R. v. Phan, 2021 ONSC 6312

NEWMARKET COURT FILE NO. CR-19-11054-00

DATE: 20210927

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Respondent

– and –

Bradley Phan

Applicant

Ian Bell and Kelvin Ramchand, for the Provincial Crown

Deepak Paradkar and Ravin Pillay, for the Applicant

HEARD: June 28, 29, 30 and July 2, 2021 - via Videoconference

DECISION ON APPLICATION ON SECTIONS 8 AND 9 OF THE CHARTER OF RIGHTS AND FREEDOMS

SUTHERLAND j.:

Introduction

1This is an application brought by Mr. Phan to quash a warrant obtained pursuant to section 487.01 of the Criminal Code¹ dated July 8, 2019 (the “General Warrant”) and further, exclude evidence obtained by York Regional Police (“YRP”) through the execution of the General Warrant. YRP executed the General Warrant on July 10, 2019 and as a result of the search seized five kilograms of cocaine, 124 pounds of marihuana, two grams of fentanyl, one1 gram of MDMA, $120,000 in Canadian currency and a Glock pistol (the “Evidence”). Based on seizure of the Evidence, YRP arrested Mr. Phan in his vehicle while parked in a truck stop in Mississauga and a search of the vehicle resulted in the seizure of a Sig Sauer pistol (the “Sig”).

2The applicant stands charged with numerous drug-related and firearm offences from the investigation and the search and seizures resulting from the execution of the General Warrant. The applicant was arrested as part of YRP Project Zen.

3The applicant contends that his right to be free from unreasonable search and seizure has been breached. The General Warrant should not have been issued. It impermissibly delegates judicial function of determining reasonable and probable grounds to believe a criminal offence has been or will be committed to the investigating officers. There were no reasonable and probable grounds to grant the General Warrant. Lastly, there was no evidence that the time the General Warrant was issued specifying which unit at 36 Park Lawn Road (“Park Lawn”) was occupied or resided in by the applicant. Hence, the applicant’s right against unreasonable search and seizure and arbitrary detention. The unreasonable search and seizure resulted is his unlawful arrest and unlawful detention.

4The Crown takes a different view. The Crown contends that the applicant’s right to be free from unreasonable search and seizure and not to be arbitrary detention have not been breached. YRP’s actions were Charter-compliant and the General Warrant was properly issued.

5The Crown and the applicant do not dispute that if the Court determines that the General Warrant is not valid, then the applicant’s section 8 Charter right have been breached which results in an unlawful arrest and his section 9 Charter right has been breached.

Warrant and Orders Sought

6YRP sought a production order, assistance order and general warrant.

7The production order was sought to obtain information from the Property Management Company of Park Lawn, Time Property Management on the registered user of parking space 44D and key fob information of the key fob registered to the applicant. This information would be used to identify the unit number in which the applicant resides.

8The assistance order was directed to Time Property Management to assist YRP and provide all necessary information and assistance requested. The assistance to include access to all common areas of Park Lawn and access to the unit in which the applicant resides, once identified, to allow for covert entry.

9The general warrant was sought to provide judicial authorization for the YRP covert entry, placement of camera in the hallway outside the unit identified as the unit in which the applicant resides and search and seize any information located in that unit related to the investigation.

The ITO

10The ITO requesting a Production Order, General Warrant and Assistance Order was supported by an affidavit deposed by Constable Roman Santos (“Const. Santos”) dated July 8, 2019.

11Const. Santos deposed that the Lead Investigator Detective Sergeant Aaron Ladouceur (“Det. Sgt. Ladouceur”) reviewed the affidavit and supports the accuracy of the information presented therein. The affidavit indicates that there are reasonable grounds to believe that the applicant has committed the offence of trafficking in controlled substances and conspiracy to traffic in controlled substances.

12Const. Santos makes clear that the actual unit where the applicant resides at Park Lawn Road is not known.

13Const. Santos indicates Dat Nguyen is involved in drug trafficking and is presently before the Courts for drug-related offences. During an arrangement to sell a kilogram of cocaine to undercover operators and that the applicant was the person who physically delivered the cocaine on May 23, 2019. The applicant, through judicially authorized vehicle tracking, was observed attending 89 South Town Centre Boulevard, Unit 210, in Markham (“South Town”). The tracking date suggested that he resided at South Town from June 26 to June 29, 2019. Video footage and building records obtained pursuant to judicial authorization led to the applicant’s identity and unit number. It is believed that the applicant moved to a unit at Park Lawn on June 29, 2019. The tracking date shows that from June 29, 2019, the applicant began to spend time at Park Lawn. Surveillance in early July 2019 observed the applicant exiting and entering the underground parking lot at Park Lawn in his vehicle, a Dodge Journey. He was also observed using a key fob to enter Park Lawn. He was observed rolling a cart with clothing piled on top as he entered the residential elevators from the underground parking, Level 4 where his Dodge Journey vehicle was parked in spot 44.

