COURT FILE NO.: 21-41 and 21-53

DATE: 20221107

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King, Respondent

v.

Kyle Moir, Applicant

BEFORE: Justice Spencer Nicholson

COUNSEL: M. Smith, for the Federal Crown

A. Paul, for the Provincial Crown

L. Gunn for the Defendant, Kyle Moir

HEARD: April 20, 21, 25, 26, 29, September 19, and October 17, 2022

ULTIMATE RULING ON

GAROFOLI APPLICATION

NICHOLSON J.:

[1] Over the last several months, I have been presiding over this Garofoli application relating to a search warrant issued with respect to premises located at 453 Talbot Street, apartment 201, in St. Thomas, Ontario.

[2] The applicant, Kyle Moir, has been charged with various drug and weapons offences. He seeks to exclude at his trial evidence obtained via the search warrant on the basis that his s. 8 Charter rights were breached. These reasons conclude the application and explain my decision on the admissibility at trial of that evidence.

[3] I indicate at the outset that given the involvement of eleven confidential informants and three confidential sources, these reasons may out of necessity seem cryptic. Clearly, I must be mindful of disclosing any information that might reveal the identity of these individuals.

Procedural History:

[4] I have issued several endorsements along the way.

[5] In the initial stages of the proceedings, Mr. Moir’s application was joined by his co-accused, Hannah Williamson. The charges against Ms. Williamson were stayed by the Crown about halfway through the application.

[6] I was first asked to determine whether, based only on the redacted ITO provided to the defendants, the search warrant could have issued. In my decision dated April 22, 2022, I held that the ITO was so profoundly redacted that it would be an improper balancing of the interests of law enforcement, informer privilege and the accuseds’ right to make full answer and defence if I were not to proceed to step six.

[7] Accordingly, the two Crown counsel and I met in closed court, with assistance from the affiant of the ITO, PC Lobsinger, and prepared a judicial summary of the unredacted ITO over two days. The proceedings were done on the record, but I ordered the record sealed. The judicial summary was provided to both defendants. In my ruling dated May 31, 2022, I concluded, while recognizing that the defendants would have to be creative in their arguments, that the judicial summary, coupled with the redacted ITO afforded sufficient information to allow the defendants to make full answer and defence.

[8] Finally, the applicant, Mr. Moir, by then the only remaining defendant, sought to cross-examine PC Lobsinger. In my decision dated September 20, 2022, I denied leave to cross-examine the officer.

Factual Background:

[9] In 2017, the St. Thomas Police Street Crime Unit began receiving information that Kyle Moir was actively selling crystal methamphetamine within the City of St. Thomas. He was arrested and later convicted that year on two counts of possession of a controlled substance.

[10] He was again arrested on January 16, 2018 and charged with breach of recognizance. While Mr. Moir was in custody, the correctional officers discovered 40 grams of crystal methamphetamine and $675 within his shoe. He was charged and that matter has not yet been resolved. He remained in custody until the end of July 2018.

[11] The police continued to receive information from confidential informants that Mr. Moir was trafficking illicit drugs.

[12] Mr. Moir was arrested in September of 2018 and subsequently convicted on two counts of possession for the purpose of trafficking, specifically cocaine and crystal methamphetamine. He served his sentence and was released in September of 2019.

[13] In May of 2020, a member of the St. Thomas police observed a motorcycle being operated without plates at high speed. The officer noted the clothing of the rider but did not pursue the motorcycle. Subsequently, he located Mr. Moir wearing the exact distinctive pants that the rider had been wearing. A subsequent search incident to arrest located two Ziploc bags containing a substance believed to be cocaine, in the amount of 113.7 grams. He had $2,650 in Canadian currency on his person as well.

[14] Mr. Moir was once again released on bail. Importantly, his address on the recognizance was a London, Ontario apartment building.

[15] On June 18, 2020, Mr. Moir was arrested again for breaching his curfew conditions. He was searched incident to arrest and a large amount of Canadian cash was found. This included twenty-two $50 bills (loose), one hundred and ninety-seven $50 bills bundled together with three $100 bills, five $20 bills, eight $10 bills and thirty-nine $100 bills bundled together and three hundred $20 bills. The total amount of cash was $21,330.00. Moir explained to the police that this money came from the sale of a pick-up truck that had been gifted to him.

