COURT FILE NO.: CR-18-1146-00
DATE: 2021 07 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Erin Norman, for the Crown
Respondent
- and -
SUVIDHKUMAR SUDANI
Deepak Paradkar and Jassiganth Vamadevan, for the Applicant
Applicant
HEARD: June 15, 2021
RULING ON PRETRIAL APPLICATION
André J.
[1] The Applicant brings a Garofoli application to exclude evidence obtained following the execution of a search warrant at his residence and motor vehicle on November 30, 2017. His counsel contends that the Peel Regional Police Force (PRPF) failed to make full, fair and frank disclosure in the Information to Obtain (ITO) and therefore breached the Applicant’s s. 8 Charter rights. Alternatively, he submits that the ITO does not establish reasonable and probable grounds to authorize a search of the Applicant’s residence. The Crown counters that the ITO complies with all the legal requirements to authorize a search of the Applicant’s residence and motor vehicle.
SUMMARY OF THE FACTS
[2] On November 29, 2017, Paul Santos and his wife Tania Henriques contacted and advised police that they had observed the applicant, their landlord, in possession of an unauthorized firearm on four occasions. They were directed to contact police by their lawyer after an incident that occurred on November 28, 2017. They provided the following information to the police:
a) The front of 190 Bovaird Drive, Unit 34, is sub-leased and operated by Murugesu Selvarajah. Mr. Selvarajah runs “Abko Parts and Services” which completes window blind repairs.
b) The front of 190 Bovaird Drive, Unit 35, is sub-leased and operated by Mr. Santos and Mrs. Henriques. Mr. Santos and Mrs. Henriques run a printing business named “Shades of Perfection”. Mr. Santos and Mrs. Henriques have been leasing the unit for approximately 2 years.
c) The Applicant operates a business, SK Scrap Metal, out of the back of both units 34 and 35 of 190 Bovaird Drive in Brampton, Ontario, leased by the Applicant and his wife. The Applicant’s wife is the landlord of the two units; however, the Applicant is the main contact for the tenants of the two units.
Incident on November 14, 2017
[3] At approximately 6:00 p.m., Mrs. Henriques and Mr. Santos attended their unit to meet with the Applicant to discuss a burst waterpipe on the premises. Mrs. Henriques advised police that an argument ensued because Mrs. Henriques and Mr. Santos did not have insurance. Mr. Santos and Mrs. Henriques were both present.
[4] During the conversation, the Applicant pulled what appeared to be a black revolver firearm, with a brown handle from his right waist band and placed it on a table. This movement was captured on surveillance. The Applicant did not verbally threaten Mr. Santos or Mrs. Henriques in any way.
[5] Shortly after, friends of Mrs. Henriques and Mr. Santos entered the unit. As the front door opened, the Applicant immediately picked up the gun from the table and placed it back in his waist band.
[6] The conversation continued and the Applicant left the unit. There was no further conversation or altercation on that day.
Incident on November 28, 2017
[7] On November 28, 2017, the Applicant attended the business of Mrs. Henriques and Mr. Santos. The Applicant asked for the spare key that he had provided Mr. Santos a few days before. Mr. Santos had asked for the key because his family did not feel safe, because the Applicant would come in on his own when the door was locked. In order to obtain the key from the Applicant, Mr. Santos lied to the Applicant stating that he needed to make a new copy.
[8] Mrs. Henriques answered the door and advised the Applicant that she did not have the key, and that her husband, Mr. Santos, had the key. Mrs. Henriques advised the Applicant that Mr. Santos was in Burlington and would not be able to bring the key any time soon. At that time, Mrs. Henriques stated that the Applicant reached for his waist, which indicated to her that he was reaching for his firearm. At that time Mrs. Henriques slammed the door in front of him. Mrs. Henriques states that she did not see the gun on that day.
[9] The next day, on the advice of her lawyer, Mrs. Henriques and Mr. Santos contacted police. At approximately 9:23 p.m., Mrs. Henriques and Mr. Santos provided formal video statements.
[10] During the police interview, Mr. Santos further advised that he had observed the Applicant in possession of a different firearm on two other occasions.
