Court File and Parties

COURT FILE NO.: CR-21-30000455 DATE: 20220218 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND: Jabril ABDIRAHMAN, Abdullahi ABDIKARIM, Abdinaim Hussein, Applicants

BEFORE: S.F. Dunphy J.

COUNSEL: James Damaskinos and Bari Crackower (PPSC) and Philip Enright (MAG), for the Crown/Respondent Saul Moshé-Steinberg for the Defendant Abdikarim, David Newton for the Defendant Abdirahman and Jamil Sawani, for the Defendant Hussein

HEARD at Toronto: January 31, February 1, 2 and 7, 2022

Reasons for Decision – Garofoli

[1] This is a joint application by the defendants for relief pursuant to s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms declaring that searches conducted by Toronto Police Services under the authority of two warrants issued on May 25, 2020 breached their rights to be free from unreasonable search and seizure. The indictment includes a total of 20 counts alleging possession of unlicensed handguns and possession of narcotics for purposes of trafficking among other offences. The weapons and narcotics in question were found during the impugned searches.

[2] This hearing arose in the context of several pre-trial Charter applications brought by the defence. The trial is scheduled to take place on September 12, 2022. This portion of the hearing was restricted to the “Garofoli” challenges made by the applicants. The remaining portions of the application broadly addressing the conduct of the search and post-arrest allegations of Charter breaches will be addressed at a subsequent hearing to be scheduled.

[3] The search warrants at issue were issued at 2:45 p.m. on May 25, 2020 by Justice Hendrickson relying upon an Information to Obtain sworn by Det. Taylor of the Guns and Gangs squad of Toronto Police Service. The target of the investigation named in the warrant was Mr. Abdirahman, the crime alleged possession of a restricted firearm (a handgun) on May 19, 2020 and the items sought by the warrant were firearms, ammunition and related documents that might be found in (i) a condominium unit located on McMahon Drive in North York; and (ii) a Mercedes automobile observed by police leaving the parking spot assigned to that unit earlier that day [^1].

[4] The ITO relied very significantly upon information obtained from a confidential informant stating that Mr. Abdirahman lived in the subject condominium unit, that he was a dealer in certain narcotics and that he had in his possession one or more handguns. In disclosing the ITO to the accused, the Crown asserted CI privilege and effected numerous redactions to the ITO in order to protect the identity of the CI from disclosure.

[5] As part of its response to this application, the Crown acknowledged that the redacted version of the ITO does not contain sufficient grounds upon which the warrant could have issued. Accordingly, the Crown prepared a proposed judicial summary of the redactions and sought leave of this Court pursuant to step 6 of the Garofoli procedure to refer to the unredacted original ITO which, the Crown asserts, confirms the existence of ample grounds upon which the issuing justice could have issued the warrant.

[6] I issued a preliminary oral ruling on February 1, 2022 approving the proposed judicial summary and granting the Crown Step 6 Garofoli leave to refer to the unredacted version of the ITO in responding to this application. My written reasons (R. v. Abdirahman, 2022 ONSC 819) for that ruling were dated February 4, 2022.

[7] This application proceeded on the basis of the following evidentiary record:

a. The redacted and unredacted ITO sworn May 25, 2020; b. The approved judicial summary of the redactions; c. The viva voce evidence of (i) the affiant Detective Taylor cross-examined with my leave on certain identified topics; (ii) the property manager of the building Mr. Kabiri called by the applicants; and (iii) D.C. Syed called by the Crown in reply; d. An unsigned consent form authorizing police to access the building prepared by D.C. Syed and filled in (in part) by Mr. Kabiri; e. The preliminary inquiry transcripts introduced by consent; f. An agreed statement of facts (including exhibits thereto); g. Various colour photos taken during the course of the execution of the warrant; and h. Records of the use of the key fob assigned to the condominium unit provided to police by the property manager and extracts of CCTV footage from the elevator similarly provided to police by the property manager.

Issues to be determined

[8] While this portion of the application began as a Garofoli hearing focused on the question of whether the warrant could have properly been issued, the witness called by the defence (Mr. Kabiri) provided evidence that the defence alleged provided the foundation for a stand-alone allegation of a s. 8 Charter breach. I shall examine that issue first before proceeding to examine the more “traditional” Garofoli questions raised by the defence.

[9] Accordingly, the following issues arise for determination on this portion of the joint application:

a. Did police obtain access to the CCTV and fob access records associated with the condominium unit in question through fraud, deceit or other dishonest practices? b. Could the issuing justice have issued the warrant having regard to the excisions from and amplifications to the ITO that must be made?

