DATE: 2019/10/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

KEVIN NGUYEN and THI NGUYEN

Defendants/Applicants

Katherine Stewart, for the

Crown/Respondent

Alana Page, for the Defendant/Applicant Kevin Nguyen

Jennifer Myers, for the Defendant/Applicant Thi Nguyen

HEARD: March 25-28, 2019, September 3-6, and 12, 2019

An Order restricting publication of this proceeding was made under ss. 645 (5) and 648 of the Criminal Code and continues to be in effect until after the conclusion of the trial.

Ruling ON GAROFOLI APPLICATION

SPIES J.

Overview

[1] In the spring of 2017, police in 14 Division of the Toronto Police Service (“TPS”) were investigating a drug dealer known as "LC". They came to believe that LC was the Defendant, Kevin Nguyen and were in the process of obtaining a search warrant for an address that they believed was his residence, namely Unit 104, 1430 King St. West, Toronto, (the “Apartment”), to search for powdered and crack cocaine, packaging, weighing equipment, cell phones and currency related to the sale of narcotics and documents with respect to the identity of the resident or any other occupants. There is no dispute that when police sought and obtained the search warrant, Kevin Nguyen was the target. The police had no information that his mother, Thi Nguyen, had any drug or firearm involvement, although they did believe that she shared the Apartment with her son.

[2] Police officers detained, arrested and searched Mr. Nguyen on June 4, 2017 and charged him with assault resist arrest, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime exceeding $5,000.

[3] The Information to Obtain a Search Warrant (“ITO”) was sworn by DC Goss and a Justice of the Peace signed a Telewarrant to Search (the “Warrant”) later on June 4, 2017. When the Apartment was searched, police found a loaded prohibited firearm and more cash. As a result, both Mr. Nguyen and his mother were charged with possession of a loaded prohibited firearm and related offences, and possession of proceeds of crime exceeding $5,000.

[4] I heard this application Garofoli application; (R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421) and other applications brought by Mr. Nguyen and Ms. Nguyen in advance of their trial, which was scheduled to commence on October 21, 2019. Counsel agreed to be bound by my rulings on these applications even though I might not be the trial judge.

[5] I have already determined, in an application brought by Mr. Nguyen, that police breached his ss. 8, 9, and 10(a) Charter rights when they detained, arrested and searched him and that as a result the evidence found on his person, which included powdered and crack cocaine and cash, would be excluded as evidence at his trial and from the ITO pursuant to s. 24(2) of the Charter; see R. v. Nguyen, 2019 ONSC 5849 (“Nguyen # 1”). The Crown will prepare a new Indictment as the charges involving the drug and other evidence found on Mr. Nguyen at the time of his arrest will be withdrawn.

[6] At the time of Thi Nguyen’s arrest, PC Kenny conducted a pat-down search before placing her in a scout car and transporting her to 14 Division. After her booking Ms. Nguyen was subjected to a complete Level 3 search. Ms. Nguyen sought an order staying the proceedings against her pursuant to s. ss. 7, 8, 12 and 24(1) of the Charter on the basis that the search was unreasonable and in breach of her s. 8 Charter rights. I granted this application and ordered that the charges against her be stayed; see R. v. Nguyen, 2019 ONSC 5866 (“Nguyen # 2”).

[7] Both Defendants also brought this Garofoli application before me. They seek an order for the exclusion of all evidence located in the Apartment, pursuant to s. 24(2) of the Charter. On October 10, 2010, I advised counsel and the Defendants that I had decided that the Garofoli application would be dismissed and that I would provide written reasons for my decision. These are my reasons.

The Procedure Followed at the Garofoli Hearing

[8] The evidence on all of the Defence applications was heard in one voir dire because some of the police officers had relevant evidence to give with respect to more than one application. With the cooperation of defence counsel, these witnesses were called as and when they were available. The delay in hearing all of the evidence in this matter was that PC Kenny was on maternity leave. At the completion of all of the evidence I heard submissions on each of the applications in turn, reserving my decision for each.

[9] With respect to the Garofoli application, as a preliminary issue, the Defendants sought leave to cross-examine DC Goss who prepared and swore the ITO and DC Merritt, the Chief Field Officer for 14 Division who provided information to DC Goss for the ITO. For the reasons set out below I granted that application.

[10] Ms. Stewart initially sought to defend the ITO and Warrant on the basis of the redacted ITO in accordance with Step 5 of the procedure set out in Garofoli, supra. at para. 79. After considering the excisions to the Warrant that needed to be made, I concluded that the Crown had not satisfied me that the ITO as redacted disclosed reasonable grounds to believe that the items to be searched for would be located in the Apartment at the time of the execution of the Warrant.

[11] After I advised counsel that I had come to this conclusion, Ms. Stewart asked that we proceed to Step 6 of the Garofoli process, as it was her position that this Court could consider the redacted portions of the ITO. As that was always a possibility, I had already reviewed a draft Judicial Summary prepared by Ms. Stewart and suggested a number of amendments which were accepted save for one where I was persuaded that providing more information would risk disclosing the identity of a confidential source/informant (“CI”). That final Judicial Summary had already been provided to the Defendants. After I heard submissions, I concluded that the Judicial Summary made the Defendants sufficiently aware of the nature of the redacted portions of the ITO and in particular whether the Debot criteria were met so that they could adequately challenge its sufficiency in argument and/or evidence as envisaged in Garofoli.

The Issues

[12] In addition to the preliminary issue of whether or not I should permit the cross-examination of Officers Goss and Merritt, this application raised the following issues:

(a) Has the Crown proven that Detective Worth’s entry into the Apartment to “freeze” it without a warrant was reasonable? If not, what is an appropriate remedy?

(b) Should excisions be made to the ITO because of inaccurate or misleading statements?

(c) Is the Warrant to search the Apartment invalid on its face as the ITO as redacted does not disclose reasonable grounds to believe that the items to be searched for would be located in the Apartment at the time of the execution of the Warrant (Step 5)?

(d) Is the Warrant sub-facially invalid (Step 6) as the ITO was misleading in material aspects?

(e) Have the Defendants established that the police misled the issuing justice, subverted the prior authorization process and that the Warrant should be set aside based on judicial discretion?

(f) If this Court finds that any of the Defendants’ Charter rights have been breached, should the evidence seized from the Apartment be excluded pursuant to s. 24(2) of the Charter?

[13] The position of the Crown with respect to these issues raised by the Defence is that the entirety of the application that relates to Warrant for the Apartment should be dismissed. In particular, Ms. Stewart submitted that if this Court finds under Step 5, that the ITO, as currently redacted, does not disclose sufficient grounds, this Court should revert to Step 6 as outlined in Garofoli to review the unredacted ITO. The position of the Crown is that the Warrant to search was validly issued. In the alternative, should this Court find that the ITO, either as redacted or unredacted, does not disclose sufficient grounds, the Crown submitted that the fruits of the Warrant should not be excluded from the trial proper.

Application by the Defence to cross-examine DC Goss and DC Merritt

[14] As already stated, the Defendants sought leave to cross-examine DC Merritt and DC Goss with respect to four distinct issues. The Crown filed a factum in support of her initial position that the Defendants had failed to demonstrate an evidentiary basis to believe that the proposed areas of cross-examination were likely to elicit evidence which would tend to discredit one of the preconditions for the Warrant's issuance.

[15] When it came time to argue the application however, Ms. Stewart did not vigorously oppose the application, save that she wanted to ensure that there was no chance that DC Merritt, or DC Goss would be compelled to disclose any information that might identify any CI who provided information for the ITO. As a result, the areas where I permitted cross-examination were essentially worked out with the cooperation and agreement of all counsel. Although I considered the test for leave to cross-examine as set out by Sopinka, J. in Garofoli, supra, at paras. 88 and 89 and again 15 years later in R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 3 and 40, because the issues were resolved in my discussions with counsel, I did not consider it necessary to give reasons for my decision apart from what is set out below. I appreciate the cooperation of counsel in this regard. A summary of the discussions and my ultimate decision on the four areas where the Defence sought to cross-examine are as follows:

With respect to the address of 1430 King Street West, Unit 104

[16] There was no dispute that the ITO was required to show reasonable and probable grounds that the things to be searched for were in the place to be searched; namely 1430 King Street West, Unit 104 and that Kevin Nguyen had a connection with that address. In the ITO, DC Goss swore that “DC Merritt knows Nguyen lives at 1430 King Street West, Apartment #104 with his parents”. DC Merritt gave some evidence about this at the preliminary hearing. The Defence wanted to explore any inconsistencies between his evidence on the voir dire and at the preliminary hearing and ascertain how it was that he knew this information about Mr. Nguyen’s address and whether or not it came from police checks and/or CIs.

[17] Ms. Stewart did not oppose this subject to her concern about identifying a CI. Accordingly, I advised counsel that I would not permit questions beyond identifying the fact that this information came from a CI, if that was the case, as any further questioning might reveal the identity of a CI. I also ruled that if DC Merritt testified that he did not give this information to DC Goss, then there would be a clear need to permit DC Goss to be cross-examined on the basis of his statement in the ITO. If DC Goss confirmed that he indeed did obtain this information from DC Merritt, then if the Defendants intended to take the position that this was not true, I noted that the Defence reserved their right to ask questions of DC Goss.

[18] I deal with the evidence on this issue below.

The association of the nicknames “LC” and “Little Kevin” to Mr. Nguyen and the source of that information

[19] In the ITO, DC Goss swore that there was information from a CI about a drug dealer named LC or Little Kevin and that DC Merritt is familiar with Mr. Nguyen and that he goes by the nicknames LC and Little Kevin. The Defence argued that this information, particularly the nickname Little Kevin, was relied upon as strong corroboration of the information set out in the ITO.

[20] DC Merritt was asked about this issue at the preliminary hearing and confirmed his knowledge of the nicknames for Mr. Nguyen as LC and Little Kevin. He testified that this knowledge came from a number of sources, but he was not able to specifically date that information. He also testified that he had a poster in his office that did not use those nicknames in relation to Mr. Nguyen. A copy of that poster was produced to Defence counsel after the preliminary hearing. It does not show the nicknames LC or Little Kevin. Instead, it shows nicknames for Mr. Nguyen of “Kev” and “Kush”.

