COURT FILE NO.: CR-18-1298-00 DATE: 2021 03 02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. Quayat for the Crown

• and -

SAMUEL ODURO S. Safieh, for Mr. Oduro

HEARD: March 11-13 & 16, June 4, September 10 & 11, 2020

REASONS FOR DECISION

BARNES J.

Overview

[1] Police conducted a search of Mr Oduro’s car and found 96.3 grams of cocaine in the trunk. Mr Oduro alleges that the search violated his constitutional rights under Section 8 of the Charter. He seeks exclusion of the cocaine pursuant to section 24(2) of the Charter. After a hearing, I dismissed Mr Oduro’s application.

[2] The warrant to search was issued on the basis of information received from a confidential informant (CI). The information to obtain (ITO) the warrant alleged that Mr. Oduro was in possession of a firearm without a licence contrary to section 91(1) of the Criminal Code of Canada.

[3] In his pretrial application, Mr. Oduro sought exclusion of the evidence on the basis that in the ITO, the affiant made baseless generalizations; failed to make full and frank disclosure; failed to meet the preconditions for obtaining a tele warrant and there was insufficient information for the justice to reasonably conclude that the confidential informant was credible and reliable. Thus, he claims the warrant was obtained unlawfully, the search was unlawful, and exclusion of the evidence is the only appropriate remedy.

[4] I granted leave for Mr. Oduro to cross-examine the affiant on a limited basis. The amplified record is the affiant’s evidence on the voir dire and the judicial summary. After careful consideration, I concluded that while the affiant included some superfluous erroneous information, it was not his intention to mislead and he did not mislead the issuing justice. He prepared the ITO in good faith.

[5] Overall, the affiant provided information in a full, frank and fair manner. Secondly, the redacted ITO viewed in conjunction with the amplification evidence, constitutes reasonable grounds on the basis of which the justice could have issued the warrant. The search was thus lawful. Mr Oduro’s section 8 Charter right was not breached.

Legal Principles

[6] A constitutionally valid search warrant is one that is supported by reasonable grounds. A search warrant is presumed to be valid when it is issued by a justice of the peace after a review of an ITO which has been sworn or affirmed by a peace officer. A warrant can be challenged on the basis it was not issued in accordance with statutory preconditions which include the presence of reasonable grounds. The party who challenges the warrant bears the burden to establish the violation on the balance of probabilities: R. v. Pires; Lising, [2006] SCC 67, at para. 8; R. v. Duarte, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, at paras. 24 – 26.

[7] In the ITO, the affiant swears to his or her belief that there are reasonable grounds to believe that an indictable offence has been committed. The affiant must provide sufficient evidence to support such belief: section 487, section 487.1. The sufficiency of the belief is assessed on a balance of probabilities. In assessing the sufficiency of the information provided, the test is not whether I would have issued the warrant but rather “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization (warrant) could have issued”: R. v. Araujo, 2000 SCC 65, at para. 54, R. v. Morelli, 2010 SCC 8, at. para. 40.

[8] The challenge to the validity of the warrant can be facial and/or sub-facial. A facial challenge requires the judge on review to determine whether on the basis of the ITO alone, the warrant could have been issued: Araujo, at para. 19; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39; R. v. Sadikov, 2014 ONCA 72, at para. 37.

[9] A sub-facial challenge is an attack on the reliability of the evidence contained in the ITO. Unlike a facial challenge, in a sub-facial challenge, in addition to the original ITO, the reviewing judge can amplify the record by considering evidence outside the ITO, to determine if the warrant could have been issued: Araujo, at paras. 50-52, 54; Wilson, at para. 40; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; Sadikov, at para. 38.

[10] One way to amplify the record on a sub-facial challenge is to seek leave to cross-examine the affiant and/or sub-affiants of the ITO. To obtain leave, an accused must show that cross-examination will elicit testimony that will tend to discredit a precondition for the issuance of the warrant for example, reasonable and probable grounds or the obligation to provide full and frank disclosure: Garofoli, at p. 1465; Pires; Lising, at paras. 3, 31 and 40; Sadikov, at paras. 39 – 41.

[11] On review, erroneous and misleading information in the original ITO must be excluded. The reviewing court may refer to amplification evidence, only to correct minor technical errors, made in good faith by the affiant in preparing the ITO. The amplification process is not an opportunity for the police to retroactively supply reasonable grounds to support an ITO originally deficient of the requisite reasonable grounds to support the issuance of the warrant. In assessing the police conduct, the focus is on the information the police had at the time they sought the warrant and not information they acquired after the warrant had been issued: Morelli, para. 40- 43.

[12] The question to be answered is whether there is sufficient credible and reliable evidence in the ITO and the amplification evidence to “permit the justice of the peace to find reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place”: Morelli, para. 40, 42.

