COURT FILE NO.:19-1021
DATE: 2020/11/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Abdirahman Ali Farah
– and –
Ahmad Al-Shammari
Applicants
Kelly Reitsma for the Federal Crown
Sarah Ahsan for the Mr. Ali Farah
Joseph Addelman for Mr. Al-Shammari
HEARD: October 1, 2020
RULING ON S. 24 (2) CHARTER APPLICATION A.E. LONDON-WEINSTEIN J.
[1] The Applicants seek exclusion of evidence seized as a result of a search warrant executed at 1720 Aspen Village Circle, Ottawa. The search warrant was issued under s.487 of the Criminal Code. The Applicants argue that reasonable and probable grounds did not exist to believe that the offence related property, in this case a firearm and related items, would be located at the three places that were the subject of the search warrant.
[2] Police executed the search warrant on November 29, 2018. They seized a loaded Glock handgun and over half a kilogram of cocaine and other controlled substances.
[3] The search was authorized by a warrant obtained by Detective Constable Connor Rogers of the Toronto Police Service. The warrant was issued for three locations: 1720 Aspen Village
Circle, in Ottawa, 40-181 Forestglade Crescent in Ottawa and for a 2019 Black GMC Terrain SUV.
[4] The Applicants concede that there were reasonable grounds to believe the offence of unauthorized possession of firearm had been committed by Mr. Ali Farah. They challenge however, the validity of the warrant on the basis that the information to obtain (ITO) lacked sufficient grounds to believe that evidence of unauthorized possession of a firearm would be located at the three locations specified in the warrant.
[5] Police involved in an unrelated investigation in Toronto were intercepting the conversations of Mr. Ahmed Siyad. Mr. Siyad was intercepted in conversation with a then unknown male. That male was eventually identified as Mr. Ali Farah. Mr. Ali Farah had a conviction in 2018 for trafficking in a Schedule I substance.
[6] On November 19, 2018 Mr. Ali Farah had a discussion with Mr. Siyad, stating that he no longer had a “black and silver” but was now in possession of a new “hammer” (believed by the affiant to be a reference to a revolver). During that same conversation, Mr. Ali Farah indicated he had a trial starting in a week.[^1] On November 21, 2018, Mr. Ali Farah had another conversation with Mr. Siyad and indicated that he had rented a GMC SUV and that he had a week long trial starting on Monday in Ottawa. Police believe Mr. Ali Farah discussed selling his firearm to Mr. Siyad for five bands ($5,000) and then for $4,500.
[7] The Ottawa Police were contacted by Toronto Police about the intercepted communications and commenced surveillance of Mr. Ali Farah on November 26, 2018. Police were able to confirm that he was driving a 2019 Black GMC SUV. Mr. Ali Farah was scheduled to begin his week-long trial on November 26, 2018 in Ottawa.
[8] Ottawa Police conducted surveillance of Mr. Ali Farah operating the vehicle from November 26, 2018 to November 28, 2018. Only the information regarding November 26 and November 27 was placed in front of the issuing justice.
[9] On November 26 at about 8:15 a.m. the Black GMC Terrain associated with Mr. Ali Farah was observed parked in the visitor’s parking lot of 181 Forestglade Crescent. A short time later, he was seen entering the vehicle. He was observed entering the courthouse and then observed leaving the courthouse at approximately 4:38 p.m. and getting into the GMC Terrain. He was never observed entering or exiting the address at 181 Forestglade Crescent.
[10] At about 6 p.m. he was seen going into 1720 Aspen Village Circle. At 8:39 p.m. he exited 1720 Aspen Village Circle. He attended a gas station where he parked beside a white Ford SUV and appeared to have a conversation with the driver of the SUV. The Ford SUV was registered to Ahmad Al-Shammari of 29 Woodbury Crescent. At about 10:06 p.m., he attended the area and entered the house at 1720 Aspen Village Circle. Surveillance was discontinued.
[11] On November 27 at 3 p.m. Ahmad Al-Shammari was observed in the front of 1720 Aspen Village Circle. He got into a Ford SUV and left the area. A white Toyota van registered to Mohamoud Hagi-Aden was observed in the laneway of 40-181 Forestglade Crescent. Mr. Mohamoud Hagi-Aden is Mr. Ali Farah’s father. Police were aware that Mr. Mohamed Hagi-Aden is Mr. Ali Farah’s uncle. He was also believed to be residing at 40-181 Forestglade Crescent.
[12] At approximately 7:24 p.m. Mr. Ali Farah’s vehicle was observed at the intersection of Teakdale Avenue and Cumorah Drive in the vicinity of Aspen Village Circle with the engine running. A short while later, the vehicle pulled onto a roadway, drove around the block and attended the area of 1720 Aspen Village Circle with the engine running. A short time later the vehicle pulled onto the roadway, drove around the block and attended the area of 1720 Aspen Village Circle and parked in front of this residence. At approximately 7:48 p.m., the vehicle left 1720 Aspen Village Circle and was followed for some distance.
[13] Officers confirmed that Mr. Ali Farah was driving the vehicle and there was an unknown passenger in the front seat. Mr. Ali Farah ran a red light and the vehicle was misplaced and surveillance discontinued.
[14] On November 28, 2018 the affiant swore a single ITO for a telewarrant to search pursuant to s.487 of the Criminal Code.
[15] In that ITO the affiant swore that he had reasonable grounds for believing and did believe that Mr. Ali Farah on November 28 did commit the offence of unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code. He further swore that the rental motor vehicle of Mr. Ali Farah, a 2019 Black GMC Terrain with Ontario license plate number CHAV 140 would afford evidence with respect to the commission of the offence, along with two residential dwellings: 40-181 Forestglade Crescent in Ottawa, described as a dwelling house and 1720 Aspen Village Circle in Ottawa, also described as a dwelling house.
[16] On November 28, 2018, a Justice of the Peace issued a telewarrant to search between the hours of 6:30 p.m. on November 28, 2018 and 11:59 p.m. on December 5, 2018.
[17] On November 29, 2018 the Ottawa Police Service executed the search warrant at 1720 Aspen Village Circle at approximately 6:16 a.m., where Mr. Ali Farah and Mr. Al-Shammari were found and arrested.
[18] A Glock handgun was located on the mantle of the fireplace in the living room of the house. Cocaine (569.2g), 9 fentanyl pills and 6.5 pills of oxycodone were in the living room and the kitchen. The handgun was loaded with 13 rounds of ammunition and fitted with a laser scope. Two pills of Buprenorphine were seized along with Phenacetin, Boric Acid, four cell phones, a laptop,
$825 in Canadian currency, 3 digital scales, a hydraulic press with plates, a black garbage bag with cocaine brick packaging and a “fake” metal gun.
[19] Through further investigation police later seized a lease for 1720 Aspen Village Circle in Mr. Al-Shammari’s name.
[20] At the preliminary hearing, Detective Danford testified that the warrant at the Forestglade address was not executed because the target was located at the Aspen Village Circle address. In cross-examination he agreed that the reasonable and probable grounds would have existed essentially wherever Mr. Ali Farah would be. The Crown argues that these are execution decisions, as opposed to the any indication as to whether reasonable and probable grounds existed simultaneously at both dwellings and the GMC rental vehicle.