14YRP sought judicial authorization in order to identify the unit at Park Lawn associated with the applicant along with the authority to “satisfy pre-conditions for implementation and execution of a General Warrant at 36 Park Lawn Road, Toronto.”

15The Production Order aimed to identify the unit which the applicant resided to execute the General Warrant. The Production Order was used to obtain records and information relating to the ownership of the unit-based on vehicle entry in the controlled parking garage and the designated parking spot. The General Warrant permitted a covert video camera to be installed in the common hallway of the unit and allow investigators to covertly enter the identified unit.

16Const. Santos also states that pursuant to a general warrant issued on June 18, 2016 for a covert camera in the hallway outside unit 1210 at South Town and authorization for covert entry into the unit, a covert hallway camera had been installed that captured surveillance of the applicant. On July 4, 2019, investigators entered unit 1210 and discovered “a kilogram-sized cocaine press and a list of phone numbers, mainly from Alberta, that had nicknames referencing drugs.”

17Investigators spoke with the property manager for Times Property Management that had carriage of Park Lawn. From their discussion, it was learnt that video surveillance is in the common areas and is subsequently retained for a period of 30 days. There is no surveillance on the residential floors. Entrance to the building and underground parking areas is controlled through an assigned key fob. All parking spots in the underground garage are assigned to specific residential units. Key fob activity is recorded.

18Const. Santos requests that once the identity of the unit is ascertained by two or more of the records obtained per paragraph 51 of his affidavit, YRP may execute the General Warrant and may gather information and evidence described in paragraph 52. This includes by covert surveillance camera, covert entry and search and seize any information or evidence located in the unit related to the investigation of the offences listed.

The General Warrant and Production Order

19The General Warrant as requested was granted. The General Warrant provided authorization to YRP acting under authority, or acting in good faith, subject to terms and conditions to inter alia:

(a) place a covert surveillance camera in the common hallway outside the unit;

(b) covertly enter the Unit;

(c) search and seize information or evidence located in the place related to the investigation of the offences listed;

(d) make observation by camera, video camera or with visual recording devices in relation to search and information/evidence gathering;

(e) move or cause to be moved, the contents located in the place;

20Under the heading, Terms and Conditions of the General Warrant, the warrant stated:

5. Peace Officers will only covertly enter the place set out in paragraph 3 if there are reasonable and probable grounds to believe that within the place there is information or evidence concerning an offence listed in paragraph 1, and subject to the following conditions:

a. The conditions included identifying the unit by at least two of the following records: the parking spot; the Fob utilized to access the underground parking, the Dodge Journey or the vehicle with a specified license plate number or Bradley Phan.

e. Entries limited to five entries during the period of the order.

h. After information is gathered, officers will secure the place that they entered to the best of their abilities.

k. Upon entry, peace officers are authorized to do the following:

i. Search any electronic devise (including computers, mobile phones, and digital storage media) that is believed on reasonable grounds to be used by Bradley PHAN;

ii. Copy the date from any electronic devises….that is believed on reasonable grounds to be used by Bradley PHAN;

iii. Peace officers, or any person acting under the direction therefor, are authorized to search or forensically examine the data described;

iv Search of the device and examination of the data shall be limited to seeking data relevant to the Named Offences, specifically: (list of forms of data omitted)

6. The General Warrant was valid for 30 days.

Testimony of Witnesses

7. Two witnesses were called by the Crown. These witnesses were Detective Constable Terry Woods (“DC Woods”) and Det. Sgt. Ladouceur. I will deal with their testimony separately.

DC Woods

8. DC Woods has been a member of YRP since 2009. After 2019, DC Woods became a DC.

9. He was assigned to Project Zen in February 2019. His role was that of a General Investigator and File Coordinator. Det. Sgt. Ladouceur was the main investigator in charge of the investigation. It was a small investigative team sharing the same office.

10. On July 10, 2019, he attended at Park Lawn and executed the Production Order. He obtained relevant video and key fob information to ascertain in which unit the applicant resided. He obtained the video and key fob information from the property manager, Andrew Lucas. He also received a move in/move out inspection report that indicated the applicant moved into Park Lawn on June 29, 2019.

11. DC Woods was aware through surveillance that the applicant parked at parking spot 44D, on the fourth floor of the parking garage. He knew the vehicle that the applicant was driving, a Dodge Journey.

