COURT FILE NO.: CR-20-500000145
DATE: 20210721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Uhunoma Aisevho and Nadia Seetaram
Applicants
Craig Zeeh, for Uhunoma Aisevho
Mayleah Quenneville, for Nadia Seetaram
Katherine Rogozinski, for the Respondent
HEARD: June 7-8, 2021
RULING ON CHARTER APPLICATION
NISHIKAWA j.
Overview
[1] On May 22, 2019, officers of the Toronto Police Service executed a search warrant at the Applicants’ residence at 1442 Lawrence Avenue West, Toronto, Ontario and a vehicle. In the residence, the police located a defaced, loaded .22 calibre handgun with two boxes of ammunition, 59 grams of cocaine, and $35,000 in Canadian currency. Nothing was seized from the vehicle.
[2] The Applicants, Uhunoma Aisevho and Nadia Seetaram, are charged with the following offences: (i) possession of a restricted firearm, (ii) possession of a loaded restricted firearm, (iii) possession of a firearm knowing that the serial number has been tampered with, (iv) possession of cocaine for the purposes of trafficking and (v) possession of property obtained by crime over $5,000.
[3] Both Applicants bring applications under s. 24(2) of the Charter to exclude the firearm, ammunition, cocaine, and Canadian currency seized from the residence, on the basis that their rights under ss. 8 and 9 of the Charter were infringed.
[4] The Applicants’ position is that the police did not have reasonable and probable grounds to believe that they committed an offence and that evidence of the offence would be found at the residence and in the vehicle. The Applicants’ main contention is that the Information to Obtain (ITO) was deliberately misleading. The Applicants’ position is that the seriousness of the breaches and the impact on their Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits. In the alternative, the Applicants submit that this court ought to exercise its residual discretion to quash the search warrant because the police subverted the pre-authorization process.
[5] The Crown disputes that the Applicants’ Charter rights were breached, and maintains that even if there was a breach, the evidence should not be excluded because the breach was not serious, and society’s interest in an adjudication on the merits is high. The Crown further submits that the Applicants have failed to meet the high standard for this court to exercise its residual discretion to quash the search warrant.
Issues
[6] The issues in this Application are as follows:
(a) Should the Crown’s Step Six application be granted?
(b) Should portions of the ITO be excised on the basis that they are misleading?
(c) Did the police lack reasonable and probable grounds to believe that the Applicants committed an offence and that evidence of the offence would be located in the residence and vehicle, resulting in a breach of the Applicants’ rights under s. 8 of the Charter?
(d) Were the Applicants’ rights under s. 9 of the Charter also breached?
(e) If the Applicants’ Charter rights were breached, should this court exclude the evidence seized from the Applicants’ residence?
The Factual Context
[7] The following provides the investigative steps leading to the execution of the search warrant at the residence.
The Investigation
[8] Officers of the Toronto Police Service received information from a confidential source (CS) alleging that Mr. Aisevho was engaged in cocaine-trafficking activity. The information provided by the CS has largely been redacted from the Information to Obtain (ITO) to protect the identity of the CS.
[9] The affiant of the ITO, Detective Constable Samuel Kim, then conducted various database checks. Ministry of Transportation (MTO) records showed that Mr. Aisevho was the registered owner of a grey Nissan Altima with licence plate number BXRJ 208. DC Kim found that Mr. Aisevho’s last known address was 2801 Jane Street and that he was investigated in 2017 for a Highway Traffic Act offence involving the same vehicle. In July 2014, Mr. Aisevho was charged with trafficking in marijuana. There was a mugshot from this arrest, as well as a photograph from the MTO search.
[10] On May 20, 2019, DCs Kim and Vadim Martsenyuk attended at 1442 Lawrence Avenue West and observed a dark grey Nissan, with licence plate number BXRJ 208, in the underground parking lot. DCs Andrew Dilly and Adam Morris viewed portions of the building’s video surveillance which showed Mr. Aisevho in the lobby of the apartment building.
[11] On May 21, 2019, Toronto police confirmed with the building’s property management that Mr. Aisevho was leasing a particular unit there. DC Dilly reviewed additional video surveillance footage. Mr. Aisevho was viewed entering and leaving the parking garage and the lobby. The Nissan was viewed entering and exiting the parking garage. The video surveillance is further detailed below.
[12] On May 21, 2019, DC Kim applied for a telewarrant for the residence and vehicle. Justice of the Peace Carol Allison granted the search warrant the following day.
The Execution of the Search Warrant
[13] The search warrant was executed on May 22, 2019 at 3:35 p.m. Mr. Aisevho and Ms. Seetaram were both present. Mr. Aisevho was arrested, advised of his rights to counsel and transported to 12 Division.