[21] Det. Danford agreed that a warrant was sought for three different places because it was possible that Mr. Ali Farah would be at three different places. He also added that evidence could possibly be located at those addresses as well.
[22] Det. Danford was then asked, “but in order for the evidence to be found, what was crucial is that Mr. Ali Farah is …present” to which he responded, “yes.”
[23] The evidence from Det. Danford at the preliminary hearing was that the decision not to execute the warrant at the Forestglade address was because Mr. Ali Farah had already been located at Aspen Village Circle.
[24] At the preliminary hearing Det. Danford explained that police understood Mr. Ali Farah to live in Toronto but believed he had come to Ottawa for a one-week trial. Police believed he would be staying with his family at the Forestglade Crescent address. However, Mr. Ali Farah drove to 1720 Aspen Village Circle, parked his vehicle and entered the front door of the address on November 26, 2018. He left the residence at 8:39 p.m. and returned at 10:06 p.m.
[25] The ITO at para. 43 sets out the observations and intelligence gathering regarding Mr. Ali Farah. Police observations are as follows:
November 26, 2018
(a) At about 8:15 a.m. on November 26, 2018 the vehicle associated to Ali Farah, the 2019 Black GMC Terrain with Ontario plate CHAV 140 was observed parked in the visitor parking lot at 40-181 Forestglade Crescent, Ottawa, covered in snow.
(b) A short time later, Abdirahman Ali Farah was observed walking up to the vehicle. Mr. Ali Farah entered the driver’s side of the vehicle.
(c) Mr. Ali Farah drove the vehicle to the area of 160 Elgin Street, parked the vehicle and subsequently attended the Courthouse located at 161 Elgin Street, Ottawa.
(d) Mr. Ali Farah attended courtroom #11.
(e) At approximately 4:38 p.m., Mr. Ali Farah left the court house and returned to his vehicle.
(f) At approximately 6 p.m. Mr. Ali Farah attended 1720 Aspen Village Circle where he parked his vehicle and entered the front door of the address.
(g) At approximately 8:39 p.m. Mr. Ali Farah was observed leaving 1720 Aspen Village Circle in his rental vehicle, with license plate: CHAV 140
(h) Mr. Ali Farah attended a gas station located on Orleans Boulevard where he parked beside a white Ford SUV with an Ontario plate of CFES 024. Mr. Ali Farah had a conversation with a male driving the Ford SUV. (The vehicle was registered to Ahmad Al-Shammari, born January 4, 1991 with an address of 29 Woodbury Crescent, Ottawa).
(i) At approximately 10:06 p.m. Mr. Ali Farah attended the area of Aspen Village Circle, Ottawa and parked his vehicle. Surveillance was discontinued.
The Crown, at para 46 of their factum notes that Mr. Ali Farah was observed walking in and out of the Aspen Village Circle on more than one occasion.
November 27, 2018
(j) At approximately 3 p.m. Ahmad Al-Shammari was observed out front of 1720 Aspen Village Circle, Ottawa. Mr. Al-Shammari was observed getting into the driver’s side of a white Ford SUV with Ontario plate, CFES 024. The vehicle subsequently left the area.
(k) A white Toyota van with Ontario Plate ANNJ 784 was observed parked in the laneway of 40 -181 Forestglade Crescent, Ottawa. (The vehicle is registered to Mohamed Hagi-Aden with an address of 40-181 Forestglade Crescent, Ottawa)
(l) At approximately 7:24 p.m. Mr. Ali Farah’s vehicle with Ontario plate CHAV 140 was observed parked near the intersection of Teakdale Avenue and Cumorah Drive (in the vicinity of Aspen Village Circle) with the engine running.
(m) A short time later, the vehicle pulled onto the road way, drove around the block and attended the area of 1720 Aspen Village Circle. The vehicle parked out front of 1720 Aspen Village Circle with the engine running.
(n) At approximately 7:48 p.m., the vehicle left 1720 Aspen Village Circle and was followed for some distance. Officers confirmed that Mr. Ali Farah was driving the vehicle and there was an unknown passenger in the front seat.
(o) Mr. Ali Farah ran a red light and was observed getting on to the westbound highway 417. The vehicle was misplaced, and surveillance discontinued.
General Legal Principles:
[26] A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search is carried out is reasonable. R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at para
- The Applicant bears the burden of establishing the unreasonableness of the search on a balance of probabilities: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.
[27] Search warrants are issued based on “reasonable and probable grounds.” This standard is a “credibly based probability.” The “reasonable and probable grounds” or “credibly based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”), per Paciocco J., as he then was, in R. v. Floyd, 2012 ONCJ 417 (Ont. C.J.) at para 9. The standard does not require proof beyond a reasonable doubt or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8 at paras 127-128.
[28] The ITO must disclose reasonable grounds to believe that an offence has been committed and disclose reasonable grounds to believe that evidence in relation to that offence will be found at the place to be searched: see R. v. Sadikov, 2014 ONCA 72 (Ont. C.A.) at para 81.
[29] There is both a subjective and objective component to the inquiry. The affiant must personally believe in the existence of the reasonable and probable grounds and that belief must be objectively reasonable: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.) at p. 250. An officer is permitted reliance on training and experience in assessing grounds, but must be careful to consider both evidence which supports the grounds and evidence which detracts from grounds: see R. v. Wu, 2015 ONCA 667 (Ont. C.A.) at paras 55-57 and 64. The affiant has an obligation to make full, fair and frank disclosure in the ITO: R. v. Nguyen, 2011 ONCA 465 (Ont. C.A.) at para 48. The obligation regarding full, fair and frank disclosure is rooted in the ex-parte nature of search warrant proceedings: United States v. Friesland, [1996] O.J. No. 4399 (Ont. Gen.Div)
[30] On a review, the authorization is presumed valid. The applicant bears the onus of establishing that the ITO was insufficient to justify the issuance of the warrant. The reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the reviewing judge’s role is to determine whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant: R. v. Sadikov, supra, at paras 83-89.
[31] An issuing justice may draw reasonable inferences from stated facts: R. v. Nero, 2016 ONCA 160 (Ont. C.A.) The affiant need not underline what is objectively apparent or obvious: R.
v. Vu, 2013 SCC 60 (S.C.C.) at para 16.
[32] The review is also conducted based on a reading of the entire ITO, using a common-sense approach which embraces all the relevant circumstances. Moreover, the review is not to be a picking apart of individual minor imperfections, misstatements or omissions in the ITO. The ultimate question to be resolved is whether the core substance of the ITO could support the issuance of the warrant: R. v. Morelli, 2010 SCC 8 at para 167.
[33] The test on review is to examine whether the authorizing justice could have granted the search warrant, not whether the reviewing justice would have granted the search warrant. The standard is whether there is some evidence that might reasonably be believed based on which the authorizing justice could have concluded that the warrant could issue: R. v. Beauchamp, 2014 ONCA 260 at para 87. A reviewing justice should not set aside the decision of the authorizing justice unless satisfied on the totality of the information that there was no basis for the authorization; in other words, that the statutory conditions precedent had not been met: Beauchamp at para 88.