12. From the information obtained from the property manager, he determined that parking spot 44D was associated with unit 2206. He also reviewed the video from the front lobby of Park Lawn as well as the elevator for the fourth floor of the parking garage. He also compared the video observed with the timing of the activity of the key fob to indicate the applicant’s entry.

13. From review of the video on June 29, 2019, he observed the applicant on the main floor loading area.

14. The video of July 9, 2019 showed the applicant leaving Park Lawn, at 2:10 p.m., with a black shopping bag, which appeared to be weighted and returned at 1:22 a.m. on July 10, 2019 with an unnamed female and a weighted red Goodlife gym bag. This video was reviewed at 1:20 p.m. on July 10, 2019.

15. At around 1:40 p.m. on July 10, 2019, he contacted Det. Sgt. Ladouceur and advised that the videos show the applicant leaving with a black bag on the 9th of July at 2:20 p.m. and returning on the 10th of July with a red Goodlife gym bag.

16. Det. Sgt. Ladouceur called him back at 2:10 p.m. on July 10, 2019 and advised that after another undercover operation was completed, to execute the warrant on the applicant.

17. It was Det. Sg Ladouceur’s decision to execute the warrant.

18. DC Woods was part of the team that executed the warrant at 5:17 p.m. on July 10, 2019. He, along with other team members, entered unit 2206. In the unit, the team found four bricks of cocaine in a Goodlife gym bag in the closet that was cauterized and a bundle of money in a brown paper bag.

19. At around 6:45 p.m. the team re-entered the unit and conducted a thorough search when they seized the evidence. The search was completed around 10:03 p.m.

20. After the first entry, DC Woods contacted Det. Sgt. Ladouceur and advised him what was found at the initial search. He was told to contact DC Wright to place the applicant under arrest. The applicant was arrested at around 5:37 p.m. on July 10, 2019.

21. DC Woods also testified that the applicant became a subject of Project Zen on May 23, 2019. Prior to May 23, 2019, he was not part of the initial investigation. He became part of the investigation after he delivered a kilo of cocaine, worth around $42,500, to an undercover officer. On May 28, 2019, the kilo of cocaine was processed. It was provided in an unmarked black grocery bag with handles. The cocaine was wrapped and labeled on the paper with RA7 and the kilo of cocaine was also stamped with RA7.

22. In late June and early July 2019, the applicant was under surveillance. During this surveillance, the applicant was observed attending a condominium at 89-99 South Town Centre, in Markham.

23. Pursuant to another production order and general warrant, a video obtained from South Town show the applicant on the elevator carrying a nondescript black backpack, a sling bag across his body and a shoe box. A second video showed the applicant at South Town. Key fob information was also obtained indicating that the applicant resided in unit 1210A at South Town.

24. DC Woods testified that from the video clips of the applicant at South Town, including his comings and goings from the 12th floor, he was observed with an assortment of bags that he leaves with but does not return with. It is known that the applicant is involved in the drug trade and uses nondescript black bags.

25. A tracking device was placed on the applicant’s Dodge vehicle and he was tracked going to Park Lawn.

26. On July 1, 2019, DC Woods attended at South Town and discovered that the applicant moved out of South Town on June 29, 2019.

27. On July 4, 2019, at 1:47 p.m., he and Det. Sgt. Ladouceur executed the General Warrant at unit 1210A at South Lawn. In the unit, documents with the applicant’s name and in the bedroom closet a blue hydraulic cocaine press were found. There were very little items in the unit, and it appeared that the unit was vacated.

28. The applicant shared South Town with two other individuals who had access and use of key fobs. The two other individuals have criminal records dealing with drug offences.

29. DC Woods stated that the applicant’s behaviour is consistent with drug trafficking. He may be moving illegal items but agreed that he could also be moving innocent items. He conceded that he is not aware of any observation of anything illegal being put into the black bags or red Goodlife gym bag.

30. DC Woods agreed that no cameras were installed in the hallway outside of the unit at Park Lawn.

Det. Sgt. Ladouceur

31. Det. Sgt. Ladouceur has been with YRP since 2004. He was assigned to the Major Project Unit in 2018. He became involved with Project Zen on January 8, 2018 and ended his involvement on July 18, 2019. He left Major Projects and has been in uniform since February 2021.

32. Det. Sgt. Ladouceur agreed that it was his decision to execute the General Warrant. He made the decision for covert entry into the unit. He repeated much of the testimony of DC Woods concerning the first time in May 2019 that the investigative unit of Project Zen became acquainted with the applicant. He repeated DC Woods’ testimony on the entry into the South Town unit where the applicant was residing. He confirmed that he photographed the articles discovered at South Town. Those photographs were made exhibits at this hearing.

