COURT FILE NO.: 342/18 DATE: 2021/03/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TAN H TRAN and HUONG THU VO

COUNSEL: M. Smith, for the Crown G. D. Cudmore, for the Defendant Tran A. Rady, for the Defendant Vo

HEARD: December 17, 2020

Grace J.

A. Introduction

[1] On July 17, 2017, search warrants were issued pursuant to s. 11 of the Controlled Drugs and Substances Act (“CDSA”) on the faith of an Information to Obtain a Search Warrant (the “ITO”) sworn by Detective-Constable David Younan of the London Police Service (“LPS”).

[2] The search warrants were executed simultaneously at various locations including 17533 Wyton Drive, Thorndale, Ontario (the “Thorndale premises”).

[3] One of the warrants related to a 2012 Toyota RAV 4 (the “2012 Toyota”) that was registered to the target of the investigation.

[4] Two others related to properties in London, Ontario. One was the residence Mr. Cao was believed to occupy on Gatewood Place. A business address he frequently attended on Charterhouse Crescent (“Charterhouse”) was referenced in the other.

[5] Significant quantities of controlled substances were discovered during the search of the Thorndale premises. [1] As a result of their connection to that address, the defendants stand charged with various offences under the CDSA including possession of crystal methamphetamine, cocaine, cannabis marihuana and methylenedioxyamphetamine (“MDMA”) for the purpose of trafficking. [2]

[6] On this pre-trial application, the defendants maintain that there was an insufficient basis for the issuance of the search warrant relating to the Thorndale premises. They ask the court to conclude that the evidence recovered from there was obtained in a manner that infringed the defendants’ right to be secure against unreasonable search or seizure. [3] They seek an exclusion order because they maintain that, having regard to all the circumstances, the admission of the seized items would bring the administration of justice into disrepute. [4]

B. The Investigation, the ITO and the Testimony of the Affiant

[7] Sometime in 2017, the LPS received information from a confidential informant that Robert Cao was selling significant quantities of cocaine in London. He was said to operate the 2012 Toyota. Mr. Cao was the target of the investigation that followed. It culminated in the issuance and execution of the search warrants to which I have referred.

[8] The disclosure concerning Mr. Cao caused D-C Younan to search various databases. Some historical information was found and reviewed. A cocaine extraction laboratory had been located in a London, Ontario apartment in 2016. That unit had been leased by Mr. Cao.

[9] On May 1, 2017, the LPS obtained a warrant allowing the police to track the cell phone Mr. Cao was believed to carry.

[10] On May 15, 2017, members of the Guns and Drugs Section of the LPS began conducting physical surveillance of him. Cao was seen operating the 2012 Toyota. D-C Younan said that observations made that day caused him to believe that Mr. Cao was a participant in a drug transaction. [5] Mr. Cao’s subsequent actions on that date also caused D-C Younan to express the belief that the suspect had utilized a counter surveillance driving technique. [6]

[11] Physical surveillance was conducted on other days in May and June 2017. In the ITO, D-C Younan outlined the observations made by LPS officers on May 24, 25, 31, June 6 and 7, 2017 that caused the affiant to believe that Mr. Cao was continuing to participate in suspected drug transactions and/or engage in counter-surveillance. The suspect was the person operating the 2012 Toyota each time it was observed.

[12] Data obtained from the cell phone tracker device allowed investigating officers to determine its approximate location. [7] On six occasions, it was in the area of the intersection of Purple Hill Road and Wyton Drive, near Thorndale, Ontario. [8] According to D-C Younan, the Thorndale premises are a couple of hundred meters from that location. Half the time those attendances immediately preceded or followed short visits to addresses in the Greater Toronto Area (“GTA”). [9] The officer testified that the GTA was the suspected source of the controlled substances Mr. Cao was believed to be trafficking.