Analysis of Legal Principles related to Specific contents of ITO:
Multiple Simultaneous Search Warrants:
[34] I turn now to a review of the relevant governing legal principles as they apply to the specific contents of the ITO. Appendix C sets out the reasonable grounds for belief that the two dwelling houses and the vehicle will afford evidence with respect to the commission of the offence of unauthorized possession of a firearm.
[35] The Applicant argues that reasonable and probable grounds that the firearm would be found in the three locations specified cannot exist simultaneously. The Applicant argues that existence of reasonable and probable grounds for one location, would of necessity, establish that reasonable and probable grounds could not exist at the same time at another named location. The Crown provided case law where simultaneous search warrants for different locations were found to have reached the standard of credibly based probability, justifying issuance.
[36] In R. v. Charania, [1999] O.J. No 4226, for example, the court found that there was an adequate basis to justify issuance of the warrant, even though more than one address was the subject of a warrant. The case involved a certiorari motion to quash four search warrants pursuant to s.487 of the Criminal Code prior to charges being laid. The search warrants were for residential and business premises associated with the applicants. In that case, Hill J. found that there was adequate information upon which the justice, acting judicially and reasonably, could form the opinion that reasonable grounds existed to believe the sought-after items would be at the designated locations. Given the investigative information available, the nature of the items to be seized and the application in a single information before one judicial officer for the issuance of multiple warrants, it was not unreasonable or inappropriate to have warrants issue for simultaneous execution in pursuit of the same items. The operative test is credibly-based probability, not a prima facie case: R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont.C.A.) at 219, affirmed (1989) 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) at 213-215.
[37] In Charania, the court found that the ITO, read as a whole, provided a sufficient basis upon which the justice could issue the warrants in respect of the offences described. The court found that the information linking the applicant on the certiorari to both addresses provided a sufficient basis permitting issuance of the warrant.
[38] However, the business and the residential address both provided information capable of establishing a credibly-based probability that evidence of the offence would be located at both addresses.
[39] At paragraph 31 of her factum, the Crown points out that courts have accepted that “there is nothing wrong with multiple warrants for search locations where there is “reasonable probability” an item they wish to seize may be in one of different locations. I agree with this proposition. However, there must be a reasonable probability that the item sought by police will be found in the specific locations specified. In the case before me, there is no evidence at all that the firearm would be in either residential address, or the rental SUV. Mr. Ali Farah was never even seen going inside the 40-181 Forestglade address. So even if police believed, wrongly, that Mr. Ali Farah’s presence alone provided sufficient reasonable and probable grounds to justify searching the Forestglade address, he was never observed by police in the home.
[40] The example relied on by the Crown is taken from Hutchison’s Search Warrant Manual 2020: A Guide to Legal and Practical Issues Associated with Judicial Pre-Authorization of Investigative Techniques. (Toronto: Thomson Reuters, 2020) at page 98.
[41] The example cited by the text is one where an investigator has learned that the owner of a business kept a secret set of records with the true affairs of a company on a laptop computer that he or she moves between two business locations and his or her home, but nowhere else. The investigator may need to obtain three different search warrants to search those three separate locations simultaneously for the laptop. The fact that reasonable probability and not on a balance of probabilities is the standard allows for the issuance of simultaneous warrants.
[42] The example relied on by the Crown is based on information that the laptop containing the secret information is regularly moved between two business locations and her home and nowhere else. This provides the basis for concluding that a search of those locations will yield evidence related to the offence. That scenario is distinguishable from the case before me. The ITO in this case does not disclose any information to suggest that the firearm was being kept either in the vehicle, or in either of the two addresses which the ITO indicates are associated to Mr. Ali Farah. There is information that as of November 21, five days before the first day of surveillance, Mr. Ali Farah was trying to sell a revolver to Mr. Siyad. He was in Ottawa and he rented a vehicle and he refers to this fact in the conversation captured on intercept with Mr. Siyad. The photo that police believe that he sent through Snapchat does not assist with providing information related to the location and/or storage of the revolver.
[43] Similarly, the Crown provided R. v. Chen, 2019 ONCJ 103. In that case the Applicant argued unsuccessfully that the affiant was required to identify which address was the Applicant’s home address in order to establish grounds to believe that evidence of the offence would be located at the relevant addresses. The Applicant contended that it was not enough for the affiant to list multiple possible addresses on the basis that evidence relating to the offence must be somewhere and that the police could have investigated further. However, the court ruled that when the ITO was read as a whole, “there was a basis upon which the issuing justice could have concluded that the grounds set out established a ‘credibly based’ probability that evidence” of the accused’s criminal activities would be located inside the named addresses and vehicles. The Court did not
accept that the affiant had to identify which of the addresses were the home of the accused in order to establish reasonable grounds to believe evidence of an offence would be located there. In so ruling, the court stressed that the standard is one of reasonable probability.
[44] The court found, that where there is evidence to support an inference that the subject of a warrant application uses more than one address as a dwelling, or residence, or simply maintains more than one address, and if there is a reasonable basis to believe that evidence of an offence will be kept within those places, the police can obtain warrants for all addresses they reasonably believe will contain evidence of the offence(s). There was no evidence to support the inference that the firearm would be located at the Aspen Village Circle address, nor the Forestglade address.
[45] Surveillance of Mr. Ali Farah was conducted. He is never observed entering or exiting the 40-181 Forestglade address. The affiant also erred at paragraph 30(b) (iii) in a manner which was misleading. Under the heading ‘Detailed Grounds for Belief’, the affiant writes that on November 27, 2018, members of the OPS continued mobile surveillance on Abdirahman Ali Farah and observed him leaving Aspen Village Circle and entering his vehicle with license plate CHAV 140 which was parked in visitor’s parking. In fact, Sgt. Pulfer of the OPS never observed Mr. Ali Farah leaving Aspen Village Circle on November 27 and entering his vehicle as described by the affiant.
[46] Sgt. Pulfer’s observations of November 27, were included at paragraph 44(c)(d)(e) of the ITO and are as follows: At approximately 7:24 p.m. Ali Farah’s vehicle with Ontario plate CHAV 140 was observed parked near the intersection of Teasdale Avenue and Cumorah Drive (in the vicinity of Aspen Village Circle) with the engine running. A short time later, the vehicle pulled onto the road way, drove around the block and attended the area of 1720 Aspen Village Circle. The vehicle parked out front of 1720 Aspen Village Circle with the engine running. At approximately 7:48 p.m. the vehicle left 1720 Aspen Village Circle and was followed for some distance. Officers confirmed Ali Farah was driving the vehicle and there was an unknown passenger in the front seat.
[47] The information in paragraph 30 is materially different from what Sgt. Pulfer actually observed. Paragraph 30 informs the issuing justice, incorrectly, that Mr. Ali Farah was seen exiting the Aspen Village Circle property on November 27, when in fact, he was observed in front of the
property, parked with the engine running. The vehicle then left 14 minutes later. An unknown male was in the passenger seat.