33. I will focus on Det. Sgt. Ladouceur’s testimony concerning Park Lawn and the execution of the General Warrant on July 10, 2019.

34. Det. Sgt. Ladouceur testified that he had another undercover operation proceeding on the same day, July 10, 2019. He stated that DC Woods gave him a phone call and confirmed to him that the applicant resided in unit 2206. On July 9, 2019, the applicant was observed carrying a nondescript black bag similar to the bag used at the drug purchase in May 2019. Det. Sgt. Ladouceur testified that the applicant was observed going into a truck with a black bag and then leaving the truck without the black bag. He confirmed that he did not read the Surveillance Report dated July 9, 2012 until after the execution of the General Warrant.

35. He confirmed that DC Woods advised him that in the videos reviewed, the applicant appeared to leave Park Lawn with a weighted nondescript black shopping bag and returned at 1:00 a.m. the next day with a weighted red Goodlife gym bag.

36. Det. Sgt. Ladouceur testified that based on the briefing he received on the Surveillance Report of July 9, 2019, he believed he had reasonable and probable grounds to execute the General Warrant. Once he received the information on July 10, 2019 that the applicant left Park Lawn with a nondescript black bag and returned with a weighted red Goodlife gym bag, he made the decision to execute the General Warrant.

37. He believed after assessing the totality of the evidence, he had reasonable and probable grounds to arrest the applicant. He requested that DC Woods reach out to the Mobile Surveillance Unit (“MSU”). MSU was not available until the next day. A team from Guns & Gangs was used to execute the General Warrant.

38. In cross-examination, Det. Sgt. Ladouceur indicated that he did not know for certain whether the black bag was weighted or was weighted with drugs. He also conceded that his written notes were not thorough. He had many things going on that day and his notes could have been more precise and detailed. He agreed that his notes were silent on whether the applicant was observed with a firearm, whether the black bag or red Goodlife gym bag were weighted nor did his notes indicate that there were safety concerns with the applicant being armed. He testified that he did tell his team about safety concerns but did not make note of that fact. He also agreed that his notes were silent on the content of the conversation he had with DC Woods on July 10, 2019.

39. Det. Sgt. Ladouceur confirmed that he provided a Will Say² and in that Will Say he did not indicate that the black bags or red Goodlife gym bag(s) observed with the applicant were weighted.

40. Det. Sgt. Ladouceur testified that he did not read the ITO that was submitted to obtain the General Warrant. Later when he was directed to paragraph 11 of the affidavit that indicated he did review the affidavit and supported the contents, he testified that he may have read it and forgot that he did.

41. Det. Sgt. Ladouceur indicated that when the General Warrant was submitted, he agreed with the affiant, DC Santos, that YRP did not believe they had reasonable and probable grounds for a search warrant. He agreed that the wording of the General Warrant was “highly unusual” and he had never seen such a warrant before.

42. He later testified that prior to the General Warrant, he believed that he had reasonable and probable grounds to enter. He was of the view that there were reasonable and probable grounds to believe that the applicant was involved in drug trafficking, and that there would be evidence of breach of drug offences alleged in his unit. The use of the black bags, his selling of cocaine to an undercover officer, the hydraulic press found at South Town, the list of phone numbers mainly from Alberta with the use of drug nicknames, all pointed to reasonable and probable grounds that the applicant was a drug trafficker.

43. All that was needed was to ascertain the applicant’s unit number. Once that information was obtained, there were reasonable and probable grounds, according to Det. Sgt. Ladouceur to search the applicant’s residence and arrest.

44. Det. Sgt. Ladouceur agreed that he did not seek a search warrant or a CDSA warrant. He indicated he did not believe he needed to do so given he was granted the General Warrant.

45. The triggering event for Det. Sgt. Ladouceur was the fact that the applicant brought the red Goodlife gym bag into the unit. This showed he was bringing drugs into the unit. Covert entry into the unit was required to ascertain whether the applicant had any drugs in the unit.

Pertinent Legislation and Warrants

46. General warrants are governed by section 487.01 of the Criminal Code. Section 487.01 reads:

Information for general warrant

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure, or device to be used or the thing to be done.

Limitation

(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.

Search or seizure to be reasonable

(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.

Video surveillance

(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.

Other provisions to apply

(5) The definition offence in section 183 and sections 183.1, 184.2, 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 196 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.

Notice after covert entry

(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.

Extension of period for giving notice

(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.