Analysis
[14] The Crown concedes that the Applicants both have standing to challenge the warrant. Mr. Aisevho was the sole tenant on the lease for the apartment. At the time the search warrant was executed, Ms. Seetaram was living with Mr. Aisevho. She was his girlfriend and was pregnant with their child.
The “Step Six” Application
[15] In this case, significant portions of the ITO were redacted to protect the identity of the CS. The Crown conceded that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant and brought a “step six” application. The Crown provided the Applicants with a redacted ITO and a draft proposed judicial summary summarizing the redacted portions. Before the hearing, Crown counsel provided a revised redacted ITO and draft proposed judicial summary disclosing further information.[^1]
[16] At the hearing, I heard submissions from counsel for both Applicants and the Crown regarding the redactions and the adequacy of the draft proposed judicial summary. Defence counsel raised concerns about the lack of information as to when the CS provided the information to police and what timeframe the information pertained to, among other things. After verifying with the officers what further information could be disclosed, Crown counsel provided a revised proposed draft judicial summary disclosing additional details, including a timeframe.[^2]
[17] After hearing submissions, I suggested that I provide my proposed revisions to Crown counsel. Counsel for all parties agreed that communication between the court and Crown counsel regarding proposed revisions to the draft proposed judicial summary should take place in writing to ensure a clear record in the event of review.
[18] I sent a further draft proposed judicial summary with a few revisions[^3] by email to Crown counsel. Crown counsel responded with a revised draft proposed judicial summary, accepting most of the proposed changes and making a clarification.[^4] The draft proposed judicial summary, as revised by me and further revised by Crown counsel (Exhibit E), was then provided to defence counsel.
[19] Counsel for Ms. Seetaram maintained the position that further information was required as to whether the CS has a criminal record and whether the CS has any convictions for crimes of dishonesty. Crown counsel consulted with the officers to see if further information could be disclosed, but subsequently advised that disclosing this information would risk narrowing the pool such that the CS could be identified.
[20] I accepted Crown counsel’s submission and noted that defence counsel would be able to argue about the impact of any criminal record or convictions for crimes of dishonesty in the hypothetical. See: R. v. Woo, 2017 ONSC 7655, at para. 44.
[21] While Ms. Seetaram’s counsel maintained the objection, counsel for Mr. Aisevho indicated that he was prepared to proceed with the application on the basis of the final version of the draft judicial summary.
[22] I am satisfied that the final judicial summary is sufficient to allow a meaningful challenge to the adequacy of the ITO.[^5] In addition, as the Court of Appeal noted in R. v. Crevier, 2015 ONCA 619, at para. 88, when assessing the sufficiency of the ITO, the court should take into account counsel’s inability to challenge the redacted portions in assessing the weight to give those portions.
Leave to Cross-Examine the ITO Affiant
[23] Defence counsel sought leave to cross-examine DC Kim to challenge purportedly inaccurate and misleading statements in the ITO. For example, in the ITO, DC Kim referred to charges laid against Mr. Aisevho in 2014 for possession of marijuana for the purposes of trafficking but failed to disclose that the charges were withdrawn. Also at issue was DC Kim’s description of the video surveillance viewed by DCs Dilly and Morris.
[24] Given that it was clear that defence counsel did not seek to cross-examine on information provided by the CS, Crown counsel did not oppose the application of leave to cross-examine DC Kim. Leave to cross-examine was granted and DC Kim was cross-examined.
Should Portions of the ITO Be Excised?
[25] In this case, the Applicants submit that DC Kim failed to fulfil his duty to provide full, frank and fair disclosure in the ITO. Specifically, the Applicants submits that the ITO was inaccurate and misleading for the following reasons:
• The ITO referred to marijuana trafficking charges against Mr. Aisevho but failed to disclose that all charges against him had been withdrawn and that he has no criminal record or outstanding charges;
• The ITO inaccurately referred to surveillance, when no surveillance was conducted by the police;
• Relatedly, the ITO falsely and without any basis characterized Mr. Aisevho’s behaviour as “paranoid,” “peculiar” and “surveillance conscious”;
• The ITO failed to state that the times on the building’s video surveillance were inaccurate by approximately two hours, creating a misleading impression that Mr. Aisevho was making multiple short trips out of the building in the middle of the night;
• The ITO erroneously stated that Mr. Aisevho was observed on numerous occasions roaming in and out of the building for short periods at all hours of the day and night;
• The ITO stated that Mr. Aisevho was observed attending the underground parking lot “on numerous occasions” and leaving his vehicle “on several occasions, only to return shortly thereafter” when the video surveillance shows he only did this twice; and
• The ITO erroneously stated that a dash cam was observed in the vehicle, and wrongly concluded that Mr. Aisevho was surveillance conscious and had adopted extra security measures.