ALLEGED DEFICIENCIES IN THE ITO
[11] Mr. Paradkar maintains that the affiant of the ITO made the following material misrepresentations and omissions in the ITO:
a) He failed to disclose that the male complainant stated that the firearm seen in November 2017 was different than the one seen in June of the same year.
b) Further, the affiant failed to disclose that Mr. Santos stated that he believed the firearm he observed in June did not look real:
PAUL: Like he has another one that I’ve seen, uh, on the summer one time, again. Sorry. My watch.
21:44 Um, he had it-, uh, a black gun, but that didn’t look real.
Instead, the affiant stated the following, in para. 30 of the ITO:
Paul advised that he has a possession and acquisition license and owns firearms, and knows that the handguns he observed are real.
c) The ITO failed to mention that Mr. Santos stated that he did not believe the Applicant took the revolver to his home because of his culture.
Rather, the ITO stated that:
When police further questioned Mr. Santos as to why he believed the Applicant did not take the gun home, Mr. Santos revealed that he had previously seen the Applicant store the all black revolver on top of a filing cabinet under some papers.
OFFICER: Is there anything that make you lead-, to believe other than that like it might be his culture? Anything else make you believe that he doesn’t bring it home?
PAUL: No. Uh, one time, but I couldn’t see it. He, he has a, a file cabinet there.
OFFICER: Yeah.
PAUL: And he was looking for something for me. Uh, I ask him something and it look like right on top, it was papers on top, it look like he had a black gun there, but I couldn’t tell, uh, if it was a gun. From the back of it, it look like it.
The affiant failed to disclose that Mr. Santos revealed this fact in response to why he believed the Applicant did not take the firearm home.
d) Mr. Santos further stated he could not tell that what he observed on the filing cabinet was a gun, however from the back of it, it looked like a gun. This incident occurred sometime in July or August of 2017.
Significantly however, the affiant specifically stated at para. 22 of the ITO that Mr. Santos, who was well versed with guns, believed the guns he observed were real. Mr. Santos specifically stated he could not tell if the guns observed in the summer months of 2017 were real. He stated he believed the first time he observed the gun, he did not believe it was real.
e) On November 29, 2017, at approximately 9:54 p.m., PC Kirwan attended the Applicant’s residence and observed a Nissan Altima, Ontario marker BLMN920, located in the driveway. The Nissan Altima is registered to the Applicant:
Mr. Santos advised that he had observed the Applicant and the Applicant’s wife previously driving a Nissan Altima.
At 10:10 p.m., PC Kirwan noted that he observed an unknown male enter the Nissan Altima and drive away from the residence. The vehicle is followed to 30 Holland Drive, in Bolton, Ontario.
However, the affiant, knowing that Mr. Santos advised police that the Applicant’s wife operated the Nissan Altima, and further that police had observed an unknown male drive away from the residence in the same vehicle, instead stated in the ITO that he believed the Applicant was the sole operator of the Nissan Altima.
[12] The Applicant submits that these material omissions and misrepresentations cumulatively violate his s. 8 Charter rights and that the only appropriate remedy, under s. 24 (2) of the Charter, would be the exclusion of evidence found in the Applicant’s residence.
CROWN’S POSITION
[13] The Crown submits that the affiant of the ITO provided full, frank and fair disclosure. She maintains that Mr. Santos’ belief that the Applicant would not take the gun home because of his culture was speculative and culturally biased. Furthermore, he does not specifically state that the Applicant does not take the gun home and accordingly, the ITO is not materially misleading in this regard. She submits that Mr. Santos’ statement regarding what had occurred on November 14, 2017 gave the justice of the peace the requisite grounds to believe that the gun in this incident was real. Furthermore, the reviewing justice of the peace could reasonably have inferred that the gun could have been at the Applicant’s residence, given that the Applicant was seen with a gun on three separate occasions within a span of five months. Alternatively, if there is a breach of the Applicant’s s. 8 Charter rights, exclusion of the evidence would bring the administration of justice into disrepute given that:
a) The impugned conduct of the affiant is at the low end of the spectrum of seriousness;
b) The affiant acted in good faith;
c) There is no other Charter infringing conduct;
d) The search of the residence was relatively brief;
e) There was no gratuitous ransacking of the Applicant’s residence; and
f) Exclusion of the evidence would gut the Crown’s case against the Applicant.