47. Section 487, which authorizes search warrants, reads:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle, or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle, or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

48. Section 11 of the CDSA reads:

Information for search warrant

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

Application of section 487.1 of the Criminal Code

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

Issues

49. The issues for determination are:

a. Is the General Warrant invalid for failure to identify a named address unit of the applicant?

b. Is the General Warrant invalid for delegating the determination of reasonable and probable grounds to enter?

c. Is the General Warrant invalid for failure to comply with section 487.01(1)?

Review of the Court

50. There is a presumption that the judicial authorization in issue is valid. The onus is on the applicant to establish that the ITO was insufficient to justify the issuing of the warrant. The role of a reviewing Court is not to substitute their view for that of the issuing justice. The role is to assess whether, based on the material before the issuing justice, the authorizing or issuing justice could have issued the warrant under review.³

51. The review encompasses the whole of the ITO, being sensitive to all the circumstances. The police in drafting the ITO are required to be as precise and clear as possible, they are not required to draft as clearly and precise as a legal counsel. Ultimately, the question is whether the substance of the ITO could support the issuance of the warrant.⁴

Is the General Warrant invalid for failure to identify a named address unit of the applicant?

52. The applicant contends that the General Warrant is invalid for failing to identify a specific unit number.

53. It is without question that a person’s home is their castle and as such, a greater expectation of privacy attaches.⁵ This is not disputed.

54. The applicant argues that with search warrants, an adequate description of the place to be searched is fundamental.⁶

55. The Crown does not dispute that with search warrants under the CDSA or section 487 that a precise address or indication of the location of the search is required before a search warrant issues. The Crown points out that the authorization for search warrants is different then that of a general warrant. In search warrants, precise identification is required by the authorizing legislation. A general warrant, subject to the purpose of the general warrant, does not require a specific address with unit number, unlike a section 487 search warrant. A general warrant provides a more flexible ability for investigation over that of a search warrant.

56. Though similar in many ways, there are significant differences between a search warrant under section 487.01 and section 487.⁷ One such difference with a general warrant a description of the investigative technique that is contemplated to be used is required. In contrast, a search warrant requires a specific address of the place to be searched.

57. A general warrant is used to authorize investigative techniques or tools that would violate the Charter but permit the police with means to investigate criminal activity.⁸ In the circumstances of this case, I am not convinced that a failure to describe a unit number on its own makes this general warrant improper.

58. However, there are issues with the investigative techniques and authorization in this case, which I deal with below.

Is the General Warrant invalid for delegating the determination of reasonable and probable grounds to enter?

59. The applicant contends that the General Warrant fails for it provided the police the authorization to determine if there were reasonable and probable grounds to enter the unit, once it was identified and that there were no reasonable and probable grounds in existence.

60. The applicant argues that there is a reason for prior judicial authorization, to prevent unreasonable searches and to protect section 8 Charter rights to all individuals.⁹ The importance is prior judicial authorization. As Sopinka J. stated in R. v. Feeney:

The purpose of the Charter is to prevent unreasonable intrusion on privacy, not to sort them out from reasonable intrusion on an ex post facto analysis.¹⁰

61. The applicant argues that paragraph five of the General Warrant delegates to the police the determination of covert entry “if there are reasonable and probable grounds to believe that within the place there is information or evidence concerning an offence listed in paragraph 1” of the General Warrant. As I understand the applicant’s submission, this delegates the judicial function of prior authorization to the police. This paragraph, in effect, shifts the Court’s determination of authorization to enter the unit to “an ex post facto analysis.” The General Warrant, in paragraph five, comingles the investigative process of the police with the judicial function of prior authorization. The police “simply cannot be the impartial arbiter necessary to grant an effective authorization.”¹¹ It should not be left to the police when executing the General Warrant to make the determination of whether there are reasonable and probable grounds to believe that within the unit that the applicant resides there is information or evidence concerning an offence as described in the General Warrant.¹²

62. The Crown submits that there was no delegation. The issuing justice was satisfied on the evidence provided that the General Warrant should be issued. There were reasonable grounds to believe that the proposed investigative techniques will provide information that the drug offences alleged will be in the unit of the applicant. The technique here is covert entry. The whole General Warrant must be read and specifically paragraphs four and five. In reading the whole General Warrant, the issuing justice did not delegate authority to the police. The Crown contends that the applicant is confusing the requirements in a search warrant, under section 487 or section 11 of the CDSA, of evidence of a controlled substance at the location.