[26] The Applicants submits that the above references should be excised from the ITO. In respect of the 2014 charges, the Applicants submits excision is insufficient, and that it is necessary to amplify the record to add that Mr. Aisevho has no criminal record and no outstanding charges. The Applicants’ position is that once the misleading statements in the ITO are excised and the record is amplified as necessary, the search warrant could not have been authorized.
[27] The Crown does not oppose the excision of the reference to the 2014 charges, the dash cam, and the characterization of Mr. Aisevho’s behaviour as paranoid and surveillance conscious. The Crown maintains that the ITO nonetheless provided sufficient grounds for the search warrant to be issued.
[28] As will be further detailed below, I find that the ITO contained numerous inaccurate and misleading statements. Certain statements were not simply inaccurate but were exaggerations or mischaracterizations that could not be considered minor slips or errors. All such statements must be excised.
[29] First, the ITO specifically refers to charges against Mr. Aisevho for possession of marijuana for the purposes of trafficking in 2014 and to a Highway Traffic Act investigation in 2017, but did not state the outcome or attach Mr. Aisevho’s criminal record. Had the criminal record been attached, it would have shown that the charges were withdrawn within six weeks of being laid. The reference to the 2014 charges without the outcome was materially misleading.
[30] On cross-examination, DC Kim admitted that the criminal record was available to him and that he ought to have attached it. He stated that it was an error on his part and that he has “owned it.” However, despite realizing that he made an error shortly after drafting the ITO, at no time did DC Kim advise the Crown or try to correct the reference to the charges against Mr. Aisevho.[^6] On cross-examination, DC Kim insisted multiple times that he did not include the 2014 charges to mislead the issuing justice, but that they were included to corroborate information that had been received. Despite repeatedly stating that the charges were included to corroborate information that had been received, he did not specify what information was being corroborated. Moreover, information such as Mr. Aisevho’s identity and physical description were already corroborated through other means, such as the MTO search result.
[31] DC Kim’s explanation is unsatisfactory. He conducted the CPIC search and the criminal record was available to him. In my view, when he chose to describe the 2014 charges against Mr. Aisevho in paragraph 9 of the ITO, he also chose not to disclose the outcome or to attach the CPIC record. He failed to provide full, frank and fair disclosure in relation to Mr. Aisevho’s lack of a criminal record and the absence of any outstanding charges. This failure cannot be seen as inadvertent.
[32] In my view, it would be insufficient to excise the reference to the 2014 charges from the ITO. It would be more accurate to add that the charges were withdrawn within six weeks. The ITO should also state that Mr. Aisevho had no criminal record and that there were no outstanding charges against him.
[33] Second, the third bullet point in paragraph 23 of the ITO states that “[w]hile conducting surveillance of the address, it became apparent that AISEVHO is paranoid and displayed characteristics of being surveillance conscious.” This statement is inaccurate because it indicates that the police conducted surveillance of Mr. Aisevho and made observations of his behaviour when they did not. In reality, the police did not conduct any surveillance of Mr. Aisevho or at the building, but only viewed portions of the building’s video surveillance. The sentence does not make clear that all of the observations were based on the viewing of the video. In addition, the ITO is vague about how much of the video surveillance was viewed. It states only that after viewing some video on May 20, 2019, DC Dilly viewed “further video” on May 21, 2019. Based on DCs Morris and Dilly’s notes, video for portions of May 19-21, 2019 were viewed.
[34] Third, the characterization of Mr. Aisevho’s behaviour as paranoid and surveillance conscious is without basis. DC Kim did not view the building video surveillance. He drafted the ITO based on notes of the two officers who did watch the video, DCs Dilly and Morris. Neither officer states in their notes that Mr. Aisevho was observed behaving in a paranoid or surveillance-conscious manner. Nor do they detail observations that would support the characterization that Mr. Aisevho was behaving in a paranoid or surveillance-conscious manner. They specifically noted when Mr. Aisevho was on his cell phone, when he was carrying something, and when he was not. If they observed noteworthy behaviour, it is reasonable to believe that they would have noted it, because it would be relevant to the investigation into Mr. Aisevho’s drug trafficking activity.
[35] On cross-examination, DC Kim could not recall from whom or where he obtained the description of Mr. Aisevho’s behaviour, but nonetheless insisted that the information was conveyed to him. However, while DC Kim made notes of other information he received from the other officers in his notes, such as Mr. Aisevho leaving the building at “odd hours” and being on his cell phone, his notes contain no mention of paranoid or surveillance-conscious behaviour.