GENERAL PRINCIPLES
[14] Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search and seizure.
[15] In R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 148, the Supreme Court of Canada noted that:
The home is the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society. To condone it without reservation would be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion that they may be enemies of the state.
[16] In obtaining a search warrant to search a private residence, full, frank and fair disclosure of all information in the ITO is required. Indeed, where an affiant made strategic omissions in an ITO that intentionally misled the reviewing justice of the peace, the lack of candour by the affiant may cause the resulting warrant to be set aside: See R. v. Maton, 2005 BCSC 330, 2005 BCJ 697, at para. 51.
[17] To validly obtain a search warrant, police must demonstrate under oath 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 specified place and time of the search. Such grounds are more than mere speculation, but do not rise to proof on a balance of probabilities: See Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 166-8; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.
[18] The Court of Appeal stated in R. v. Chan, 1998 CanLII 5765 (Ont. C.A.), in reviewing an ITO, that a “line-by-line, word-by-word dissection of the document” is not required. The Ontario Court of Appeal also stated in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 57, that the review does not involve a surgical dissection of the warrant “fastening on [the affiants] minor errors or acts or omissions and embellishing those flaws to the point where it is the police conduct that is on trial …”. What is required, as the Supreme Court of Canada stated in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51, is a determination of whether there is “at least some evidence that might reasonably be believed on the basis of which the authorization could have issued” (emphasis in original).
[19] Additionally, in R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 45-48, the Court of Appeal noted that:
[I]t is important to keep in mind throughout the analysis that the warrant is presumed to be valid and the correct question is whether the respondent has established that there was no basis for its authorization. This point cannot be stressed too much. The presumption means that the decision of the issuing justice must be upheld unless the applicant meets the burden of demonstrating its invalidity.
[20] Finally, in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada noted that:
[T]he reviewing judge should not set aside [the issuing justice’s] decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.
ANALYSIS
[21] It is established law that a state agent seeking an ex parte authorization has a legal obligation to provide full and frank disclosure to the judicial officer reviewing the ITO: See Re Church of Scientology and the Queen (No. 6) (1997), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 528; United States of America v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 47. In R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436 (Ont. C.A.), at paras. 30-31, the Court of Appeal noted that, “[a] search warrant must be quashed if it is shown that the police in applying for the warrant engaged in a deliberate deception: R. v. Donaldson (1990), 1990 CanLII 630 (BC CA), 58 C.C.C. (3d) 294 (B.C.C.A.). In R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620 (Ont. C.A.), at paras. 39-40, Doherty J. also noted that:
If the non-disclosure was for some improper motive or was intended to mislead the Justice of the Peace before whom the second application was made, that non-disclosure standing alone may well invalidate the warrant despite the presence of reasonable and probable grounds to issue the warrant: R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 at 127 (Ont. C.A.); R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 553 (N.S.C.A.); R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at 473 (S.C.C.).
[22] Did the affiant include misleading information in the ITO that may vitiate the validity of the search warrant? In my view, the ITO contained the following misleading information:
a) The representation that Mr. Santos believed that the first gun he saw was real when in fact he said that he did not believe it was real.
b) The affiant indicated in the ITO that Mr. Santos believed that the firearm was at the Applicant’s residence. However, Mr. Santos actually stated that he did not believe that the Applicant took the revolver to his home because of his culture.
[23] The Crown submits that Mr. Santos’ assertion to that effect was merely a matter of speculation. Even if it was, that did not justify the affiant’s statement in the ITO that “it is reasonable to believe that the firearms will be present at Suvidhkuma Sudani’s residence.”
[24] There is no evidence that Mr. Santos saw the gun at the Applicant’s residence or saw him carrying the gun to his residence. Neither is there any surveillance evidence that someone or a state agent saw the Applicant carrying something to his residence that looked like a firearm.