Leave to Cross-Examine

[13] On March 16, 2020, the last day before the pandemic temporarily shut down the courts, I granted leave to cross-examine the affiant on specific portions of the ITO as follows:

a) The affiant’s reference to a conviction for Mr. Oduro for possession for the purpose of trafficking in cocaine. b) The basis of the affiant’s opinion as expressed under Section D of the ITO at paragraph 2 and 3 and under Section F at paragraph 8. c) Discrepancies between the preliminary inquiry testimony of Constable Moore and the affiant’s descriptions in the ITO, of whether Constable Moore made personal observations of Mr. Oduro.

[14] On September 10, 2020, after further submissions from counsel, leave was granted to also cross-examine the affiant on:

a) Why the affiant first sought a regular warrant and then decided to seek a tele warrant instead. b) Whether there were any differences in ITO for the regular warrant versus the ITO for the tele warrant and the reason for any difference. c) The reason for the delay between when the CI provided information and when the affiant sought the search warrant?

Affiant’s Testimony

Why the affiant first sought a regular warrant and then decided to seek a tele warrant instead.

The reason for the delay between when the CI provided information and when the affiant sought the search warrant.

[15] I found the affiant to be a credible witness. I have made findings of fact in accordance with his testimony. I summarize portions of his evidence below.

[16] Constable Jean Luc Perrault is the affiant. By July 1, 2017, Constable Perrault had information from a CI that the CI had seen Mr. Oduro put a firearm in a bag in the trunk of a white Nissan Altima. Police checks revealed that the vehicle was registered to Mr. Oduro at 29 Josephine Court in Brampton.

[17] Relying on his experience, it was Constable Perrault’s belief that criminals may not necessarily register the correct address for their vehicles. He wanted to corroborate the information he had received from police database checks. Specifically, he wanted to confirm that 29 Josephine Court was actually Mr. Oduro’s residence. He also wanted to confirm the CI’s information that Mr. Oduro was actually using the white Nissan Altima.

[18] At 4:30 p.m. on July 1, 2017, Constable Perrault conveyed to Constable Schefter the information he received from the CI. He asked Constable Schefter to conduct surveillance on 29 Josephine Court. The objective was to associate Mr. Oduro with the residence and the vehicle. Constable Perrault remained at the police station and began preparing the ITO.

[19] On July 1, 2017, Constable Schefter made no observations of Mr. Oduro. He informed Constable Perrault that he observed a silver Mercedes, a grey Chevrolet SUV and a Honda CRV. All the vehicles were registered to the address and to persons with the last name Oduro but not the accused. He also observed the white Nissan parked on a street in front of 29 Josephine Court. He observed a female exit this vehicle and enter 29 Josephine Court. Constable Perrault did not note this in his notebook but disclosed this information, including the times the observations were made, in the ITO.

[20] At 7:29 p.m. and for about an hour and a half thereafter, on July 2nd, 2017, Constable Perrault observed the white Nissan outside 29 Josephine Court, but he did not observe Mr. Oduro.

[21] On July 3rd, 2017, Constable Perrault conducted further surveillance on 29 Josephine Court. He observed three vehicles in the driveway and the Honda CRV parked on the street in front of the residence. He did not observe the white Nissan Altima or Mr. Oduro. The purpose of all this surveillance was to associate Mr. Oduro to 29 Josephine Court and the white Nissan in order to corroborate the CI’s information and obtain a warrant to search the residence and the vehicle.

[22] On July 4th, 2017, Mr. Oduro went to the Peel Police headquarters for a criminal records check. Ms. Kirwan processed his request. She saw an alert that Mr. Oduro was a person under surveillance with respect to an ongoing investigation. Constable Perrault of the Criminal Investigations Bureau (CIB) was to be contacted. Ms. Kirwan called the CIB and told Constable Moore that Mr. Oduro was obtaining a criminal records check. At 1:30 p.m., Constable Moore passed this information onto Constable Perrault. Constable Perrault asked Constable Moore to have Mr. Oduro followed.

[23] Constable Moore and members of 22 Division CIB followed Mr Oduro from the police station. Constable Aherns observed Mr. Oduro and a woman exit the white Nissan Altima and enter 29 Josephine Court. Constable Perrault updated the ITO with this new information.

[24] At 4:30 p.m., Constable Perrault called the Justice of the Peace office inquiring whether there was time to drop off a request for a search warrant. He was told there was time. Constable Perrault dropped off the ITO for a section 487 search warrant and waited to be seen. He does not recall whether he told anyone at the Justice of the Peace office that it was urgent. Ten minutes later, he was told that there was no Justice of the Peace available at that hour. Ten minutes later Constable Perrault prepared another ITO seeking a section 487.1 warrant i.e. a tele warrant and emailed it to a Justice of the Peace Office.

