Court File and Parties

COURT FILE NO.: 321/18 DATE: 2020-01-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Robert Cao Defendant

Counsel: Myfanwy Smith, for the Crown Aaron Prevost, for the Defendant

HEARD: January 6, 2020

Justice R. Raikes

Reasons for Judgment

[1] The defendant brought an application under s. 8 of the Charter challenging the facial validity of three warrants issued July 17, 2017 that authorized police to search his residence at 9-45 Gateway Crescent, a business at 78 Charterhouse Crescent (both in London, Ontario) as well as his vehicle, a black 2012 Toyota RAV4. He sought relief under s. 24(2) of the Charter to exclude the evidence obtained from the searches.

[2] The application was heard at the commencement of trial. I dismissed the application with reasons to follow. These are those reasons.

Facts

[3] The defendant is charged with possession for the purpose of trafficking cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”).

[4] On July 17, 2017, London Police sought judicial authorization to search the defendant’s residence at unit 9 – 45 Gatewood Cr., a business located at 78 Charterhouse Cr. and his 2012 RAV4. Separate warrants were issued on July 17, 2017 for each of the three locations.

[5] The warrants were executed by London police on July 18, 2017.

[6] At 9-45 Gatewood Crescent, police found the following:

• Approximately $10,000 in cash in a purse in the master bedroom
• Four cellular devices in a bedroom
• $3,000 in the pocket of a hoodie in a closet

[7] At 78 Charterhouse Crescent, police found the following:

• 27 grams of cocaine
• 29 grams of cocaine
• 7 grams of crack cocaine
• A digital scale with cocaine residue
• Packaging materials.

[8] The search of the RAV4 yielded a red strainer, a glass measuring cup, packaging material and a small amount of cash. The strainer and measuring cup were found in a concealed compartment in the rear hatch. Both tested positive for traces of cocaine.

[9] In addition, police obtained a fourth search warrant to search a property visited by the defendant on several occasions situate at 17533 Wyton Dr. in Thorndale, Ontario. Police found various controlled substances and a large quantity of cash in that home.

[10] Mr. Cao is not charged in relation to the controlled substances found at that address. He does not challenge the validity of that search warrant.

[11] Each of the four search warrants was obtained based on a single Information to Obtain (ITO) sworn by Det. Constable David Younan of the London Police Service.

[12] In the ITO, Det. Constable Younan provided the following information:

1. He is a police officer in the Guns and Drugs section of the London Police Service;
2. A listing of training taken by him in relation to drugs, investigative techniques, search warrant writing and handling of confidential informants;
3. In 2017, the defendant was identified by a confidential human source as trafficking in large quantities of cocaine in London;
4. The police investigation included physical surveillance of Mr. Cao over several days, as well as judicially authorized electronic tracking of his cell phone and vehicle. Much of the affidavit sworn details the physical surveillance and observations made;
5. Mr. Cao resided at 9-45 Gatewood Cr. in London;
6. Before making suspected drug deliveries throughout London, the defendant frequently attended at a business at the rear of 78 Charterhouse in London and a residence at 17533 Wyton Dr. in Thorndale. He believed that Mr. Cao kept his cocaine at those locations and at his home. Mr. Cao used his vehicle to facilitate the trafficking of cocaine;
7. He was the primary handler for the confidential source. The source advised that the defendant was a drug dealer who deals in cocaine. He operated a black Toyota RAV4 and used a cellular device to conduct drug transactions;
8. Attached to his affidavit was a “Tearaway Appendix A” for all information provided by the source. The Appendix also provided information as to a. The reliability of the source; b. Information concerning the source’s credibility; c. The source’s criminal history; d. The source’s relationship/involvement with Mr. Cao; e. The source’s motivation to provide information to police; f. Specific dates and time of interactions between the source and Mr. Cao; and g. Historical information about the previous information provided to police and investigations;
9. Details of an investigation conducted by London Police in May 2016 following a notification by a fire inspector about a suspected cocaine extraction laboratory in an apartment at 813-625 Kipps Lane in London. He provided photographs taken and a copy of the lease by Robert Cao together with a photocopy of the driver’s licence used to verify identity at the time the lease was signed. The photograph on the licence is opaque but the date of birth matches that of the defendant;
10. Previous authorizations obtained by police to track Mr. Cao’s cell phone and vehicle- the RAV4;
11. He believed that Mr. Cao was the exclusive operator of both the cell phone and RAV4 based on surveillance. The tracking data from those devices confirmed Mr. Cao’s association with the three properties for which warrants were sought;
12. Mr. Cao made regular trips to the Toronto area for very short periods of time consistent with re-stocking his cocaine supply. Toronto is a significant source of cocaine coming into London; and
13. Tracking data in June and July 2017 from the RAV4 showed the vehicle attending at locations previously observed on physical surveillance that Mr. Cao used for suspected drug transactions.