[36] I find that there is no basis in the evidence for the statement that Mr. Aisevho was behaving in a paranoid and surveillance-conscious manner. When coupled with the suggestion that the police observed this behaviour first-hand, the statement is especially misleading. The sentence must be excised.
[37] Similarly, the fourth bullet point in paragraph 23 of the ITO states that “[o]n most occasions AISEVHO avoided being seen by video cameras of the building by either putting his hood up or looking down. This is coupled with his peculiar behaviour.” This statement is also unsupported by the officers’ notes. DC Dilly’s notes contain one reference to Mr. Aisevho wearing his hood up. DC Kim’s notes contain no reference to this information being conveyed to him. Again, it is also unclear what behaviour is being characterized as “peculiar.” Without underlying observations of actual behaviour or facts, the characterization is unsupported. This bullet point must also be excised.
[38] For the same reason, the reference to “peculiar behaviours” in the fifth bullet point must also be excised.
[39] Fourth, in paragraph 22 of the ITO, DC Kim provided inaccurate times for Mr. Aisevho’s exits and entries to the building as seen on the video surveillance. Both DC Dilly and DC Morris’s notes clearly state that the time on the building video camera was behind by one hour and 57 minutes. While he relied on their notes to draft the ITO, DC Kim did not correct the times. In the ITO, Mr. Aivseho was reported to have gone out and returned between 1:22 a.m. and 1:59 a.m. and again at 3:51 a.m. and 4:10 a.m. Those movements actually took place between 3:19 to 3:56 and between 5:48 a.m. and 6:07 a.m. As a result, at least one of those times is not as “odd” as portrayed.
[40] On cross-examination, DC Kim admitted that when he drafted the ITO, he failed to state the correct the times. He denied that he intentionally used incorrect times to make it appear as if Mr. Aisevho was coming and going multiple times in the middle of the night. However, DC Kim had no explanation as to why he did not correct the times when he was relying on the other officers’ notes for the information, and they clearly stated that the video camera was behind. In my view, DC Kim’s failure to correct the times was likely the result of carelessness, as opposed to a deliberate attempt to mislead. There were other exits and entries that DC Kim did not include in the ITO, both during the day and the night or early morning hours. Portions of the notes are in reverse chronological order and are difficult to decipher.
[41] Fifth, the fifth bullet point under paragraph 23 refers to “the numerous occasions AISEVHO was observed roaming in and around the building for short periods at all hours of the day and night.” In paragraph 21, the ITO states that Mr. Aisevho “was observed roaming the building at odd hours during the night, often times on his phone prior to leaving” and that he was “observed exiting and entering in his vehicle at various points in time during the night for short spurts.” I find that this repeated characterization Mr. Aisevho’s movements in and out of the building is significantly overstated. Based on DC Dilly’s notes, during the two to three days of video surveillance viewed by the police, he made one to two exits and entries on May 20 and 21, 2019. On May 19, 2019, Mr. Aisevho went in and out of the building at least three times between midnight and 6:00 a.m. The ITO’s references to “numerous” or “several” entrances and exits at “all hours of the day and night” is exaggerated. Similarly, it was inaccurate to state, in the sixth bullet point in paragraph 23, that “[t]his cycle was observed on numerous occasions.” All of these statements must be excised.
[42] Moreover, at no time did police conduct surveillance or follow Mr. Aisevho to confirm where he went or what he did. The police had no basis to know what Mr. Aisevho’s usual pattern was, such as whether he went to work, and at what time. While his comings and goings are characterized as odd, having conducted no surveillance, the police had no basis for comparison.
[43] In paragraph 23, the seventh bullet point “[o]ften times, AISEVHO was observed on his cell phone prior to leaving his building. It is reasonable that drug deals are made, which would explain his constant movements at odd times, at short stints.” According to the officers’ notes, Mr. Aisevho was viewed on his cell phone once while leaving the building. This statement is also inaccurate and results in an unfounded and misleading conclusion, and must be excised.
[44] Sixth, the ITO further stated in the fifth bullet point under paragraph 25 that Mr. Aisevho “attended the underground parking lot on numerous occasions in very short spurts.” The sixth bullet point further states that “[i]t is reasonable that the vehicle is used in order to pick up product. Therefore it is highly plausible that more illegal narcotics are inside the vehicle[.]” Based on DC Dilly’s notes, the video surveillance shows only one occasion when Mr. Aisevho went to the parking lot without then leaving in the vehicle. Similarly, Mr. Aisevho was seen, at most, twice carrying something other than a cell phone or keys. The statements are inaccurate and speculative and must be excised.