Analysis and discussion

(a) Consent to access to CCTV and fob records

[10] In the course of seeking to corroborate details of the information provided by the CI, members of the Toronto Police Service attended at the condominium building on McMahon Drive identified by the source as containing the residence of Mr. Abdirahman. The team was headed by the ITO affiant Det. Taylor and included, among others, D.C. Syed and C.D. Priebe. D.C. Syed had been newly assigned to Det. Taylor’s team in the Guns and Gang unit.

[11] On Saturday May 23, 2020, D.C. Syed attended at the building at approximately 11:15 am. His intention was to seek the cooperation of building management to allow police officers to have access to the building and their consent to providing police with access to files regarding the occupants of the building, usage of an electronic fob and common area video surveillance. Saturday morning proved a poor choice of days to make this sort of inquiry. D.C. Syed was advised by building security that management was not present. The visit lasted approximately five minutes and D.C. Syed neither noted nor recalled any details of the person to whom he spoke beyond that it was someone in security.

[12] D.C. Syed returned to the building for the same purpose on Monday morning (May 25, 2020) at approximately 9:00 am. He had his supervisor Det. Taylor with him. This time, representatives of management were present and D.C. Syed and Det. Taylor were directed to the office of the property manager where they met Mr. Mahdi or “Matt” Kabiri.

[13] Mr. Kabiri is employed by Crossbridge Condominium Services and was assigned by his employer in May 2020 to be the property manager [^2] of the subject condominium building. He had been employed and assigned to this building for approximately 11 months in late May 2020.

[14] There is sharp disagreement as to what happened during the course of the meeting that followed. Mr. Kabiri’s evidence was that his company’s policy was not to cooperate with police requests of this sort except in case of emergency or with a warrant. He also said that police officers (including D.C. Syed) came a first time – he could not recall which day - but were turned away by him because they lacked a warrant. He said the officers returned later and showed him a photo on a cell phone of a warrant referencing the building and unit in question before he agreed to cooperate. He had notes placing this second meeting on May 25, 2020 (the date of the warrant) but could not recall when during the day the meeting occurred. The two police officers with whom he dealt denied having told Mr. Kabiri that they had a copy of the yet-to-be-issued warrant with them or that they showed him a photo of something purporting to be the warrant on their cell phone as alleged. Det. Taylor acknowledged that he may well have discussed with Mr. Kabiri the fact that a warrant was being sought and it would have been his practice to provide the building manager with a copy afterwards. Mr. Kabiri agreed that he did receive a hard copy of the warrant the next day or the day afterwards.

[15] What is beyond dispute is what happened as a result of the meeting between police and Mr. Kabiri. Mr. Kabiri provided police with a key and fob granting them access to the common areas of the building. As well, he provided them with access to (i) the unit records of the building that recorded the owner and listed tenant of the unit in which the police were interested, (ii) access to data showing when and at what door the key fob issued to that unit was used; and (iii) access to CCTV video from the common elevator from which police were able to make copies of clips showing who used the elevator at certain times the police were interested in.

[16] There is no question that Mr. Kabiri provided his consent to the disclosure of this information to Toronto Police in the sense that he gave access to the information and arranged for such copies as were requested to be made for them. Det. Taylor made reference to elements of the information so obtained in the ITO he prepared later that day. The issue before me is whether Det. Taylor, D.C. Syed or both of them used dishonesty or deceitful stratagems to trick Mr. Kabiri into providing the information in the mistaken belief that he was required to do so pursuant to an existing warrant that did not in fact exist. Such dishonesty if proved would vitiate the consent given by Mr. Kabiri and potentially lead to the conclusion that the conduct in question gives rise to a stand-alone s. 8 breach either directly or by reason of the excision from the ITO of the results of the investigation arising from the information obtained through such alleged dishonesty.

[17] While the applicants strongly urged me to find that the two police officers were coordinating their testimony and providing me with false testimony, I am not at all convinced that this is true. In fact, I am quite convinced that the evidence of the two police officers on this subject was both credible and reliable and is to be preferred to that of Mr. Kabiri, a conclusion that renders moot the dispute between the Crown and defence as to precisely where the burden of proof lies on discrete aspects of this application. My reasons for reaching this conclusion are as follows.