63. In determining the issues, I believe the Ontario Court of Appeal in R. v. Lucas is instructive. In Lucas, the Court was tasked with examining section 487.01 in determining whether the jury convictions of the appellants on charges of conspiracy to traffic in cocaine, possession of proceeds of crime and firearm charges should be set aside. One of the issues in the appeal was to determine if section 487.01 was constitutional. In finding that section 487.01 was constitutional, the Court reviewed the nature of general warrants.

64. At page 46 of the Decision, the Court begins by reviewing section 487.01 and the nature of general warrants. The Court indicates that: “As interpreted by this Court and other courts, s. 487.01 authorizes the search for evidence and other information that is not known to exist at the time the warrant is granted. Warrants have been granted to authorize covert searches for many different places over extended periods of times.”¹³

65. The Court in Lucas further reviews section 487.01 (1) (a), (b), and (c).¹⁴ At paragraph 125 the Court concludes:

125A central safeguard in s. 487.01 is the requirement that the judge be provided with reasonable grounds in respect of specified offences that have or will be committed and that information concerning such offences will be obtained. Limited the scope of the warrant to specified offences is particularly important where the authorization is sought in relation to offences that have not yet been committed. Judges would not be in a position to impose appropriate terms and condition if they did not know what offences the police intended to investigate. To permit covert search and seizure in relation to offences that have not yet been committed and have not yet even been identified would not strike the balance between law enforcement and protection of privacy.

66. I agree with the Crown that section 487.01 deals with the situations of the police requiring authorization to enter a premises for investigative purposes, be it covert entry to view the premises, to search and view electronic devises that they believe were used by the person they are investigating. The concern the Court has is the wording in paragraph five. The paragraph places the authority of determining if there are reasonable and probable grounds to believe that within the applicant’s residence there is information or evidence concerning an offence onto the police.

67. There is no doubt that the General Warrant identified the offences alleged to have been committed or have yet to be committed. The issue is that who decides entry is permissible on reasonable and probable grounds.

68. I am of the view that the entity to determine whether the applicant’s residence meets the reasonable and probable grounds test for entry is the judiciary.

69. To delegate the determination of reasonable and probable grounds to the police brings two fundamental principles into question. First, the necessity of prior judicial authorization and not ex post facto analysis. Second, the difficulty raised in Hunter v. Southam, that in the circumstances of this matter, the police cannot be “an impartial arbiter” in determining that reasonable and probable grounds exist to enter the unit of the applicant for investigative purposes.

70. I appreciate that in drafting warrants, the police, are not expected to be as clear and precise as if drafted by legal counsel. However, I am of the view in reviewing the General Warrant as a whole, the issuing justice does not find that there are reasonable and probable grounds to permit covert entry. I also am of the view that such authorization cannot be inferred by reviewing paragraph four of the General Warrant which states that the Court is satisfied that the requirements of section 487.01(1) have been met. For if that was the case, there would be no requirement for the police to determine reasonable and probable grounds. All that would be required would be to identify the unit and comply with the conditions for execution. A decision of reasonable and probable grounds would be immaterial.

71. I therefore determine that the General Warrant is not valid.

72. Having determined that the issuing justice did not determine reasonable and probable grounds to enter the unit and that the determination was delegated to the police, I decline to determine whether there was sufficient evidence in the ITO to conclude reasonable and probable grounds existed to issue the General Warrant.

Is the General Warrant invalid for failure to comply with section 487.01(1)?

73. If I am not correct concerning delegation of authority, I would also find the General Warrant invalid for failing to satisfy section 487.01 (1) (c).

74. Justice Moldaver in R. v. TELUS Communications Company¹⁵ found that the breadth of a general warrant was “kept in check” by prerequisites to its availability, the chief among them being section 487.01 (1) (c).¹⁶

75. At paragraph 56, Justice Moldaver stated:

56The requirement that there be “no other provision” that would provide for the search ensures that the general warrant is used sparingly as a warrant of limited resort. It guards against the general warrant becoming “an easy back door for other techniques that have more demanding preauthorization requirements” (citation omitted)

76. Justice Moldaver further stated at paragraph 93:

93This history confirms that general warrants were to play a modest role, affording the police a constitutionally sound path for investigative techniques that Parliament had not addressed. They were thus rearguard warrants of limited resort, not frontline warrants of general application. They were meant to fill gaps, not create them.