[13] I pause to observe that:

• The Tearaway Appendix A is not part of the material available to me on this application.
• The affiant acknowledged that the tracker reports do not prove absolutely that the defendant was operating the RAV4, entered the residences or that each visit was related to drug trafficking.
• The defendant was the registered owner of the vehicle in question.
• The physical surveillance that took place over several non-consecutive days supports the following inferences:
  • Mr. Cao resided in unit 9 at 45 Gatewood Cr.
  • Mr. Cao was the only person observed driving the RAV4
  • Mr. Cao regularly attended at a unit at the rear of 78 Charterhouse Cr. which was part of a commercial complex
  • Mr. Cao engaged in various driving manoeuvres designed to detect or thwart surveillance
  • Mr. Cao had a number of suspected drug transactions at various locations in London
  • Those suspected drug transactions occurred soon after he left his residence or the business at 78 Charterhouse Cr.
  • For most of the suspected drug transactions, Mr. Cao used his RAV4
  • Mr. Cao was trafficking drugs in London.

[14] The physical surveillance ended June 7, 2017; however, the vehicle tracker remained in place until mid-July. That tracking data showed that Mr. Cao continued to frequent the same locations noted in physical surveillance where suspected drug transactions occurred. The data also showed that Mr. Cao continued to engage in what the affiant characterized as counter-surveillance driving tactics. He continued to attend at both his residence and the business at 78 Charterhouse Cr..

[15] As a result of Mr. Cao’s regular visits to 17533 Wyton Dr. in Thorndale, police began investigating that location as well. That investigation appears to have started in mid-June and continued to the point where the warrants were sought.

[16] In his affidavit, Det. Constable Younan indicated that in his experience, drug dealers often hide contraband, proceeds of drug sales and records of drug transactions in secure locations such as their own residence and vehicle. He believed that the items listed in his affidavit that evidence the trafficking of cocaine by Mr. Cao would be found in his residence, vehicle, the business at 78 Charterhouse Cr. and the Thorndale property (see paras. 30-35).

Defence Position

[17] Defence counsel argued that the ITO had insufficient information to justify issuance of the search warrant for all or any of the three places searched. The warrants were issued July 17, 2017. Physical surveillance of the defendant ceased June 15, 2017. Although vehicle tracking data was still being obtained through a warrant issued for the RAV4, there was no evidence to support that there was ongoing drug dealing nor that any evidence of same would be found in any of the residence, business or vehicle as at July 17.

[18] Defence counsel was critical of the use of a single ITO to obtain multiple search warrants for different properties and the vehicle. He also pointed to the following shortcomings in the ITO:

1. The ITO refers to information provided by a confidential informant. The unredacted information in the ITO disclosed to defence counsel is generic in nature and is not compelling, credible or corroborated.
2. The ITO includes inflammatory and misleading information from 2016 concerning a suspected cocaine extraction lab at an apartment on Kipps Lane in London that was connected to three individuals including the defendant. The lease was to a Robert Cao with nothing more to fix the identity of the tenant as this defendant.