[18] First, the opportunities for collusion between the two officers were slim to non-existent. There is no indication that anyone knew that Mr. Kabiri would be testifying, or the substance of his testimony as regards the alleged need for a warrant more than a very short while before he took the stand. He was called on very short notice after the defence had already closed the evidentiary portion of their application. Neither D.C. Syed nor Det. Taylor were intended to be called by the Crown on this application. D.C. Syed testified immediately after Mr. Kabiri was finished and could not have known what Mr. Kabiri testified to regarding the alleged requirement for a warrant. D.C. Syed was sent home under a specific admonition from me not to discuss his testimony with anyone and was cross-examined first thing the next morning. Mr. Taylor was only called as a witness when the defence sought leave to cross-examine him as affiant of the ITO after D.C. Syed’s testimony was completed. This does not rule out collusion worked out in 2020 but there is no indication anyone beyond the defence and Mr. Kabiri had any inkling that Mr. Kabiri would state that he asked for a warrant before providing cooperation more than a few short hours before he mentioned that in open court.

[19] Second, the testimony of both officers was carefully and credibly given. They were careful to confirm when their memory had to be refreshed by reference to notes. They were careful not to speculate and to confine their evidence to what they were able to say from their refreshed memories. Their notes were made contemporary to the events – either at the time or at the end of the shift. Their testimony was relatively detailed and consistent with each other’s testimony as to the material points and consistent with all the other evidence that I do accept.

[20] It is to be expected that the testimony of trained police officers will often compare quite favourably to the testimony of a lay witness who may have little reason to attach significant importance to the events. While the events of the day were doubtless out of the ordinary for him, Mr. Kabiri was not personally implicated in the investigation as more than a spectator. A degree of imprecision or even confusion on his part would be quite understandable.

[21] None of these observations precludes the existence of smoothly delivered but dishonest testimony by police. However, the fact that such collusion is within the realm of the possible is no reason to infer that it is probable or likely.

[22] Third, the evidence of the two officers is more plausible and consistent with the other evidence than that of Mr. Kabiri, all allowances made for his status as a lay witness and the fading of memory with the passage of time. There are two aspects of Mr. Kabiri’s evidence in particular that do not hold up well to close scrutiny. These are his confident assertions that there was a first meeting with D.C. Syed where he initially refused cooperation and his description of the circumstances where he said that he was shown an actual copy of the warrant on a cell phone when he did agree to cooperate.

[23] Mr. Kabiri’s account of the alleged first meeting with D.C. Syed was forgivably vague in terms of timing. He could not remember if the first meeting occurred the same day as the meeting of May 25, 2020 where the consent was provided. He recalled two or three officers (including D.C. Syed) at both meetings. My review of the evidence satisfies me that Mr. Kabiri is simply mistaken about the existence of a first meeting prior to the meeting where the consent form was signed.

[24] All witnesses agree that consent to cooperation was given on May 25, 2020 – the same day that the warrant was issued and executed. A first meeting, if one occurred, would thus have to have happened either earlier on May 25, 2020 or on some day prior to May 25, 2020.

[25] There was simply no time for two separate meetings to have occurred in the morning of May 25, 2020.

[26] Det. Taylor and D.C. Syed both placed the time of the meeting where the consent was given at or shortly after 9:00 am. Mr. Kabiri did not dispute this timing and was unable to remember when this meeting occurred. Paragraph 8 of the Agreed Statement of Facts on this application confirms that D.C. Priebe was already in place in the parking garage able to make observations of activity on the parking spot assigned to the unit by 10:16 am. The information about the assigned parking spot and access to the parking garage itself were both the result of the meeting. All of this is consistent with the “consent meeting” having happened, as Det. Taylor and D.C. Syed testified, at or shortly after 9:00 am.

[27] I find that the “consent meeting” occurred at or shortly after 9:00 am on May 25, 2020.

[28] While it is perhaps physically possible for a prior meeting to have occurred the same day, that conclusion would be both speculative and implausible. Multiple officers from the team were on site. Some were preparing to conduct surveillance in addition to the two who met with Mr. Kabiri. The paper trail of police notes prepared at the time or on the day of confirms the 9 o’clock timing of the meeting. A contemporary agreement to falsify notes and evidence would have been required to leave enough time for an earlier meeting with Mr. Kabiri the same day while omitting any reference to it. Further, that earlier meeting would have to have occurred long enough before 9:00 am to allow for police to have been sent away for want of a warrant, to have decided to get around that problem by producing a fake warrant and to have made arrangements to get that document on to the cell phone of one of them all in time to have a second meeting with Mr. Kabiri at or about 9:00 am. The thesis of an earlier meeting would also depend on the presence of Mr. Kabiri at his desk significantly before 9:00 am. There is no evidence as to his normal working day in that era, but it would be speculation on my part to infer that he would have been at work significantly before 9:00 am.