[45] Seventh, the third sentence of paragraph 18 of the ITO states that “[t]he vehicle was two door with black rims and a front dash camera.” In addition, the last bullet point under paragraph 25 states:
As mentioned before, AISEVHO has showed clear signs of being surveillance conscious. Officers observed a dash camera in his vehicle, which indicates an extra security measure. It is reasonable to believe that such a device is put in place in order to protect his illegal narcotics stored in his vehicle.
[46] A photograph of the item taken when the search warrant was executed shows that it is a cell phone holder affixed to the inside of the windshield of the vehicle. The location and appearance of the item are more consistent with a cell phone holder than with a dash cam. DC Kim testified that he and DC Martsenyuk drove by the vehicle in the parking garage and believed it to be a dash cam. The vehicle was parked facing out so that the front of the vehicle was visible. Although the photograph shows adequate lighting in the parking garage to see the item, DC Kim testified that it was darker when they saw it and that they drove by at a normal speed. They did not slow down or exit the vehicle in order not to arouse suspicion.
[47] It is not clear how the officers concluded that the item was a dashcam. This is not to suggest that they had to slow down or get out to observe the item, if they believed that this would compromise the investigation. However, if they had insufficient opportunity to observe the item because it was dark or because they drove by it too quickly, they should not to have stated conclusively that it was a dash cam.
[48] Moreover, DC Kim’s answers on cross-examination were concerning. When it was first put to him by Mr. Aisevho’s counsel that dash cams are relatively common, DC Kim disclaimed any knowledge of how common dash cams are. Later, however, when it was suggested to him by Ms. Seetaram’s counsel that the item was more likely to be a cell phone holder than a dash cam, DC Kim responded that dash cams are also common. If dash cams are common, as DC Kim testified, then having one does not necessarily lead to the inference made in paragraph 25 of the ITO that an individual who has a dash cam is surveillance conscious and has taken extra security measures to protect their illegal narcotics. DC Kim’s testimony was inconsistent and expedient in the moment, giving rise to a concern about the extent to which he fulfilled his duty to be full, frank and fair when drafting the ITO.
[49] The Crown submits that the errors made by DC Kim were honest mistakes based on a lack of experience. DC Kim testified that when he drafted the ITO in May 2019, he was new to the Major Crimes Unit (MCU) and had drafted only “a handful” of ITOs by then. I do not accept that the multiple errors made by DC Kim were inadvertent slips based on his lack of experience. While he was new to the MCU, DC Kim has been a police officer since 2007. The obligation to make full, frank and fair disclosure in an ITO is both basic and fundamental. In fact, the ITO that DC Kim drafted contains a statement recognizing this duty. An officer with DC Kim’s experience should have known that disclosing criminal charges without disclosing the outcome was incomplete and would mislead the issuing justice. That is just one example of how it should have been apparent to him that the disclosure provided was not full, frank and fair.
[50] On cross-examination, DC Kim took every opportunity to state that he did not intend to mislead or to influence the issuing justice, whether it was responsive to the question being asked or not. Although he acknowledged making errors, he admitted only certain, limited errors. For example, he admitted that he erred in failing to state who conveyed to him the information about Mr. Aisevho’s behaviour. However, he insisted that it was conveyed to him when there was no objective proof that it had been. In addition, DC Kim’s failure to correct the error regarding the outstanding charges is particularly concerning. If DC Kim “owned” his error, and intended to fulfil his duty to be full, frank and fair, he would have taken steps to correct the error at an earlier stage. At one point during the cross-examination, DC Kim stated that he was only involved in the investigation for two days. The attempt to minimize his role suggests that he either did not take his duties seriously or that he now wishes to distance himself from the shortcomings in the investigation.
[51] The fact that so many errors were made in relation to an investigation that was only two days long undermines the Crown’s submission that they were honest mistakes. I recognize that ITOs should not be held to a standard of perfection, given that police officers are not legally trained and are acting under time and other constraints. In this case, however, the errors do not relate to minor or tangential matters. They go to the heart of the application. Moreover, none of the omissions are favourable to the Applicants. The content of the ITO and DC Kim’s testimony lead me to conclude that the misleading statements and exaggerations were intended to bolster what were seen as slim grounds for a search warrant. If the police believed they had sufficient grounds, it would not have been necessary to mischaracterize their observations to such an extent. While I do not make this finding lightly, in my view, the ITO was deliberately misleading.
