Introduction

[1] In the fall of 2017 the Toronto Police Service commenced an investigation into a drug trafficking operation led by Jaiden Jackson (“Jackson”). Over an approximately 8-month period the police engaged in extensive surveillance of Jackson and four others, Abdul Kamara (“Kamara”), Kyannah Brant (“Brant”), Tashannah Bartley (“Bartley”) and Savannah Young (“Young”). This included obtaining authorizations to covertly video the suspects in common areas of condominium buildings, tracking warrants and the obtaining of transmission data, and production orders to obtain information about various properties and vehicles. Undercover officers also engaged in buying drugs from each of Jackson, Kamara, Brant and Bartley.

[2] On May 20, 2018, Jackson was murdered in downtown Toronto. On May 27, 2018, the police obtained search warrants to search seven residences and seven vehicles associated with the five suspects in the drug trafficking operation.

[3] Two of the residences searched, PH-8 and Unit 4209 located at 55 Ann O’Reilly Road, were observed being used by Jackson, Kamara and Young on numerous occasions. An undercover buy took place in a stairwell of this building.

[4] Two other residences, Unit 2005 – 270 Queen’s Quay West and Unit 401 – 99 The Donway West, were used by Jackson and some of the other suspects on a frequent basis during periods of the investigation. Jackson was the tenant at the Donway address. Another residence, Unit 110 – 3 Field Sparroway, is the address for Bartley, who completed one of the undercover sales. Unit 3507 – 150 Dan Leckie Way, is the home of Young’s mother, and is the home address listed on Young’s driver’s licence, where Jackson was seen, and which Young often attended.

[5] Jackson and Young are alleged to have been boyfriend and girlfriend.

[6] The Information to Obtain the search warrant (“ITO”) is over 100 pages in length. It does not identify the applicant, Deane Luxmore (“Luxmore”), as a suspect or as someone believed to have committed any offences. However, a warrant was issued to search her apartment, located at Unit 801- 33 Princess Street.

[7] At the outset of the search of Luxmore’s apartment, Young, who was present, was arrested. Luxmore was also present and was immediately detained along with others who were with her in the apartment. During the search a large quantity of drugs was found in a closet in the apartment and Luxmore was then charged with possession of fentanyl, heroin, methamphetamines and cocaine for the purpose of trafficking.[^1] Although some of the named suspects were charged as well, all other charges have been withdrawn and the applicant alone remains charged and facing a trial.

[8] Luxmore now applies to quash the search warrant issued for her apartment and to have the evidence seized excluded pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).

Evidence about Luxmore and her address

[9] The ITO has very limited references to Luxmore and her address, which are reviewed below.

[10] First, the ITO discusses Luxmore and her apartment at sub-paragraphs 26r, s, u and v. For completeness I set out those sub-paragraphs and sub-paragraph 26t below:

r. Throughout the course of the investigation I noticed that Savannah YOUNG frequented the area of Princess Street and Front Street, Toronto. I also noticed that on the Transmission Data Recorder that phone numbers 416-522-8855 and 647-239-0906 had 532 contacts with Savannah YOUNG phone and 27 contacts with one of Jaiden JACKSON's phones. Both of these phones have the same subscriber information, Deanne LUXMORE of 33 Princess Street apartment 801, Toronto.

s. Deanne LUXMORE born November 19th, 1987 has a valid Ontario Driver's licence with an address of 33 Princess Street apartment 801, Toronto (MTO).

t. In the evening of May 20th, 2018, Jaiden JACKSON was murdered. In the morning of May 21st, 2018 Savannah YOUNG attended PH-8 at 55 Ann O'Reilly and retrieve two bags. She brought them to unit 4209 at the same building. The following day YOUNG drove to the rough area of 33 Princess Street for only a few minutes before returning to Ann O'Reilly.

u. On May 26th, 2018, observed Deanne LUXMORE and Savannah YOUNG at 33 Princess Street. Surveillance officers observed YOUNG enter unit 801 at the building.

v. Based on the tracking YOUNG's cellular phone, it appears that YOUNG has been spending most of her time, including the nights, at LUXMORE's address since the day after JACKSON's murder.

[11] By agreement, the opening words of paragraph 26r quoted above, “[t]hroughout the course of the investigation”, were removed from the ITO on this application.