[25] The police did not execute the warrant on July 4, 2021 but waited until July 6, 2017. On that date, the police observed Mr. Oduro exit 29 Josephine Court and drive away in a white Nissan Altima. He was stopped by the police tactical unit and arrested. The car was searched. Cocaine was found in a bag in the car. The police escorted the occupants of 29 Josephine Court outside and the house was searched.

Whether there were differences between the ITO for the regular warrant versus the ITO for the tele warrant and the reason for any difference.

[26] The ITO for the section 487 warrant was exactly the same as the ITO for the tele warrant ITO except for the forms used. The affiant provided this explanation for the circumstances that made appearance before a justice of the peace impracticable: “it is outside the normal operating hours of a sitting Justice of the Peace in this Jurisdiction and due to the exigent circumstances described in this information, it is impractical to wait until July 5th, at 9:00 a.m.”; and at Section G: “Furthermore, I attended Davis Court in Brampton today at 4:05 p.m. and was told that the warrant would not be read today, therefore I am applying for a tele warrant”.

[27] Constable Perrault did not refer to exigent circumstances in the section 487 ITO because of his belief that the warrant was going to be issued on July 4, 2017. Constable Perrault believed that the circumstances were exigent because as of July 4, 2017, he knew where Mr. Oduro was. He did not want to wait until July 5, 2017 to obtain the warrant, because he had information that Mr. Oduro was in possession of a firearm and he wanted to act as soon as possible. The tele warrant was issued on 5:12 p.m. on July 4, 2017. It was valid for three days.

The affiant’s reference to a conviction for Mr. Oduro for possession for the purpose of trafficking in cocaine.

[28] On July 1, 2017, Constable Perrault checked the CPIC, PARIS and NICHE databases. In Section C of the ITO, Constable Perreault wrote that Mr. Oduro was investigated by police on May 1st, 2015 for a traffic offence. He was driving a white Nissan Altima and was found in possession of 1 gram of Marihuana, 10.45 grams of cocaine, a scale and $1,140.00 in cash. Mr. Oduro was charged and later convicted of possession of cocaine for the purpose of trafficking. This was not accurate. Mr. Oduro was convicted of possession of cocaine. Constable Perrault insisted that when he conducted the CPIC check on July 1st, 2017, a conviction for possession of the purpose of trafficking was reported.

[29] On July 4, 2017, Peel Regional Police civilian employee Ms. Nirwan, conducted a criminal records check for Mr. Oduro. The record included a conviction for a simple possession of cocaine conviction not possession for the purpose of trafficking. Constable Perrault speculated that the criminal record must have been amended between July 1st and 4th 2017.

[30] A CPIC printout dated July 7, 2017, six days after, has an entry for Mr. Oduro for CDSA 5(2) Possession for the Purpose – Schedule I Cocaine (Adult) with an amendment to simple possession of a controlled substance. I accept the affiant’s evidence that at the time he checked the CPIC database, the conviction he saw was possession for the purpose of trafficking cocaine.

The basis of the affiant’s opinion as expressed under Section D of the ITO at paragraph 2 and 3 and under Section F at paragraph 8.

[31] In Section D of the ITO, Constable Perreault expressed the opinion “that from his experience investigating drug traffickers, firearms are common and routinely held by drug traffickers for protection against police, other drug traffickers and for intimidation purposes”. Constable Perreault was the CI’s handler and therefore received information from the CI with respect to drug and firearms offences. In Appendix D of the ITO, Constable Perreault described previous occasions when the C.I. had provided him with reliable information for drug trafficking investigations. His reference to his experience with drug and firearms investigations was in relation to previous information on drugs and firearms provided by the C.I.

[32] In the ITO, Constable Perrault did not provide specific examples of investigations that form the basis for his opinion that “firearms are common and routinely held by them [drug traffickers] for protection against police, other drug traffickers and for intimidation purposes”.

[33] In Section F of the ITO, Constable Perreault provided the opinion “From my experience investigating firearm and drug offences, it is common for people in possession of a firearm to carry it with them back and forth between their vehicle and residence so it is in close proximity if needed. I believe that the firearm, ammunition and identification could be in both the residence and vehicle”. In the ITO, he did not provide an example of specific events in his experience to support his opinion.

[34] In support of the opinions described in the ITO, Constable Perrault relied on his description of his work with the CI as the CI’s handler and this general description of his experience at Section A of the ITO as follows:

“…I have twelve years of policing experience and have worked in uniform patrol, the neighborhood policing unit, Homicide Bureau and the street crime gang unit. I have been the affiant, officer in charge, and informant handler for several firearms investigations. I have personal knowledge of the matter here in to have provided the sourcing for the information presented in this search warrant application. As a member of the 22 Division Criminal Investigations Bureau it is my responsibility to investigate narcotics and other criminal offences happening within the Region of Peel, mainly in 22 Division and to deal on a regular basis with confidential informants, complainants, witnesses, victims and accused persons”

Discrepancies between the preliminary inquiry testimony of Constable Moore and the affiant’s descriptions in the ITO, of whether Constable Moore made personal observations of Mr. Oduro.