[29] I find that there was no earlier meeting between D.C. Syed and Mr. Kabiri that day. The first meeting between them was at or shortly after 9:00 am when Mr. Kabiri gave his consent to provide the requested cooperation.

[30] If there was no meeting earlier on the same day, could there have been such a meeting on a prior day? While possible there is no evidence to corroborate such an earlier meeting and it seems quite implausible that such a meeting ever occurred given all of the circumstances.

[31] May 25, 2020 was a Monday. D.C. Syed confirmed by reference to contemporary notes that he attended the building but was unable to see management on the Saturday morning prior (May 23, 2020). There is no record of any other officer from the investigation team accompanying D.C. Syed that day. D.C. Syed stated that he was alone on this first occasion while Mr. Kabiri asserted that Mr. Syed was accompanied by one of two or more officers at the first meeting. There is no evidence of any other officer being assigned to accompany D.C. Syed or of notes from such officer. There is no evidence that Mr. Kabiri was working that weekend exceptionally or as a matter of routine. D.C. Syed’s evidence of being sent away by a security guard due to the absence of management is plausible and credible. There is no evidence to support the thesis of a meeting between D.C. Syed and Mr. Kabiri at any time prior to the Monday morning meeting.

[32] I have no hesitation in concluding that Mr. Kabiri was simply wrong when he described a first meeting with D.C. Syed and others. That meeting simple did not occur.

[33] Excluding as I do the prospect of an earlier meeting where Mr. Kabiri would have sent police away with the advice that his cooperation could only be secured with a warrant, Mr. Kabiri’s account of the unfolding of events at the meeting that did occur becomes very doubtful as well.

[34] If police had not been forewarned of the need for a warrant to secure his cooperation, there would have been no need to come prepared to show Mr. Kabiri a photograph of a warrant that did not exist to deceive him. The steps necessary to do so would have been somewhat complicated to arrange remotely on short notice if indeed it was possible at all.

[35] The description by Mr. Kabiri of what he saw when he allegedly viewed a cell phone image of the warrant during that meeting also leaves much to be desired in my view. On cross-examination, Mr. Kabiri confirmed receiving a hard copy of the warrant the next day or the day after. He also confirmed with apparent confidence that the copy he viewed on the cell phone image was the same as the hard copy he later received, including a reference to the handwriting of the issuing justice on the face of the document. While it is possible that Det. Taylor had advanced his draft of the ITO to the point of having filled in parts of the draft of the warrant to be sought, he certainly could not have added the handwritten comments of a justice who had not yet seen it.

[36] Mr. Kabiri’s account of seeing the warrant and what he saw is clearly confused and wrong. It is not difficult to imagine a half dozen innocent reasons to explain how he might have been mistaken in his evidence. He may, for example, have telescoped meetings that happened before the warrant was issued with meetings that happened after the warrant was issued and preparations were underway to execute the warrant. I needn’t speculate as to why Mr. Kabiri is wrong in his evidence; it is enough that I am satisfied (and I am) that he is wrong and that his account cannot be relied upon.

[37] More generally, I found that Mr. Kabiri’s testimony was quite frankly weak and highly uncertain. I do not question either his honesty or sincerity so much as I have no faith in his reliability beyond the limited issues about which he has a contemporary record. He had a quite limited recollection of the events and frequently appeared quite ready to accept leading prompts or suggestions after initially giving vague or inconclusive evidence. When he was asked what his understanding was about the existence of a warrant, he answer was that he could not recall but that he “asked for a copy of the warrant” and “someone showed me a picture of the warrant on his cell phone”. Later he was asked about the consent form being filled in and was asked in a very leading way “prior to doing that [putting the information in on the form] were you shown a photograph of a warrant?” This time he answered with apparent certainty “Yes” and “it happened at the same time”. I can attach little weight to apparently confident and precise evidence given in response to leading questions of that sort following vague and general evidence qualified by a disclaimer of memory when asked initially.

[38] There is very little precise evidence of the nature or details of the company policy in relation to warrants that Mr. Kabiri described in such general terms. There is for example no suggestion that the policy that he described was anything other than a simple informal policy of his employer. As he described the policy, the policy appears to have given him discretion to extend cooperation to police in the event of an emergency without insisting on a warrant for example. It is not at all clear how far the policy he described went. Did it require a warrant for all cooperation including such matters or simply for giving access to documents in the unit file? There is no evidence that the policy was anything like a by-law or regulation of the condominium corporation that had appointed his employer to manage the building the existence of which might offer greater grounds to assert a reasonable expectation of privacy on the part of owners or tenants of units in the building.