[13] On May 18, 2017, D-C Younan sought and obtained a tracking warrant in relation to the 2012 Toyota. [10] It was not affixed to the vehicle until June 16, 2017. Data obtained from that source allowed the police to determine the Toyota’s precise location. [11] On several occasions the 2012 Toyota visited the Thorndale premises. Details follow:

a) June 19, 2017 for a period of approximately two hours and forty-five minutes; [12] b) June 22, 2017 for approximately eighty minutes; [13] c) June 26, 2017 for approximately seventy minutes; [14] d) July 4, 2017 for a period of thirty-five minutes. [15] The vehicle then travelled to a Mississauga address, remained there for thirty-six minutes and then returned to the Thorndale premises shortly after midnight on July 5, 2017. Ninety minutes elapsed before the 2012 Toyota travelled to Mr. Cao’s residence; [16] e) July 7, 2017 for forty-eight minutes; [17] f) July 9, 2017 for just under ten hours; [18] g) July 10, 2017 for fifty-minutes; [19] h) July 12, 2017 for a period of approximately forty minutes. [20] The vehicle returned to the premises approximately five hours later and remained there for almost two hours; [21] and i) July 13, 2017 for a period of approximately seventy-seven minutes. [22]

[14] Police officers attended at the Thorndale premises on June 21, July 11 and 13, 2017. The 2012 Toyota was not seen there on any of those occasions. A black 2006 Honda Odyssey van registered to Tan Tran and a white 2009 Toyota Rav-4 registered to Nhung Vo (the “2009 Toyota”) were seen there during the June 21 and July 11, 2017 visits. [23] The Honda Odyssey was also present on July 13. On that occasion, the officers observed the 2009 Toyota travelling in the opposite direction while en route to the premises.

[15] That information caused D-C Younan to make further inquiries. He learned that police records from 2011 described a stop of a vehicle containing two occupants: Mr. Cao and the defendant Tan Tran.

[16] On July 17, 2017 the ITO was filed with the Ontario Court of Justice. Justice of the Peace T.A. Steenson issued the requested warrants authorizing the searches I have mentioned.

C. Were the Applicants’ Rights under s. 8 of the Charter Breached?

i. The Applicable Principles

[17] The right to be secure against unreasonable search or seizure is guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”).

[18] Section 11(1) of the CDSA authorizes a justice of the peace to issue a search warrant if satisfied by information on oath that there are reasonable grounds to believe that a controlled substance or anything that will afford evidence of an offence under the CDSA or specified provisions of the Criminal Code is in the place the police wish to enter.

[19] Search warrants are place specific. [24] If the court is satisfied, on the record before the authorizing justice as amplified on the review, that the justice of the peace could have issued the warrant relating to the Thorndale premises, the defendants’ s. 8 Charter rights were not breached. [25]

[20] A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 30. Consequently, the applicants bear the burden of establishing, on a balance of probabilities, that there was an insufficient basis for the warrant’s issuance. [26]

[21] The applicable test is concisely set forth in para. 9 of the applicants’ factum:

The court reviewing the issuance of a search warrant may not substitute its own decision for that of the authorizing justice. If the reviewing judge concludes that the authorizing justice may have granted the authorization, based on the record that was before the authorizing justice or as amplified on the review, then the judge should not interfere. [27]

[22] I also agree with the applicants’ statement that the analysis is contextual. It requires the application judge to take a common sense and holistic approach. [28] The reviewing court’s limited role was well explained by Watt J.A. in R. v. Sadikov, 2014 ONCA 72 at para. 84:

…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued. [Citations omitted] [29]

[23] Mere suspicion is insufficient. [30] The ITO must go further and show a “credibly-based probability” that a search of the premises in question will yield evidence of an offence under the CDSA. That standard does not equate to proof beyond a reasonable doubt, to a prima facie case [31] or even on a balance of probabilities. [32]

[24] The ITO must be assessed from the perspective of a reasonable person standing in the shoes of the police officer swearing the ITO. [33] As Hill J. said in R. v. Cunsolo, [2008], O.J. No. 3754 (S.C.J.) at para. 6:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience…a reviewing court must take these factors into account. [34]

ii. The Applicants’ position

[25] The applicants submit that, at best, the information relating to the Thorndale premises supported nothing more than suspicion of illegal activity there. It did not rise to the required level of objectively reasonable grounds. A failure to meet the standard meant that there was an insufficient basis for the issuance of the search warrant resulting in a breach of s. 8 of the Charter. Their argument follows this path.