[35] Constable Perrault told Constable Moore to follow Mr. Oduro. Constable Perrault knew that Constable Moore and 22 Division CIB officers were conducting surveillance on Mr. Oduro. He did not know who the officers were.

[36] In Section F of the ITO, he wrote “I requested that they follow him and associate him to a residence, Constable Moore and members of 22 CIB then set up surveillance and observed Mr. Oduro leave headquarters with an older female, a female around his age, and a younger male”. This is different from what Constable Moore said at the preliminary inquiry. At the preliminary inquiry, Constable Moore testified that he did not make a good observation of Mr. Oduro at the police station or at 29 Josephine Court. It was other members of CIB who did. Constable Perreault explained that he provided a picture of Mr. Oduro and his vehicle to the Detective Sergeants of each shift.

[37] After the criminal records check, Mr. Oduro was followed from the police station by police officers for 22 CIB. The officers included Constable Moore and Constable Aherns. Other officers broadcast their observations of Mr. Oduro from the police station to 29 Josephine Court. Constable Moore lost sight of Mr. Oduro and returned to 22 Division.

[38] Constable Aherns obtained a picture of Mr. Oduro from the PQT database. Constable Aherns was in possession of this picture when he saw Mr. Oduro exit the white Nissan Altima and enter 29 Josephine Court. Prior to July 4, 2017, no police officer had seen Mr. Oduro in the white Nissan or enter or exit 29 Josephine Court.

Position of the Parties

[39] The Crown relies only on the evidence seized from the search of the car. The Crown is not relying on the search of the residence and is not conceding that the search of the residence is unconstitutional. Mr. Oduro submits his section 8 rights have been breached. The warrant should be quashed, and evidence seized from the car should be excluded, because:

a) There is no evidence in the ITO to justify the use of a tele warrant. b) The affiant was reckless, negligent and failed to make full and frank disclosure and included misleading information in the ITO. c) The affiant took insufficient steps to corroborate the information provided by the C.I. d) There are no reasonable grounds to justify the issuance of the warrant.

[40] The Crown submits:

a) There is sufficient information in the ITO as redacted, to establish reasonable grounds upon which the warrant could have been issued. b) The police corroborated the information the affiant received from the CI. The affiant had a reasonable belief in the requisite statutory grounds for issuance of the warrant. c) The issuing justice is entitled to rely in the affiant’s experience in assessing the affiant’s reasonable grounds. d) Should the court deem it necessary to resort to step six of Garofoli, the record as amplified by the redacted material is sufficient to support reasonable grounds upon which the warrant could have been issued.

Analysis

Is there sufficient evidence in the ITO to justify the use of a tele warrant?

[41] There is sufficient evidence in the ITO to justify the use of the tele warrant. Section 487(1) authorizes a justice to issue a warrant to search where a review of the ITO satisfies the justice that there are reasonable grounds to believe that there is in a building, receptacle or place, evidence that an offence has been committed. Section 487.1(1) authorizes an application for a section 487(1) a tele warrant in circumstances where it would be impracticable to appear personally before a justice. The ITO must contain a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice: section 487.1(4)(a). The term impracticable imports a large measure of practicability i.e. common sense: R. v. Erickson, 2003 BCCA 693, at para 33.

[42] Reasons which demonstrate that no justice is available is sufficient: R. v. Robinson, 2011 ONSC 1388, at paras. 19-24. Failure to provide sufficient evidence to demonstrate that “it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with section 487” is a breach of section 8 of the Charter: R. v. Gardner, 2015 BCSC 801, [2015] B.C.J. No. 992, at para. 26.

[43] When a tele warrant ITO, on its face, satisfies the requirements of section 487.1, the onus is on the defendant to demonstrate, on a balance of probabilities, that it was not impracticable for the peace officer to appear before a justice: R. v. Collins, 271 C.C.C. (3d) 403 (Ont. C.A.).

[44] Mr. Oduro submits that the statutory pre-condition of impracticability for a tele warrant has not been met and the affiant’s reference to it in the ITO was a sham based on convenience. The affiant provided this explanation in the ITO: “It is outside the normal operating hours of a sitting Justice of the Peace in this Jurisdiction and due to the exigent circumstances described in this information, it is impractical to wait until July 5th, at 9.00 a.m. In Section G of the ITO, the affiant wrote: “Furthermore, I attended Davis Court in Brampton today at 4:05pm and was told the warrant would not be ready today, therefore I am applying for a tele warrant”.