[48] The incorrect information contained in paragraph 30(b)(iii) is misleading on the issue of the strength of Mr. Ali Farah’s connection to that address. The search of the Aspen Village Circle residence was based on the fact that the firearm would be with Mr. Ali Farah. There was no other information linking the firearm to the address. That error, which I am not concluding was made deliberately, which suggests a stronger connection to the dwelling than existed, is misleading. While the correct information, indicating that he did not exit the property, but was merely parked in front of it on that occasion, as outlined above, is included in paragraph 44(c)(d) and (e), it is many pages further on in the ITO. This material inconsistency is not addressed and apparently formed part of the affiant’s detailed grounds for belief.
[49] Mr. Ali Farah’s registered address is 412-370 Dixon Road in Etobicoke, Ontario, according to his driver’s license. CPIC also indicated an address of 201-2995 Albion Road, Ottawa, Ontario. He was trespassed from that address.
[50] At the time of the ITO, Mr. Ali Farah was on a recognizance. One of his conditions of release was to reside at an address approved of by his surety, or 412-370 Dixon Road, Etobicoke, Ontario. He was not to attend the Forestglade Crescent Park located in Ottawa, Ontario.
[51] An OPS report dated October 22, 2017 indicates that Mr. Ali Farah was trespassed from 201-2995 Albion Road, Ottawa. The report indicated that he was going to live with family at 181 Forestglade Crescent in Ottawa.
[52] Abdullah Ali Farah, the brother of Mr. Ali Farah had a last known address of 40-181 Forestglade Crescent, Ottawa.
[53] Mr. Ali Farah’s father is Mohamoud Hagi-Aden and he resides at 40-181 Forestglade Crescent, Ottawa. MTO records indicate Mohamed Hagi-Aden has a driver’s license associated to that address. The affiant believed he was Mr. Ali Farah’s uncle.
[54] In R. v. Coluccio, 2019 ONSC 4559, the applicant was charged with several firearms offences stemming from a warranted seizure of a firearm and the ammunition at his residence. The
affiant asserted that based on his experience as an investigator involved in firearms investigations, he believed that the Applicant could transfer the firearm from whatever vehicle he is operating to his residence. Based on the affiant’s experience, he indicated that it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to their residence so that the firearm is always near their person, in case of an unexpected attack.
[55] There was a confidential informant in that case who provided information that he had seen the Applicant in possession of the firearm on numerous occasions, where the gun was retrieved and how it was stored. The CI indicated that the firearm was kept in the Porsche Cayenne operated by the Applicant, that the Applicant killed his own sister, that he was part of the Calabrian mafia and that there were tensions between the Calabrian and Sicilian mafia which was a spillover of events which occurred in Montreal.
[56] The confidential informant also indicated that the Applicant was in possession of a black semi-automatic handgun and a black revolver. He had been observed on several occasions over the past year in possession of those firearms.
[57] In the redacted ITO judicial summary which was drafted to protect the identity of the confidential informant, there is no information attributed to the confidential informant about seeing or not seeing a firearm at the Applicant’s residence.
[58] In terms of the location of the sought-after items, the affiant indicated that while he had a basis for linking the applicant to three vehicles, his intention was only to execute the warrant relating to the vehicle driven by the applicant at the time of arrest.
[59] The confidential informant indicated that the applicant retrieved a firearm on multiple occasions from the Porsche Cayenne. The applicant also drove a Mazda and an Infiniti QX6: para 17.
[60] In relation to the Infiniti QX6, the affiant noted that the applicant has not been observed in possession of a firearm while driving this vehicle, but he explained that in his experience it would not be uncommon for someone illegally possessing a firearm to transfer it to whichever vehicle they may be operating. In relation to the grey Mazda, the affiant indicated the same conclusions as with the Infiniti QX6. However, he goes further and notes that the surveillance observations of the
applicant trying to reach for something beneath the steering wheel as well as the observation of the satchel, suggest that the satchel was being used to shield the firearm from public view. The officer said he was unable to say what was in the satchel, though he notes that the confidential informant observed a firearm being retrieved by the applicant from the same area in the Porsche Cayenne.
[61] The affiant indicated that, based on his experience, he believed it was possible that the applicant could also transfer the firearm from whatever vehicle he is operating to his residence. Based on his experience, he said it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to this residence so that the firearm is always near their person in case of unexpected attack: para 19.
[62] Justice Di Luca concluded that, when this portion of the ITO is placed in its proper context, there was little to no case specific support for the affiant’s assertion that people who possess firearms may take them from their car into their home so that the weapon is at the ready in case of attack. As such, the officer’s assertion was characterized as an unsubstantiated assertion about how some people behave: para 61.
[63] Returning to the case at bar, I have even less case specific support regarding the notion that the firearm would be in either of the two residences, or the vehicle Mr. Ali Farah had rented.
[64] In Coluccio, the applicant argued that there was a material omission in reviewing the surveillance report relating to the applicant’s use of the Mazda. While the affiant indicated that he did not know what was in the satchel, the undeniable impression that was conveyed to the issuing justice was that the satchel probably contained a firearm. The fact that the satchel was left in the car was not mentioned in the ITO, which was held by the trial judge to be a significant material omission.
[65] The trial judge concluded that no justice could issue the warrant to search the applicant’s home for the black semi-automatic handgun. The Court further concluded that the officer’s assertions relating to the presence of ammunition, a cleaning kit and documentation relating to the firearm in the home amounts to no more than bald assertions based on generic beliefs. The Court was not prepared to find that because grounds exist demonstrating that an accused drove around
in a car with a handgun, a warrant could be issued for a search of the accused’s home. The Court found that the applicant’s s. 8 rights had been violated and the warrant to search the applicant’s home was quashed.
[66] In R. v. Herta, 2018 ONCA 927 (Ont. C.A.) police obtained a warrant for a home where a suspect they were investigating was seen entering. The police possessed a tip from an informant that the suspect was armed, and they obtained a warrant on that basis. However, the home they searched belonged not to the suspect, but to Mr. Herta. On appeal, Fairburn J.A., found that the warrant should be quashed. She noted that, although the CI said he saw the suspect with a firearm, the CI did not connect the firearm to the address searched.
[67] In Herta, other than the affiant seeing the suspect walk toward the front door of the searched address a few hours before the warrant issued, there was nothing in the redacted ITO that drew a connection between the suspect and that residence. There was no information as to who owned, lived at or frequented that home. Nor was there any information about whether a firearm had ever been associated with that location, or whether the police had ever investigated anyone living there or attended at that place in the execution of their duties. Moreover, there was no suggestion that the affiant saw anything in the suspect’s hands as he walked toward the residence.
[68] The only information which could support the reasonable grounds to believe that the suspect took a rifle into the searched address rested on the CI’s statement that he was in a dispute and would not go anywhere without the gun.
[69] Fairburn J.A., noted that if the CI’s statement was compelling enough for a search warrant for any location that the suspect attended, then the suspect would be transformed into a walking, ready-made grounds for belief. “That is a sweeping proposition, particularly in light of the weak and conclusory nature of those statements in the ITO, the minimal information about credibility and the weak nature of the corroboration”: para 51.
[70] In Coluccio, sufficient reasonable grounds for a firearm in a vehicle did not translate to reasonable grounds for a house where there was no evidence that the applicant had taken the gun into the house.