[12] Almost 50 pages later, at paragraph 112 of the ITO, the following is stated:

On May 26th, 2018, members of the Gun and Gang Task Force conducted surveillance in relation to this investigation. Detective Constable BISHOP was a member of that surveillance team and has advised me regarding surveillance on that date. I have summarized the surveillance as follows:

a. Savannah YOUNG, Deanne LUXMORE and an unknown female enter unit 4209 at 55 Ann O'Reilly Road. YOUNG used a key to enter the unit. (Covert video recording)

b. Approximately 20 minutes later all three exit the unit. On the way out YOUNG is captured carrying a large shoulder bag with item(s) sticking out of the top. YOUNG did not have this bag when she entered the unit.

c. The BMW with licence plate CBWL 164[^2] was located parked in the visitor parking at 33 Princess Street, Toronto.

d. Deanne LUXMORE was observed exiting the front door of 33 Princess Street. Savannah YOUNG exited shortly afterward.

e. YOUNG returned to 33 Princess shortly afterward and was observed entering unit 801 at 33 Princess Street.

[13] Twelve pages later, the ITO indicates, at sub-paragraph 119h, that nineteen months earlier, on October 2, 2016, Young was in a car accident while driving Luxmore’s car.

[14] Later in the ITO, the following information is noted at sub-paragraph 142f:

The TDR [Transmission Data Recorder Information] has captured phone number 416-522-8855. This number is subscribed to a "Deanne LUXMORE" of 33 Princess Street apartment 801, Toronto. The TDR has captured 416-522-8855 having had contact 532 times with Savannah YOUNG's 437-772-4125 line and 27 times with JACKSON's 437-986-7146 line.

[15] The period of time in which these contacts took place is not stated; however, they included text messages as well as phone calls. To give these numbers some context, the ITO states that between March 3 and April 14, 2018, Jackson and Young had over 2,000 texts or calls with one another, as well as at least another 864 contacts using other devices between December 21, 2017, and May 25, 2018, although Jackson stopped making outgoing contacts on one of the other devices after January 20, 2018.

[16] Tracking data is not given any explanation in the ITO, such as its accuracy, range or specificity, nor are details provided of the number of times Young was in the vicinity of a particular address in downtown Toronto. This may explain why the references to Young and the address at Princess Street use language such as “the area”, or the “rough area”, or that “it appears” that Young was spending time at Luxmore’s address in the days following Jackson’s murder.

[17] Three other points should be made about the search warrant and the ITO.

[18] First, in paragraph 11 the ITO states that Jackson was the “main” person of interest and that although he had been murdered, the Informant stated that he believed “there is still evidence to be located at addresses and vehicles associated to Jackson.” [Emphasis added]

[19] Second, the search warrant for Unit 801-33 Princess Street describes the address as the “Dwelling Unit of Savannah Young.”

[20] Third, the ITO states, at para. 159:

From my experience, both as a police officer and personally, and based on the experiences of other officers of which I am aware, I believe that the types of documents and personal items to be searched for and seized and described in Appendix "A" are routinely found in locations such as the residences and vehicles which a person occupies, possesses and/or controls. Similarly, I believe that a person's cellphone(s), personal computing device(s), data storage media (hard drives, USB drives, memory cards etc.) and personal documents and items as described above are normally found with the person, in the places where he/she lives or uses, and in vehicles which he/she may own or use.

Was the search warrant unreasonable?

[21] On an application to review the issuance of a search warrant my role is not to decide whether I would have issued the warrant, but whether the issuing justice could have done so: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at p. 1452. Put another way, the question is whether the ITO contains “reasonable grounds to believe – constitutionally defined as credibly-based probability – that there is evidence respecting the commission of an offence in the location to be searched”: R. v. Herta, 2018 ONCA 927 at para. 20, citing Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at pp. 167-68. As the Court of Appeal explained: “Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities analysis.”

[22] Continuing at para. 20 of Herta, the Court of Appeal stated that “in reviewing the ITO for sufficiency, the trial judge was required to take a common-sense and holistic approach.”

[23] Applied to this case, the issue is whether the issuing judge could have found that the ITO, as revised and considering reasonable inferences to be drawn from the contents, “gave rise to a credibly-based probability” that Young had taken drugs or other evidence of drug dealing to Luxmore’s apartment at Unit 801 – 33 Princess Street.