Crown Position

[19] Prosecution counsel argued that the defendant had not met his onus to demonstrate that the ITO was insufficient to justify the granting of the warrants in question. Put another way, she argued that the ITO contained ample evidence to demonstrate that:

• The defendant was engaged in activity consistent with trafficking drugs
• The suspected criminal activity was linked to his residence and the business at 78 Charterhouse Cr.
• The suspected drug trafficking was facilitated by his vehicle
• There were reasonable grounds to believe that the defendant was engaged in drug trafficking and that evidence of same would be found in his residence, at the business at 78 Charterhouse Cr. and in his vehicle
• The suspected drug transactions happened shortly after he left his residence or the business at 78 Charterhouse Cr. and, on one occasion, in the laneway leading to the unit at Charterhouse Cr.
• The defendant’s connection to both properties and his vehicle was well-established on the evidence. The physical surveillance evidence was buttressed by the electronic tracking data
• His driving pattern after physical surveillance stopped was substantially the same as was observed earlier, and was consistent with ongoing drug trafficking
• The information provided by the confidential informant was corroborated by the physical and electronic surveillance
• The evidence concerning the leased apartment in 2016 on Kipps Lane was fairly stated and did not mislead the issuing justice.

Legal Principles

[20] Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

[21] A warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In that case, the onus rests on the Crown to rebut the presumption of unreasonableness. Where, as here, the search is conducted pursuant to a judicially authorized warrant, the onus rests on the defendant (applicant) to establish on a balance of probabilities that there is an absence of or insufficient reasonable grounds to support or justify the authorization: R. v. Bui, 2014 ONSC 8, [2014] O.J. No. 16 (S.C. J.) at para. 45; R. v. Felix, 2013 ONCJ 261, [2013] O.J. No. 2219 at para. 33.

[22] In R. v. Garofoli, [1990] S.C.J. No. 115 (S.C.C.), Justice Sopinka set out the standard of review:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, 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. [Italics added]

[23] In Bui, Justice Goodman provides a helpful summary of the applicable legal principles at paras. 47 – 50:

47 It is clear that on a s. 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99.

48 In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts: (1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45 (aff’d, 2011 SCC 32). (2) [T]he 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: R. v. Nguyen, 2011 ONCA 465, at para. 57. (3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135: The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, and a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168. (4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 11 C.C.C. (3d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364. (5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant. (6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470.

49 In the context of a search warrant ITO, the overarching principles may be summarized as follows: (1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77. (2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R. v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85 – 87. (3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 134 C.C.C. (3d) 539 (N.S.C.A.). (4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request for a search warrant: Nguyen (2011) at para. 48. In R. v. N.N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320. (5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms: Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; (6) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences.” R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20; R. v. Sanchez (2004), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370.

50. There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, over-emphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.

Analysis

[24] Before I consider the sufficiency of the ITO, I must first address the defendant’s submissions with respect to the inclusion of the 2016 apartment lab investigation and the information provided by the confidential informant in the ITO.

[25] I gather from the affidavit that Mr. Cao’s alleged cocaine trafficking activities first came to police attention through the information received from the confidential informant. Det. Constable Younan then did a search of police records for any history of occurrences involving Mr. Cao. Through that search, he found the occurrence report related to the suspected cocaine extraction laboratory at 813 – 625 Kipps Lane, London.

[26] The affidavit sworn by Det. Constable Younan deals with the Kipps Lane occurrence starting at page 4, through page 10, and includes photographs taken in the apartment as well as commentary based on his experience with respect to some of the items found therein. At paragraph 11(k), Det. Constable Younan deposed:

k. Investigators learned that this clandestine laboratory located at 813 – 625 Kipps Lane was rented by a male named Robert CAO. Please see Appendix “B” to review the tenancy agreement signed by Robert CAO who provided his or British Columbia driver’s license with photo as proof of identification.

[27] In the following paragraph, Det. Constable Younan sets out various photographs taken on May 31, 2016 from the apartment. He states: “This is the apartment that Robert CAO leased under his name.”

[28] Later in the affidavit at para. 34(a), Det. Constable Younan reiterates that Mr. Cao leased the Kipps Lane apartment and what police found in 2016. He indicates that Mr. Cao moved to unit 9-45 Gatewood Cr. “sometime after abandoning a lease agreement at 813 – 625 Kipps Lane”.

