out in Application #1.

40I would only add the following comments of Justice Sopinka at para. 56 of R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421:

“56. The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”.

Discussion

41The Court finds that the accused has not established that Constable Bujold failed to make full, frank and fair disclosure to the Justice of the Peace through his sworn information. The facts revealed in this Application not conveyed to the Justice do not detract from the Court’s fundamental finding that the warrant could have been granted.

42The facts amplified by the accused do not individually and/or collectively impact on the existence of reasonable and probable grounds to believe that the offence of possession of crack cocaine for the purpose of trafficking was committed and that evidence of the commission of this offence would be found inside unit 2008-251 Donald Street.

43This conclusion is based on the following considerations:

− for reasons discussed in the context of Application #1, the following facts are found not to be relevant to the issuance of the warrant:

• the basis for Frank Landriault’s belief that drugs were being sold from the unit;

• the naming or not of the individuals believed to be involved;

• the absence of observations made of Vanessa Diaz involved in trafficking drugs;

• the fact that the accused was residing in the unit

− the failure to mention prior drug investigations in connection with this unit and that while Ms. Diaz and the accused were identified other individuals had been charged, is not seen as material non-disclosure; if anything, the inclusion of information that a place has been historically connected to the type of offence being investigated and for which the warrant is sought, would likely serve to bolster the probability that it is again being used for such purpose;

− the fact that Ms. Diaz and the accused had not been charged does not add to or detract from the basis for the issuance of the warrant; it does not make the commission of the offence and the finding of evidence in the unit less probable; in fact, it could be seen as more prejudicial than probative;

− Constable Bujold’s explanation that he felt that the inclusion of such historical data rested more on speculation than reasonable belief is fair and logical;

− The Court rejects the submission that the probable finding of drugs in the unit was linked to the presence of the individuals who completed most of the drug transactions and that the Justice should have been made aware of this as it goes to the probability of finding drugs inside the unit; the Court notes the following:

• the amplified record (i.e., video surveillance) reveals that the accused was probably involved in 3 drug transactions in concert with one of these other individuals; it is probable that he exited the unit with the drugs and gave same to users;

• the individuals who completed most of the transactions with users were most often present inside the unit at any given hours;

• reference is made, in the accused’s Factum, to the fact that “no currency, drugs or packaging was found” on the accused or Diaz when the warrant was executed; Muse was found with crack cocaine and Rwabukera had $1,320 on his person; the result of a search is not a relevant consideration in such a review; the results of a search cannot ex post facto be used to confirm or negate the existence of valid grounds.

44In the event the Court is wrong on its finding as to the subfacial challenge, the Court maintains that the inclusion of the evidence would not bring the administration of justice into disrepute. The Court applies the same s. 24(2) analysis discussed in Application #1.

Conclusion

45The accused’s Application #2 (Subfacial Validity Search Warrant Challenge) is therefore dismissed.

The Honourable Justice R. Laliberte

2019/01/19