[24] The applicant submits that this case is similar to the facts in Herta. In that case a suspect, Callahan, was wanted for robbery. A confidential informant (“CI”) provided police with information on Callahan’s general whereabouts and the cars he was using. The CI also said that Callahan had a gun and that the CI “knew” that Callahan would “not be anywhere without the gun.” Tracking data linked Callahan to a “general residential neighbourhood.” Callahan was then seen entering a house in that neighbourhood in Windsor, and a search warrant was promptly obtained for that residence and executed. No weapon was found, but drugs were located during the search and charges were laid against Herta, who was living at the house.

[25] In Herta, as here, the search warrant was issued for a location which was not the residence of the target or targets of the investigation. In finding that the search warrant should not have been issued, Fairburn J.A. (as she then was) observed at para. 54 that if the address searched had been the target’s residence “it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place.” This fact distinguishes Herta, and this case, from the recent decision of the Court of Appeal in R. v. Kalanji, 2022 ONCA 415 at paras. 21 and 27.

[26] As in Herta, the tracking data obtained by the police revealed that Young had been frequenting the “area” or “rough area” in which Luxmore’s apartment was located. This same tracking data is used to support the assertion that Young “appears” to have been staying in Luxmore’s apartment for a number of days immediately prior to the search. Like Callahan in Herta, Young was only observed entering Unit 801 once, and was not observed to be carrying anything suspicious. Further, to the extent that Young may have been spending time at Luxmore’s apartment, this occurred in the days immediately following the violent death of her boyfriend, Jackson, as the ITO notes. Thus, Young staying there is linked in the ITO to Jackson’s death, and her friendship with Luxmore.

[27] The lack of evidence of any involvement in illegal activities by Luxmore also distinguishes this case from R. v. Clairoux, 2018 ONCA 629 at para. 10, in which “the ITO made it clear that the appellant was alleged to be part of a conspiracy” to traffic in controlled substances.

[28] Nor can it reasonably be concluded, on the limited information in the ITO, that Luxmore’s apartment was Young’s residence or “dwelling place” as stated in the search warrant. There is no support for that in the ITO. A similar error in Herta was described as “misleading” and “had the potential to leave the issuing justice with the impression” that Callahan lived at the address. Consequently, the boiler-plate assertion of the affiant that “items to be searched for and seized…are routinely found in locations such as the residences and vehicles which a person occupies, possesses and/or controls”, has no application.

[29] Although Young was seen leaving Unit 4209 at 55 Ann O’Reilly Road on May 26, 2018 with some items which may have been drugs, and later that day she was seen at Luxmore’s apartment at 33 Princess Street, there was no evidence that she was seen taking items into Luxmore’s apartment. This too is similar to the facts of Herta, in which Callahan was not seen carrying a gun into Herta’s residence. And while the Court of Appeal in Kalanji observed that direct evidence is not necessary where reasonable inferences can be drawn, cases in which such inferences have been drawn involve more connections to the location than exist in this case: see Kalanji at paras. 23 -25; R. v. Vu, 2013 SCC 60. Those cases also involved more evidence of actual possession of illegal goods. In Kalanji the ITO contained information that the target possessed multiple firearms (para. 28), and in Herta the CI stated that Callahan would not go anywhere without his gun (paras. 10, 44 and 51).

[30] The question therefore becomes, as it was stated in Herta at para. 18, whether a search warrant could be issued for any location to which Young went. There is some information connecting Young to the “rough area” of 33 Princess Street during an undefined period. She has connections to Luxmore and was seen entering and leaving Luxmore’s apartment on May 26, 2018. However, there is no evidence that Young was in possession of drugs at the time or that she took drugs to Luxmore’s apartment. Luxmore’s apartment was not Young’s residence. There is no evidence that Luxmore was involved in drug trafficking, or any other criminal activity, with Young or Jackson, or that her residence was an address “associated to Jackson”, which is the limit of the affiant’s reasonable grounds stated in paragraph 11 of the ITO.

[31] It bears emphasizing, as well, that this was a search warrant for a residence, for which there is a heightened expectation of privacy.

[32] Consequently, I conclude that the evidence in the ITO does not give rise to a credibly-based probability that Young put drugs in Luxmore’s apartment. As stated in Herta at para. 51, such a finding “would have turned [Young] into walking, ready-made grounds for belief.”