[29] The clear inference from the affidavit is that the Robert Cao named as a tenant of the Kipps Lane unit is the defendant, and the defendant was involved in a potential cocaine extraction laboratory in that apartment.

[30] I am mindful of the admonition that ITO’s are drafted by police officers who are not to be held to the same rigourous standards of drafting as a lawyer. Nevertheless, it seems to me that this section of the affidavit is remarkable for what is not stated:

• no charges were ever laid against Mr. Cao with respect to the suspected lab
• police did not confirm that Mr. Cao is the same Robert Cao who signed the lease
• police did not confirm that Mr. Cao was aware of what was going on in that apartment
• there was no evidence that Mr. Cao - this defendant - was ever in that apartment even though his name was on the lease.

[31] I note that Det. Constable Younan did not indicate that he had reviewed the licence used to verify the identity of the tenant with driver’s license records from British Columbia and/or police photographs to confirm that the Robert Cao who was the subject of their investigation was the same person who signed the lease.

[32] I do not suggest that the affidavit is deliberately misleading or drafted so as to deceive the issuing justice. However, in my view, the information provided suggests with very little evidence that Mr. Cao was engaged in criminal activity involving cocaine in 2016 at the Kipps Lane apartment. Absent the additional information referred to in paragraph 30 above, it seems to me that that portion of the affidavit is inflammatory and potentially deceptive. It paints the defendant in a negative light and suggests his involvement in illicit drug activity a year before the suspected criminal activity being investigated. In short, he’s a bad guy involved in previous criminal drug activity in London.

[33] Further, the affidavit suggests that Mr. Cao abandoned the Kipps Lane apartment but there is no evidence that he ever actually occupied same.

[34] Absent the information in paragraph 30 above in this affidavit, I find that the references to the Kipps Lane apartment investigation, the tenancy agreement and the abandonment of those premises are misleading and should be excised from the affidavit.

[35] I turn next to the information from the confidential informant found at paragraphs 9 and 10 of the affidavit.

[36] Where the grounds for a search warrant authorization are based in whole or in part on information from a confidential informant, special considerations apply. The court must consider the “totality of the circumstances” to determine whether the informant’s information was sufficiently reliable to have formed part of the grounds to support the authorization: R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (Alta. C.A.), at paras. 17-18.

[37] Under the “totality of the circumstances” approach, the court must consider (i) the extent to which the information predicting the criminal offence is compelling, i.e., the extent of detail provided and the informant’s source of knowledge, (ii) the credibility or reliability of the source based on past performance, and (iii) the extent of corroboration: R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118 at para. 53.

[38] These factors known as the three C’s – compelling, credible and corroboration – are not separate tests each of which must be satisfied. Weaknesses or absence in one area may be overcome by strengths in others: Debot, para. 53.

[39] As indicated, I do not have the Tearaway Appendix A. Like defence counsel, I have only the more limited information provided by the confidential informant. The only information disclosed to me from the confidential informant is found in para. 10(a)-(d) of the affidavit in the ITO.

[40] I note that this is not a case where police relied on information from a confidential informant to conduct a warrantless search, nor is it a case where the information provided by the confidential informant was relied on exclusively or principally to justify the issuance of the warrant. In this case, the information obtained from the confidential informant caused police to investigate Mr. Cao. It is the consequent investigation including physical surveillance over several days and electronic tracking data that makes up the bulk of the evidence in the affiant’s affidavit.

[41] The observations made and tracking data obtained through the investigation as detailed in the affidavit of Det. Constable Younan appear to corroborate the information set out at para. 10(a)-(d) of the affidavit. Certainly, there is evidence of conduct by Mr. Cao consistent with drug transactions. The defendant owned and operated a black RAV4 that was observed being used for the suspected transactions. The cell phone tracking data indicated calls with unknown persons at businesses that matched the ownership of vehicles driven to the short, suspected drug transactions with Mr. Cao.

[42] It is impossible for me to assess the confidential informant’s reliability, motivation, past dealings with police and the accuracy of past tips on what is before me. That information and perhaps more is in Appendix A. Nevertheless, the information that is disclosed is corroborated. In my view, it would be inappropriate to excise the information at paras. 9 and 10(a)-(d) of the affidavit.

