ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL OF ONTARIO
Applicant/Responding Party
– and –
$68,870 IN CANADIAN CURRENCY and $3,700 IN UNITED STATES CURRENCY (IN REM)
Respondent/Moving Party
Dan Phelon and Paul Kim, counsel for the Applicant
R. Craig Bottomley and Mayleah Quenneville, counsel for the Moving Party
HEARD: November 12, 2019
G. DOW, J.
REASONS FOR DECISION
1This is a proceeding under the Civil Remedies Act, S.O. 2001, c. 28. O’Neil Pitamba is conceded to be an interested party under Section 15.5(2) of the Civil Remedies Act and deemed to be a party in the “proceeding for forfeiture”. Mr. Pitamba seeks an order excluding the evidence, that is, the currency identified in the title of proceedings. He does so on the basis that two of the search warrants issued by Justice Brownstone on July 4, 2017 were not properly granted. Thus, Mr. Pitamba’s rights under Section 8 of the Charter, which protects citizens of Canada from unreasonable search and seizure, were violated. In conjunction with Section 24(2) of the Charter, Mr. Pitamba seeks the remedy of excluding the currency seized that is the subject of this proceeding for forfeiture.
Background
2The search warrants of concern were two of five issued by Justice Brownstone on July 4, 2017. These search warrants authorized the search of a unit at a Queen Street West residence and its associated storage unit as well as a black Acura vehicle generally parked at the building and registered to Mr. Pitamba’s girlfriend or spouse.
3The other three search warrants included a rental vehicle, a KIA model and two other residences, one on Runnymede Ave and the other on Weston Road. Each warrant identified the items to be seized being illicit drugs, drug related objects and currency as well as information related to what was being searched for stored in mobile phones “found within the searched location”.
4The warrants were issued as a result of an Information to Obtain Search Warrant (“ITO”) which contained a 60 page affidavit of Detective Constable Doyle of the Toronto Police Service. As of July, 2017, this officer was assigned to the Guns and Gang Task Force. As a result of information obtained from a confidential source, whose information and identity were redacted before me, the police began an investigation. This included surveillance of Mr. Pitamba.
5In addition, a Transmission Data Recorder Warrant was obtained. This provided details of the location and calls made and received of a cell phone registered to Mr. Pitamba without listening in or recording the content of those calls.
6The investigation lasted for about six weeks and, for my purposes, developed and deposed the following relevant information:
(a) the confidential source advised Mr. Pitamba was involved in trafficking narcotics, in possession of a firearm, using rental vehicles to conduct the activity and using a second cell phone;
(b) Mr. Pitamba had three prior convictions, in 2004, 2011 and 2015 for possession of illicit drugs for the purpose of trafficking which indicated prior and repeated involvement in the sale of illicit drugs;
(c) the sentences arising from those convictions included orders banning Mr. Pitamba from possessing a firearm;
(d) Mr. Pitamba was observed to be using a cell phone while under surveillance that was not the one subject to the Transmission Data Recorder Warrant;
(e) Mr. Pitamba regularly was at the Queen Street West address in the late hours of the evening which investigation listed as the residence of his girlfriend or spouse;
(f) Mr. Pitamba was observed arriving and entering the Queen Street West residence carrying small objects thought to look like a food container or not determined;
(g) the Acura was not driven regularly by Mr. Pitamba unlike the KIA rental vehicle;
(h) while under surveillance, Mr. Pitamba drove in a manner that was described by the officer as conscious of possible surveillance or as the officer described, “heat checks”;
(i) the opinion of Detective Constable Doyle that the use of multiple residences is a noted practice of experienced illicit drug dealers done to separate the illicit drugs, the equipment related to the sale of the drugs and the money obtained from the sales;
(j) multiple meetings with individuals were observed that were brief and involved hand to hand contact with Mr. Pitamba after his having gone to the Weston Road or Runnymede Road locations;
(k) Mr. Pitamba was observed carrying a large clothing bag on one occasion, and retail style bags on another occasion from locations other than Queen Street West before conducting brief meetings with individuals where hand to hand contact occurred or the bags disposed of;
(l) returning to the Queen Street West address immediately or shortly after meeting individuals and having hand to hand contact with them;
(m) the five locations sought to be searched was necessary, in the opinion of Detective Constable Doyle, because Mr. Pitamba had a large number of criminal connections and travelled to multiple locations throughout the greater Toronto area;
(n) the time requested for the validity of the warrants was between July 4 at 7:05 pm to July 8 at 11:59 pm with the stated intention to execute the warrants in the morning to afternoon of July 5 because Detective Constable Doyle deposed he could not predict what would happen in the investigation;
(o) Mr. Pitamba was arrested at 7:48 am on July 5 with searches at each location done shortly after except with regard to the white KIA vehicle;
(p) no drugs or objects relating to illicit drug sales were found;
(q) the cell phone of a person not Mr. Pitamba was found at the Weston Road location and portions of its contents was believed to be texts exchanged between that individual and Mr. Pitamba which indicated Mr. Pitamba was aware of being under surveillance;
(r) at the Queen Street residence, the funds that are the subject of this proceeding were hidden behind a kickplate beside the dishwasher wrapped in 11 bundles of $5,000.00, one bundle of $6,000.00 in an envelope containing $6,880.00 of United States currency; and
(s) as a result, no charges were laid against Mr. Pitamba.