[33] Hunter v. Southam established that the constitutional standard for issuing a search warrant is whether there are reasonable grounds to believe that there is evidence respecting the commission of an offence in the location to be searched. Anything less breaches the protection against unreasonable search and seizure contained in s. 8 of the Charter. I appreciate that this test does not require proof on a balance of probabilities, and that on review my task is not to interfere with the issuance of a warrant if the issuing judge could have been satisfied that the test was met. In this case, however, I conclude that the evidence is not capable of meeting the Hunter v. Southam test, and I therefore find that Luxmore’s rights under s. 8 of the Charter have been infringed.

Should the evidence be excluded?

[34] In light of my conclusion that the search violated s. 8 of the Charter, as the evidence seized and now sought to be relied on by the Crown was “obtained in a manner” that infringed Luxmore’s rights, s. 24(2) of the Charter requires that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[35] In R. v. Grant, 2009 SCC 32 at paras. 67-68, the Supreme Court stated that the purpose of the section is “to maintain the good repute of the administration of justice.” To meet that purpose the Court emphasized that one must take a broad view of the administration of justice and ask “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.” One should not be guided by the public’s reaction to a particular case, but at the impact exclusion of evidence would have on the “overall repute of the justice system.” The focus is on “systemic concerns.”

[36] The Supreme Court set out three factors to assess and balance in applying s. 24(2): “(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication of the case on its merits.”

[37] Dealing with the first prong of Grant, as in Herta at para. 65, I conclude that this factor is “neutral in the admissibility analysis.” There is no deliberate police misconduct here. There is, however, some overstating of the case, as seen in the redaction to the ITO, a lack of specific evidence linking the evidence to the premises which perhaps made the application premature and, as in Herta (at para. 64), some “sloppy work” in mistakenly suggesting that Luxmore’s residence was Young’s residence.

[38] The second prong of Grant strongly favours exclusion. The search was of Luxmore’s home, over which she had a strong expectation of privacy. As Fairburn J.A. stated in Herta at para. 67:

People sometimes invite others into their homes. They should be able to expect that, as interested as law enforcement may be in those invitees, unless there are sufficient grounds to believe that an invitee has brought something into their residence that is evidence respecting the commission of an offence, the police will stay at bay. We have a situation here where the appellant appears to have been minding his own business, free from state scrutiny, when all of a sudden he allowed someone into his home and that someone acted like a beacon for the police.

[39] In my view, a similar situation occurred in this case. Despite an extensive six-month investigation, there was no evidence in the ITO that Luxmore was involved in drug dealing with Young or others, or that she was anything more than a friend to Young who invited, or permitted, Young to stay with her in the days immediately after the death of Jackson. As in Herta, Luxmore “appears to have been minding [her] own business.”

[40] The search was highly invasive. It involved a forcible entry of Luxmore’s apartment. Luxmore and others were immediately detained or, in Young’s case, arrested. This too, is similar to Herta.

[41] The third prong of the Grant test favours admission. “[E]xclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, ‘thus bringing the administration of justice into disrepute’”: Herta at para. 72. In this case, the exclusion of the evidence will gut the prosecution of Luxmore on serious charges that would, if she was convicted, likely result in a lengthy term of imprisonment.

[42] In balancing the Grant factors, I take into account that the evidence is reliable and may support a conviction. However, one must be cautious not to put too much weight on the seriousness of the offence but remain focused on the “longer-term repute of the administration of justice”: Grant, para. 84.

[43] On the facts of this case, I again follow Herta in which the Court of Appeal found, at para. 74, that the seriousness of the breach of the applicant’s Charter rights, “which had nothing to do with him, decisively tip[ped] the scales in favour of exclusion.” Here too, I conclude that the serious breach of Luxmore’s Charter rights, as someone who is not alleged to be a suspect at all, also tips the scales in favour of exclusion.

Conclusion

[44] The application is allowed and the evidence seized from Luxmore’s premises is excluded.

Paul B. Schabas J.

Released: June 16, 2022

COURT FILE NO.: CR-20-90000330-0000

DATE: 20220616

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DEANE LUXMORE

REASONS FOR JUDGMENT

Schabas J.

Released: June 16, 2022

[^1]: The amounts involved are 1.1 kilograms of fentanyl/heroin mixture, 1.4 kilograms of crystal methamphetamine, and 871 grams of cocaine.

[^2]: A car used in the past by Jackson.

R. v. Luxmore, 2022 ONSC 3546

Case Summary

Introduction

Evidence about Luxmore and her address

Was the search warrant unreasonable?

Should the evidence be excluded?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 2