77. The Ontario Court of Appeal in R. v. Christiansen¹⁷, confirmed that section 487.01 (1) ( c) is designed to restrict the use of general warrants in circumstances where alternative investigative techniques are available.¹⁸ The Court held that “the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely to search the Unit. The police could not satisfy the requirement for a search under CDSA, s. 11 because they did not have reasonable and probable grounds to believe there was evidence at the Unit. In effect, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.”¹⁹

78. The Ontario Court of Appeal in R. v. Jodoin²⁰ reviewed a trial judge decision on a conviction for possession of drugs for the purpose of trafficking. The Court examined section 487.01 (1) (c) and section 11 (1) of the CDSA and concluded that the general warrant issued was valid. The Court noted that the requirements for issuance were stricter under section 487.01 for the general warrant can only be issued by a judge and not a justice of the peace and the Crown “must establish that it is in the best interest of the administration of justice to issue the general warrant.”²¹

79. The Court went on to find that, unlike in Telus Communications, there was no question of police evading stricter statutory requirements seeking a general warrant rather than a conventional warrant.²² There is no mention of Christiansen in Jodoin.

80. In British Columbia, the Supreme Court²³ and Court of Appeal²⁴ reviewed section 487 to conclude whether the general warrants in each case was invalid due, in part, to the availability of a warrant under section 11 of the CDSA.

81. In R. v. Mero, Parrett J. of the Supreme Court found that two elements of procedure that are different in section 487.01 on contrast to section 11 of the CDSA. The elements are the requirement that the general warrant may only be issued by a provincial judge or Superior Court judge. The second element was the requirement that the peace officer establish that a warrant is not available by another federal legislation.²⁵ Parrett J. found that a warrant was available under the CDSA and thus, this was one of the reasons for the general warrant that was issued was invalid.

82. The British Columbia Court of Appeal in R. v. Ford concluded that the wording of section 487.01 (1) (c) does not preclude a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. The obtaining of a general warrant does not prevent the police from continuing to investigate using all other lawful means at their disposal “to gathering additionally and possibly better evidence than that which could be seized immediately through the execution of a search warrant.”²⁶ The Court of Appeal determined that the general warrant was valid.

83. In the circumstances of this case, at the time the General Warrant was issued, it was known, as outlined in the ITO that:

a. The applicant is associated with Dat Nguyen a known and charged drug trafficker with an operation;

b. The applicant delivered a kilogram of cocaine to undercover officer and received payment after undercover officers made the transaction with Dat Nguyen;

c. The cocaine was brought in a black backpack;

d. The cocaine was stamped with a marking of R47 logo;

e. After the transaction, the applicant returned to his former resident, South Town, after making brief stops at a gas station;

f. The applicant moved out of South Town on June 29, 2019;

g. The applicant was observed traveling between Park Lawn and 149 Shaver Avenue, conducting counter-surveillance measures on the way;

h. The applicant attended 149 Shaver Avenue against and returned to Park Lawn rolling a cart with clothing piled on top;

i. That applicant was observed at South Town by a hallway camera installed pursuant to a previously issued general warrant;

j. On entering the South Town, discovered was a kilogram-sized cocaine press and list of phone numbers, mainly from Alberta, that had nicknames referencing drugs;

k. Police checks revealed that the Edmonton Police had flagged the applicant as a person on interest after his brother was murdered;

l. The other two residents at South Town both had criminal records with conviction for drug offences.

84. Det. Sgt. Ladouceur testified that it was his belief that YRP had reasonable and probable grounds to obtain a search warrant once it was ascertained what unit the applicant resided. The Production Order and Assistance Order were granted and executed on July 10, 2019. YRP obtained the information it required and identified the unit of the applicant quickly.

85. The cameras were not installed. Electronic devices, as far as the Court knows, were not seized, or searched. There was no further investigation.

Analysis

86. General warrants are to be used sparingly. They are not to be the go-to, front line warrant of general application. The purpose of general warrants is to aid the police in using investigative techniques that would breach the Charter but are necessary for the police to effectively perform their investigative function.

87. The Decision of Moldaver J. in Telus and the Ontario Court of Appeal decision in Christiansen makes this very clear.

88. If there are other means for the police to perform their investigative function other than prior judicial authorization by the way of a general warrant, the police are to use the other means. General warrants in effect are a warrant of last resort where there is no other investigative judicial authorization available.

89. This is not to say, as the British Columbia Court of Appeal indicated in Ford, that there cannot be concurrent means of investigative tools being used that will encompass the use of a search warrant and the use of a general warrant. The factual circumstances in Ford illustrates that in situations where there are multiple properties that are believed to be grow ops, the growing of marihuana, the police can use a search warrant to search and a general warrant for a “sneak and peak”. This investigative technique allows the police to ascertain which properties are truly grow ops and need search warrants, compared to those properties that are not grow ops, and therefore would not require a search warrant.

90. In this case, YRP believe they have reasonable grounds to believe that the applicant is a drug trafficker. YRP knew the applicant had moved his residence to a different location. YRP did not know in which specific unit he resided. Once YRP obtained that information, YRP wished to search that unit.