[21] Again, Ms. Stewart did not object to questions being asked of DC Merritt to allow exploration of the discrepancy in the use of nicknames for Mr. Nguyen. These questions could include questions as to whether or not DC Merritt was involved in making the posters in his office, when they were made, and whether they were updated. This would also include questioning DC Merritt as to whether he knew Mr. Nguyen as either Kev or Kush, and if so, why he did not provide that information to DC Goss. Defence counsel also advised that they wanted to ask DC Merritt more questions about any obligations he had to record nicknames for suspected gang members and if so, where that would be done. I ruled that there would be no questioning of DC Merritt as to how he came to know the various nicknames of Mr. Nguyen as that would risk disclosing the identity of one or more CIs. Subject to the evidence of DC Merritt it did not seem that there would not be any reason to cross-examine DC Goss on this issue.

[22] I deal with the evidence on this issue below.

The grounds for the detention of Mr. Nguyen as communicated to DC Goss by PC Van Ruyven

[23] In the ITO, DC Goss swore that PC Van Ruyven advised him that he told Mr. Nguyen that he was being investigated for potentially being in possession of a weapon. PC Van Ruyven, however, testified that he told Mr. Nguyen that he was being investigated for theft from the LCBO, which he admitted was not true. He was adamant that this is what he told DC Goss and that this is in his notes. It was an area that needed to be cross-examined on as the evidence of PC Van Ruyven, which amounted to misleading Mr. Nguyen about the reason for his detention, was not before the issuing justice. The Crown ultimately did not object to cross-examination on this issue.

[24] Again, I deal with the evidence on this issue below.

The date when DC Merritt made his notes in relation to information he provided to DC Goss

[25] DC Merritt’s case notes state the date of his discussion with DC Goss about the ITO as “2017 07 02 Sun”. DC Merritt testified at the preliminary hearing that he made these notes on June 2, 2017 when he gave the information to DC Goss, not July 2nd. Counsel did not appreciate at the time that July 2nd was a Sunday and June 2nd was a Friday. Defence counsel wanted to explore this issue with DC Merritt in the event he made his notes after the ITO was issued and in order to cooper up the information given by DC Goss to the issuing justice.

[26] I ruled that this would be permitted, and it was agreed that the areas of questioning of DC Goss that I would permit would be finalized once DC Merritt testified. It was clear that he should be the first to be cross-examined.

[27] DC Merritt testified on the voir dire that he spoke to DC Goss on June 2, 2017, which was a Friday. He was not challenged on that but he was challenged on when he made his notes of that conversation. DC Merritt testified that the date on his case notes is an error and that he wrote the month as "07" (July) when he actually meant "06" (June). He was cross-examined at length about this and denied the suggestion that he in fact made his notes on Sunday July 2, 2017, a day he admitted he worked on, which of course was after the Warrant was issued. He insisted that it was just an error and that he just looked at a blank calendar and wrote down the date and kept going. DC Merritt said that the information in his notes is what information he gave to DC Goss.

[28] DC Merritt also testified that his notes in his memo book are in chronological order and his notes from Thursday, June 1st are followed by June 2nd, and that is when he says he spoke to DC Goss. A redacted copy of two pages of DC Merritt’s memo book was introduced into evidence. The dates recorded there in his handwriting are chronological from 2017.5.25 THURS to 2017.06.04 SUN. The note dated 2017.06.02 FRI states “source info provided to DC Goss”.

[29] In my view, given the memo book notes, there is no reason to doubt DC Merritt’s evidence that the date on his case notes was simply an error. I find that that June 2, 2017 was the day he provided information from the CI to DC Goss. This was also the evidence of DC Goss.

Evidence with respect to the “freezing” of the Apartment and preliminary findings of fact

The arrest of Mr. Nguyen

[30] I will only summarize the evidence that I heard related to the arrest of Mr. Nguyen to the extent it is relevant to the application challenging the “freezing” of the Apartment and the Garofoli application. That evidence is as follows.

[31] On June 4, 2017, Officers Van Ruyven and Kenny from 14 Division were with the Community Response Unit and in uniform, on bike patrol. They had been assigned to the Parkdale area to investigate a report of a discharge of a firearm near the tennis courts at Parkdale Collegiate High School, which was alleged to have taken place on May 23, 2017. The police had no suspects who had been identified or arrested yet. The plan was that the officers were going to canvas the area to see if there was anyone who witnessed the incident.

[32] As the officers were travelling northbound on Jameson Avenue, PC Van Ruyven was in front. They noticed a male, whom shortly thereafter they both recognized as Mr. Nguyen, walking northbound on the west sidewalk. Mr. Nguyen was believed by the officers to be a member of the Parkdale Crips. Both officers testified that the male’s clothing caught their attention as he seemed overdressed for a hot sunny day and the way he was walking and holding his left arm suggested to them that he was concealing a firearm on his person. As I explained in Nguyen #1, I did not accept this evidence.

[33] In any event what is relevant to this application is that when PC Van Ruyven initially detained Mr. Nguyen, he told him that they were investigating a theft from an LCBO, which he admitted was a lie (the “LCBO ruse”). PC Van Ruyven also testified that when they took Mr. Nguyen to the ground to arrest and search him, he put up a struggle and started yelling to three young men who were across the street, one of whom the officers believed was also a member of the Parkdale Crips. PC Van Ruyven could not remember what Mr. Nguyen was yelling but he admitted that he might have made a note if he heard Mr. Nguyen give some instructions about destroying evidence.

[34] Detective Worth, also a member of 14 Division, was in plain clothes in an unmarked scout car driving around in the Parkdale area. At about 6:36 p.m., he turned north on Jameson Avenue and he saw two uniformed officers rolling on the ground with an unknown party, also on the ground. He assisted in the arrest and handcuffing of Mr. Nguyen and the search by PC Van Ruyven, which resulted in the discovery of the crack and powdered cocaine.

[35] Detective Worth testified that as he and PC Van Ruyven walked Mr. Nguyen to the police car, he was still resisting and yelling to the young males on the street. Detective Worth did not know what he was saying.

[36] Officers Van Ruyven and Kenny testified that they did not know that DC Goss had been drafting an ITO for the Apartment in the days prior to June 4, 2017. Detective Worth however, was aware that DC Goss had been drafting this ITO in relation to Mr. Nguyen.

“Freezing” of the Apartment

[37] Detective Worth testified that after the arrest of Mr. Nguyen, he called his office and spoke to PC Schippke and told him that Mr. Nguyen had been arrested and that he was going to go to Mr. Nguyen’s Apartment to secure it (it was usually referred to as “freezing” the Apartment) for the Warrant that was being typed up. The Apartment was very close by. Detective Worth asked that someone bring him Mr. Nguyen’s keys to the Apartment and that two uniformed officers attend with him. PC Cameron Ross and PC Derek Walsh were the two officers who were tasked to attend to assist Detective Worth.

[38] Ms. Page argued that Detective Worth decided he could leave Jameson Avenue at 6:45 p.m., once Mr. Nguyen was in the scout car. He then drove to the Apartment and parked in front of the building, and stayed in his scout car waiting for the keys until 7:15 p.m. Detective Worth testified that he was waiting in his scout car for Officers Walsh and Ross to bring the key to the Apartment to him; which would have been a period of 25 minutes.

[39] According to Officers Ross and PC Walsh, they arrived at the Apartment at 7:10 p.m. At 7:15 p.m., Detective Worth requested that they stand by the Apartment on the first floor as the Warrant was being prepared. PC Ross testified that he was in the area on the first floor near Unit 104. He believed that PC Walsh had a position elsewhere.

[40] Detective Worth used the key to enter the apartment building and then asked PC Walsh to stay outside. Mr. Nguyen’s Unit was on the main floor, and there was a window facing east onto Jameson Avenue from the Unit. He asked PC Ross to enter the building with him.

[41] PC Ross testified first, and he confirmed that he stood outside the door to Unit 104 to ensure no one entered or exited that Unit while they were waiting for the Warrant. PC Ross testified that he did not have a note of Detective Worth entering the Apartment because while he was watching the door Detective Worth did not do so. He had no recall of giving the key to the Apartment to Detective Worth and he denied watching Detective Worth enter the Apartment. He disagreed that he was giving this evidence because at the time he believed that what Detective Worth did was illegal.

[42] PC Walsh however, did recall Detective Worth briefly going inside the Apartment only long enough to ensure no one was inside. He testified that when Detective Worth was inside the Apartment, he was by the door to the Apartment the whole time that Detective Worth was inside. He believed that PC Ross was right there beside him in the hallway. PC Walsh testified that Detective Worth did not have his gun drawn as he went inside the Apartment. The target had already been apprehended and he did not think this was that unusual. He remained very close to the door and would have heard voices or commotion. PC Walsh knew Detective Worth did not have a search warrant to enter the Apartment, but he denied the suggestion that he believed Detective Worth had done something illegal.

[43] Obviously, PC Ross is mistaken because there is no doubt that Detective Worth entered the Apartment briefly before the Warrant was issued. I am not prepared to find that PC Ross is being untruthful as it is possible that Detective Worth confused the two officers as clearly PC Walsh was with him when he entered the Apartment, which means his evidence that before he went into the Apartment that he only had PC Ross with him is incorrect.

[44] Although PC Walsh believed that PC Ross was right there beside him in the hallway, I think he may be mistaken about that as it makes sense that when Detective Worth entered the Apartment, he would want one of the officers watching the ground floor window. I appreciate that does not explain PC Walsh’s evidence that he was by the Apartment door with PC Ross but it seems clear to me that at least Detective Worth and PC Walsh had no concern about Detective Worth entering the Apartment and for reasons I will come to, I do not find that they would have had reason to believe that this was an illegal entry at the time.

[45] Overall on this issue I prefer the evidence of PC Walsh. Detective Worth did not have a key to the building or the Apartment and he clearly obtained the key to the Apartment from someone. I find it was PC Walsh. PC Ross clearly failed to make a note about this, and he did not note that Detective Worth entered the Apartment. This would explain why he forgot that this occurred, or he may have been tasked to be outside and watch the window at that point. I accept the evidence of PC Ross when he denied that he was giving this evidence because at the time he believed that what Detective Worth did was illegal. Neither Detective Worth nor PC Walsh seemed to have any concern about giving this evidence. Furthermore, Detective Worth provided this information to DC Goss and he had no concern about putting it into the ITO.

[46] When Ms. Page asked Detective Worth about the fact that he waited in his scout car for 25 – 30 minutes, he testified that he did not have access to the building although he admitted that he could have asked for the superintendent to let him in. Detective Worth fairly admitted that in that half hour, evidence in the Apartment could have been destroyed.