[43] Since the Crown did not ask that I review the Tearaway Appendix A and I have not done so, my review of the facial validity of the warrants issued must be based on the information that is disclosed in the affidavit. I will not speculate as to what other information may have been set forth in the Tearaway Appendix A.

[44] I turn now to whether there was sufficient remaining evidence in the ITO upon which warrants (3) to search the two properties and vehicle could have issued.

[45] First, there is no requirement that a separate ITO be used for each location for which a warrant is requested. Where a single ITO is employed, the issuing justice must ensure that the statutory prerequisites are met in respect of each location. Warrants should issue only for those locations where the statutory prerequisites are established on the evidence provided.

[46] Second, there is no question that the defendant had a significant privacy interest in his residence and a somewhat lesser privacy interest in the RAV4 and business unit at 78 Charterhouse Cr.. The nature of his interest in the business unit at 78 Charterhouse Cr. is not disclosed. Was he a tenant? Did he own the complex in which the unit was situate? Was he merely a regular visitor? Regardless, whatever his privacy interest, if any, it was less than that for his residence.

[47] I have carefully reviewed the remaining unexpunged ITO and, in my view, there was some evidence that might reasonably be believed on the basis of which the authorizations could have been issued for each of the three locations. (I include the RAV4 as a location). In that regard, the remaining evidence indicates that:

• the defendant was engaged in conduct consistent with ongoing criminal activity; specifically, trafficking drugs
• that activity was corroborated by physical and electronic tracking surveillance
• the defendant was residing at unit 9-45 Gatewood Cr. in London
• the defendant was driving a 2012 black RAV4 that was registered to him as owner
• the defendant used his vehicle to travel to and participate in suspected drug transactions
• the defendant carried a backpack from his residence to the RAV4 when he left home in the morning
• some of the observed suspected drug transactions took place soon after he left his residence and before he stopped elsewhere
• in the affiant’s experience as a trained drug investigator, persons trafficking in illicit drugs often keep records and debt lists for customers to whom they have supplied the drugs in their home or motor vehicle
• the defendant frequently attended the business unit at the rear of 78 Charterhouse Cr. shortly before and after suspected drug transactions
• one of the suspected drug transactions took place in the immediate vicinity of the business unit at the rear of 78 Charterhouse Cr.. The defendant walked from the back of the building to a car, leaned in the passenger window briefly before going back to the rear of the building. The car then left
• the defendant was observed by a surveillance police officer walking out of the bay behind 78 Charterhouse Cr.
• judicially authorized vehicle tracking technology consistently placed the defendant almost daily at 78 Charterhouse Cr.
• in the experience of the affiant, drug dealers often hide contraband, proceeds of drug sales and records of drug sales in secure locations such as their residences or vehicles.

[48] Defence counsel argues that the physical surveillance stopped a month before the warrants were requested and issued. Accordingly, the information obtained from the physical surveillance was stale dated and could hardly support a credibly based probability that drugs would be found in those locations on July 18, 2017.

[49] As paragraph 25 of the affidavit indicates, police continued to monitor the defendant’s RAV4 through the electronic vehicle tracker. That information disclosed that he continued to engage in counter surveillance driving tactics and attended locations previously identified through physical surveillance as locations where suspected drug transactions occurred. There are limitations to that data including that the tracker cannot identify who was driving; however, there was an ongoing pattern of activity consistent with what was observed over the course of several days of physical surveillance.

[50] This is not a case where police say that, based on a tip received, they believe that the drugs are kept at a specific location. Instead, police have identified the residence, business and vehicle as locations used by the defendant shortly before and after suspected drug transactions or, in the case of the vehicle, to conduct the transactions. When the information contained in the ITO is looked at in its totality, there is sufficient evidence upon which an issuing justice could find that there is credibly-based probability that the search of each of the residence, business and vehicle will produce evidence of a crime.

[51] Accordingly, the application is dismissed.

Justice R. Raikes

Released: January 16, 2020

COURT FILE NO.: 321/18 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Robert Cao REASONS FOR JUDGMENT Raikes, J. SCJ

Released: January 16, 2020