91. The reasoning in Christiansen is pertinent to the situation in this matter. The police may not use general warrants to circumvent other judicial authorization provisions available. The police were unable to obtain a warrant under the CDSA and thus, used a general warrant for investigative measure to seek entry into the applicant’s unit to search.

92. I am of the view, in reading the ITO, the reason for the General Warrant was to search the applicant’s unit once the police identified the unit number. YRP was unable to obtain a search warrant without the identity of the unit. There was no other investigative tool required except for the search of the unit once the information was obtained from the Production Order and Assistance Order.

93. Section 11 (1) of the CDSA authorizes a justice on an ex parte application to issue a warrant on information on oath that satisfies the justice there are reasonable grounds for a peace officer to search the place for any controlled substance, precursor, property or thing and to seize it.

94. Accordingly, YRP had other investigative means, the Production Order, Assistance Order, and a warrant through section 11 of the CDSA. YRP utilized the Production Order and Assistance Order. Once the Production Order and Assistance Order were executed and the information was obtained, section 11 of the CDSA could have been requested to obtain a search warrant. A general warrant, section 487.01, no longer was the only provision available.

95. In addition, the ITO does not indicate that there is ongoing investigation with the applicant. The ITO does not describe that even after a “sneak and peak”, it was the YRP’s intention to continue to have the applicant under investigation for any reason, such as to ascertain any other people that may be involved in the drug trafficking scheme.

96. There was no information in the ITO that describes the necessity of an ongoing investigation. The General Warrant, in my view, was a means to enter the unit without obtaining a search warrant, which YRP could not have sought without the unit identified but could have sought after the unit was identified.

97. I am cognizant that it is not my role to substitute my decision for that of the issuing judge. Having said this, I am of the view that the ITO read as a whole, the General Warrant could not have been issued for the General Warrant did not satisfy section 487.1 (1) (c).

98. Consequently, I determine that the General Warrant is invalid for failing to satisfy section 487.1 (1) (c) of the Criminal Code.

Disposition

99. For the reason above, I find that the General Warrant is invalid.

100. Given that YRP did not have judicial authorization, the applicant’s claimed Charter rights have been breached.

101. The next step is a hearing to determine if any or all of the Evidence and the Sig should be excluded pursuant section 24(2) of the Charter. A date for the hearing to be scheduled with me.

Footnotes

1. 1RSC 1985, c.C-46.
2. 2Exhibit 9
3. 3R. v. Sadikov, 2014 ONCA 72, at paras. 83-89, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at paras. 40-41.
4. 4R. v. Morelli, supra, note 4, at para. 167 and R. v. Coluccio 2019 ONSC 4559, at para. 31.
5. 5R. v. Genest (1988), 1989 CanLII 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.) at para. 42, R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 and R. v. Tessling 2004 SCC 67, 2004 S.C.C. 67 at para. 22, R. v. Sutherland, 2000 CanLII 17034 (ON CA), [2000] O.J. No. 4704 (Ont. C.A.) at para. 15.
6. 6R. v. Ting, 2016 ONCA 57 at paras. 48-50.
7. 7See R. v. Ha 2009 ONCA 340, 96 O.R. (3d) 751 (Ont. C.A.) at paras. 23-27.
8. 8Ibid.; R. v. Lucas 2014 ONCA 561.
9. 9R. v. Morris, (1988) 143 C.C.C. (3d) 539 (N.S.C.A.) at para. 33.
10. 101997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at page47 quoted from Ibid. Also see Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at para 27.
11. 11Hunter et al. v. Southam Inc., supra, note 12, at para. 35.
12. 12R. v. Lucas, supra, note 9, at para. 113.
13. 13Ibid, para. 110.
14. 14Ibid., paras. 113-125.
15. 152013 SCC 16.
16. 16Ibid, at para. 55.
17. 172017 ONCA 941. Also see R. v. Brooks 2003 CanLII 57389 (ON CA), [2003] O.J. No. 3757 (Ont. CA)- Moldaver J.A., as he then was.
18. 18Moldaver J. in TELUS Communications, page 43, indicated that general warrants should only be used where the investigative technique is truly different in substance for an investigative technique found in other legislative provision, para. 80.
19. 19Supra, note 19, at para. 11.
20. 202018 ONCA 638.
21. 21Ibid, at para. 15.
22. 22Ibid, at para. 16.
23. 23R. v. Mero 2003 BCSC 964.
24. 24R. v. Ford 2008 BCCA 94.
25. 25Supra, note 24, para. 15.
26. 26Supra, note 25, at paras. 50 and 51.