[71] In Herta, the Court cautioned against a practice which would transform a suspect into walking, ready-made grounds for belief.
[72] In this case, police had evidence that Mr. Ali Farah wanted to sell a gun on November 21. There was a reasonable basis to believe that he sent a photo of that firearm via Snapchat to Mr. Siyad who was the subject of an authorization in a project in Toronto.
[73] When this ITO is read fairly and as a whole, there is no evidence upon which the issuing justice could have found that there was a credibly based probability that evidence of these offences would be found in the vehicle or in the residences. The evidence was that Mr. Ali Farah expressed interest in selling a gun on November 21, that he sent a photo of that firearm by Snapchat and that he was in Ottawa. He was seen outside the Forestglade address and seen entering and exiting the Aspen Village Circle address.
[74] To find that reasonable and probable grounds existed under these circumstances would be to transform Mr. Ali Farah into a walking, ready-made grounds for belief, no matter where he went during the week he attended Ottawa for his trial. And while the Crown characterized Mr. Ali Farah as transient, this term overstates the matter. Mr. Ali Farah was present for his trial. Police were able to conduct surveillance on him without difficulty. He had a recognizance which required him to live at his Toronto address or an address approved of by his surety.
[75] At para 40 of her factum, the Crown argues that as the ITO was written on November 2018 it did not include the surveillance information that was collected the evening of November 28. At the preliminary hearing, Det. Danford stated that surveillance showed Mr. Ali Farah again attended 1720 Aspen Village Circle after court that day and remained there for the rest of the evening. He also entered the front door without knocking, and without waiting for anyone to open the door and let him in. This information was not before the issuing justice. Appropriately, given the nature of the information, no amplification was sought by the Crown.[^2]
[76] At paragraph 41 of her factum, the Crown notes the information which linked Mr. Ali Farah to the 2019 Black GMC Terrain. That information is as follows: On November 21, 2018 Mr. Ali
Farah indicates on an intercept that he has rented a GMC SUV and will be starting a one-week trial on Monday, November 26, 2018. Surveillance officers observed Mr. Ali Farah operating the 2019 Black GMC SUV.
[77] On November 21, Mr. Ali Farah is intercepted in a conversation indicating that he is picking up the rental vehicle.
[78] Later that same day he tells Mr. Siayd that he had rented a GMC SUV.
[79] On November 26, 2018 he is observed entering the driver’s side of a 2019 Black GMC Terrain vehicle, license plate CHAV 140 and drive to the area of 160 Elgin Street, park and then enter the 161 Elgin Court house.
[80] Mr. Ali Farah is observed driving the same vehicle from the courthouse that day at about 4:38 p.m. Later that same evening, he is observed driving the same vehicle around Ottawa and on November 27 he was observed driving the vehicle.
[81] The issuing justice is entitled to draw reasonably available inferences from the evidence in the ITO.
[82] While there was evidence that Mr. Ali Farah was driving the vehicle, the only information related to the likelihood that the gun would be in the vehicle or the two private homes, aside from the presence of Mr. Ali Farah, was the bald assertion at paragraph 46 of the ITO which reads as follows:
• In my experience an unlawfully possessed firearm is a tool used by criminals that is not easily attained. The cost of an illegal firearm is expensive. Generally speaking, the higher the caliber the more expensive the firearm is priced. It is not an item that is purchased and easily discarded; it is kept by the offender for a lengthy period of time. Offence related property, such as ammunition, holsters, cleaning kits and magazines are a few items that are commonly associated to possessing a firearm.
[83] In paragraph 15 of the ITO the affiant swore that he believed a firearm would be in the locations for which warrants were being sought. Despite swearing that a records check indicated that Mr. Ali Farah did not have a license to possess or acquire a firearm, the affiant claimed in Appendix A of the ITO that reasonable and probable grounds existed to believe that firearms documents, including licenses, registrations, authorizations and permits in paper and electronic form would be found. Given the context of this investigation, police could not have had a reasonable belief that this type of documentation would be located. This type of bald assertion in boilerplate language can be misleading, especially where it is used to justify entrance into a private dwelling where there is no evidence proffered that the item sought for will be found. The affiant also claimed to be seeking documents related to ownership. In this aspect, the ITO was overbroad:
R. v. Garabet, 2017 ONCA 139 para 12.
[84] I agree with the defense that the surveillance shows some linkage between the applicant and the places to be searched, and that the intercepts show a link between the applicant and the firearm. However, there is no case specific information linking the two dwelling homes to the firearm. The ITO states only that there is an association between the applicant and the two dwelling homes. The affiant acknowledges that the applicant is mobile and attends various locations. However, the best evidence the police had was that Mr. Ali Farah was staying at Aspen Village Circle while he was in Ottawa for his trial. There was no case specific evidence linking the presence of the firearm to that address.
[85] When viewed fairly as a whole, the presence of evidence related to the commission of the offence was not linked to the two dwelling places, nor to the vehicle, but was linked to Mr. Ali Farah. As in Herta, police could have sought a s. 529 Criminal Code warrant in order to effect the arrest: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 (S.C.C.)
[86] Given that I have found that there were insufficient grounds to establish that a firearm would be located at a place where Mr. Ali Farah was observed, I turn now to the issue of the sufficiency of his privacy interest for the purpose of challenging the warrant. The Crown suggests that Mr. Ali Farah did not have standing to challenge the warrant, as the Aspen Village Circle address was rented in the name of Mr. Al-Shammari. The defense argues that Mr. Ali Farah is
entitled, for the purpose of establishing standing on the Charter application, to rely on the theory of the Crown’s case.
[87] I agree with the defense that Mr. Ali Farah is not required to testify or lead evidence on the Charter voir dire in order to establish standing. Rather, Mr. Ali Farah can rely on the Crown’s theory of the case to establish standing.
[88] Both the Supreme Court in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 (S.C.C.) and the decision written by Justice Harvison Young for the Ontario Court of Appeal in R. v. Labelle, 2019 ONCA 557 deal with this issue. In Jones, the issue of standing was decided in relation to informational privacy arising from text messages. In Labelle the privacy issue at stake was a territorial one.
[89] In Jones, Côté J., writing for the majority of the court, held that the appellant was entitled to rely on the Crown’s theory to establish that he authored the text messages and, in turn, to establish a subjective expectation of privacy in the messages. Justice Côté summarized her main conclusion on this point, at paras 9 and 32-33, as reproduced in Justice Harvison Young’s decision for the Ontario Court of Appeal in Labelle, at paragraph 20:
“I conclude that an accused mounting a s.8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. In this case, Mr. Jones should have been permitted to rely on the Crown allegation that he authored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established.
In my view, that is best accomplished by concluding that counsel for a s.8 applicant may ask the court to assume as true for s.8 purposes any fact that the Crown has alleged or will allege in the prosecution against him.
[90] I have concluded that Mr. Ali Farah has standing by reliance on the Crown theory that Mr. Ali Farah was attending a trial in Ottawa and was staying at the Aspen Village Circle property while he was attending his trial. For reasons that I will explain when I deal with the issue of the second prong of the Grant test, I have concluded that although Mr. Ali Farah was a guest of Mr.