[16] The police investigation of Mr. Moir culminated in the 109 paragraph ITO sworn by PC Lobsinger on July 2, 2020. Within that ITO, PC Lobsinger relied upon information received from eleven confidential informants and three “unproven” sources. PC Lobsinger sought a warrant under section 11 of the Controlled Drug and Substances Act (“CDSA”).

[17] Within the ITO, PC Lobsinger also relied upon surveillance conducted by the police. The surveillance particulars included, inter alia, that:

• Mr. Moir travelled on a motorcycle at high rates of speed and in a manner in which PC Lobsinger described as “evasive”.

• On April 12, 2020, an off-duty officer observed Mr. Moir and an unknown female walking on Talbot. They went into a Shoppers Drug Mart and then were observed entering the front door of 453 Talbot St. together;

• On May 27, 2020, a Suzuki motorcycle without license plates was located at the rear of 453 Talbot St., an apartment building. Mr. Moir was observed exiting the apartment building with an unknown female. Another individual, known to the police as being involved with drug trafficking arrived at the same location and he and Mr. Moir were observed going up the rear stairs and into the apartment building for a short period of time before coming back down. Mr. Moir was observed leaving the rear of the apartment building on the Suzuki motorcycle.

• Subsequent surveillance, on June 2, 2020, re-established Mr. Moir on the Suzuki motorcycle.

• On June 29, 2020, surveillance was done at 453 Talbot Street. A motorcycle was observed covered in a tarp behind the apartment building. Several individuals were noted to arrive. Mr. Moir came down the rear stairs of the apartment building and met with one male for a brief conversation. They then went to the covered motorcycle, which Mr. Moir partly uncovered. They looked at the motorcycle for awhile and then Mr. Moir covered it back up and went back up the stairs. The male left the area. Moir was observed “conducting counter-surveillance”. He exited the rear doors of the building and scanned the parking lot and surrounding area.

• On June 30, 2020, the police again conducted surveillance at 453 Talbot St. They noted the arrival of several individuals known to police. One woman waited at the bottom of the rear stairs and was met by Mr. Moir and another man, who walked down the stairs to her. The interaction was thirty seconds long and the police suspected a drug transaction. Later, Mr. Moir was observed re-entering 453 Talbot St. using the front entrance with the same male.

[18] The search warrant was issued by Justice of the Peace Steenson, specifying apartment 201-453 Talbot Street, St. Thomas, Ontario. The warrant is dated July 2, 2020.

[19] The police executed their search on 201-453 Talbot Street on the same date, July 2, 2020. They found the door barricaded with extra pieces of wood across the door and door frame, with a long metal pole propped against the middle of the front door. The police had to break the door down to gain entry.

[20] Ms. Williamson was found within the apartment, hiding in a supply closet. Police discovered and seized the following contraband:

• 283.3 grams of methamphetamine;

• 0.6 grams of fentanyl;

• 14.3 grams of cocaine;

• 11.7 grams of crack;

• 2 x 10 mg + 2 x 5 mg of oxycodone;

• 46 x 2 grams of Xanax;

• 7 x 30 mg, 36 x 18 mg, 12 x 12 mg, 1 x 9mg of hydromorphone of various strengths;

• A .22 calibre loaded firearm described as a “Mossberg 715T”;

• CQ-A.223 calibre semi-automatic rifle;

• Remington 1911 R1S semi-automatic 45 calibre handgun;

• Smith and Wesson SD9VE 9 millimetre handgun; and

• Mako replica firearm.

[21] The police also discovered that the crystal methamphetamine was in bakeware, in close proximity to acetone, suggesting that it was being produced on the kitchen stove.

[22] There was also a large quantity of knives and ninja swords located in a guitar case.

Legal Principles:

[23] Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure.

[24] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265). A search of a premises pursuant to a validly issued search warrant does not breach an individual’s s. 8 Charter rights. The issuing justice has reviewed the material and determined that there are reasonable and probable grounds to search the premises identified for the evidence reasonably believed to be located there.

[25] A search warrant is presumptively valid, and the onus is upon Mr. Moir to demonstrate invalidity (See: R. v. Sadikov, 2014 ONCA 72, at para. 83; R. v. Crevier, 2015 ONCA 619, at para. 66). The scope of review is narrow. The test is not whether the reviewing justice would have issued the search warrant. Rather, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could, not would, have issued (Sadikov, at para, 84; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40).