[47] When Detective Worth reached the Apartment, he testified that he knocked on the door first and yelled “Police!” His purpose in doing so was to see if there were any occupants who could discard evidence. There was no response. He heard a dog barking; he thought it was a small dog. As he opened the door, he yelled police again. The dog was still barking, and it appeared to be friendly. Again, there was no response so Detective Worth then went into the Apartment alone. He did not have his gun drawn. PC Ross stayed outside the door. However, PC Ross testified that although he saw Detective Worth briefly, he was not sure what specifically he was doing. He did not observe anyone entering the Apartment and did not see Detective Worth do so. He was simply given the detail to stand by the front door of the Apartment. As already stated I prefer the evidence of PC Walsh that he was in fact standing by the door either on his own or with PC Ross.

[48] Detective Worth testified that he was inside the Apartment for a maximum of 45 seconds. He said that he went first left to the living room, and saw the kitchen on the right, and then saw a bedroom on the left, and a bathroom and a closet. He took a quick look around and discovered there was no one there. There is no dispute that no one was in the Apartment at the time Detective Worth entered it.

[49] Detective Worth testified that he did not touch anything, and he did not know who Mr. Nguyen lived with. He did not see a firearm or anything illegal although he said this was not intended as a search. It is admitted that the firearm that was later found, was not immediately visible to police upon entry into the Apartment and based on this admission and the evidence of Detective Worth I found that the firearm was not in plain view.

[50] When Detective Worth left the Apartment, he detailed PC Ross to stand guard at the door. No one was to enter the Apartment until the Warrant was executed.

[51] Detective Worth testified that his decision to enter the Apartment was to see if anyone was inside who could potentially destroy evidence. The arrest of Mr. Nguyen had occurred in daylight with a lot of people on the street who knew Mr. Nguyen and Mr. Nguyen had been in some sort of communication with a bunch of guys. His concern was that news of Mr. Nguyen’s arrest was getting out. He considered it exigent that the Apartment be searched. He was worried that any drugs inside the Apartment might be destroyed. He went on to say that Mr. Nguyen was known to be a drug dealer in Parkdale, even though he had not had any dealings with him. His name had come up many times at 14 Division.

[52] PC Ross corroborated some of this evidence from Detective Worth when he testified about how well he knew of Kevin Nguyen. He said that he would be surprised if an officer in 14 Division did not know of him because his name would come up a couple of times a year in conversation – in fact he testified that Mr. Nguyen’s name came up enough in the three years leading up to June 2017 that the majority of officers would know him. According to PC Ross, Mr. Nguyen had been in custody many times in 14 Division. He could not say however about how well-known Mr. Nguyen was in the community.

Evidence on the Garofoli Application and preliminary findings of fact

[53] Upon learning of the arrest of Mr. Nguyen, DC Goss incorporated the information that he received from PC Van Ruyven into the ITO. As I have stated, I have already ruled that the detention, arrest and search of Mr. Nguyen was unlawful and that reference to it and the evidence obtained as a result should be excised from the ITO. However, there are still credibility issues arising from the evidence relevant to the Garofoli application that I must consider as my credibility findings could impact my other determinations and in particular the credibility and honesty of DC Goss.

Information provided by PC Van Ruyven to DC Goss for the ITO

[54] The information that DC Goss put in the ITO that he testified that he received from PC Van Ruyven is found in the section headed “4) Background Information”, section xi. The ITO states that PC Van Ruyven advised Mr. Nguyen that he was “being investigated for potentially being in possession of a weapon”.

[55] PC Van Ruyven was standing next to DC Goss as he was typing up the ITO. He assumed that DC Goss was putting the information into a police computer, but he was not watching the words that DC Goss was typing and he could not recall if DC Goss read back to him what he had told him. PC Van Ruyven testified that he knew that DC Goss would have to swear to the accuracy of the information, and he admitted that he knew that it was important to get the information recorded accurately. He said that he was particularly diligent to ensure he got it right.

[56] PC Van Ruyven testified that he told DC Goss what he told this Court in his evidence – namely, that he used a ruse about a LCBO theft to detain Mr. Nguyen but that he had observed characteristics of an armed person. PC Van Ruyven was asked twice in cross-examination if he told DC Goss that when he approached Mr. Nguyen, he told him he was being investigated for potentially being in possession of a weapon. The first time he answered no and when the question was repeated, he answered that he did not remember saying that to DC Goss and that he told DC Goss what was in his notes, namely the LCBO ruse. He was asked whether he misrepresented to DC Goss what he told Mr. Nguyen because he knew what he should have done. He denied that suggestion. However, PC Van Ruyven insisted that he believed Mr. Nguyen had a gun and that he told DC Goss that he believed he had a firearm and that that was the reason why he stopped Mr. Nguyen.

[57] In the ITO DC Goss stated that “Nguyen was commanded to keep his hands away from his waist. Nguyen appeared to become agitated and put his hands towards his waist”. PC Van Ruyven testified that he instructed Mr. Nguyen to: "keep your hands where I can see them" or "show me your hands" or something to that effect – he could not recall his exact words and could not remember exactly the words he used when he was speaking to DC Goss. PC Van Ruyven testified that whatever it was that he said to Mr. Nguyen, that Mr. Nguyen then put his hands to his waist. PC Van Ruyven testified that he did not exaggerate Mr. Nguyen’s actions to DC Goss to justify grabbing Mr. Nguyen. I will come to how I have dealt with this evidence when I review the evidence of DC Goss on this point.

Evidence of address given by Mr. Nguyen at the time of his arrest and booking

[58] The ITO states that when Mr. Nguyen was paraded before Sgt. Van Nest, he provided an address of 1430 King Street West, Apartment #104. The Crown ultimately conceded that the utterance Mr. Nguyen gave as to his address after his arrest should be excised from the ITO as it was not established to be a voluntary statement. That does not end the relevance of this issue however as on the booking video when Mr. Nguyen was paraded he actually stated his address to be Unit #103, not Unit #104. Accordingly, Ms. Stewart conceded that DC Goss could be asked where he got the information he put in the ITO about Mr. Nguyen’s address.

[59] I heard evidence from Sgt. Jesse Van Nest, who was the booking Sargent when Mr. Nguyen was brought in, Officer Brad Haywood who was the booking officer, and Officers Fraracci and Josephs who transported Mr. Nguyen to the station. As well, the in-car video of Mr. Nguyen being transported to the station, his booking video and the Prisoner Record for Mr. Nguyen were introduced into evidence. The purpose of all of this evidence was to establish the address that Mr. Nguyen gave at the time he was arrested and the source of that information.

[60] Sgt. Van Nest testified that Mr. Nguyen’s address is not in his notes, and he was never advised of the address. He said that he did not speak to DC Goss about the address. He heard PC Van Ruyven ask Mr. Nguyen for his address off camera, and Mr. Nguyen provided it. The booker, Officer Brad Hayward, would have been in the room at that time. It is sometimes up to Officer Hayward to put the address in the system, but most often it is typed into the computer inside the police vehicle when a defendant is being transported to the station. Sgt. Van Nest did not know what happened in this case. Sgt Van Nest was asked, given that he never asked Mr. Nguyen for his address, whether it can be inferred it was already in the computer. He said that was likely, but he could not say definitely.

[61] Officer Brad Haywood was the booking officer when Mr. Nguyen was processed at the station and he imputed some information about Mr. Nguyen but did not recall inputting his address. He admitted however that the address of 104-1430 King Street was written in his handwriting in the Prisoner Record, but he did not know where that information came from. He testified that he could have obtained this address from the Versadex information, which is inputted on the computer in the scout car during transport and then transferred over. The other possibility is that he generally goes out for a quick conversation with the transport officers in the sally port and asks them who they have, in which case one of the transport officers may have given this address to him verbally. There was no other possibility that he could recall.

[62] PC Fraracci testified that the address of 104-1430 King Street was written in his notes although he did not recall who gave that information to him. He ultimately admitted that it did not come from Mr. Nguyen during transport. PC Josephs testified that when he and PC Fraracci arrived at the scene of Mr. Nguyen’s arrest, PC Van Ruyven had physical control of Mr. Nguyen and PC Kenny gave him Mr. Nguyen’s address as Unit # 103, 1430 King Street West. PC Kenny was not asked about this.

[63] DC Goss testified that his belief was that Mr. Nguyen provided an address during his booking of 1430 King Street West, Apt. #104. He said that he definitely made inquiries but could not recall from whom. According to DC Goss, he could have obtained this information from either Sgt. Van Nest or called the booking hall and obtained it from the booker. He also said that this information came either from the Booking Screen or the Prisoner’s Log/Record, but he admitted that these two documents can contain information from many possible sources.

[64] DC Goss was cross-examined at length about the source of this information. He disagreed with the suggestion that it was irresponsible for him to say in the ITO that Mr. Nguyen provided the address given that he did not know who he spoke to or where he got this information from. DC Goss insisted that he was pretty sure he got the address from either Sgt. Van Nest or the booker. It was also put to DC Goss that he had no reason to say that the address came from Mr. Nguyen as he did not know where the booker got this information. To this, he said that he believed that someone like Mr. Nguyen would be telling the truth when he was asked where he lived. To this, it was put to him there is a big difference between the question where Mr. Nguyen said he lived and where does he live. DC Goss responded that he had no reason to doubt what address he was being provided with.

[65] I conclude that the evidence of DC Goss is corroborated by the Prisoner Record and that it does not matter what the actual source of that address was, given that the Crown concedes this information should be excised from the ITO. I certainly do not conclude that there was any carelessness or intention to mislead on the part of DC Goss when he put the address into the ITO of Unit #104, 1430 King Street West as the address provided by Mr. Nguyen. I accept his explanation of why he accepted the information he obtained and why he reasonably believed that that address was provided by Mr. Nguyen during his booking. He had no reason to believe that this information had not come from Mr. Nguyen at some point during his arrest, transport and booking. Although there were a number of sources that he could have gone to, to find the address Mr. Nguyen gave at any particular time during the process, in each case it would be reasonable for him to assume that the information came from Mr. Nguyen. He would have no reason to think that information was not correct or any reason to verify it. I do not accept the submission of Ms. Page that in these circumstances DC Goss should not have sworn to the truth of the statement that the address was provided by Mr. Nguyen.

Evidence of DC Chad Merritt

[66] DC Merritt was one of two field intelligence officers at 14 Division at the relevant time. As a field officer, his principal role was to facilitate the flow of information from uniformed officers to investigative units which in this case was the Major Crime Unit of 14 Division.