[52] In summary, the following portions are excised from the ITO:
• Paragraph 21: the second and third sentences;
• Paragraph 22: the incorrect times are excised and replaced with the correct times as follows: 3:19 a.m., 3:25 a.m., 3:56 a.m., 5:48 a.m., and 6:07 a.m.;
• Paragraph 23: bullet points three to eight; and
• Paragraph 25: bullet points five to seven;
[53] In addition, the record on this application should be amplified to include the outcome of the 2014 charges and the fact that Mr. Aisevho has no criminal record and faces no outstanding charges. The record is also amplified to include the notes of DCs Dilly, Morris and Kim.
Were the Applicants’ Section 8 Rights Breached?
[54] The next issue is whether, considering the record as modified, there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be located at the Applicants’ residence: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
The Applicable Legal Principles
[55] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: R. v. Hassan, 2020 ONSC 6354, at para. 56.
[56] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 24 C.R. (7th) 63, at para. 66.
[57] The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 168. The reviewing judge must not substitute their view for that of the issuing justice. The question is not whether the reviewing court would have issued the warrant, but whether there are sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable 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, at para. 40. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, at p. 1452.
[58] “Reasonable and probable grounds” means a “credibly based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: Morelli, at paras. 127-28; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166. A credibly based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, 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 facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.
[59] As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the issuing judge.
[60] In R. v. Debot, at para. 60, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:
• Is the information predicting the criminal offence compelling?
• Was the source of the information credible?
• Was the information corroborated by police investigation?
[61] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 60. Weakness in one factor may be offset by the strength of another factor.
Application to the Facts
Was the information compelling?
[62] The first Debot factor focuses on the reliability of the information, including the degree of detail provided by the CS and the basis or source for the CS’s knowledge.
[63] In this case, the CS provided detailed and specific information about Mr. Aisevho, including the name by which the CS knows him and how long the CS has known him. The CS confirmed Mr. Aisevho’s identity after being shown a photograph. The CS also provided detailed information of the alleged criminal activity, including: where Mr. Aisevho trafficked cocaine, the quantity and value of cocaine trafficked, how it is packaged, and the method and manner of trafficking.
[64] The information relied on in an ITO must establish not only reasonable and probable grounds to believe that an offence has been committed, but also that there are grounds to believe that evidence of the offence would be located in the location to be searched: R. v. Donaldson, 2020 ONSC 4611, at para. 20. Relatedly, there must also be grounds to believe that evidence of the offences would be found at the time the warrant is executed: R. v. Woo, 2017 ONSC 7655, at para. 60.
[65] The judicial summary makes clear that certain information about Mr. Aisevho’s alleged cocaine-trafficking activity was first-hand and was not based on hearsay or rumour. The information was not widely known or easily ascertainable. Because of the risk of disclosing information that could identify the CS, I am unable to go into further detail.
[66] The ITO provided information as to the currency of the information provided by the CS. The judicial summary specifically states that the CS provided information about Mr. Aisevho to police within 60 days of the warrant being sought. The judicial summary further provided the recency of the CS’s information, which was within 60 days of the warrant being sought. Based on my review of the unredacted ITO, currency was not an issue. The information also provided reasonable and probable grounds to believe that evidence would be located at the residence.
[67] As a result, I conclude that the information provided by the CS was very compelling.
Was the CS credible?
[68] The second factor reflects considerations such as the source’s motivation, criminal antecedents and past history of providing reliable information to the police.
[69] The CS was not a registered or carded informant with the Toronto police and had not previously provided information to the police. Whether the CS has a criminal record and the details, if any, were disclosed in the unredacted ITO that was before the issuing justice. Similarly, the ITO disclosed whether the CS had any outstanding charges and the nature of such charges. Whether the CS is involved in drug and/or criminal culture was also disclosed.
[70] The CS’s motivation for providing the information to police was either financial consideration or consideration relating to outstanding charges. The ITO states that the CS was advised of the consequences of providing untruthful or dishonest information. Any consideration would be given only after the determination of the truthfulness of the information on the particular case. The CS thus could not benefit unless the information was correct.
[71] The Crown relies on R. v. Farrugia, 2012 ONCJ 830, at para 109, to argue that where there are no material inaccuracies or omissions in the affiant’s account of the reliability of the CS, it was open to the issuing justice to find the CS “at least reasonably credible.” In Farrugia, however, the confidential informant had been providing information to the police for over two decades. In this case, the CS had never previously provided information to the police.
[72] Moreover, in this case, my finding that the disclosure in the ITO fell short of the requirement to be full, fair and frank, raises concerns about the reliability of the CS’s information, which was conveyed by a handler and recounted in the ITO by DC Kim. Because I do not have confidence in DC Kim’s recounting of the officers’ observations of the video surveillance, I find it difficult to have confidence in his reporting of the CS’s information. As Strathy J. (as he then was) found in R. v. Brown, 2013 ONSC 2848, at para. 115, “the taint attached to the surveillance undermines the reliability of the information attributed to the confidential sources.” See also, Crevier, at para. 74.