[45] A contextual approach is adopted when inquiring into the sufficiency of reasons advanced for why it was impracticable to appear before a justice. Context is everything.

[46] In R. v. Gallinger, 2012 ONCJ 65, at para. 65, the court rejected the affiant’s assertion that there was no justice available after business hours and due to exigent circumstances (urgency), it was impracticable to wait until the next morning to see a justice. Justice Perkins-McVey, found there was reason to doubt the affiant’s claim of impracticability due to urgency because it took the affiant an unjustifiable 8 days to prepare a search warrant, there was no corroboration of information provided by the CI, no information that the weapons in the residence would be moved and no communication to the Justice that the matter was urgent.

[47] For reasons articulated below, I do not agree with Mr. Oduro’s submission that Constable Perrault had a subjective and objectively reasonable belief that he had reasonable grounds to seek a search warrant on July 1, 2, or 3, 2017. Unlike in Gallinger, Constable Perrault acted with dispatched as soon as he concluded that he had reasonable grounds. He called the justice office and was assured that his application could be considered. 10 minutes after his arrival he was informed that a justice was not available. He did not convey that there were exigent circumstances in the 487 ITO. His explained this was because he expected the justice to review his application in the first instance, however, once he was told that the application could not be reviewed it would have been prudent for him to have informed the justice of the peace office that the matter was urgent.

[48] However, unlike Gallinger, the delay in seeking the warrant was due to an investigative decision based on his experience to corroborate information provided by the CI, also the firearm was not in a static place. It was in a mobile place - a vehicle. In addition, as explained below, I am satisfied that evidence supporting exigent circumstances was provided in the ITO.

[49] An exigent circumstance is one “compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to [wait to appear before a justice of the peace the next morning] would pose a serious risk to those imperatives”: R. v. Paterson, 2017 SCC 15.

[50] At Section G of the ITO, the affiant explained why it was necessary to be prepared to act quickly when certain unpredictable conditions were present. These conditions were safety precautions necessary to arrest Mr. Oduro because he was in possession of the firearm. The affiant described the conditions as the use of the tactical team; the need to ensure that Mr. Oduro could be isolated from his family while in possession of the firearm before an arrest was made; why safety and reduction of risk, heightened the importance of having a judicial authorization in place in order to have the capacity to act quickly when these optimal conditions arise; within the context of the safety and risk mitigation precautions, why a three consecutive day window to execute the warrant was necessary.

[51] From Section G of the ITO, the justice could conclude, that there were certain optimal conditions, which could arise at anytime, for an arrest of a person in possession of a firearm (Mr. Oduro) and the execution of a warrant. This situation created an urgency that law enforcement be ready to act when the optimal conditions arise. Thus, there is evidence from which the justice could conclude that exigent circumstances arose because of the heightened risk and safety precautions created by the contraband’s status as a firearm located in a mobile place (a vehicle) and the unpredictability of when the optimal conditions for an arrest would arise. Therefore, on its face, the ITO contains evidence in support of the affiant’s claim of exigent circumstances.

[52] Mr. Oduro makes a persuasive argument that the police conduct prior to and after obtaining the warrant, calls in to question claims of exigent circumstances. By July 1, 2017 at the latest, the affiant had information from a CI who had provided credible, compelling and corroborated information in the past, that the CI saw Mr. Oduro in the company of another male, walk to a white Nissan Altima with licence plate number BSPN799. The CI said Mr. Oduro was in possession of a firearm. The CI gave a description of the target male and identified Mr. Oduro from a police photograph. The police knew the vehicle was registered to Mr. Oduro at 29 Josephine Court. Police surveillance on July 1 and 2, 2017, located the white Nissan at 29 Josephine Court. By July 1, 2017, police had information that the white Nissan Altima had been stopped by police in 2015. Mr. Oduro was the driver at that time.

[53] Mr. Oduro submits that the police had reasonable grounds to seek a search warrant for the car and arrest him on July 1, or July 2, 2017, yet did not seek a search warrant until July 4, 2017 and did not arrest him, search his car and house until July 6, 2017.

[54] Mr. Oduro submits that in the context of the affiant’s assertion of exigent circumstances in the ITO, the delay was unreasonable, and it was because the police had a nefarious purpose, searching the car alone was not enough for the police. The intent was to associate Mr. Oduro to the 29 Josephine Court, so that the police could search that residence in the hopes of finding additional evidence of criminal behavior. Thus, the assertion of exigent circumstances was misleading and untrue. The affiant failed to provide full and frank disclosure.