[39] I find that I can attach little weight to Mr. Kabiri’s confusing and confused testimony about his application of his company’s vague policy in respect to warrants. I find that Mr. Kabiri voluntarily cooperated with police in providing them with access to the building to make observations and in providing with them with access to and copies of CCTV images, fob access data and resident data. I find that such cooperation was not the result of fraud, deceit or other dishonest stratagems. Mr. Kabiri was not told that police already had a warrant in their possession when the cooperation was given nor was he shown a cell phone image of some other document.

[40] The applicants plainly conceded that their allegation of a “stand-alone” breach of s. 8 of the Charter depended upon my accepting Mr. Kabiri’s evidence that he advised police that a warrant would be required and that police deceptively showed him an image of what was described as a warrant when no such warrant existed. I have concluded that this simply did not occur and Mr. Kabiri was confused, wrong or both as to those details of his testimony. His cooperation was voluntarily given.

[41] There is no evidence of any subjective expectation of privacy of any of the accused in relation to the fob access data, the elevator CCTV data or the unit information as to which parking spot was assigned to the relevant unit in the building. There is similarly no basis to assert an objectively reasonable expectation of privacy in relation to such data on their part. There is no evidence that the police cooperation policy referenced by Mr. Kabiri was anything other than a vague, flexible and informal one. There is no evidence that it was known to any of the occupants of the building.

[42] This aspect of the defence s. 8 application must accordingly fail. The results of the May 25, 2020 investigation at the building that were included in the ITO were not the product of a breach of the s. 8 Charter rights of any of the accused.

(b) Could the warrant have properly been issued on the basis of the ITO as excised and amplified?

[43] The following are the general principles to be applied by me in considering the validity of the warrant under which the residence and the automobile were searched:

a. The predicate for seeking a warrant in this case is the existence of reasonable grounds to believe that Mr. Abdirahman was in possession of an unlawful firearm on or about the date specified (May 19, 2020) and that a search of the residence and the car that was requested would afford evidence with respect to the commission of that offence; b. In reviewing the ITO, my task is to assess whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued and not whether in my opinion the application to issue the warrant should have been granted; c. Where the record to be reviewed is subject to excisions and redactions that have been amplified by the Step 6 Garofoli procedure, the record to be reviewed and assessed is the record as corrected and amplified; d. Where a confidential source is relied upon to ground the issuance of the warrant, the information so provided must be assessed to determine whether it is compelling, credible and corroborated, such review to be made on a “totality of the circumstances” basis bearing in mind that weakness in one area may be compensated by strength in another.

[44] I have already ruled upon the Crown’s Step 6 application. Accordingly, the record to be reviewed by me shall be amplified by the unredacted copy of the ITO (i.e. the record reviewed by the issuing justice) subject to any required corrections to it.

[45] The parties are not in agreement as to what excisions ought to be made from the record to correct errors made. I shall therefore review the proposed excisions and determine which if any must be made. I shall then consider the application of the “three “C’s” of compelling, credible and corroborated to the information supplied by the confidential source. Finally, I shall review the entire ITO as excised and amplified to assess whether it contains reliable information that might reasonably be believed on the basis of which the requested warrant could have issued.

(i) Required corrections to the record

[46] The Crown agreed that two corrections to the record before the issuing justice must be made.

[47] On page 9 of the ITO, the affiant attached two still images taken from elevator CCTV data (Monday May 25, 2020 at 10:14 am) depicting an individual entering the elevator and opined “I have viewed this video and I believe that the male is Jabril Abdirahman”. Subsequent events have revealed with certainty that the male depicted in those two still images was not Mr. Abdirahman and the Crown agrees that the record must be corrected and the photo stills and opinion excised from the ITO for purposes of this review.

[48] On page 6 of the ITO (item 9, bullet point 3), the consent of Mr. Kabiri to access fob activity and video surveillance data was described as “written” consent. It is clear from a review of the consent document that the written consent provided – unsigned as it was – applied only to presence on the premises and not to the access to CCTV archives, unit records or records of fob use. Det. Taylor agreed that he was mistaken when he wrote that. The word “written” must accordingly be excised from this portion of the ITO.

[49] The foregoing are the only two corrections to the record to which the Crown consents. I am satisfied that both identified references are in fact errors. The defence opposes neither of these and the corrections will accordingly be made for the purposes of this review.