Al-Shammari at the Aspen Village Circle residence, his subjective expectation of privacy was objectively reasonable on the particular facts of this case. To determine the strength of his claim of privacy, I considered the totality of the circumstances using the normative approach.
[91] Having found that Mr. Ali Farah has standing to challenge the warrant, and that there was a s.8 breach, I find that the warrant must be quashed. I turn now to the analysis under s.24(2) of the Charter. The applicant bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.
Section 24(2) Analysis
[92] As the Supreme Court of Canada described in R. v. Grant, 2009 SCC 32, the focus of the
s. 24(2) analysis is on the overall repute of the administration of justice and the maintenance of public confidence in the justice system. The analysis should be conducted through the lens of the long-term consequences of the admission of unlawfully seized evidence. The various breaches of
s. 8 of the Charter have already damaged the administration of justice. The issue is whether the administration of justice will be further damaged by the admission of the evidence. The analysis is objective. The question to be answered is whether the reasonable person informed of Charter values would find that the admission of the evidence would draw the administration into disrepute.
[93] The first line of inquiry addresses the seriousness of the Charter infringing state conduct. As noted in Grant, for every Charter breach which comes before the courts, many others go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[94] State conduct which results in Charter violations varies in degree of seriousness. At one end of the spectrum admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the administration of justice. At the opposite end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitability have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute: R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139 at paras 74 and 75. In this case police did not execute the search warrant at 40-181 Forestglade due
to finding Mr. Ali Farah at the Aspen Village Circle address, and locating the firearm at that address. However, the experienced affiant who drafted the ITO swore that the firearm would be located in the family home of Mr. Ali Farah with no evidence that he had even been in the residence. He was merely observed outside of that residence by police. There was no evidence that the firearm would be in either address.
[95] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police conduct resulting in a Charter breach: R v. Silveira, [1995] 2
S.C.R. 297. However, in this case, there was some evidence that police were aware on November 21st that Mr. Ali Farah was interested in selling a firearm and that he was in Ottawa. Surveillance began on November 26th. Good faith on the part of police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at para 59.
[96] The second line of inquiry assesses the impact of the violation on the accused’s Charter protected interests. This assessment requires analysis of the nature of the Charter protected interests engaged and the degree to which the Charter violation impacts these interests. An accused person’s home is subject to a very high expectation of privacy. The impact on an accused’s Charter protected interests following an unconstitutional search of a home is generally viewed as significant. While Mr. Ali Farah had a subjective expectation of privacy in relation to his rental truck, objectively there is a reduced expectation of privacy in a vehicle: R. v. Belnavis, [1997] 3
S.C.R. 341. I found that Mr. Ali Farah had a subjective expectation of privacy in the Aspen Village Circle home, but objectively, I found it to be a qualified interest which still gave rise to s.8 protection within the totality of circumstances of this particular case, when looked at through the normative lens required: R. v. Le, 2019 SCC 34.
[97] The third line of inquiry measures the societal interest in an adjudication on the merits. This line of inquiry recognizes that society has an interest in having criminal charges adjudicated on their merits. The Court must consider whether excluding evidence as a result of a Charter violation will exact too great a toll on the truth-seeking function of the trial process. In cases where a firearm is the subject of the Charter breach, societal interest in a trial on the merits is premised
on the understanding that firearms pose a lethal threat to the safety and well-being of the community: R. v. Omar, 2018 ONCA 975 (Ont. C.A.) at para 135-138 per Brown J.A. dissenting, appeal allowed at 2019 SCC 32 (S.C.C.).
[98] The factors to be considered in this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence. While the seriousness of the offence is a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.: Grant at para 84. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, the goals furthered by s. 24(2) operate independently of the type of crime for which the individual stands accused: Grant, para 51. As Lamer J., noted in R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, “the Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority: p. 282. The short-term public clamor for a conviction in a case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
The seriousness of the State’s Charter-infringing conduct:
[99] Regarding the seriousness of the state’s Charter infringing conduct, I note that police obtained a warrant to search the vehicle and two homes. This is not a case where police proceeded in the absence of the required judicial authorization.
[100] Generally, unless the Applicant can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant tells in favour of admitting the evidence: R v. Rocha, 2012 ONCA 707 at paras 28-31.
[101] However, the ITO provided a wholly inadequate basis authorizing the search of two private residences. There was no evidence that the firearm had ever been at any of the locations listed in the ITO. The affiant swore to a belief that an illegal firearm is expensive and his belief that it is
therefore kept by the offender for a lengthy period. He based this belief on his experience as an investigator with the Toronto Police Service West Command Gun Violence Suppression Unit. This information is as close as the affiant ever got to offering evidence that the firearm may be in the home at Aspen Village Circle. Therefore, while I accept that a warrant was sought in this case, which demonstrates that police understood that judicial authorization is necessary to justify a significant intrusion into a private residence, the complete lack of any information to suggest that the firearm would be in the private home suggests negligence in the drafting of the ITO.
[102] It is particularly troubling that police sought to search Mr. Ali Farah’s family home, although he had never been seen in the home. I appreciate that police did not execute that warrant after locating a firearm and arresting Mr. Ali Farah at the Aspen Village Circle address. Regarding the Aspen Village Circle address, police attended in this neighborhood with an armored assault vehicle, a tactical team and the canine unit shortly after 6 a.m. on the strength of a night time warrant. They battered down the door. I note that while police believed that Mr. Ali Farah sent a photo of the firearm to Mr. Siyad, there was no evidence one way or another as to whether the firearm was present with Mr. Ali Farah while he attended his trial in Ottawa, or whether he was merely sending a photo he had on his phone. The firearm was never observed at any of the locations which were the subject of the search warrant. Nor was there any evidence at all that it had ever been in those locations at the time the search warrant was acted upon.
[103] Further, the affiant in this case made an error which I have referenced, which was arguably misleading. That error suggested that Mr. Ali Farah had a stronger link to the Aspen Village Circle property than he did. The fact that the true surveillance observations are noted further on and many pages later in the ITO does not resolve this material inconsistency and does not set aside the potential that the issuing justice was misled. I do not find that this error was intentionally made, but it is a result of carelessness. I did not attach an inordinate amount of weight to this error, but it is evidence of carelessness. There is other evidence of carelessness in the ITO. There is reliance on boilerplate language, some of it obviously cobbled together from a different warrant, such as the reference to multiple targets. I also found the reference to registration documents, holsters and cleaning kits to be boiler plate language. The affiant claimed to be seeking receipts and paperwork which clearly were not going to be found on the facts of this case. The presence of paperwork tended to lend support to the argument that evidence of the offence might be found in the residence.
However, given the context of the purported sale of this firearm police knew no paperwork was likely to exist. Further, they knew Mr. Ali Farah did not have a license, given that they referred to this fact in the ITO. This was misleading boilerplate language. As the Supreme Court noted in Araujo, boiler plate language adds extra verbiage and seldom anything of meaning. At worst it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler plate language will not automatically prevent a judge from issuing the authorization judges should deplore it: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.)