[55] The affiant conceded that it was an objective of the investigation to connect Mr. Oduro to 29 Josephine Court and to collect evidence to support a search warrant application to search the residence. He explained that he did not believe he had reasonable grounds to arrest Mr. Oduro before July 4, 2017. Before that date, no police officer had actually seen Mr. Oduro entering, sitting or exiting the target vehicle. The affiant explained that it was his belief that this link was necessary to further corroborate the information of the CI. I have already concluded that there was evidence to support the affiant’s claim of “exigent circumstances”.

[56] The warrant was sought on July 4, 2017, as soon as police observed Mr. Oduro engage with the target car and residence. Thus, I accept the affiant’s explanation for why he did not seek the warrant prior to July 4, 2021. Since his motive for delaying application for the warrant until July4, 2021, is a proper one, his intent to also obtain evidence linking Mr. Oduro to the residence does not taint the police actions.

[57] I accept the affiant’s evidence that it was after the police saw Mr. Oduro at the white Nissan and 29 Josephine Court, that he believed he had reasonable grounds to seek a warrant. This happened on July 4, 2017. The warrant was obtained in the same day.

[58] The police delayed executing the warrant for two days. During this two-day period the affiant was on vacation. In this particular circumstance, the ITO provided a sufficient basis from which the justice could conclude that the circumstances were exigent. The reason for the exigency is such that the police delay in executing the warrant does not detract from the reason advanced in the ITO. Despite the delay, the search warrant was executed in accordance with the reasons provided in Section G of the ITO. Those same reasons give rise to the exigent circumstances.

[59] Therefore, having concluded that there was an evidentiary basis for the justice to conclude that there were “exigent circumstances”, the affiant’s assertion of exigent circumstances was not false or misleading and the delay does detract from the sufficiency of the evidentiary foundation for the statutory precondition of “impracticable”.

Was the affiant reckless, negligent and did he fail to make full and frank disclosure and did he include misleading information in the ITO.

[60] The affiant was not reckless, negligent, did not fail to provide full and frank disclosure, did not deliberately provide false and misleading information on the ITO and did not mislead the justice.

Reference to Police computer databases:

[61] In Section B of the ITO, the affiant explained the acronyms for police databases he intended to refer to. He provided definitions for the acronyms for four databases. However, in Section C it is apparent that he only checked two of the databases. Mr. Oduro submits that the affiant simply inserted boiler plate language and thus misled the justice.

[62] The affiant should have only made reference to the databases he checked. It is apparent from the ITO that although the affiant referred to four databases, he only checked two. His error was minor and made in good faith. There was no attempt to mislead the justice and the justice was not misled. The databases Uniform Crime Reporting (U.C.R.) and N.I.C.H.E. were not checked by the affiant and shall be redacted from the ITO.

Conviction for possession for the purpose of trafficking cocaine:

[63] In Section C of the ITO, the affiant stated a CPIC check revealed that Mr. Oduro has no outstanding charges but has a May 2016 criminal conviction for possession for the purposes of trafficking a schedule I substance. He summarised the circumstances giving rise to the charge and the conviction and repeated the assertion that the conviction was for possession for the purpose of trafficking. This is inaccurate.

[64] For reasons previously articulated, I conclude that the affiant did not intend to mislead the justice. The affiant stated the quantity of cocaine found 10.54 grams. The ITO included evidence that $1,140 in cash and three cellular phones were found. He stated that Mr. Oduro was in possession of 1 gram of marihuana and was charged with possession of marihuana; possession of cocaine for the purpose of trafficking and possession of property obtained by crime. Within this context, I conclude, the justice was not misled. All references to a conviction for possession for the purpose of trafficking is redacted from the ITO. The amplified record shall reflect that the conviction was for possession of cocaine.

Unbalanced and misleading language:

[65] An affiant who includes incomplete and misleading facts in the ITO, is in breach of his or her duty to make full and frank disclosure. Examples of such a circumstance include: false statements; omitting facts that undermine the suspicion leveled against the accused; incomplete and misleading accounts of the facts; opinions made without establishing the basis upon which the expertise to provide the opinion is based; generalizations about anticipated criminal behavior about a type of offender without supporting facts; the inclusion of the accused as a member in a category of offender without supporting facts. Such unsupported generalizations invite dependence on prejudices and stereotypes: R. v. Morelli, [2010], paras. 39 – 60.

[66] The affiant referred to an incident on February 18th, 2012. The police smelled fresh marihuana and engaged with Mr. Oduro who was the front passenger in a vehicle. Police located 123.7 grams of marihuana which Mr. Oduro claimed as his. The affiant stated Mr. Oduro was charged with possession for the purpose of trafficking Marihuana and possession of marihuana. The affiant also stated that Mr. Oduro was convicted of possession of marihuana and received an absolute discharge. This was incorrect, Mr. Oduro was not charged with possession of marihuana and an absolute discharge is not imposed after a conviction. Mr. Oduro submits that this is another indication of how the affiant sought to mislead the justice. I disagree. The affiant’s assertion that Mr. Oduro received an absolute discharge is not disputed. It is plain and obvious that an absolute discharge does not follow a conviction. The quantity of marihuana seized was identified and is accurate. The reference to a charge of possession of marihuana for the purpose of trafficking is accurate. When viewed in context, the justice could not have been misled and was not misled. The reference to a charge for possession of marihuana and conviction for possession of marihuana shall be redacted.