[50] The defence filed a four-page list of additional corrections that they suggested needed to be made to the record for the purposes of this review. I shall review these below.

[51] The defence sought excisions from paragraphs 3 and 5 of the ITO because of allegedly bald assertions regarding the identification of the name and address of Mr. Abdirahman. The allegedly “bald” assertions are in fact supported by the amplified record of information from the confidential source. No excisions are required.

[52] The defence sought excisions from paragraphs 7(a), (b) and (c) describing information obtained from the confidential source. The amplified record provides an ample foundation for the statements made. The “conclusory” statement about the credibility of the source requires no excision since the amplified record provided the issuing justice with sufficient information to form an independent judgment about the credibility of the source. No excisions are required.

[53] The defence sought to exclude paragraph 9 in its entirety on the basis that the information was obtained from the building manager by means of gross dishonestly or unlawful conduct. I have dealt with (and rejected) that claim in the preceding section of these reasons. Paragraph 9 does not require excision on this ground.

[54] The defence sought three specific excisions from paragraph 9 relating to the still images extracted from the CCTV data of the elevator camera captured at 6:56 am and 10:14 am. The images and opinion regarding the identification of the individual depicted in the 10:14 am still image has already been conceded to be in error by the Crown and excised on consent. That leaves the first image taken at 6:56 am. The affiant opined that he had “viewed the video and I believe that the male with the NY Yankee baseball hat and sunglasses is Jabril Abdirahman”. The defence asks me to conclude that this statement of the affiant’s belief is a bald assertion of a subjective opinion advanced without objective basis and that has been shown to be utterly unreliable.

[55] The opinion expressed by the affiant is certainly a subjective opinion. It does not purport to be other than that. It is not however a bald assertion. The ITO discloses the existence of an earlier (2018) file photograph of Mr. Abdirahman. It was the affiant’s opinion that the same individual appeared in both photographs.

[56] The test that I must apply does not extend to applying 20:20 hindsight to judgment exercised by an affiant in preparing an ITO. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: R. v. Paryniuk, 2017 ONCA 87 at para. 47. Det. Taylor was examined on this ITO but no challenge to the good faith nature of his belief was made out. Was his belief “reasonable”? From my vantage point I cannot exclude the possibility that his opinion is a correct one. The face of the man depicted in the still image preproduced in the ITO is quite obscured by a baseball cap. What can be seen appears generally consistent with the description of Mr. Abdirahman provided by the confidential source and police files. That seems a rather thin basis from which to form an identification opinion. My review role is a constrained one and it does not extend to substituting my opinions for those of the affiant or the issuing justice. I have no basis to doubt the good faith behind the opinion expressed. The ITO contains adequate information to enable a fair measure of the appropriate weight to be afforded that opinion. It is a close call, but I would not make the excision on that basis.

[57] The remainder of the requested excisions relate to pages 10 and 11 of the ITO where the grounds to believe an offence has been committed and the grounds to believe that items to be searched for will be in the places to be searched are summarized. The statements alleged to be “bald statements” or “conclusory” statements are in my view either justified by the amplified ITO or are mere statements of colour. The standard of review of an ITO is not perfection and I would decline to make any of the additional excisions requested from these sections. Where colour or puffery has been employed by the affiant it is in areas where the issuing and reviewing justices can both be presumed to be alert and astute enough to ignore them and stick to the actual information submitted. The presumption of judicial competence to separate the wheat from the chaff applies.

[58] I would make no excisions from the ITO save and except the two excisions referenced above where both parties agree an actual factual error was made.

(ii) Application of the “Three C’s” to the Confidential Source information

“credible”

[59] The amplified ITO contains a significant and meaningful level of information that permitted the issuing justice to consider and weigh relevant factors going to the credibility of the confidential source. There was meaningful disclosure of information going to the source’s motives including a discussion of what consideration if any the source might receive and on what conditions. There was meaningful disclosure of the prior record or lack thereof of the source (the entire discussion having been redacted). There was also detailed disclosure of what might be described as the “track record” of the confidential source both from the perspective of the number investigations where information was provided and the number of investigations where the information resulted in concrete action including an arrest.

[60] I concur with the Crown’s admission that the information supplied regarding the credibility of the confidential source might reasonably justify ascribing a “moderate” degree of credibility to the confidential source.