[67] DC Merritt testified about a photo of Mr. Nguyen that is on an older poster in the station. DC Merritt did not create this poster - it was created by the officer who was in the office before him – prior to 2016. He made no changes to it or any of the posters at the station since starting as a field officer in 2016. He had, however, added a couple of “gang posters”.

[68] This poster that shows a photo of Mr. Nguyen states, “Kev” and “Kush” under Mr. Nguyen’s photo. DC Merritt testified that he did not know Mr. Nguyen as “Kush”. He assumes the nickname “Kev” is the short form for “Kevin” but he had no knowledge of Mr. Nguyen using the nickname Kev. This poster does not say if Mr. Nguyen is active or not in a gang but DC Merritt testified that the fact Mr. Nguyen was on the poster meant that he believed that Mr. Nguyen was active. He testified that the photos were never taken down unless someone became inactive. However, he personally had no information that Mr. Nguyen was a member of the Parkdale Crips. I note however that he did author an email dated July 23, 2015 to 14 Division Personnel wherein he stated that information was received that Mr. Nguyen “who is a member of the Parkdale Crips was caught with knives that he had smuggled into the Toronto South Detention Centre”.

[69] DC Merritt testified that when he met with DC Goss, he was told that the target of the search warrant was “LC” and he told DC Goss that he knew “LC” as Mr. Nguyen and also “Lil Kevin” and “Little Chin”. He was only asked by DC Goss about LC. DC Merritt was not able to say how close to June 2017 he had heard anyone refer to Mr. Nguyen as “LC” or “Little Kevin” and he said that he did not get the nickname Little Kevin from a CI.

[70] It was put to DC Merritt that an alias of “LC” for Mr. Nguyen was not recorded anywhere in any of the police data bases as of June 2017. DC Merritt testified that he was not sure about that as he did not do any checks. He said that most of the information was “in his brain”. He did not provide DC Goss with the nicknames “Kev” or “Kush” as he did not know Mr. Nguyen by those names. DC Merritt testified that nicknames change on a regular basis and constantly evolve. He did not believe that these were relevant nicknames that Mr. Nguyen currently was using. He admitted that all of the information about Mr. Nguyen that he had distributed had no reference to him as LC or Little Kevin. I will come to how this evidence is inconsistent with the evidence of DC Goss.

[71] As of June 2017, DC Merritt had information from a CI that Mr. Nguyen was dealing drugs out of 1430 King Street and he told DC Goss this. I accept this evidence and in fact I note that evidence is a stronger connection to the Apartment than what DC Goss stated in the ITO as he stated that Detective Merritt advised that Mr. Nguyen “deals in the area of King Street West and Jameson Avenue”. I note DC Merritt did not testify that he gave a unit number to DC Goss. He testified that the CI had not told him that Mr. Nguyen was living at this location. DC Merritt testified that he did “not recall” if he had information that Mr. Nguyen was living there and so he said that he did not tell DC Goss that Mr. Nguyen was living at that address. In cross-examination DC Merritt testified that he did not know if Mr. Nguyen was or was not living at Unit 104, 1430 King Street address and he did not confirm that he was living there. When he made his notes the only place that he knew Mr. Nguyen to have ever lived was a West Lodge address.

[72] DC Merritt testified that he told DC Goss that Mr. Nguyen used to live at 103 West Lodge at Unit 1114 and his notes record that Mr. Nguyen used to live at this address with his mother. DC Merritt did not believe he told DC Goss about the timeframe when Mr. Nguyen lived at West Lodge, just that he “used to live there”. DC Merritt testified that this was the only address he had ever known Mr. Nguyen to be living at. DC Merritt had attended at that address when he was part of the Community Response Unit in 2010, 2011, or 2012. DC Merritt said that he had a memory of West Lodge but was not sure if the street number was 103 or 105. For that reason, he used one of the police computer systems to confirm that address. He did not note what checks he did that day with respect to Mr. Nguyen's last known address, but he testified that he did not do a MTO search. He explained that the West Lodge address was only in his notes to serve as a reminder to himself as to why Mr. Nguyen sticks out in his memory.

Evidence of DC Jason Goss

[73] DC Jason Goss started working on the ITO for the Warrant on June 2, 2017. He worked on it again on June 4, 2019. He had no plans to obtain and execute the Warrant that day or even in the next couple of days. DC Goss admitted that there was more investigation that he would have preferred to do, but Mr. Nguyen was arrested on June 4, 2019. Ms. Page argued that this evidence suggested that the investigation to the point was insufficient to apply for a search warrant but in my view what DC Goss would have preferred to do and the issue before me are two different questions. In my view this evidence is not relevant to the issues before me.

(i) Information from DC Merritt

[74] Under the heading “Investigative Checks” the ITO sets out a number of paragraphs of information that DC Goss testified that he received from DC Merritt. DC Goss testified that the only conversation he had with DC Merritt about the information in the ITO was on June 2, 2017, which is consistent with the evidence of DC Merritt that I have accepted. When DC Goss spoke to DC Merritt, he had a working document open on his computer. He did not have DC Merritt review what he put in the ITO.

[75] DC Goss deposed in the ITO that DC Merritt has a “comprehensive working knowledge of gang members and gang activity within the city of Toronto”. He went on to state that DC Merritt is:

familiar with a male in the Parkdale neighbourhood who is known by the nicknames ‘LC’ and ‘Little Kevin’. The male’s true name is Kevin Nguyen with a date of birth of … Detective Constable Merritt knows Nguyen lives at 1430 King Street West apartment #104, with his parents. Merritt advised the affiant that Nguyen deals in the area of King Street West and Jameson Avenue. [Emphasis added]

[76] DC Goss testified that he only discussed two nicknames with DC Merritt, “LC” and “Little Kevin” and that he, DC Goss, was the one who offered up both names to DC Merritt. DC Merritt told him that the information he had from a CI was that Mr. Nguyen used the nicknames “LC” and “Little Kevin”. DC Goss denied the evidence of DC Merritt that he only asked DC Merritt about the nickname “LC” and that it was DC Merritt who told DC Goss that he knew “LC” as Mr. Nguyen and also “Little Kevin” and “Little Chin”. DC Goss also testified that DC Merritt did not tell him that Mr. Nguyen had a nickname “Little Chin” and that if he had, he would have put it in the ITO.

[77] In my view not much turns on this as I see no reason why either officer would deliberately lie about this. Both nicknames of LC and Little Kevin are stated and regardless of who is correct, the evidence of DC Merritt is clear that he knew Mr. Nguyen by those two nicknames. As I will come to there is evidence to support the evidence of DC Goss that he knew about both nicknames as a result of information from the CI. As for the nickname Little Chin, I find it likely that DC Merritt is mistaken as I accept the evidence of DC Goss, that if DC Merritt gave him this nickname as well, there would have been no reason for DC Goss not to include that nickname in the ITO.

[78] DC Goss testified that by stating in the ITO that DC Merritt “knows” means that DC Merritt provided him with the address of 1430 King Street West Apartment #104. DC Goss insisted that DC Merritt told him that this was where Mr. Nguyen lived.

[79] DC Goss denied receiving information from DC Merritt that the only address DC Merritt ever knew Mr. Nguyen to live at was the West Lodge address. He testified that the 105 West Lodge address did come up during his preparation of the ITO with respect to an older arrest of Mr. Nguyen for trafficking cocaine.

[80] Ms. Stewart submitted that I should prefer the evidence of DC Goss on this point to the evidence of DC Merritt. I do not accept that submission. I have no doubt that DC Goss sincerely believes that he received this information from DC Merritt, and it could have been a misunderstanding given the evidence of DC Merritt that he told DC Goss that Mr. Nguyen was dealing out of 1430 King Street West. I have concluded that on this point he is mistaken. I have no reason to reject the evidence of DC Merritt, that he did not in fact know Mr. Nguyen’s current address and so I do not know how he could have provided that address to DC Goss.

[81] Given my finding that DC Merritt did not tell DC Goss that Mr. Nguyen lived at the 1430 King Street West Apartment #104, I accept it seems likely that he did tell DC Goss that Mr. Nguyen used to live at the West Lodge address. Given that this was represented to be a past address for Mr. Nguyen, given DC Merritt used the words “used to live”, I do not find it significant that DC Goss did not mention this in the ITO. Given that DC Goss had mistakenly concluded that DC Merritt had advised him that Mr. Nguyen lived at the 1430 King Street West Apartment #104, along with the other information that he had that confirmed this address as an address for Mr. Nguyen I do not find that he was deliberately withholding this information from the ITO. The information DC Goss had about the West Lodge address along with what Detective Merritt testified that he told him is consistent with this being an old address for Mr. Nguyen and in my view was not a material omission or error given how stale the information was.

[82] DC Goss testified that he made his own separate inquiries using police resources to determine that 1430 King Street West, Unit 104 was associated with Mr. Nguyen. Those are set out in the ITO beginning at para. ii under the heading “Investigative Checks”. DC Goss did a Versadex check and this address came up as being associated with Mr. Nguyen. He testified that the Versadex search did not show any other name as being associated with this address. On March 4, 2017 (just three months prior to the preparation of the ITO) Mr. Nguyen provided this address as his home address to police and this is noted in the ITO. DC Goss testified that during a previous arrest for trafficking in cocaine, Mr. Nguyen provided this address and he noted that a prohibition order dated February 19, 2013 made against Mr. Nguyen listed this address as his address.

(ii) Information from PC Van Ruyven

[83] As already stated, the information that DC Goss put in the ITO that he testified that he received from PC Van Ruyven is found in the section headed “4) Background Information”, section xi. That portion of the ITO will be deleted for the purpose of my considering the Garofoli application, given my findings in Nguyen #1. This issue however is still potentially relevant to my assessment of the credibility of DC Goss.

[84] DC Goss testified that it was very clear to him as to what PC Van Ruyven told him had transpired. He said that he was looking for grounds for arrest, the chronology of the arrest, and the main points of interest during the arrest. DC Goss also confirmed that as PC Van Ruyven provided information to him, he was typing the information in bullet form into the ITO. According to DC Goss, he read that information back to PC Van Ruyven to make sure he did not miss anything important. He did not make notes of the information from PV Van Ruyven verbatim - he put the bullets into paragraphs, in his own words. He did not have PC Van Ruyven review what he actually wrote in the ITO as he did not know if PC Van Ruyven had made his notes yet and did not want this to impact his notes.