[104] Aside from the presence of Mr. Ali Farah, there was no evidence at all that evidence related to the offence of possession of a firearm would be found at any of the named places in the warrant. I find that the ITO in this case falls well short of established Charter standards given the lack of a nexus between the firearm and the places to be searched. A good faith error on the part of police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards. In other words, the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards: R. v. Le para 143. An absence of bad faith does not equate to good faith. Despite the seeking of a warrant, given the inadequacies in the warrant which was drafted by an experienced affiant, I find the seriousness of the state conduct to be not trifling, but serious. This search of a private residence, with a warrant for a second private residence was based on mere speculation. This line of inquiry favours exclusion.
[105] The second Grant line of inquiry requires the court to consider the impact of the Charter- breach on the Charter protected right of the accused. This entails asking whether and to what extent, in the totality of the circumstances, the Charter breach undermined the interests protected by the right: Grant, at para 76. Like the first Grant line of inquiry, the degree of seriousness must be appraised. “The more serious the impact on the accused’s protected interest, the greater the risk that admission of the evidence may signal to the public that Charter rights however high sounding, are of little actual value to the citizen, breeding public cynicism and drawing the administration of justice into disrepute: Grant at para 76.
Impact of the Charter breach on the rights of Mr. Ali Farah:
[106] A person’s dwelling attracts a high expectation of privacy. Both co-accused were present at the time the search was executed. The search warrant was authorized on the basis that Mr. Ali Farah was living there while he was attending his trial in Ottawa. In this aspect, the case differs from the warrantless search of a girlfriend’s home, as was the fact scenario in R v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128. Applying R v. Jones and R v. Labelle, I have found that Mr. Ali Farah had a subjective expectation of privacy in the circumstances. This is a relatively low threshold. Police seized a lease for 1720 Aspen Village Circle in the name of Ahmad Al-Shammari. At the preliminary hearing Det. Danford stated that on November 28, Mr. Ali Farah again attended 1720 Aspen Village Circle immediately after court and remained there for the rest of the evening. Det. Danford at the preliminary hearing testified that Mr. Ali Farah appeared to have access to 1720 Aspen Village Circle independent of anyone else. In other words, he entered the residence without knocking, without waiting for anyone to open the door and without anyone else letting him in. I have already determined that Mr. Ali Farah and Mr. Al-Shammari both had a subjective expectation of privacy. Although this evidence was not before the issuing justice, it is relevant to consider when assessing the extent of the reasonable expectation of privacy which Mr. Ali Farah had in the residence.
[107] Turning to the issue as to whether the subjective expectation was reasonable in the circumstances of this case, I turn to R v. Edwards, which involved a warrantless search. In the case before me, Mr. Ali Farah was the named target, to quote Det. Danford, and the affiant swore that evidence of the offence would be found at the named addresses because he believed Mr. Ali Farah was living there while in Ottawa. In Hunter and Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 the Court held that s.8 confers a broad and general right to be secure from unreasonable search and seizure which at least protects a person’s premises where the seizure took place, even though he had no proprietary or possessory interest in the premises or in the articles seized. The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable expectation of privacy. This is so even where it is alleged that the privacy shelters an illegal activity. Edwards, para 44, citing R. v. Wong (1990), 1990 CanLII 56 (SCC), 60 C.C.C. (3d) 406, [1990] 3 S.C.R. 36.
[108] In considering the totality of the circumstances, they may include but are not restricted to the following as set out at para 45 of Edwards:
Presence at the time of the search
Possession or control of the property or place searched;
Ownership of the property or place;
Historical use of the property or item;
The ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and
The objective reasonableness of the expectation.
[109] This right is to be interpreted purposively and is a broad general right to be secure from unreasonable search and seizure where there is a reasonable expectation of privacy. The assessment must be made as to whether the public’s interest in being left alone by government must give way to the intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
[110] The assessment must be made considering the totality of the circumstances of a particular case: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36 at p. 62.
[111] Both Mr. Ali Farah and Mr. Ali-Shammari were present at the time the search was executed shortly after 6 a.m. on November 29th. There was a mattress on the floor. In relation to the possession or control of the dwelling, Mr. Al Shammari was evidently leasing the property, as a lease was found in his name. I draw the inference that given that he had leased the property and was present at the time of the search that he had the ability to both possess and control access to the dwelling.
[112] The evidence before me on this voir dire was that Mr. Ali Farah was in Ottawa and he had a trial before me on November 26. There was evidence that he was living at the dwelling on Aspen Village Circle for that week. He had the ability to enter the house on his own, without anyone letting him in, as noted by Det. Danford regarding November 28.
[113] He was present at the time of the search, indeed he was the subject of the search warrant, and he had been observed at the property and entering on his own. I consider the obiter of the majority in R v. Le 2019 SCC 34 regarding the s.8 issue in that case. The case was decided on the
basis of a s.9 violation but dealt with police intrusion into a backyard where Mr. Le was a guest. The Court noted that at its core, s. 8 is concerned with the point at which the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at pp. 159-160. The lens through which this analysis is conducted must be normative and not categorical: R. v. Le, supra, para 136. That is, the analysis does not proceed with the assumption that a categorical factor, like control will have a dominating impact on whether a person has a reasonable expectation of privacy. Rather, the inquiry is always driven by the question of whether a privacy claim ought to be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society: R. v. Reeves, 2018 SCC 56 at para 28. Second, it is possible for an individual to have a diminished or qualified reasonable expectation of privacy while still retaining the benefit of s.8 protection: R. v. Cole, 2012 SCC 53 [2012] 3 S.C.R. 34 at paras 8-9. A guest’s expectations may be qualified by the knowledge that their host could invite others in, including the state. However, it may still be objectively reasonable for a guest present on private property to expect that the state will not enter uninvited: Le at para 136.
[114] In the specific context of this case, given all the relevant facts, I am of the view that it was reasonable for Mr. Ali Farah to expect that Mr. Al-Shammari, who rented the property and was present for the search, would not invite the state inside. This factor perhaps distinguishes this case from many cases dealing with the issue of assessment of a reasonable expectation of privacy of a guest, such as Edwards, or R v Odette, 2013 ONCJ 62. The ITO indicated that Mr. Al-Shammari had a search warrant executed at an address where he lived in 2016. Mr. Al-Shammari, according to the ITO had a stay of proceedings for drug trafficking. In 2012 he was arrested for being in possession of a firearm. I inferred from this history that he would not have welcomed the state into his home and that it was objectively reasonable for Mr. Ali Farah to place reliance on this fact.
[115] The Supreme Court in Le, noted in obiter that it was of the view that a case can be made that invited guests can, in some circumstances, have a reasonable expectation of privacy in a hosts’ property. The determination of when, and to what extent these guests enjoy a reasonable expectation of privacy will be fact and context specific. However, the analysis must always focus on s.8’s fundamental concern with the public being left alone by the state, the normative approach
to discerning the parameters of privacy rights and the fact that s.8 provides protection to those who have a diminished or qualified reasonable expectation of privacy. Le, para 137.