“compelling”

[61] The concept of “compelling” is a very case-specific one. In discussing this aspect of the information provided by the confidential source I must tread very carefully to avoid inadvertently disclosing information that might tend to identify the confidential source. The applicants were of course compelled to make their submissions in large measure on a hypothetical plane given the number of redactions made to the ITO and the necessarily general nature of the descriptions of those redactions approved by me They very correctly urged me to pay particular attention to the currency of the information, the source of the information including the degree to which it is derived from first-hand observations or from second-hand or more distant observations, the detail and quality of the observations made in terms of the opportunity to make them in relation both to each of the essential elements (the identification of Mr. Abdirahman, his links to the places to be searched and the links of those places to the items to be sought).

[62] The as-amplified record contains quite specific details that are not at all of the generic variety or things that might be easily guessed at or looked up. The information goes to the critical areas of the identification of Mr. Abdirahman, the nature of the crime alleged, the connection of the condominium unit to him and to the crime alleged and the reasons why evidence of the crime might reasonably be expected to be present at that location. The information also contained ample information to enable the issuing judge to understand and assess the currency of the information, how the source came into possession of the information and the relative quality of the information conveyed.

[63] Considering all of these factors and reviewing the unredacted summary of the information provided by the confidential source, I am of the view that it would be reasonable to ascribe a “highly compelling” qualifier both to the information provided and the relationship of that information to the statutory test for seeking the warrant (reasonable grounds for believing that the described offence was committed and for believing that evidence of that offence would be found at the place authorized to be searched). The confidential source provided specific, detailed, tangible and highly compelling information as to the identity of the target, the crime imputed to the target and the strength of the association of the target to the premises named in the warrant.

[64] My conclusion of “highly compelling” attributes no weight whatsoever to what I would describe as the “fluff” or “puffery” the affiant included in the ITO. The affiant opined that the information supplied by the source “should be considered extremely compelling and reliable”. Such opinion evidence of an affiant in an ITO carries no weight in these circumstances and there is no reason to expect that an issuing justice would have been misdirected by such puffery. The ITO is assessed based on the evidence of facts that it contains. Opinions such as the one mentioned added nothing to the ITO.

“corroborated”

[65] The investigation undertaken by Toronto Police to corroborate the information supplied by the confidential source involved two distinct lines of inquiry. The source identified the target as Mr. Jabril Adbirahman and provided certain details regarding Mr. Abdirahman some of which have been redacted. Police databases were consulted and revealed a 2018 photograph of the accused Mr. Jabril Abdirahman which is consistent with the description received. As well, it revealed details of the record and charges then facing the accused which included weapons offences and pending charges involving weapons and possession for purposes of trafficking. While the police database searches were by no means conclusive, they do provide corroborating evidence that the person of interest identified by the source was the same Jabril Abdirahman identified in police database searches (and the accused before the court). The same information revealed that the accused had been released on a recognizance from Alberta in October 2019 and thus suggested that at that time – October 2019 – Mr. Abdirahman was not living in the subject condominium unit. That is a mildly dissonant fact of only equivocal weight. It neither confirms nor denies that the accused was resident in Toronto during the time frame covered by the information provided by the source. The corroboration obtained from database searches was consistent with the information provided by the confidential source and thus constitutes a material degree of corroboration.

[66] Much of the controversy on this application concerns the investigation undertaken at the building and the information obtained through the cooperation of Mr. Kabiri and building management. The information obtained from that investigation is the sole source of information regarding the identification of the Mercedes automobile as a potential location to be searched the source having mentioned nothing whatever about the Mercedes

[67] The further investigation raised potential questions about the connection of Mr. Abdirahman to the subject condominium unit: he was listed as neither the owner nor a tenant of the building. No connection was established by the investigation between Mr. Abdirahman and either the owner or the tenant recorded in the building records. This information does not corroborate the information provided by the source nor does it contradict it. It raises potential issues to be considered along with all of the other circumstances.

[68] The fob use records reviewed showed time and location usage of the fob assigned to the subject unit. The fob was used to access the parking garage and the elevator to the floor on which the subject unit is situated just before 7:00 am that day. Mr. Kabiri confirmed that the fob is needed for elevator access and is programmed to provide access to the relevant floor of the building. The CCTV clip associated with the time indicated provided an image of a man entering the elevator in the early morning hours wearing a baseball cap and exiting the elevator and turning in the direction of the subject unit. The image of the man is consistent with the photograph of Mr. Abdirahman in police files, but the quality of the CCTV image is far from being sufficient to permit anything like a confident or probable identification of Mr. Abdirahman as being the person depicted. The face is too obscured by the visor of the cap and the angle of the camera to permit any greater level of certainty at least from someone not intimately familiar with the subject. On balance, the fob and CCTV data added very little to the confidence that could reasonably be ascribed to the source’s information about Mr. Abdirahman’s residence in the building.