[25] The Crown submits that given Mr. Santos’ statement that the Applicant resided a mere five minutes away from his business, it was reasonable to believe that the gun was at the residence. However, Mr. Santos lacked any first-hand knowledge that the Applicant lived five minutes away from his business. Second, the affiant did not mention this proximity between the Applicant’s business and his residence as a basis for his belief that a firearm would be located at the Applicant’s residence.
[26] Additionally, the Crown submits that given that Mr. Santos stated that the Applicant was carrying the firearm on his person, the reviewing justice of the peace could reasonably have inferred that the gun could have been at the Applicant’s house. However, it does not necessarily follow that someone who is packing a firearm in the building where he conducts business, would carry it to his residence.
[27] For the above reasons, the affiant lacks the requisite reasonable and probable grounds to believe that the Applicant had a gun at his residence.
[28] There are two other misrepresentations that compound this misrepresentation in the ITO. The affiant claimed that Mr. Santos believed that the gun was real. This was not the case. Second, the affiant deposed that the Applicant was the sole operator of his vehicle, although police surveillance at his residence revealed that at least one other male drove Mr. Sudani’s car.
[29] In my view, the affiant lacked reasonable and probable grounds to have authorized a search of the Applicant’s residence. To that extent, the Applicant’s s. 8 Charter rights have been infringed.
REMEDY
[30] A determination of whether the fruits of the search of the Applicant’s residence should be excluded pursuant to s. 24(2) of the Charter involves a consideration of the factors set out in R. v. Grant, 2009 SCC 32. These are:
The seriousness of the Charter infringing conduct;
The impact of the conduct on the Applicant’s Charter protected rights; and
The impact of the breach on the administration of justice.
SERIOUSNESS OF THE CHARTER INFRINGING CONDUCT
[31] The Crown submits that this factor favours inclusion of the evidence for the following reasons:
a) The impugned conduct is at the lower end of the seriousness spectrum;
b) The affiant acted in good faith;
c) There is no other Charter infringing conduct;
d) The search of the residence was quite brief;
e) There was no ransacking of the Applicant’s residence.
[32] However, as already indicated, there were serious misrepresentations in the ITO, rather than an isolated, unimportant piece of information. These misrepresentations resulted in an illegal search of the Applicant’s residence, where he lived with his family. The search was conducted at night and would have caused more difficulty and anxiety to its occupants. Entering into a private residence by gun-toting police officers is inherently traumatizing for its occupants. In my view, this factor favours exclusion of the evidence.
IMPACT OF THE CHARTER INFRINGING CONDUCT
[33] The Crown submits that there was no ransacking of the Applicant’s residence and that the search was relatively brief. However, it involved a clear breach of the Applicant’s s. 8 Charter rights. It manifestly violated his rights to the peaceful enjoyment of his home. This factor therefore favours exclusion of the evidence.
IMPACT ON THE ADMINISTRATION OF JUSTICE
[34] The Crown submits that this factor favours inclusion of the evidence because:
a) Exclusion of the evidence would gut the Crown case; and
b) The scourge of gun violence has wracked the community and the exclusion of this evidence would bring the administration of justice into disrepute: see R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32; R. v. Reid, 2019 O.J. No. 288 (Ont. C.A.).
[35] There is no doubt that there is a great societal interest in ensuring that persons charged with firearm offences should be fully prosecuted by our courts. Similarly however, there is a pressing societal interest in ensuring that a person’s rights against unreasonable search and seizure are fully protected and that misleading information in an ITO does not form the basis for the issuance of a warrant to search the residence of a private citizen. Indeed, there is a pressing public concern that state agents fully respect the rights of all citizens, even those suspected of committing crimes.
CONCLUSION
[36] For these reasons, the evidence is excluded.
André J.
Released: July 26, 2021
COURT FILE NO.: CR-18-1146-00
DATE: 2021 07 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SUVIDHKUMAR SUDANI
RULING ON PRETRIAL APPLICATION
André J.
Released: July 26, 2021