[85] When asked if PC Van Ruyven told him what he said to Mr. Nguyen, DC Goss answered that he did not recall what he said verbatim but that PC Van Ruyven told him that Mr. Nguyen was being investigated for potentially being in possession of a weapon. He swore to the Justice of the Peace that that is what PC Van Ruyven told him, and he confirmed again in his evidence on the voir dire that this is what PC Van Ruyven told him. When asked if he could recall PC Van Ruyven telling him that he told Mr. Nguyen he was being investigated for a theft of an LCBO, DC Goss testified that he could not “recall that specifically”. When questioned about whether or not the legality of the stop changed if PC Van Ruyven told Mr. Nguyen that he was being investigated for an LCBO theft, DC Goss said that in his mind what made the arrest legal was the observations of PC Van Ruyven. He was not particularly interested in communications between PC Van Ruyven and Mr. Nguyen, or how the arrest took place. DC Goss testified that if he had been told this he would most likely have recorded this in the ITO, but it would not change the reason for detention in the ITO. He disagreed with the suggestion that if PC Van Ruyven lied to Mr. Nguyen that that would potentially jeopardize that portion of the Warrant.

[86] The information in this portion of the ITO setting out the information from PC Van Ruyven is generally the same as the evidence that I heard from PC Van Ruyven and PC Kenny save that it states that as PC Van Ruyven approached Mr. Nguyen, he told him that he was being investigated for “potentially being in possession of a weapon” whereas PC Van Ruyven was adamant that he told DC Goss that he used a ruse about a LCBO theft to detain Mr. Nguyen.

[87] On this point I prefer the evidence of DC Goss. I have already explained why I did not find PC Van Ruyven to be a credible witness in Nguyen #1. I appreciate that those findings do not mean that he is not being truthful on this point. I also appreciate that he put this information in his notes. I found in Nguyen #1 however, that PC Kenny was not truthful about an auditory exclusion in order to avoid having to give evidence about this ruse and I have no confidence that PC Van Ruyven would have made this point clear to DC Goss. What both he and DC Goss agree on is that he told DC Goss that Mr. Nguyen had displayed characteristics of an armed person. In addition, PC Van Ruyven testified that he also told DC Goss that he believed Mr. Nguyen had a firearm and that that was the reason he stopped Mr. Nguyen. This statement could reasonably be interpreted as the reason for Mr. Nguyen’s detention, if PC Van Ruyven did not tell DC Goss about the LCBO ruse.

[88] As for what DC Goss recorded in the ITO about what PC Van Ruyven instructed Mr. Nguyen to do when he detained him and how Mr. Nguyen reacted, as I set out in Nguyen #1, PC Van Ruyven was very inconsistent in his evidence on this point. He gave lots of evidence suggesting that Mr. Nguyen was trying to grab what he was concealing. For that reason, I have no concern that in this regard, DC Goss accurately summarized what he was told by PC Van Ruyven. The information on this point in the ITO is consistent with much of the evidence of PC Van Ruyven. In cross-examination PC Van Ruyven ultimately agreed that Mr. Nguyen’s hands were always where he could see them, and that Mr. Nguyen did not move his hands - he continued to keep his left hand in the guarded position. DC Goss would have had no reason to cross-examine PC Van Ruyven to obtain this admission and so I do not find that DC Goss was told this or on this point he inaccurately stated what PC Van Ruyven told him.

(iii) Information from Detective Worth

[89] In the ITO, under the heading “Police Actions at 1430 King Street West Apartment #104, City of Toronto” DC Goss set out information that he received from Detective Worth with respect to the freezing of the Apartment. In particular he stated that Detective Worth “decided that to preserve any destruction of evidence in anticipation of a search warrant the apartment at 1430 King Street West #104, should be secured” and that Detective Worth along with PC Walsh and PC Ross “entered the apartment to secure any occupants or evidence” and that the “apartment was secured and found to be empty”.

[90] DC Goss testified that he did not recall asking Detective Worth if he saw anything and he did not recall if Detective Worth told him that he saw anything when he went inside the Apartment. If he had been told that Detective Worth did not see anything, DC Goss testified that he did not know that he would have put that in the ITO as a search had not yet been done. He denied that that would be relevant. The point of freezing the Apartment was to secure it. If some indicia of drug trafficking were seen by Detective Worth in plain view, that would be relevant but DC Goss denied it would have had an enormous impact on getting the search warrant. DC Goss testified that it “wouldn’t push it over the edge” as in his mind he had enough grounds for the search warrant. Although I am not sure I totally accept that evidence, the ITO that DC Goss prepared included the information about the arrest of Mr. Nguyen, which the Defence argues was very important to the ITO and so his belief that he had sufficient grounds for a warrant was reasonable. Furthermore, there was absolutely no suggestion that DC Goss had anything to do with Detective Worth deciding to freeze the Apartment.

[91] The Defence submits that the fact that Detective Worth did not see any drugs or drug paraphernalia when he entered the Apartment was information that the issuing Justice should have had when deciding whether or not to issue the Warrant and that disclosure of that information was required in relation to DC Goss’s obligation to make full, frank and fair disclosure. Although I agree that it might have been preferable to expressly state this, it would not have meant much given the other evidence of Detective Worth that it was just a 45 second walk around and not a search. Furthermore, given the information that DC Goss did set out in the ITO as I have already set out including his statement that the Apartment was “found to be empty”, I expect that the issuing Justice would have reasonably inferred that no evidence was found as he would have expected that if anything had been found that the ITO would have stated this.

(iv) What DC Goss knew about Mr. Nguyen

[92] DC Goss testified that he did not hold the belief that Mr. Nguyen was suspected to be a member of the Parkdale Crips. He did not know there was a poster of Mr. Nguyen in the office and DC Goss testified that he never laid eyes on the poster of Mr. Nguyen. He did not go through the posters looking for nicknames.

Analysis

(1) Has the Crown proven that Detective Worth’s entry into the Apartment to “freeze” it without a warrant was reasonable?

[93] There is no dispute that Detective Worth's initial entry into the Apartment was a warrantless search. Accordingly, the Crown bears the burden of demonstrating, on the balance of probabilities, that this warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.

[94] The Crown argues that the entry into the Apartment was authorized based upon exigent circumstances. Section 11(7) of the Controlled Drugs and Substances Act (“CDSA”) authorizes a police officer to search a dwelling-house without a warrant if the conditions for obtaining a warrant exists, but by reason of exigent circumstances, it would be impractical to obtain one. The CDSA does not define “exigent circumstances”.

[95] The Crown also relies upon s. 487.11 of the Criminal Code and argues that the entry into the Apartment was authorized based upon exigent circumstances as defined in s. 523.3 (2)(b) of the Criminal Code, namely that the officer had reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

[96] The Crown relies upon the Ontario Court of Appeal decision in R. v. Phoummasak, 2016 ONCA 46 where Doherty J.A. speaking for the court held at para. 12 that the phrase “exigent circumstances” has the same meaning in s. 11(7) of the CDSA as it does in the Criminal Code provisions and at common law. The court held that exigent circumstances exist if: (1) the police have grounds to obtain a search warrant, and; (2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay.

[97] This conclusion however was rejected by the Supreme Court of Canada in R. v. Paterson, 2017 SCC 15 at paras. 30-31. The court considered what the definition of “exigent circumstances” in s. 11(7) of the CDSA should be and concluded at para. 37 that:

In order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

[98] The court also held (at paras. 34-35) that even where exigent circumstances are present, those circumstances must render it “impracticable” to obtain a warrant. I note that although this decision establishes the test that I must apply, the decision was released on March 17, 2017, less than three months before Detective Worth took steps to freeze the Apartment.

[99] Given this conclusion, the cases relied upon by counsel that were decided before Paterson must be considered with caution and in any event, most are quite different factually. In some cases, the issue was that the police remained in the residence, which is not the case here; see for e.g. R. v. Harris, [2018] O.J. No. 3757 (S.C.J.). The Crown relies on the decision of this Court in R. v. Watson, [2007] O.J. No. 5 (S.C.J.) at para. 59 where the court held that, "while there was no reason to believe that there was someone at the apartment who could destroy the evidence, there was a possibility that someone was there. This is sufficient to constitute an exigent circumstance”. [Emphasis added].

[100] The Crown did refer me to another decision of this Court, R. v. McCalla, 2019 ONSC 3256, which was decided after Paterson. However, it does not appear that the Paterson decision was referred to the court. Justice Monahan applied the test in Phoummasak (at para. 56). Monahan J. referred to Harris, supra and Watson, supra and concluded at para. 60 that the circumstances of arrest, including the proximity to the defendant’s apartment, the public nature of the arrest, and the defendant’s statement that his girlfriend was present in the apartment gave rise to a “reasonable belief on the part of the officers that there was a reasonable possibility that there was someone in the apartment who could destroy evidence”. Justice Monahan found however, that the fact the officers remained in the apartment after ensuring no one was inside was unlawful but admitted the evidence under s. 24(2) of the Charter.

[101] The Crown submits that entry of Detective Worth into the Apartment was justified and reasonable in the circumstances for the following reasons:

a) The arrest of Mr. Nguyen was within one block of the Apartment where Detective Worth believed Mr. Nguyen lived;

b) A significant quantity of crack and powdered cocaine was found on Mr. Nguyen during his arrest which gave rise to a reasonable belief that he was a drug dealer and would have more drugs at his residence and/or drug trafficking paraphernalia;

c) Drugs are a type of evidence that can be disposed of easily because they are flushable;

d) The arrest occurred in broad daylight;

e) Mr. Nguyen’s arrest attracted a lot of attention and a crowd of people gathered around to watch what was happening;

f) It appeared that Mr. Nguyen was trying to communicate with some young men across the street who saw his arrest; it was reasonable to assume that they knew Mr. Nguyen and so it does not matter that Mr. Nguyen did not give them any instructions to destroy evidence;

g) Mr. Nguyen is well known in the Parkdale area as a drug dealer and the news of his arrest would travel quickly;

h) Detective Worth had no information as to who Mr. Nguyen lived with who might have access to the Apartment and had no way to know whether anyone was inside; and

i) Detective Worth’s entry into the Apartment was brief (45 seconds) and was entirely focused on his purpose - to ensure that nobody was inside who could potentially destroy or remove evidence.