[67] In describing an interaction between Mr. Oduro and police on December 8, 2014, the affiant stated that police observed Mr. Oduro and a male in an SUV and upon seeing the police “they ducked”’ when they were investigated they were found in possession of “brand new gloves, masks” and “had no reason for being in the area”. Mr. Oduro submits there are countless reasons why the gloves and masks could be in his possession and he had no obligation to speak to the police. Thus, the affiant’s account was unbalanced and the reference to “no reason for being in the area” was gratuitous, unnecessary and misled the justice.

[68] The affiant also described a police investigation on December 22, 2009, in which he described Mr. Oduro and four other persons, as victims of a violent robbery by five males. Cell phones and an undisclosed amount of money were taken. Minor injuries were sustained. The affiant noted that Mr. Oduro refused to cooperate with the police investigation and the investigation remains unsolved. Mr. Oduro submits that this reference was unnecessary and designed to cast a disparaging picture of Mr. Oduro in order to influence the justice to issue the search warrant. He further submits that the justice should have been informed that the incident occurred seven and a half years ago. I note that the affiant provided the date on which this incident occurred.

[69] Mr. Oduro submits that the affiant should have included in the ITO that Mr. Oduro had been investigated by the police on two previous occasions and no weapons had been found on him. It is apparent from all of the incidents described by the affiant that a firearm was never found on Mr. Oduro on all his previous interactions with the police.

[70] Unlike in Morelli, there is no evidence that the information the affiant provided was false or that his account left the justice with an incomplete picture or that he excluded facts with respect to the offence that could lessen suspicion on Mr. Oduro. It was not the affiant’s intent to mislead the justice. The justice could not have been misled and was not misled.

The affiant’s opinions:

[71] Mr. Oduro submits that the affiant provided expert opinions in the ITO that were broad generalizations unsupported by facts and without reference to the basis for his expertise. Thus, he failed to be full and frank in his disclosure of the facts and his action misled the justice.

[72] As previously described, the affiant described his experience in Section A, the introduction to the ITO. This included reference to extensive experience as an informant handler in firearms investigations. In “Appendix D, Confidential Information”, the affiant, provided an account of instances where he had received information from the CI in firearms investigations. The affiant’s expertise in firearms and drug investigations is apparent and the Justice could not have been misled and was not misled on the basis for his expertise.

[73] The affiant provided his opinion in bold font. The justice could not have been misled and could clearly distinguish facts from opinion. In Section D, “Reasonable Grounds to Believe the Offence of Unauthorised Possession of a Fire Arm has been Committed” at paragraph 2, the affiant wrote that “Mr. Oduro has a history of possessing various drugs in quantities that have resulted in possession for the purposes of trafficking charges to be laid, resulting in a conviction”. It is accurate that Mr. Oduro was charged as described, however he was convicted of possession of cocaine. The statement gives the impression that the conviction was for possession for the purpose of trafficking. I have concluded that the affiant did not intend to mislead the justice however, I am satisfied that the justice was left with the impression that Mr. Oduro had been convicted for possession for the purpose of trafficking cocaine and was misled on this point. As explained previously, the error was made in good faith. The words “resulting in a conviction” shall be redacted from the ITO.

[74] Right after the above referenced statement, the affiant expressed this opinion in bold “From my experience investigating drug traffickers, firearms are common and routinely held by them for protection against police, other drug traffickers and for intimidation purposes”. Mr. Oduro submits that the facts in support of this assertion are absent. I disagree. It is apparent that the affiant was drawing from his experience, as previously described. In addition, the basis for this specific opinion about Mr. Oduro were the fruits of his experience as a police officer. The fact that it was open to the affiant to have provided additional specifics of cases he worked on to support his opinion does not mean that there is insufficient evidence upon which he could provide the opinion. The justice was not misled. It was apparent what was fact and what was opinion. Despite, my conclusion, this opinion barely passes “the sufficiency of information as to the basis for the officer’s opinions test”: Morelli, para. 73 and it is arguable whether it was necessary to include it.

[75] At paragraph 3 of Section D, the affiant wrote: “Oduro has been the victim of a knife and firearm home invasion in an “apartment building known to police for drugs and firearms”. In bold font he expressed their opinion “I believe this shows Oduro has maintained a lifestyle surrounding himself with criminal violent behavior and him being in possession of a firearm is likely”.