[26] When the investigation concerning Mr. Cao started, the LPS had no familiarity with the Thorndale premises at all. In fact, Mr. Cao did not visit that address at any of the times he was being observed by members of the LPS.

[27] An intersection near Thorndale became of interest based on data recovered from the cell phone tracker. That device could not be used to pinpoint a specific address.

[28] That was obtained soon after the vehicle tracker was fastened to the 2012 Toyota.

[29] All of the information connecting that vehicle to the Thorndale premises came from that source. On three occasions members of the LPS visited that address. No one was seen entering or exiting the property. The 2012 Toyota was never found there. Nor was Mr. Cao.

[30] Two other vehicles were observed: a Honda Odyssey and a 2009 Toyota. Neither of them was connected to the target of the investigation. The defendant Tran was the registered owner of the Honda. The 2009 Toyota was registered to a relative of the defendant Vo.

[31] The only connection the police could find to Mr. Cao was a record of a stop of a vehicle in 2011. Mr. Cao and Tan Tran were the occupants.

[32] At no time did any member of the LPS observe anyone engaging in an activity relating to the trafficking of a controlled substance at the Thorndale premises.

iii. Analysis and Decision – s. 8 Charter

[33] The applicants’ position has some force.

[34] It is undisputed the investigation that resulted in these charges related to a different person (Mr. Cao). Furthermore, Mr. Cao’s ties to the London properties were more firmly established. The LPS was able to determine that Mr. Cao resided on Gatewood and that he regularly visited the business premises on Charterhouse. He was seen at those locations several times when physical surveillance was conducted.

[35] On June 22, July 4, 5, 7, 10, 12 and 13, 2017, Mr. Cao was observed engaging in suspected drug transactions and/or driving manoeuvres characterized as counter-surveillance. It is undisputed that the police had reasonable grounds to believe that Mr. Cao was committing offences under the CDSA.

[36] The issue is whether the ITO provided the justice of the peace with a sufficient evidentiary basis to issue a search warrant in relation to the Thorndale premises.

[37] Insofar as that property is concerned, the affiant acknowledged that the information set forth in the ITO was drawn almost entirely from the cell phone and vehicle trackers. D-C Younan fairly deposed as follows:

…I feel compelled to acknowledge to the reader that these tracker reports do not: a. Prove absolutely that Robert CAO was operating the [2012 Toyota]; b. Prove absolutely that Robert CAO entered the associated residences; and/or c. Prove absolutely that every visit was related to drug trafficking. [35]

[38] As noted, the applicants submit that the information relating to the premises supported nothing more than suspicion of illegal activity there. It did not rise to the required level of objectively reasonable grounds. A failure to meet the standard meant that there was an insufficient basis for the issuance of the search warrant resulting in a breach of s. 8 of the Charter.

[39] The defendants maintain the data relied upon by the police was entirely unpersuasive. They argue that even if the 2012 Toyota was, in fact, at the Thorndale premises on the days, at the times and for the periods alleged, the allegation that Mr. Cao was there too lacks an evidentiary foundation. The applicants noted that the trackers enable investigators to determine the location of the things to which they relate, not people. Mr. Cao was not seen using a cell phone in Thorndale. Further, on the occasions LPS officers visited the Thorndale premises, they did not even see the 2012 Toyota, let alone Mr. Cao.

[40] I disagree with the applicant’s analysis. Mr. Cao’s connection to the cell phone was well established. In fact, information from the cell phone tracker was used by the LPS to locate the 2012 Toyota – and Mr. Cao. [36] As noted, police conducted eleven days of surveillance. Mr. Cao was the driver each time the 2012 Toyota was seen in motion. [37]

[41] Taken in isolation, periodic visits to the Thorndale premises seem benign. However, all of the surrounding circumstances must be considered including:

a. The number and frequency of the visits; b. Their duration ranging from minutes to hours; and c. Crucially, the movements of the 2012 Toyota before and after it attended the Thorndale premises.