[102] The Defence argues that there were no exigent circumstances and that this is demonstrated by the fact that:

a) Detective Worth was in no rush to freeze the Apartment in that he sat in his scout car outside the building for 25 minutes when he could at least have made arrangements to wait for the key to the Apartment outside the Apartment door, which would have fulfilled his purpose;

b) There was no evidence upon which Detective Worth could reasonably infer that there was “imminent danger” that evidence would be destroyed if he did not enter the Apartment and secure it without delay. In particular the Defence argues that:

(i) Although the Defence admits that Mr. Nguyen was well known to police as a drug dealer, there is no evidence that he was well known to the community;

(ii) It was not reasonable to infer that the young men Mr. Nguyen was yelling at even knew where Mr. Nguyen lived, that they had access to the Apartment or that they would try to destroy or remove evidence from the Apartment;

(iii) There was no evidence that Mr. Nguyen was yelling anything to tell these young men to go to the Apartment to destroy evidence;

(iv) There is no evidence that Mr. Nguyen alerted others to remove or destroy evidence in the Apartment although I note that PC Van Ruyven’s evidence that Mr. Nguyen made a call on his cell phone once he noticed the officers was not contested, although Detective Worth did not know this;

(v) Detective Worth did not know who else resided in the Apartment;

(vi) Detective Worth knocked on the door to the Apartment and shouted “police” and no one answered;

(vii) If Detective Worth really believed that it was possible someone was in the Apartment, he would have gone in with his gun drawn; and

(viii) Detective Worth should have used less intrusive measures to secure the Apartment by looking into the ground floor window and simply guarding the Apartment entrance until the Warrant was issued.

[103] In response to these submissions Ms. Stewart argued that if Detective Worth had not waited for a key to the Apartment, he would have had to use force to enter as there was no evidence there was a superintendent on site and he would not have been able to get into the lobby of the building. I do not accept that submission as there is no evidence that Detective Worth made any effort to get into the building – it is not uncommon for persons going into and out of an apartment building to let others in. As for why he did not have a gun drawn when he entered, Detective Worth did not testify that he was concerned about violence-he only wanted to ensure no one was inside the Apartment. It would be a serious matter for an officer to draw his gun. I did accept that submission.

[104] Applying the test as set out in Paterson, I found that the Crown had not satisfied me that Detective Worth’s entry into the Apartment was compelled by urgency, calling for immediate police action to preserve evidence. I agree with Ms. Page that the fact that Detective Worth waited in his scout car for the key to the Apartment for 25 minutes, without making any effort to get inside the building and wait outside the Apartment door, belies his belief that there might be someone who was in the Apartment that might remove or destroy drug evidence. In the time that he was waiting for the key, someone in the Apartment could easily have disposed of any drugs and drug paraphernalia.

[105] The s. 8 Charter violation in this case did not lead the police to find any evidence. The Defence did not allege that Detective Worth’s entry into the Apartment alone, without further searching, would result in exclusion here. The Defence did argue that the illegal entry into the Apartment, in the absence of exigent circumstances, affected the legality of the search overall, since the “obtained in a manner” requirement of s. 24(2) of the Charter requires this Court to consider the entire chain of events. In other words, the Defence argued that the illegal entry by Detective Worth into the Apartment was part of a pattern of conduct by the officers that taints the search and should be considered in relation to s. 24(2) of the Charter.

[106] As noted in R. v. Pino, 2016 ONCA 389, courts have taken a broad and generous approach in interpreting the “obtained in a manner requirement”. In Pino, Laskin J.A. for the court explained at para. 72 that in considering “obtained in a manner” the court should consider the entire “chain of events” between the defendant and the police; the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. In the present case, it is certainly arguable that the breach of s. 8 by DC Worth is temporally connected to the execution of the Warrant and the finding of evidence in the Apartment.

[107] I have not considered the breaches of Mr. Nguyen’s Charter rights when he was detained, arrested and searched and Ms. Nguyen’s Charter rights when she was subject to a complete Level 3 search in this analysis as I have already provided for a significant Charter remedy in each case; the exclusion of evidence found on Mr. Nguyen when he was arrested, which resulted in the Crown withdrawing the charges that arose from the discovery of that evidence, and staying the charges against Ms. Nguyen. Those decisions make it clear that this Court does not condone the conduct of Officers Van Ruyven and Kenny. As I will come to, I do not find that DC Goss has acted inappropriately in any way and he had no role in or knowledge of these Charter breaches.

[108] I have considered a s. 24(2) Charter analysis even though no evidence was found by Detective Worth. Section 24(2) of the Charter provides that evidence that was “obtained in a manner” that infringed or denied any Charter rights shall be excluded if the admission of the evidence would bring the administration of justice into disrepute. The framework for the application of s. 24(2) of the Charter was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. As result, I will go on to consider the three lines of inquiry set out in Grant: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the defendants; and (iii) society’s interest in an adjudication on the merits.

[109] The first inquiry involves measuring the seriousness of the Charter violation. The more severe or deliberate the state conduct, the greater the need for the court to disassociate itself from the conduct by excluding the evidence. In the present case, while Detective Worth breached the Defendants’ s. 8 Charter rights, in my view he did so in good faith. I would not consider it reasonable to presume that Detective Worth was aware of the new test for freezing a residence as stated in Peterson. It had been decided less than three months before the arrest of Mr. Nguyen and even in cases that followed where this issue was argued like Harris, supra and McCalla, supra Crown and defence counsel did not refer to the Paterson decision.

[110] If the law before Paterson is to be considered in judging the seriousness of the Charter violation, then I find that it would not have been unreasonable for Detective Worth to believe that the possibility that someone could be inside the Apartment where drug evidence might be and that it was possible that they had become aware of the arrest of Mr. Nguyen would be enough to constitute exigent circumstances warranting a "freezing" of that Apartment. This view was supported by cases like Watson, supra.

[111] I accept the evidence of Detective Worth as to why he decided to enter the Apartment and find that he did so in good faith. Clearly if he felt it was more urgent, he could have tried to ascertain if there was a superintendent who could let him into the Apartment or at least wait at the main entrance and gain entry when another person went into or out of the building. However, otherwise his actions were consistent with entering the Apartment for the sole purpose to be sure that there was no one inside. He was in the Apartment for less than a minute and the fact that he believed he acted in a lawful manner is evident from the fact that he reported this information to DC Goss who in turn incorporated it into the ITO.

[112] Turning to the second factor, I accept that the impact of the s. 8 breach on the Defendant’s Charter-protected interests was significant, as they had a high expectation of privacy in their home. However, this is tempered by the fact that no one was inside the Apartment, Detective Worth did not search the Apartment, he was inside for only 45 seconds and did not stay in the Apartment.

[113] Moreover, in all other aspects Detective Worth showed respect for the Defendants’ privacy. He used a key to enter the Apartment, rather than breaking the front door down. The officers did not search the Apartment before the Warrant arrived. When Ms. Nguyen came to the Apartment, they allowed her to go in to put away her groceries.

[114] Turning to the final factor, society’s interest in an adjudication on the merits, in this case the search of the Apartment located a loaded prohibited firearm that was ready to fire and given that the safety was off, it could easily have fired. Even in the Apartment it was a danger to everyone in the Apartment and those nearby. In my view, a proper balancing of the Grant factors leads to the conclusion that admission of the evidence would not bring the administration of justice into disrepute. The breach of s. 8 of the Charter by Detective Worth does not render the evidence found in the Apartment inadmissible. My conclusion in this regard was reinforced by the fact that I concluded that there was no Charter breach in the obtaining of the Warrant, and none is alleged with respect to the execution of the search pursuant to the Warrant.

[115] Finally, the Defendants took issue with the absence of any mention in the ITO of Detective Worth not seeing any drugs or drug paraphernalia in the residence when he conducted the warrantless search. The Defendants argue that this is in violation of DC Goss's obligation to make full, frank, and fair disclosure. I have already given my reasons for why I did not accept this submission.

(2) Standard of Review of the Warrant

[116] The Warrant was issued under s. 11(1) of the CDSA. In the ITO DC Goss deposed that he had reasonable grounds to believe and did believe that powdered and crack cocaine, packaging, weighing equipment, cell phones and currency related to the sale of narcotics and documents with respect to the identity of the resident or any other occupants in respect of the offence of possession of cocaine for the purpose of trafficking is to be found in the Apartment.

[117] A Defendant whose property has been the subject of search and seizure pursuant to a search warrant issued under s. 11(1) of the CDSA or s. 487 of the Criminal Code has the right under s. 8 of the Charter to challenge the constitutionality of that search and seizure and therefore the admissibility of any evidence collected as a result of that search and seizure.

[118] Review of a search warrant begins from a presumption of validity and the onus of demonstrating that the warrant could not have issued lies with the Applicant seeking to displace the order; R. v. Sadikov, 2014 ONCA 72 at paras. 83-84.

[119] The standard of review regarding the search warrant was articulated by Justice Sopinka in Garofoli, supra as follows:

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 [the reviewing judge] should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge, at para. 56.

[120] The test for setting aside a warrant issued by a judicial officer was reaffirmed by the Supreme Court in R. v. Morelli, 2010 SCC 8. In that decision, Justice Fish held that:

In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo [citation omitted]). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place, at para. 40.

[121] The reviewing justice must assess the ITO as a whole, using a practical, common sense, and non-technical approach to the whole document. Sadikov, supra at para. 82.

[122] Where, as in the case at bar, the information relied on to support the issuance of the Warrant relies, in whole or in part, on hearsay, including information from a CI, the issuing justice (and, by extension, the reviewing court) must consider the extent to which that information is compelling, credible, and corroborated by other evidence, in order to determine whether the statutory prerequisites are met. The factors to be considered, as having been accepted by the Supreme Court of Canada in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 were summarized in Garofoli at para. 68 as follows:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[123] In Debot, supra, the court held that to justify a warrantless search, three concerns must be addressed: 1) was the information predicting the commission of a criminal offence compelling, 2) where that information was based on a tip from a source outside the police was that source credible, and 3) was the information corroborated by police investigation? When confidential information is used to support grounds to search, the whole of the circumstances must be considered, as weaknesses in one of the areas can be overcome by strengths in the other two; at para. 53. The court noted at para. 63, that it is not necessary to confirm each, and every detail of the tip relied on, "so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence".