Analysis
7The parties agreed the test to be applied in reviewing whether the search warrants ought to have been issued is to determine whether the ITO provided sufficient information that the issuing Justice could properly have issued the search warrants. This was stated in Ontario (Attorney General) v. $164,300.00 in Canadian Currency (In Rem) 2019 ONSC 2024 at paragraph 11.
8The law has been stated to require reasonable probability or reasonable belief which is less than the legal standard of a prima facie case and the more onerous burden of proof of beyond a reasonable doubt. Reasonable inferences are permitted. Counsel for Mr. Pitamba submitted and I accept the statement in R. v. Morelli 2010 SCC 8 (at paragraph 128) that a “reasonable belief that relevant evidence may be uncovered would be to define the proper standard as the possibility of finding evidence”. This is not the proper standard and would lead to unreasonable searches and seizure. Rather, there must be a fair probability that evidence of a crime will be found based on credible facts.
9Also, focus on the search warrant of Mr. Pitamba’s apparent residence must be given consideration. That is, as stated in Ontario (Attorney General) v. $164,300.00 in Canadian Currency (In Rem), supra at paragraph 30:
“Courts have been understandably diligent in their effort to protect the sanctity of one’s home and guard against unreasonable search and seizure. Where the target is seen to be engaging in what appears to be hand-to-hand drug transactions and the police seek a search warrant for the target’s house or apartment, there has to be a reasonable connection between the drug’s sales location and the apartment. It is not enough to assume that “the drugs have to be stored somewhere, so why not in his apartment”. There must be a good reason to believe this is indeed the case.”
10In this matter, it was acknowledged by counsel for the Attorney General that the material contained in the affidavit of Detective Constable Doyle and placed before Justice Brownstone did not contain evidence of drug storage within the Queen Street West residence. Rather, counsel relied on Detective Constable Doyle’s evidence of Mr. Pitamba’s past experience with illicit drugs, as noted from his three prior convictions of possession for the purpose of trafficking (in which one involved the seizure of $500,000.00 of currency (see paragraph 23 xiii a) of the affidavit of Detective Constable Doyle). Further, Detective Constable Doyle noted the practice of separating the drugs from the objects used in selling illicit drugs and the money obtained from such sales as a reason to include the Queen Street West residence. The observations of Mr. Pitamba arriving at the Queen Street West residence with no or only small containers after brief meetings with individuals when hand-to-hand contact occurred raised an inference that location was being used to store the cash which results from the sales of illicit drugs. As Detective Constable Doyle expressly stated at paragraph 56 of his affidavit, “Further as it is his permanent residence, I believe Pitamba would be comfortable keeping his cash, and possibly smaller quantities of an narcotics”.
11It is clear the information from the confidential informant (which, having been redacted from the material before me, cannot be relied on) provided the impetus for the police to commence an investigation. The nature and substance of the information obtained and detailed above satisfies me that reasonable probability and reasonable belief exited for Justice Brownstone to issue the search warrants and, in particular, the search warrant for the Queen Street West residence and locker. That is, the material contained credible facts that gave rise to a fair probability of evidence of a crime being found. Similarly, the same information was sufficient to issue the search warrant for the Acura as a vehicle associated with the residence and Mr. Pitamba.
12The motion to exclude the evidence obtained is therefore dismissed.
Costs
13Regarding costs, neither party had prepared a Costs Outline as required under Rule 57.01(6). Counsel for the Attorney General sought $7,500.00 if successful, while counsel for Mr. Pitamba requested $5,000.00. I urge these parties and litigants in general to observe this rule and also exchange their Costs Outlines before the commencement of their hearing.
14In accordance with the discretion afforded me under Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and the reasons set out in Boucher et al v. Public Accountants Council for Ontario et al 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (at paragraph 26), the fair and reasonable amount for the unsuccessful party to pay is $5,000.00 inclusive of fees, HST and disbursements. I award same payable by Mr. Pitamba to the Attorney General of Ontario forthwith.
Mr. Justice G. Dow
Released: December 17, 2019
COURT FILE NO.: CV-17-585057
DATE: 20191217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL OF ONTARIO
Applicant/Responding Party
– and –
$68,8760 IN CANADIAN CURRENCY and $3,700 IN UNITED STATES CURRENCY (IN REM)
Respondent/Moving Party
REASONS FOR DECISION
Mr. Justice G. Dow
Released: December 17, 2019