[73] Based on the foregoing considerations, I find that the credibility of the CS is not high.
Was the information corroborated?
[74] The third Debot factor relates to the independent confirmation of the CS’s information. Where the credibility of the CS is lacking, the need for good corroboration is heightened: R. v. Herta, 2018 ONCA 927, at para. 39.
[75] It is often impossible for police to obtain confirmation of the “very criminality” of what the CS has witnessed or knows: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 38. The fact that police are not able to corroborate or confirm the criminal act is not a lack of corroboration for the purposes of issuing a search warrant: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 22. At the same time, meaningful corroboration requires more than confirmation of neutral or easily discernible facts: R. v. Woo, 2017 ONSC 7655, at para. 51, citing R. v. Muller, 2011 ONSC 4892, at para. 48 (rev’d on other grounds 2014 ONCA 780).
[76] The ITO details the investigative steps taken to corroborate the information provided by the CS. Through police database checks, the police verified Mr. Aisevho’s physical description, including his height and the fact that he wears glasses. Police verified that he was renting the apartment at 1442 Lawrence Avenue West. They verified that a dark grey Nissan registered to Mr. Aisevho was parked in the underground parking lot of 1442 Lawrence Avenue West. Much of this information consists of easily discernible facts that could have been known to anyone who knew Mr. Aisevho.
[77] As detailed earlier in these reasons, the ITO gave the false impression that the CS’s information was corroborated by observations made by police surveillance. No surveillance was conducted and the observations of Mr. Aisevho were based on reviewing the building video surveillance for a very limited period. The descriptions of Mr. Aisevho’s behaviour in the ITO had no basis and were materially misleading. Without the excised portions of the ITO, there is no corroboration of activity that would be consistent with the CS’s information.
[78] In my view, only minimal investigation was conducted and there was only superficial confirmation of neutral or easily discernible facts.
Summary
[79] Taking into consideration the totality of the circumstances, while the CS’s information was very compelling, the credibility of the CS was limited, and there was insufficient corroboration by police to ensure the reliability of the information.
[80] Based on my analysis of the Debot factors, and taking into consideration the record with the excisions and amplification detailed above, there was not sufficient credible and reliable evidence to permit the issuing justice to find reasonable grounds to believe that an offence had been committed and that evidence of the offence would be found at the Applicants’ residence. Accordingly, the search warrant could not have issued and the Applicants’ under s. 8 of the Charter were breached.
Residual Discretion to Quash the Search Warrant
[81] Based on my finding that the search warrant could not have issued, I need not consider the Applicants’ argument that this court ought to exercise its discretion to quash the search warrant on the basis that the police case subverted the pre-authorization process. See R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321. In any event, I would decline to quash the search warrant on this basis. While the ITO was deliberately misleading, in this case, I find that the high standard required to exercise this discretion, which requires subversion or corruption of the pre-authorization process, has not been met.
Were the Applicants’ Rights under Section 9 Breached?
[82] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, at para. 25.
[83] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. In addition, the belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest: R. v. Canary, 2018 ONCA 304, at para. 21.
[84] The Applicants submit that the grounds for arrest rest entirely on the search warrant and that, as a result, if s. 8 was breached, s. 9 was also breached. The Crown concedes that if the court finds that s. 8 was breached, it follows that s. 9 was also breached.
[85] Accordingly, the Applicants’ rights under s. 9 of the Charter were also breached.
Should the Evidence be Excluded?
The Applicable Legal Principles
[86] Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.
[87] The first issue to address under s. 24(2) is whether the evidence sought to be excluded was “obtained in a manner” that infringed on a right guaranteed by the Charter. In this case, the firearm, ammunition, and cash were seized pursuant to a search warrant that ought not to have issued, and were thus clearly obtained in a manner that violated the Applicants’ s. 8 rights.
[88] The second issue is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:
(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused; and
(iii) Society’s interest in the adjudication of the case on its merits.
[89] In assessing the seriousness of the breach, the court is required to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.
Application to the Facts
Seriousness of the Charter-infringing state conduct
[90] On the first Grant factor, the police believed they were acting pursuant to a valid prior judicial authorization. However, the search warrant could not have issued because the disclosure was not full, frank, and fair and there were insufficient grounds.