[124] The Crown submits that it cannot be over-emphasized that "reasonable grounds" is roughly equivalent to "reasonable probability", but does not rise to the level of proof beyond a reasonable doubt or even a "prima facie case”; Debot, supra at para. 47. In R. v. Campbell, 2010 ONCA 588, at paras. 49-54, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549, the Court of Appeal considered the standard to be applied to whether the affiant had “reasonable grounds to believe” relevant evidence would be found. The court referred to Debot, supra at para. 47, and the standard of proof as being "reasonable probability" or “reasonable belief” and the dicta of Deschamps J. in Morelli, supra at para. 129 where she agreed with an approach taking by a US court that the issuing justice;

is simply to make a practical, common-sense decision whether, given all the circumstances … including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[125] Finally, when reviewing an ITO, the court must keep in mind that these documents are prepared by police officers, who are not legally trained draftspersons and who are sometimes forced to operate under time constraints with limited opportunity to organize and polish their writing. The review should involve reasonable, common sense scrutiny of the whole of the document with a focus on its core substance, as opposed to line-by-line word-by-word dissection. As the Court of Appeal stated in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 35, few search warrant applications are perfect; it is not surprising to find some flaws:

… 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.

(3) What excisions should be made to the ITO?

[126] I heard submissions from counsel with respect to the portions of the ITO that the Defence submitted should be excised because of inaccurate or misleading statements. Again, the law is not in issue. Upon reviewing the grounds in support of the Warrant, any false, misleading or erroneous grounds are to be excised from the ITO; Morelli, supra at para. 41.

[127] Now that I have found that the evidence obtained from Mr. Nguyen when he was searched by PC Van Ruyven was obtained in breach of his Charter rights and that it shall be excluded as evidence at his trial, reference to his detention, arrest and search and the evidence obtained on the search must be excised from the ITO to obtain the Warrant. This includes the fact that that Mr. Nguyen resisted arrest and that he is alleged to have struck PC Kenny. Accordingly, para. xi under the heading “Investigative Checks” will be excised in its entirety. This includes the statement that Mr. Nguyen provided the address of the Apartment as his address at the time of his arrest by PC Van Ruyven.

[128] Ms. Stewart has conceded that any information Mr. Nguyen gave to police when he was arrested as to what his address was, was not given voluntarily and that it should be deleted from the ITO. As a result, the reference to Mr. Nguyen “by his own admission” being a long time and current resident of the Apartment must also be excised from para. g) under the heading “Grounds to Believe that an Offence has been Committed”.

[129] Ms. Page also submitted that because of the inconsistencies between the evidence of DC Merritt and DC Goss about their conversation with respect to the nicknames used by Mr. Nguyen that the fact Mr. Nguyen used the nickname “Little Kevin” should be excised from the ITO. She submitted that the ITO falsely suggested that Detective Merritt obtained this information from a CI and that it was a far more compelling nickname than LC since Mr. Nguyen’s first name is Kevin. However, I do not believe that DC Goss was asked what the basis for his evidence was that he was the one who asked DC Merritt about the nicknames LC and Little Kevin. Had that question been asked, I expect he would have said that that information came from the CI that DC Sivanathan spoke to and as I will come to, this is evidence from the Step 6 procedure that followed. In the circumstances, I am not prepared to excise the nickname Little Kevin.

[130] Ms. Page also submitted that the statement in the ITO that DC Merritt knew 1430 King Street West, Apartment #104 to be an address that Mr. Nguyen lived at with his parents should be deleted given the evidence of DC Merritt. Ms. Stewart submitted that on this point I should prefer the evidence of DC Goss that DC Merritt provided him with this address for Mr. Nguyen and that I should not exclude this information. For reasons already stated, I believe that DC Goss was mistaken as I have no reason not to accept the evidence of DC Merritt that he did not in fact know this. For this reason, I agree with Defence counsel that the sentence “Detective Constable Merritt knows Nguyen lives at 1430 King Street West Apartment #104, with his parents” must be deleted from the ITO.

[131] In doing so I do not find that this was in any way a deliberate misrepresentation on the part of DC Goss. DC Merritt testified that he told DC Goss that he had information from a CI that Mr. Nguyen was dealing drugs out of 1430 King Street. I appreciate that Detective Merritt did not provide a Unit number or tell DC Goss that Mr. Nguyen was actually living there but given the information that he did provide and the information that DC Goss already had about Mr. Nguyen’s address I find that this was a mistake made by DC Goss, not a deliberate misrepresentation. I am reinforced in coming to this conclusion given that when DC Goss prepared the ITO, he honestly believed that Mr. Nguyen had given this address when he was arrested and he had no reason to believe that there was any issue about his address.

(4) The Facial Challenge of the Warrant (Step 5)

[132] The Crown submitted that the redacted ITO disclosed sufficient grounds on which a justice could have issued the warrant. It provides information about Mr. Nguyen's address and information provided by a CI regarding Mr. Nguyen's occupation as a drug dealer in the Parkdale area.

[133] The Defence submitted that the Warrant to search the Apartment was invalid on its face as the ITO as redacted does not disclose reasonable grounds to believe that the items to be searched for would be located in the Apartment at the time of the execution of the Warrant. In particular the Defence argued that Warrant does not disclose any reason to believe that the powdered and crack cocaine or related equipment would be in Apartment at the time of the search because on the face of the Warrant there is no connection between Kevin Nguyen and the Apartment after March 24, 2017, when Mr. Nguyen gave this address to police. The Defence argued that there is no indication as to where Mr. Nguyen may have been staying between that date and June 4, 2017. The Defence submitted that there is no evidence as to the last time Mr. Nguyen had been at that address at all. Furthermore, although police databases may have confirmed the information about the address at times in the past, there is no information as to who was residing in the unit on June 4, 2017. The police corroborated nothing more than a physical description of the address. The police made no observations of anyone going to or coming from that apartment.

[134] In my view, the Warrant does provide sufficient information to support the assertion that Mr. Nguyen’s current address was the Apartment. The ITO states that DC Merritt knows that Mr. Nguyen “deals in the area of King Street West and Jameson Avenue”. As Ms. Stewart noted, this was not stated as something happening in the past. Information from DC Furyk set out in the ITO under the heading “Observations of 1430 King Street West Toronto, Ontario” states that the building that contains Unit #104 is on the northwest corner of Jameson Avenue and King Street West.

[135] The checks that DC Goss did set out in the ITO starting at para. ii under the heading “Investigative Checks” also support this conclusion. When DC Goss checked the name Kevin Nguyen with his date of birth the general information screen indicated his address as the Apartment. Furthermore, a check of the address of the Apartment showed the only contact under that address as Kevin Nguyen with his date of birth. Ms. Stewart also referred to the CIPS entry number 2621660 when Mr. Nguyen was arrested and provided the Apartment as his address but there is no date in the ITO as to when this occurred so this does not assist.

[136] All of this information consistently showed the address of the Apartment as the address Mr. Nguyen provided, and in my view provided sufficient evidence before the issuing justice that it could reasonably be believed that Unit 104 of 1430 King Street West was an established residence of Kevin Nguyen, from 2013 to as recently as two months prior to his arrest. I agree with the position of Ms. Stewart that this was enough to satisfy the test that an issuing justice could have issued the warrant.

[137] However, at this Stage 5, I accepted the position of the Defendants that the ITO as redacted did not provide sufficient evidence that Mr. Nguyen was using the Apartment to store narcotics or that there would be further narcotics located in the Apartment in addition to what was seized on Mr. Nguyen when he was arrested. For that reason, I invited Ms. Stewart to make a Step 6 application which she proceeded to do.

[138] I should state here that there were no other challenges by the Defence to the ITO at this Step 5 stage.

(5) Have the Defendants established that the Warrant should be set aside based on judicial discretion?

[139] In R. v. Paryniuk, 2017 ONCA 87, [2017] O.J. No. 474 (C.A.) at para. 69, Watt J.A. held that this Court has a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct “has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The standard to be met to invoke this discretion is high and indeed some courts require that it amount to an abuse of conduct; at para. 70.

[140] The Defendants argued that the conduct of the police here, in misleading the Justice, subverted the prior authorization process and the warrant should be set aside based on judicial discretion. In addition, it was argued that the fact Detective Worth entered the Apartment illegally should be considered a factor.

[141] I have not found that DC Goss would have had any reason to believe that the arrest of Mr. Nguyen by Officers Van Ruyven and Kenny breached Mr. Nguyen’s Charter rights. There is no evidence that he was even aware of the arrest of Ms. Nguyen or that she had been subjected to an illegal Level 3 search. I agree with the submission of Ms. Stewart that DC Goss was insulated from the Charter breaches by Officers Van Ruyven and Kenny. DC Goss did not actively or deliberately mislead the issuing Justice. In the case of PC Van Ruyven, although I did not find that he told DC Goss of the LCBO ruse, I agree with DC Goss that had he been aware of it, that that information alone would not have had an impact on the issuing Justice. It was only by considering all of the evidence of Officers Van Ruyven and Kenny that I was able to conclude that they had not been truthful in their evidence. As for Detective Worth, he was acting in accordance with the law as it had existed until shortly before the arrest of Mr. Nguyen and he disclosed what he did to DC Goss who in turn put that information into the ITO.

[142] In my view although I have identified some errors that DC Goss made in terms of information that he received from DC Merritt, which I have addressed with excisions, I have not found that any of these errors were as a result of a deliberate attempt to mislead the issuing justice. I have also found that it was not a material omission or error to fail to state that when Detective Worth went in to freeze the Apartment that nothing was found given that nature of that entry and what was stated in the ITO in this regard.

[143] The ITO should be full and frank but need not include every minute detail of the investigation. What is legally unacceptable is a material misrepresentation, omission or error deliberately brought about by a serious lack of care: R. v. Araujo, 2000 SCC 65, [2000] SCJ No 65 at paras. 46-47. In my view there was no serious lack of care on the part of DC Goss in the preparation of the ITO and certainly no deliberate misrepresentation, omission or error.

[144] I have also found that although Detective Worth entered the Apartment illegally given the very recent law established by the Supreme Court of Canada in Paterson, it would not have been unreasonable for him to believe that someone could possibly be inside the Apartment where drug evidence might be and that it was possible that they had become aware of the arrest of Mr. Nguyen and that would be enough to constitute exigent circumstances warranting a "freezing" of that Apartment in light of cases like Watson, supra. Having accepted his evidence, I found that he acted in good faith and that a s. 24(2) Charter did not render evidence later found in the Apartment inadmissible.

[145] For these reasons I found that the Defendants had not satisfied me that there was a subversion of the prior authorization process. In my view the proper remedy was excision. The admission of the evidence seized from the Warrant would not undermine public confidence in the administration of justice given the remedies I have already afforded to Mr. Nguyen and his mother.