[116] This ground in relation to Mr. Al-Shammari militates strongly in favour of exclusion. He is like the individual in Herta, who was bunking down with a walking, ready-made reasonable and probable grounds in Mr. Ali Farah. The lease of the home was in Mr. Ali-Shammari’s name and he was present at the search. In relation to Mr. Ali Farah, I have determined that he has a qualified expectation of privacy as a guest, but when the totality of the circumstances are examined through the normative lens described in Le, I find that Mr. Ali Farah is entitled to the protection of s.8 given that his subjective expectation of privacy was objectively reasonable, albeit qualified, on the particular facts of this case. He was observed at the house by police for three days entering and exiting. He entered on his own without assistance demonstrating some degree of the ability to potentially exclude, which is traditionally relevant in territorial privacy cases. He was also present at the time of the search. I also found it was reasonable on the facts of this case for him to place reliance on the fact that Mr. Al-Shammari would not likely welcome the state into the home absent a valid warrant. I have found that this second ground militates in favour of exclusion of the evidence. In relation to the strength of the pull toward exclusion, I would say that this ground militates in favour of exclusion less strongly than the primary ground, but I would not describe it as a weak pull toward exclusion. I find that this ground pulls moderately toward exclusion in relation to Mr. Ali Farah, and strongly toward exclusion in relation to Mr. Al-Shammari.
Society’s interest in Adjudication on the Merits.
[117] The third prong of the Grant test requires that where evidence was obtained in a manner that infringes a Charter right or freedom, the evidence shall be excluded if it is established that, having regard to the totality of the circumstances, its admission would bring the administration of justice into disrepute. Mr. Ali Farah is alleged to be in unlawful possession of a firearm which he was trying to sell. The possession of a handgun and ammunition poses a serious risk to the safety of the public. There is a significant societal interest in having this case tried on the merits. The evidence sought to be admitted is reliable evidence and its exclusion will gut the Crown’s case.
[118] The third branch of the Grant test requires that I consider society’s interest in the adjudication of the case on its merits. I must ask whether exclusion of the evidence will extract too
great a toll on the truth seeking of the trial. The evidence in this case is reliable and it is central to the crown’s case. The evidence in this case includes a loaded firearm and a not insignificant quantity of narcotics. Exclusion will extract a toll on the truth-seeking function of the trial. The evidence is key to proving the crown’s case. If convicted of these offences the applicant will be exposed to the possibility of a significant period of incarceration. I conclude that this prong of the test favours admission of the evidence.
Balancing of the Three Lines of Inquiry:
[119] This was a difficult decision given the high interest in a trial on the merits due to the public interest in getting firearms out of our communities. However, the practice of seeking multiple search warrants for two private homes at the same time, in the absence of any evidence at all that the location would yield evidence of the offence is state action from which the court must disassociate itself. To complicate the analysis, Mr. Ali Farah had a qualified reasonable expectation of privacy.
[120] I note that while the first two lines of inquiry typically work in tandem in the sense that both pull toward the exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute: Le, para 126; R. v. McGuffie, 2016 ONCA 365, 135 O.R. (3d) 643 at para 62.
[121] It is possible that a finding that there is serious Charter-infringing conduct, even when coupled with a weak impact on a Charter-protected interest, will on its own support a finding that admission of the evidence would bring the administration of justice into disrepute. It is the sum and not the average of these first two lines of inquiry that drives the pull toward exclusion: Le at para 141.
[122] Further, an adjudication on the merits in a nation governed by the rule of law presupposes an adjudication grounded in legality and respect for long standing and constitutional norms: Le at para 141.
[123] The weighing and balancing of the relevant considerations regarding whether the evidence should be excluded is a qualitative one, which cannot be exercised with precision: Grant. In this case, there were several competing considerations. Police were obviously concerned with public safety and the need to seize a suspected firearm swiftly. There was information that Mr. Ali Farah was trying to sell a gun to someone in Toronto. Police believe he sent a photo of that gun. Police sought a warrant, but the warrant was woefully deficient in terms of there being any evidence at all that the firearm would be found at the relevant address where the search warrant was executed. Mr. Ali Farah was staying at the house at least for that week of his trial, and had some degree of control over the house, and given who he was staying with, did have a reasonable expectation that the police would not be welcomed into the home. He had a diminished, but not extinguished objectively reasonable expectation of privacy. There were also problems with the ITO, including an error which had the potential to mislead, although it was corrected further on in the ITO.
[124] Given that this was a residence, with a high expectation of privacy for Mr. Al-Shammari, and a somewhat qualified expectation of privacy for Mr. Ali-Farah, and the major deficiencies in the warrant, I conclude that the firearm, the narcotics and the items seized as a result of the search must be excluded. To include them would draw the administration of justice into disrepute.
[125] I appreciate that I am making this decision at a time when there is a great deal of public concern regarding firearms in the community and the havoc they wreak. I also appreciate that police were working in haste to lay hands on the firearm to protect public safety. While the firearm and a considerable quantity of cocaine and other narcotics will be taken off the street, Mr. Ali Farah and Mr. Al-Shammari will not be removed from society for a period which would afford the community protection from them and enhance the public safety of the community. However, the focus of the analysis must be prospective. The reputation of the administration of justice has already been damaged. The focus now must be on what steps are required to avoid further damage. The regular admission of evidence obtained from people’s homes where there is not a proper basis for the search would bring the administration of justice into disrepute: R. v. Jones, 2001 CanLII 28336 (ONSC) at para 32.
[126] Having regard to all of the circumstances of this case, I am satisfied that a reasonable person aware of those circumstances, and the Charter values which undergird them, would
conclude that admission of the evidence in the particular circumstances of this case would draw the administration into disrepute. The exclusion of this evidence will extact a toll on the administration of justice and the public will no doubt be concerned that a trial will not be conducted on the merits, especially where a firearm was seized. However, when I weigh all of the relevant considerations, the fact that police entry was facilitated into a private residence, and that entrance was sought into Mr. Ali Farah’s family home at the same time in the absence of any evidence that the items sought would be located inside those homes, tips the balance in favour of exclusion. A private dwelling was breached by heavy police presence where there was no evidence that the firearm sought would be located. The affiant in this case converted Mr. Ali Farah into the walking ready-made reasonable grounds which our Court of Appeal described as a sweeping proposition. Indeed, police sought access to his family’s home on the very basis which Herta cautions against. The evidence is excluded pursuant to s. 24(2) of the Charter.
A.E. London-Weinstein J.
Released: November 20, 2020
COURT FILE NO.:19-1021
DATE: 2020/11/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Abdirahman Ali Farah
– and –
Ahmad Al-Shammari
Applicants
RULING ON S. 24 (2) CHARTER APPLICATION
A.E. London-Weinstein J.
Released: November 20, 2020
[^1]: This was a trial where I ultimately convicted Mr. Ali Farah of a number of offences. I canvassed with Mr. Ali Farah whether he was content that I hear this application despite our history together and given the apparent potential for the appearance of a conflict of interest. In particular, I pointed out to Mr. Ali Farah that much of this incident was alleged to have been transpiring when he was having a trial in front of me. Counsel on behalf of Mr. Ali Farah and Mr. Ali Farah himself expressly waived any conflict and was content that I hear this application. My past experience with Mr. Ali Farah had no impact on my decision in this case.
[^2]: R v. Araujo 2000 SCC 65; R v. Garafoli 1990 CanLII 52 (SCC), [1990] 2 SCR 1421