[42] In that regard, on June 19, 26, July 4, 9 and 10, 2017, the visit occurred immediately after the 2012 Toyota left the property on Charterhouse. [38] On July 9, 12 and 13, 2017 the vehicle returned to the Charterhouse address soon after leaving the Thorndale premises. As a result of days of physical surveillance, Charterhouse was a property the LPS had come to believe was an integral part of Mr. Cao’s drug operation. [39]

[43] Several times, attendances at the Thorndale premises occurred immediately before or after the 2012 Toyota travelled to the GTA. That was where the LPS believed Mr. Cao’s source of supply of illicit drugs was located.

[44] On at least one occasion, the movements of the 2012 Toyota immediately after leaving the Thorndale area were consistent with a drug transaction. [40]

[45] More than once, the journey to or from the Thorndale premises involved ponderous routes, turns and/or pauses characterized by D-C Younan, based on his training and experience, as counter-surveillance. [41]

[46] The totality of the circumstances went well beyond suspicion. There was, indeed, a credibly based probability that a search of the Thorndale premises would yield evidence of the commission of an offence under the CDSA. Based on the record that was before the issuing justice as amplified on the review, I am satisfied there was a sufficient evidentiary basis for the issuance of the search warrant in question on this application: R. v. Sadikov, supra at para. 88. The applicants’ s. 8 Charter rights were not violated.

D. The Grant Analysis

[47] If I am wrong and there was a breach of s. 8, should the evidence recovered from the Thorndale premises be excluded under s. 24(2) of the Charter?

[48] According to the Crown’s factum the search of that property resulted in the discovery and seizure of (i) one kilogram of crystal methamphetamine; (ii) 30 grams of cocaine; [42] (iii) 1,792 grams of marihuana bud; (iv) 74 grams of MDMA; and (v) approximately $100,000 in cash. [43]

[49] Section 24(2) of the Charter mandates exclusion if, having regard to all the circumstances, it is established that the admission of the evidence would bring the administration of justice into disrepute. The applicants bear the burden of proof to the standard of a balance of probabilities.

[50] The analysis involves three lines of inquiry: (i) the seriousness of the conduct which led to the discovery of the evidence; (ii) the seriousness of the impact of the breach on the interests of the accused; and (iii) the effect of admitting the evidence on the public interest in having the case determined on its merits: R. v. Grant, 2009 SCC 32 at para. 71. I will deal with each of those factors in turn.

[51] If there was Charter-infringing conduct, it was not serious. Police sought and obtained a search warrant. There was no suggestion that D-C Younan failed to fulfill his obligation to make full and frank disclosure of all material facts. The ITO did not overstate. It was not misleading. The affiant was reasonably diligent. There was no impropriety, not even “inattention to constitutional standards”. [44] The issue was whether the contents of the ITO met the required standard or foundered because nothing beyond suspicion was established insofar as the Thorndale premises were concerned. In my view, at worst the adequacy of the ITO in this case was a very close call. Admission of the evidence in this case would not undermine public confidence in the rule of law: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 99-103.

[52] The seriousness of the impact of the breach on the interests of the applicants is conceded by the Crown. They were residents of the Thorndale premises. This factor favours exclusion: R. v. Morelli, supra at para. 104. [45]

[53] With respect to the third consideration, the evidence in question is real and reliable. It is of significant probative value. Exclusion would end the Crown’s case against the applicants. This factor favours admission: R. v. Nguyen, 2011 ONCA 465 at para. 62.

[54] Cumulatively, the first and third considerations outweigh the second. Consequently, I am not satisfied that the evidence recovered from the Thorndale premises in this case should be excluded. Its admission would not bring the administration of justice into disrepute.

E. Conclusion

[55] For the reasons given, the application is dismissed.

Justice A.D. Grace Released: March 10, 2021