COURT FILE NO.: YC-20-8000000-5-0000

YC-20-8000000-6-0000

DATE: 20210412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.I.

M. Cole and P. Santora, for the Crown

M. Salih and E. Brownscombe, for T.I.

HEARD: 24-25 February 2021

PUBLICATION BAN:

s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

s.a.Q. akhtar j.

RULING#2 - SEARCH WARRANT RE: 55 GUNTON DRIVE

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] The applicant, T.I. stands charged with second degree murder following a shooting that occurred on 30 May 2018 at Dundas Square. The victim was a young man named Israel Edwards who, that night, was in the company of a friend, Aaron Stewart.

[2] The Crown alleges that the applicant and two friends, M.M. and M.H., were walking east along Dundas Square in Toronto. They encountered Mr. Stewart, and a confrontation ensued. Mr. Stewart pushed M.M. backwards by placing his hand on his face. Without warning, the man alleged to be the applicant, wearing a grey hoodie, pulled out a gun firing at both Mr. Stewart and Mr. Edwards who was hit by single shot to the chest. As Mr. Edwards fell to the ground, the rest of the group fled the scene.

[3] Police were called and Mr. Edwards was transported to St. Michael’s hospital. He was pronounced dead on arrival. A post-mortem report revealed Mr. Edwards died from a gunshot wound to his chest.

[4] After further investigation, the applicant was brought to police attention as a suspect. He was placed under surveillance so that a warrant could be obtained to search his residence for evidence relating to the shooting.

[5] Police set up observation on the applicant’s two prior known addresses but made no sightings. At the time, the applicant was subject to a probation order with a listed address of 12 Peach Drive in Brampton. However, there was no condition that he reside there.

[6] On 21 August 2018, the applicant was seen leaving the Brampton courthouse and was followed to 55 Gunton Drive, in Etobicoke, and seen to enter the premises. Continued surveillance showed the applicant at 55 Gunton Drive on 12, 13 and 20 September 2018.

[7] The police sought and obtained a warrant to search 55 Gunton Drive on 27 September 2018 which was executed the same day with the applicant being arrested on site.

The Charter Challenge

[8] The applicant submits that the warrant to search 55 Gunton Drive could not have issued because there was insufficient evidence to support reasonable and probable grounds that evidence would be found there. Further, the applicant submits that even if the Information to Obtain the Warrant (ITO) contained sufficient grounds, this court should use its residual discretion to quash the warrant because the affiant deliberately misled the issuing justice and omitted relevant material evidence. The applicant also argues that the terms of the warrant were overly broad and that the search occurred outside the time limit specified in the warrant.

LEGAL PRINCIPLES

[9] I repeat for clarity’s sake, the general principles relating to a review of a search warrant.

[10] A judge reviewing an authorisation does not conduct a de novo hearing of the validity of the authorisation or ITO, substituting their own view for that of the authorising judge. Instead, the reviewing judge considers the record placed before the authorising judge as supplemented by any evidence tendered on the s. 8 motion. After excising any misleading or unconstitutionally obtained evidence, the reviewing judge decides whether the ITO discloses sufficient evidence that might reasonably be believed on the basis of which the judge could have issued authorisation: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99.

[11] The ITO must specify reasonable and probable grounds to believe an offence has been committed and that there is evidence to be found at the place of search: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-168. An authorisation is presumed to be valid from the outset and the burden of establishing invalidity rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. The authorisation would only be held invalid if the reviewing judge concludes that, on the material before the authorising judge, as amplified by the evidence on the review, and after the excision of erroneous and unconstitutionally obtained evidence, there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorisations existed: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8.

Was the Applicant Sufficiently Linked to 55 Gunton Drive?

[12] The applicant argues that the ITO failed to establish he resided at 55 Gunton Drive. Consequently, there were no reasonable and probable grounds that evidence relating to Mr. Edwards’ murder would be found there.

[13] For the following reasons, I disagree.

[14] At the time police were seeking the warrant, the applicant was on bail with a condition to reside with his surety on terms amounting to house arrest. However, no residential address was specified in the release order. As described, officers attempted to ascertain the applicant’s residence by mounting surveillance on each of his last known addresses in Brampton and Pickering. Two days were spent watching the Brampton address with a further six days of observations on the Pickering residence. However, they did not see the applicant at either property. The police also checked with the applicant’s probation officer and found he had not provided a verifiable address.

[15] The ITO made reference to these facts, at para. 114(a) of the ITO. It was only when police followed the applicant from the Brampton courthouse that they saw him enter 55 Gunton Drive. He was seen at that address on other occasions as recounted in paras. 124, 126 and 128(c) of the ITO. There is no evidence of the applicant living at any other residence.