[69] In summary, I view the investigation as having corroborated some aspects of the information of the source in significant respects. There was information that provided some confirmation of the source’s identification of Mr. Abdirahman at least sufficient to render the thesis of mistaken identity significantly materially less probable. However, the investigation also raised questions. The only information corroborating the information of the source regarding the connection between Mr. Abdirahman and the subject condominium unit was a single photograph of an individual in the elevator. That image does not exclude Mr. Abdirahman as a person associated with the unit but provides only weak identification evidence otherwise. Overall, I would characterize the quality of the corroboration evidence as being moderate as well.

[70] Of course, the source provided no information whatsoever to associate Mr. Abdirahman or his alleged criminal activities with the Mercedes automobile. I shall review the sufficiency of the information provided to justify the warrant in respect of that automobile in the next section.

(iii) Could the warrants reasonably have been issued?

[71] The backbone of this warrant application was the information provided by the confidential source. Absent that information there was clearly insufficient information conveyed in the ITO to justify the issuance of any warrant. The assessment to be undertaken of the ITO (as corrected and amplified) is based on the totality of the circumstances disclosed in the information and not on an item-by-item analysis undertaken on an all or nothing basis. Several pieces of equivocal information may be unable to bear significant weight on their own but may bear sufficient weight to justify the warrant when viewed cumulatively.

[72] In the present case, the strength of the information provided by the confidential source was highly compelling, and there was information that provided a moderate level of confidence in the credibility of the source supplemented by corroboration that raised some potential question marks but overall also provided a moderate level of corroboration of material aspects of the information. This brings into play what Justice Molloy called the “Fourth C” of the R. v. Debot [^3] test: Compensation [^4]. The assessment of the information being undertaken on an a “totality of the circumstances” basis, weakness in one area may be compensated to some extent by strength in another. This is particularly true in cases of anonymous tips where the credibility of the source is, by definition, entirely unknown: R. v. MacDonald 2012 ONCA 244.

[73] In my view, having regard to the totality of the circumstances, the compelling nature of the information provided by the confidential source as to the target, the crime alleged and the likely association of the condominium unit with evidence of the crime overcomes the relative weakness of the corroboration evidence connecting the subject condominium unit to Mr. Abdirahman. Based on the record as corrected and amplified pursuant to this review procedure, there was ample information upon which the issuing judge could have reasonably concluded that the statutory preconditions for the issuance of the warrant to search the condominium unit were satisfied. The defence application as regards this warrant must be dismissed.

[74] I reach the same conclusion as regards the warrant to search the Mercedes automobile but via a slightly different path of reasoning. The police investigation on the morning of May 25, 2020 established a reasonable basis to link the Mercedes automobile to the condominium unit. It was observed to be parked in the spot assigned to the condominium unit. The plates attached to the automobile were not registered to Mr. Abdirahman nor were they registered to any other person with a known connection to the unit. That last point is in my view a neutral fact. The confidential source information contains compelling information connecting Mr. Abdirahman to the condominium unit, connecting Mr. Abdirahman to the business of dealing in drugs in some capacity. It also provides grounds to believe that one or more handguns may be found in association with him. The automobile was observed that morning to be driving in a somewhat odd fashion possibly consistent with avoiding police surveillance. These circumstances viewed as a whole, provided reasonable grounds upon which a warrant to search the Mercedes automobile could be issued for evidence of one or more handguns in the possession of Mr. Abdirahman.

Disposition

[75] In the result, I have concluded that the application of the accused must be dismissed as regards the s. 8 Charter issues raised regarding the validity of the warrants issued and conduct of police in obtaining consent of Mr. Kabiri.

S.F. Dunphy J. Date: February 18, 2020

Footnotes

[^1]: There were two warrants applied for under a single ITO: one for the condominium unit in the building and one for a Mercedes automobile observed by police to be parked in the reserved parking spot allocated to that unit. References herein to “the warrant” refer to either or both warrants as the context requires. [^2]: Mr. Kabiri described his title as “property manager”. D.C. Syed described Mr. Kabiri as assistant property manager in May 2020. Whether Mr. Kabiri was promoted from assistant property manager after May 2020 or whether D.C. Syed was mistaken in recording the title he was given is of no relevance. [^3]: R. v. Debot, [1989] 2 S.C.R. 1140 [^4]: R. v. Durban, 2012 ONSC 6939 at para. 11