[76] Mr. Oduro submits that full and frank disclosure required the affiant to provide additional detail on why the apartment building was known to police for drugs and firearms.

[77] There is clear distinction between fact and opinion. The justice of the peace could not have been misled. I am satisfied that though the officer relied on his experience as described in the ITO, and provided his opinion in good faith, the facts provided for the comment and opinion are insufficient. Therefore, those facts and opinion shall be redacted from the ITO.

[78] In Section F, at paragraph 8, the affiant expressed this opinion “From my experience investigating firearms and drug offences, it is common for people in possession of a fire arm to carry it with them back and forth between their vehicle and residence so it is in close proximity if needed. I believe that the firearm, ammunition and identification could be both in the residence and the vehicle”. Mr. Oduro submits that this opinion is devoid of foundation facts and is misleading.

[79] I have previously considered the affiant’s description of his experience in the introduction to the ITO. I will provide further detail of the affiant’s description of his previous encounters with the CI and the information he received from the CI. I agree with Mr. Oduro that additional information could have been provided, however, based on his experience as described in the ITO, including his interactions with the CI as the CI’s handler, there was sufficient information to identify the factual basis for his opinion.

Constable Moore’s observation of Mr. Oduro at 29 Josephine Court

[80] The affiant gave the justice the impression that Constable Moore saw Mr. Oduro engage with the vehicle and enter 29 Josephine Court. This was an error, it was Constable Aherns who made the observation. The affiant’s entry in the ITO led the justice to believe that both Constable Moore and other police officers saw Mr. Oduro with the vehicle and at 29 Josephine Court. The error is a minor one. The justice was left with the overall impression that police officers made those observations. This was accurate.

Confidential informant

[81] The information provided by the CI was sufficiently compelling, credible and corroborated by police investigation to support the affiant’s reasonable belief that Mr. Oduro had committed the offence of possession of a firearm and the firearm was located in Mr. Oduro’s possession in the white Nissan Altima.

[82] In assessing the sufficiency of the information provided by the CI, the court must consider all the circumstances to determine whether the information provided by the Cl about the criminal behavior was compelling; whether the informant was a credible source and whether the information provided by the informant was corroborated by the police investigation prior to seeking the warrant: R. v. Debot, [1989] 2 S.C.R. 1140.

[83] Mr. Oduro has proposed a number of avenues of investigation the police could have pursued to corroborate the information provided by the CI. He has suggested gaps in the information provided by the CI. He suggests, this calls into question the reliability of the information provided, the credibility of the informant and the adequacy of the police investigation to corroborate the information. Different permutations and combinations of possible events necessary to satisfy the Debot test maybe plausible, however failure to adopt any or all possible avenues is not fatal. What is required is an assessment of the confidential information provided to the justice, to determine whether under all the circumstances, the justice could have found that it was compelling, credible and corroborated by police investigation.

[84] The affiant received information from the CI that the CI observed a male put a firearm in the trunk of a white Nissan Altima. The CI provided the license plate number for the vehicle. A police database check listed 29 Josephine Court as the registered address for Nissan Altima and Mr. Oduro as the registered owner. The CI provided a description of Mr Oduro. Mr. Oduro matched the description the CI provided. The CI was shown a picture of Mr. Oduro and identified him as the male the CI saw.

[85] The CI said the male put a bag in the vehicle. The CI expressed a belief that Mr. Oduro had drugs in the bag. As previously described, previous police interaction with Mr. Oduro yielded a seizure of drugs on two occasions.

[86] Police surveillance placed the vehicle at the address and connected Mr. Oduro to the vehicle and the address. The CI’s information was detailed. It included where the CI was located when the observations were made.

[87] Information previously provided by the CI had led to search warrants leading to the seizure of drugs and money; the location of drug offenders and to administration of justice offences; to the arrest of a person for firearms and ammunition charges. The CI had provided information to the police on at least 10 occasions resulting in numerous search warrants, charges laid and seizures of controlled substances and firearms.

[88] The CI’s information was recent and direct. The CI identified the source of the information. It is apparent from the information, the CI provided that the CI made the observations firsthand. The CI’s motivation for providing information was known to the police and disclosed to the justice.

[89] The information was specific and detailed. Overall, the CI’s information was corroborated, it was compelling and credible.

Conclusion

[90] The affiant made minor errors in good faith. He included some superfluous information. He did not intend to mislead the justice. The justice could not have been misled and was not misled. Overall, the affiant provided full, frank and fair disclosure of information. Secondly, there is sufficient credible and reliable evidence in the redacted ITO and the record as amplified, to “permit the justice of the peace to find reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place”.

[91] The search was thus lawful. Mr. Oduro’s constitutional rights were not infringed. His application is dismissed.

The Honourable Justice Kofi Barnes Released: March 2, 2021