[16] I find the applicant’s reliance on R. v. Herta, 2018 ONCA 927, to be misplaced. There, a confidential informant told police that a suspected bank robber named Callahan was in possession of a gun carried for protection. The police obtained a search warrant for a property believed to be Callahan’s residence so that they could seize the firearm. However, they made a mistake. The property belonged not to Callahan but someone else - Herta - and when the police executed the warrant they found a quantity of drugs but no gun. At trial, the Crown successfully sought to rely on a heavily redacted ITO and chose not to ask the trial judge to conduct a review under “Step Six” of the procedure outlined in Garofoli. Herta was convicted.

[17] On appeal, the Court of Appeal for Ontario indicated that the “real question for resolution” was whether the issuing justice could find that Callahan took the gun to the targeted property. Writing for the court, Fairburn J.A. (as she then was) held there was insufficient evidence to make such a finding because the confidential informant did not see the gun at the residence. Nor was there any evidence linking Callahan to the address other than the affiant seeing him walk towards the front door of the residence on a single occasion. In other words, there was “nothing in the redacted ITO that draws a connection between Callahan and the residence”: Herta, at para. 50.

[18] This is a very different situation. Here, the applicant was not only seen to enter 55 Gunton Drive but viewed in and at the address on several other occasions. In addition, as described, when police checked his former residences, he was not spotted.

[19] The Court of Appeal for Ontario in Sadikov, at para. 81, declared that the “reasonable grounds to believe” threshold falls short of balance of probabilities. The required standard is one of credibility-based probability.

[20] I find that on the facts known to the affiant there was a credibility-based probability that the applicant lived at 55 Gunton Drive. Once that had been established, it was reasonable for the police to believe that evidence relating to the shooting, such as the gun, would be found there. As pointed out by the court in Herta, at para. 54, if the searched property had been Callahan’s residence, “it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place.”

[21] In the same vein, it was reasonable to expect any clothing that the applicant was wearing at the time of the shooting to be kept at his residence. This was of significance because the police had, by then, seen the images on M.M.’s mobile phone, some of which showed the applicant wearing clothing similar to the grey hoodie worn by the shooter.

[22] This leads me to the applicant’s assertion that the ITO was overly broad and there was no evidence that the applicant’s mobile phone would be found at 55 Gunton Drive. According to the applicant, the ITO contained no evidence that the applicant even owned or possessed a mobile phone.

[23] I disagree. I find it hard to accept the suggestion that in today’s climate, a person of the applicant’s age would be without a mobile phone. It was more than reasonable for the police to believe that he had one: R. v. Porter, 2016 ONSC 5589, at para. 61.

[24] Moreover, the evidentiary significance of such a device cannot be overstated. I can say it no better than my colleague, Dambrot J., in R. v. Yabarow, 2019 ONSC 3669, at para 23:

In the circumstances of a case like this, where there is evidence that a person committed a murder, it is no leap of logic to conclude that there is a probability that his or her cell phone communications, photographs, videos and the like will contain evidence of the offence. Evidence of the person's whereabouts, associations, and communications in the period immediately before and after the crime will invariably have evidentiary value in relation to the crime.

[25] As in Yabarow, the search permitted by the warrant was wide ranging but not overly so. The fact that the police seized 18 mobile phones does not reflect an overly broad warrant but the reality of so many devices in the residence. The police had no choice but to seize them all as they could only determine which was the applicant’s phone upon further search. It is of some significance that, after examination, multiple phones were attributed to the applicant.

Was the Search Conducted Outside the Time Limit?

[26] The warrant specified that the police were authorised to enter 55 Gunton Drive between the hours of 8:15 a.m. on 27 September 2018 to 11:59 p.m. on 2 October 2018, to search for and seize the items set out in the warrant.

[27] The applicant complains that the search of the phones was unlawful because although the phones were seized on 27 September 2018, they were not submitted for data extraction until 28 November 2018. According to the applicant this breached the time limit set out in the warrant as the search had to be conducted between 27 September and 2 October 2018.

[28] For the following reasons, I reject this argument.

[29] In R. v. Barwell, [2013] O.J. No. 3743 (C.J.), Paciocco J., as he then was, dealt with a warrant authorising the police to enter and search for computer drives between the hours of 6:00 a.m. to 9:00 p.m. on a particular day. The police retrieved the computer from the police storage facility and began their examination by recording the serial number. However, they did not examine the drives until the next day. The defence argued that by continuing the search outside the time window, the police had violated the terms of the warrant and the accused’s s. 8 rights.