(6) The Sub-facial Challenge of the Warrant (Step 6)

[146] The information DC Goss received from DC Sivanathan from a CI has been heavily redacted by the Crown in order to protect the CI's identity, as required by law. In order to proceed with the Step 6 procedure, as already stated after my input, a final Judicial Summary was provided to the Defendants. I concluded that this Judicial Summary made the Defendants sufficiently aware of the nature of the redacted portions of the ITO and in particular whether the Debot criteria were met so that they could adequately challenge its sufficiency in argument.

[147] Once again there was no material dispute on the applicable law. Both Ms. Myers who argued this issue on behalf of the Defendants and Ms. Stewart relied on Crevier, supra beginning at para. 61.

[148] The first step in the Step 6 process is to consider whether the proposed judicial summary gives enough notice to the Defendants to make full answer and defence and in particular in this case, the ability to assess the informant information. While what is contained in a judicial summary will vary, at para. 84 of Crevier court set out a list of the type of information that could be considered in a summary which is helpful in order to assess whether the Defendants know the nature of the information behind the redactions.

[149] As the reviewing judge I must disregard any redacted portions of the ITO that could not be summarized; Crevier at para. 87. Furthermore, in considering the redacted information I must consider the extent to which the Defendants’ inability to directly challenge the redacted portions should affect the weight to be given to those portions. In this regard the court in Crevier stated at para. 88 that the exercise is somewhat akin to the admission of testimony that is not subject to complete and full cross-examination because the witness is not available.

[150] The Defendants submitted that given the limited amount of information contained in the Judicial Summary, there was not enough for the Defendants to effectively challenge the basis for issuance of the Warrant. Ms. Myers submitted that her primary complaint was whether the items to be searched for would be in the place to be searched – the Apartment. In particular the Defence needed to be aware of specifics of the alleged drug dealing by Mr. Nguyen to be able to challenge whether the issuing Justice was informed that there were ever any drugs or drug paraphernalia in the Apartment. Even with the information contained within the summary, the Defence submitted that it appears that there was no basis for the Warrant to issue given that there is no evidence to believe that the items to be searched for are to be found in the location to be searched at the time of the issuance of the Warrant.

[151] Ms. Myers referred to the section of the ITO headed “Grounds to Believe that an Offence has been Committed” and the statement in the opening paragraph that Mr. Nguyen is using the Apartment as his “home base” for trafficking cocaine. She submitted that the basis for this statement is set out in sub paragraph b. in that it states the CI bought cocaine from Mr. Nguyen, but the rest of that statement is redacted. It is her position that this means that the Defendants cannot challenge the allegations as to where, when and for how long Mr. Nguyen is alleged to have been trafficking in cocaine.

[152] Ms. Myers also submitted that the timing of the alleged drug dealing was critical to mounting a challenge. She gave as an example that if the Defence knew that the CI stated that he or she bought drugs from Mr. Nguyen in a month when Mr. Nguyen could establish that he was incarcerated, the Defence could lead that evidence, which is an example noted by the court in Crevier at para. 79.

[153] The Judicial Summary states that this sub paragraph b contains general information about when and for how long the CI has bought cocaine from Mr. Nguyen. As such it goes to timing, but I note that this is not the basis for the statement about his “home base”. In considering Step 5 of the Garofoli process, I explained why I accepted that the information in the redacted ITO supports the fact that the Apartment was Mr. Nguyen’s residence. The issue however is whether there are reasonable grounds to believe that the items to be searched for would be located in the Apartment at the time of the execution of the Warrant – in other words was it his home base?

[154] In this regard the ITO states that DC Goss received information from DC Sivanathan that a CI told him about a male who is trafficking both powdered and crack cocaine “in the area of King Street West and Jameson Avenue”. Information from DC Furyk set out in the ITO under the heading “Observations of 1430 King Street West Toronto, Ontario” states that the building that contains Unit #104 is on the northwest corner of Jameson Avenue and King Street West which of course is this area. The ITO also states that Detective Merritt knows that Mr. Nguyen “deals in the area of King Street West and Jameson Avenue”. In fact, DC Merritt had information from a CI that Mr. Nguyen was dealing drugs out of 1430 King Street and he testified that he told DC Goss this. The Crown asked that I amplify the ITO to include this information and given the evidence on the voir dire of information known to DC Merritt at the time the ITO was being drafted, I am prepared to do so.

[155] The corroboration of the fact that this male was Mr. Nguyen comes from the description given by the CI which matches the description of Mr. Nguyen and from the location of where the male was trafficking, which is the building where there were reasonable grounds to state was Mr. Nguyen’s address.

[156] As for information about the CI, the Judicial Summary does not provide specific details about what the CI has said about the “where, when and for how long” Mr. Nguyen is alleged to have been trafficking in cocaine. That is a factor I must consider with respect to weight, but ITO states that the CI said this male was a “local drug dealer that sells drugs on the Northwest corner of King St. W. and Jameson Ave.” and the Judicial Summary states that the redacted information contains details about how the CI knows LC sells cocaine and information about LC’s sale of cocaine and about the CI’s purchase of cocaine and drugs from LC.

[157] I should add that although not stated in the Judicial Summary, the initial summary of Appendix D attached to the redacted ITO makes it clear that the CI gave not only the nickname LC but also Little Kevin. As Ms. Page submitted, given Kevin is Mr. Nguyen’s first name this is additional support for a finding that the person the CI was buying cocaine from is Mr. Nguyen. Furthermore, as submitted by Ms. Stewart, the Defendants are not entitled to the very details of the information provided by the CI as that would risk identifying that person. It must be remembered that this hearing is to determine the admissibility of the evidence as opposed to a trial on the merits of the allegations; see Crevier, supra at para. 55. I was satisfied that although some information provided by the CI was not and could not be provided to the Defence, the defendants were sufficiently aware of the nature of the excised material to challenge it in argument or by evidence; Garofoli, supra at para. 71.

[158] When I consider that information along with all of the other information available to the issuing Justice, although I appreciate Ms. Myer’s submission that because of the lack of detail the Defendants were not able to directly challenge aspects of the information from the CI; given the detail of the information provided by the CI, even considering that this inability to directly challenge the redacted portions of the ITO goes to weight, I was satisfied of the compelling nature of the information from the CI.

[159] On that basis I was satisfied that there was enough evidence before the issuing Justice that it could reasonably be believed that that Mr. Nguyen was using the Apartment as a home base for trafficking cocaine. With that, in my view, it would be reasonable to infer that Mr. Nguyen would probably have more drugs or drug paraphernalia in the Apartment-the place to be searched as that would be necessary for him to carry out his trade as a drug dealer in this particular area of the city.

[160] The Defendants did not raise other issues with the sufficiency of the ITO apart from issues that I considered when I made my findings as set out above, as I reviewed the evidence and considered proposed excisions. As Ms. Stewart submitted in this case the Judicial Summary, along with everything else (disclosure, cross-examining DC Merritt and DC Goss, the ability to call evidence), is sufficient to make the Defendants aware of the nature of the information provided including: the recency of the information, further information about the duration of the dealer-purchaser relationship, and further information about how the CI knows that LC/Little Kevin sells cocaine. Ms. Stewart also pointed out that leave to cross examine DC Merritt and DC Goss was permitted with respect to two important aspects of the ITO that would allow the Defendants to mount a sub-facial challenge, in tandem with the Judicial Summary: Officer Goss was cross examined on the nicknames provided by the CI and was also cross examined on the address provided by DC Merritt and revealed by records checks.

[161] The only issue raised by the Defendants with respect to the credibility of the CI was that the information provided may be based on hearsay and that the Defendants do not know how the source knows that Mr. Nguyen sells cocaine. That however is incorrect as the Judicial Summary states that the redacted portions of the ITO state whether the CI’s information is based on first-hand knowledge or on hearsay.

[162] There was no other issue raised by Defendants with respect to the credibility of the CI and it was not suggested that this was because the Judicial Summary was insufficient to do so. In that regard the Judicial Summary did provide a great detail about the background of the CI and I would say that this prong of the Debot criteria is strong. The Judicial Summary states that information about the CI’s motivation for providing information, whether the CI has a criminal record or not, and if so what type of convictions and further information about the CI’s track record with providing information to the police was provided to the issuing Justice. This was not challenged by the Defence.

[163] As for corroboration of the information from the source by police investigation, that is not as strong as most of the corroboration comes from the knowledge of DC Merritt which corroborates the information from the CI. There is also the fact that Mr. Nguyen has convictions in 2012 and 2013 for possession of a Schedule 11 substance and in 2013 he was convicted of trafficking in cocaine. There are also prior firearms convictions and of course the combination of drug trafficking and the possession of a firearm is well known. In addition to what I have already stated, the CI did know that LC had previously served time for possession of a handgun with a silencer/suppressor which Ms. Myers conceded was some corroboration but that information, based on the Versadex search dated back to 2015 and might have been known by a number of people.

[164] However, as the court held in Debot, supra, the whole of the circumstances must be considered and a weakness in one of the areas can be overcome by strengths in the other two. Furthermore, as observed in R v. Rocha 2012 ONCA 707, [2012] O.J. No. 4991(Ont. C.A.) at paras. 22 and 23, adopting the reasons of the Supreme Court of Canada in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, the police will rarely be able to confirm the tip from a CI to the extent of having observed commission of the offence and that level of confirmation is not required. Considering the degree of detail provided by the CI, the CI’s source of knowledge and the indicia in the ITO of the CI’s reliability, I was satisfied of the reliability and credibility of the CI’s information.

[165] For all of these reasons I concluded that there was sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable grounds to believe that an offence had been committed by Mr. Nguyen and that evidence of that offence would be found in the Apartment.

Disposition

[166] For these reasons I concluded that considering the totality of the circumstances, the Defence had not persuaded me that the issuing Justice could not have determined that the unredacted ITO as excised, established reasonable and probable grounds to believe that a search of the Apartment for drugs and drug paraphernalia would afford evidence with respect to Mr. Nguyen being in possession of cocaine for the purpose of trafficking and other evidence relevant to that trade.

[167] For these reasons I found that the Defendants had established a breach of their s. 8 Charter rights and I dismissed the Garofoli application. As a result, there was no further need to address the remedy of exclusion of evidence pursuant to s. 24(2) of the Charter.

SPIES J.

Released: October 23, 2019

Edited Decision Released: October 28, 2019

DATE: 2019/10/17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

KEVIN NGUYEN and THI NGUYEN

Defendants/Applicants

Ruling ON DEFENCE GAROFOLI APPLICATION

SPIES J.

Released: October 17, 2019