[91] The seriousness of the Charter breach is compounded by the false and misleading statements in the ITO, which will not be repeated here. The cumulative effect of the errors, omissions and exaggeration was to portray Mr. Aisevho a drug dealer. The ITO attempted to bolster the information provided by the CS, not by corroboration, but through a mischaracterization of his behaviour. In an ex parte proceeding, full, frank and fair disclosure is essential. An officer must “take care not to exaggerate the information upon which they rely to establish reasonable and probable grounds” or to make inaccurate assertions: Morelli, at para. 102. Police officers seeking search warrants are bound to act with diligence and integrity, always mindful of the special duties of professionalism, candour, and disclosure that attach in ex parte proceedings: Farrugia, at para. 30. Where the police stray so far from the standard that is expected, their conduct cannot be said to be in good faith.
[92] This is not to suggest that the police set out to violate the Applicants’ Charter rights; rather, their conduct betrays a casual attitude toward the protection of those rights and their duty to be full, frank and fair. Even a careless breach of the Charter is nonetheless serious and precludes a finding of good faith: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44.
[93] In the circumstances of this case, I find that the s. 8 breach is serious.
The impact of the breach on the Charter-protected interests of the accused
[94] On the second Grant factor, the impact of the s. 8 breach on Mr. Aisevho and Ms. Seetaram’s Charter-protected rights is significant. Mr. Aisevho and Ms. Seetaram were in their home where their expectation of privacy is at its highest: Paterson, at paras. 46, 50; Herta, at para. 67. Mr. Aisevho had no criminal record and no outstanding charges. Ms. Seetaram was pregnant at the time.
[95] In this case, there is no suggestion that the search warrant was executed in an abusive or high-handed manner. The impact of the breach on the Applicants’ rights is nonetheless significant.
Society’s interest in an adjudication on the merits
[96] In respect of the third line of inquiry, in Morelli, at para. 102, the Supreme Court of Canada held that the third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct.
[97] In this case, there is a strong public interest in having the charges, which include trafficking in cocaine and unauthorized possession of a restricted firearm, adjudicated on their merits. The search of the residence resulted in the seizure of a loaded gun, 100 rounds of ammunition and 60 grams of cocaine. Given the nature of the seized evidence, it is reliable, thus supporting its admission. The Crown’s position is that the prosecution cannot proceed if the evidence is excluded.
Balancing
[98] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)
[99] In R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 135, Brown J.A. (dissenting) found that the inherent dangerousness of illegal firearms and society’s “desire to live free from the lethal threat” posed by them should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice. The Supreme Court of Canada, without further comment, agreed substantially with Brown J.A.’s reasons: 2019 SCC 32, [2019] 2 S.C.R. 576. However, in Le, at para. 142, the Court reiterated the principle stated in McGuffie and found that public confidence in the administration of justice is better served by requiring compliance with the Charter: at para. 165.
[100] While the Crown submits that the public expects that, absent egregious police conduct that would shock the public conscience, cases should be heard on their merits, that is not the standard applied under the s. 24(2) analysis.
[101] In this case, the ITO not only failed to provide full, frank and fair disclosure, but was deliberately misleading. This resulted in the unconstitutional search of the Applicants’ residence, which constitutes a significant intrusion on their Charter-protected rights and privacy interests and favours the exclusion of the evidence.
[102] In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the seized evidence would bring the long-term reputation of the administration of justice into disrepute.
[103] Based on my balancing of the Grant factors, my view is that the court should dissociate itself from evidence obtained in this manner. The evidence is excluded.
Conclusion
[104] For the foregoing reasons, the applications are granted. I find that the Applicants’ rights under ss. 8 and s. 9 rights were breached. Pursuant to s. 24(2) of the Charter, the seized evidence, namely, the firearm, ammunition, cocaine, and cash, is excluded.
[105] The Crown has confirmed that based on the outcome of the applications, it has no evidence to call. All charges against both Applicants are therefore dismissed.
Nishikawa J.
Released: July 21, 2021
COURT FILE NO.: CR-20-500000145
DATE: 20210721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Uhunoma Aisevho and Nadia Seetaram
REASONS FOR JUDGMENT
Nishikawa J.
Released: July 21, 2021
[^1]: The draft proposed judicial summary was marked as Exhibit ‘A’.
[^2]: The second draft proposed judicial summary was marked as Exhibit ‘B’.
[^3]: My draft proposed judicial summary was marked as Exhibit ‘C’ and was sealed. The email exchange between the court and Crown counsel was marked as Exhibit ‘D’ and sealed.
[^4]: The fourth draft proposed judicial summary was marked as Exhibit ‘E’.
[^5]: Exhibit ‘E’ was marked as Exhibit 3 on the Applications.
[^6]: DC Kim submitted a will-say statement to correct another error in the ITO, where he incorrectly checked the box for “has knowledge,” as opposed to “has no knowledge,” of prior application for a warrant in respect of the same matter. He did not correct any other errors in the will-say statement.