[30] In dismissing the application, Paciocco J. held that the police assumed control over the drives, and met the terms of the warrant, when they acquired them from the storage facility within the designated time frame: there was no requirement that the forensic examination take place during the time window specified in the warrant. As observed by Paciocco J., at para. 17, “[t]his would be unrealistic. Forensic examinations take time, and it would be counter-productive to the privacy interest to extend search and seizure periods for long periods of time in order to accommodate forensic examinations.”

[31] The reasoning in Barwell was followed by Coroza J. (as he then was) in R. v. Nurse, 2014 ONSC 1779, at paras. 41-53, a case which was affirmed on other grounds by the Court of Appeal for Ontario: R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241.

[32] Justice Dambrot, in Yabarow, followed Barwell and Nurse. He added, at para. 48, that “[i]t is desirable that authorizing justices focus on the appropriate time period for a search and seizure, and the time permitted for a forensic examination of things seized be left to the reporting and detention regime in the Code.” There, whilst the police assumed control of the item within the time specified in the warrant, the forensic examination of the phone took place over a month later.

[33] A similar view was taken by McCombs J. in United States of America v. Viscomi, 2016 ONSC 5423.

[34] I find that the principles in Barwell, Nurse, Viscomi and Yabarow apply in this case. I also note that a report to justice was filed in accordance with s. 489.1 of the Criminal Code, R.S.C. 1985, c. C-46, which meant that the retention of the items by the police was subject to judicial supervision.

Should this Court Exercise Its Residual Discretion to Set Aside the Warrant?

[35] The applicant argues that the warrant should be set aside even if this court finds it could have issued.

[36] The applicant sets out a number of items which he submits were deliberately omitted from the ITO including material facts related to the applicant’s residence, the context of the shooting, and the offence being investigated.

[37] In R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, the Court of Appeal for Ontario reviewed the jurisprudence permitting the quashing of an otherwise lawfully issued warrant on the basis of an affiant’s fraud and deception.

[38] In Araujo, at para. 57, the Supreme Court of Canada held that any facts that an affiant knew or ought to have known to be false had to be excised from the ITO leaving what remained to be evaluated under the test for review.

[39] However, in Paryniuk, at para. 69, the court ruled that a trial judge retained a residual discretion to set aside the warrant in cases “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The court noted, however, that the standard required to trigger this residual discretion is high: Paryniuk, at para. 70.

[40] In this case I cannot find any evidence that any of the inaccuracies described were deliberate or fraudulent. There was no attempt by the police to subvert the pre-authorisation process.

[41] Indeed, many of the errors set out in the applicant’s factum are not errors at all. The ITO did include information about the applicant’s last known address in Brampton and, as the Crown points out, the email from the Durham officer indicated that the recognisance listed an address as opposed to a requirement that the applicant was to reside at that address.

[42] The information relating to the applicant’s address, as previously discussed, was fully described in the ITO as was the justification for identifying 55 Gunton Drive as the applicant’s residence.

[43] Other “errors” advanced by the applicant amount to arguments that the affiant should have done more in obtaining information. For example, the affiant wrote that the applicant had not provided his probation officer with a verifiable address. The applicant argues that the affiant knew the probation officer was scheduled to meet with the applicant to confirm his address two weeks prior to the issuance of the warrant.

[44] The applicant argues that the affiant could have contacted the probation officer to obtain the information provided by the applicant. However, there is no evidence before me that the probation officer met with the applicant; whether the applicant provided an address; and if so, what that address was. Even if the applicant is correct, this would hardly amount to attempts to subvert the process.

[45] I take the same view of the other alleged omissions relating to the address. It is unclear to me how any of the issues identified by the applicant would have any impact on the issuance of the warrant in light of the information that the applicant was seen on several occasions at 55 Gunton Drive and not at any of the other addresses.

[46] Nor do I find any material misrepresentations with respect to the description of the offence. Indeed much of what the applicant complains of is his interpretation of what is seen on the Dundas Square video as opposed to the existence of material facts.

[47] The only inaccuracy of note is the fact that the affiant described the charge as first degree murder rather than second degree murder which, in investigative terms, is a minor difference. Nor, as I have stated previously, is there any evidence before me to suggest that this was a deliberate misstatement designed to deceive the issuing justice.

[48] For these reasons, I find the warrant was properly issued and the s. 8 application is dismissed.

S.A.Q. Akhtar J.

Released: 12 April 2021