[26] In the case of a warrant under s. 11 of the CDSA, the issuing justice must be satisfied that there are reasonable and probable grounds to believe that:

(a) A controlled substance or their precursors;

(b) Anything in which a controlled substance or a precursor is contained or concealed;

(c) Offence-related property; or

(d) Anything that will afford evidence in respect of a CDSA offence

is in a specific place at the time of the proposed search.

[27] As described in Sadikov, at para. 81, “reasonable grounds to believe” does not require proof on a balance of probabilities. The required standard is one of credibly-based probability. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search.

[28] A police officer requesting a search warrant is under a duty to make full, frank and fair disclosure to the issuing justice (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 46-48).

[29] When information relied upon by the affiant comes from confidential informants, the court, in considering the adequacy of the information must take into account the three “C’s” derived from the Supreme Court of Canada decision, R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168. The court must consider:

• The credibility or reliability of the confidential informant;

• The degree to which the information is compelling or cogent; and

• The degree to which the confidential informant’s information is corroborated or supported in material matters by credible independent information.

[30] In assessing these three factors, the court does not consider each of them in isolation. Rather, the court makes the assessment by looking at the totality of the circumstances. Weaknesses in one area may be compensated for by strengths in other areas (Debot; R. v. Rocha, 2012 ONCA 707, at para. 16) .

[31] Since I have concluded that the redacted ITO in conjunction with the judicial summary sufficiently allowed the accused to make full answer and defence, both the Crown and the court could rely upon the unredacted ITO in determining whether the search warrant could have issued. As noted by Roleau J.A. in Crevier, at paras. 46 and 47:

46 When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though it very well could have issued based on the complete picture that was before the issuing justice. The affiant police officer may have carefully prepared a detailed and thorough ITO that met the statutory requirements, setting out reasonable and probable grounds for the search and addressing the three Debot criteria for assessing the reliability of informer tips. But the search will nonetheless be found to have violated the accused’s Charter rights because the reviewing court is prevented from relying on the redacted portions of the ITO. Similarly, the issuing justice may have carefully assessed the sufficiency of the ITO before authorizing the issuance of the warrant and correctly concluded that the ITO was adequate, but will nonetheless be found to have erred because the reviewing court cannot rely on the redacted portions of the ITO. See Rocha, at paras. 49-50.

47 Provided the accused’s right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, be found inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many search warrants and the interest of law enforcement.

[32] In R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341 (ONCJ), Kelly J., reviewed the authorities and reached the conclusion that the court could consider the unredacted ITO in assessing whether confidential informant information was credible, compelling and confirmed. I agree.

[33] Finally, it must be kept in mind that ITOs are drafted by police officers, not lawyers and are investigative aids, not legal briefs. The court must not be overly concerned with specificity and legal precision of drafting. Furthermore, the reviewing justice looks at the whole of the ITO and should not engage in a paragraph-by-paragraph parsing of the ITO (see: R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260, 20 O.R. (3d) 468, at para. 20).

Arguments of the Parties:

[34] The defence argues that the ITO did not set out reasonable grounds for the warrant as the Debot test was not met. First and foremost, the ITO failed to include the criminal records of the confidential informants, which counsel described as an extremely important requirement given that each of the CIs would have had their own individual motivations for proving information. It is not only charges relating to perjury and obstruction which might call into question the credibility of an informant. Furthermore, the information from none of the CIs is noted to have led to convictions, just to arrests and seizures. In defence counsel’s submissions, the quantity of CIs is unimportant.

[35] Secondly, the defence argues that there was a real lack of effort on the part of the police to corroborate the information that they were provided. There were only four days of surveillance and in the opinion of the defence, the surveillance did not yield very compelling observations. Counsel argues that the police never viewed Mr. Moir actually going into or out of apartment 201. She points to more that the police could have done to connect Mr. Moir to other addresses.

[36] Finally, the defence argues that the ITO lacked specificity. It was based largely on second-hand information as opposed to first-hand information. The information was largely generic. Most importantly, the information did not adequately link Mr. Moir to 453 Talbot, or to apartment 201, proximate in time to when the search was conducted. Mr. Moir, throughout the ITO is associated with several different locations.. In defence counsel’s view, this case is akin to Rocha, supra, where the ITO did not adequately establish the grounds to search the defendants’ home.

[37] For the purpose of this application, the defence recognized that the ITO did contain significant evidence implicating Mr. Moir in drug trafficking. However, the defence maintains that there was insufficient evidence linking him to the apartment in question.

[38] I pause here to state that several of the assumptions relied upon by the defence may be factually inaccurate, given that the defence is unaware of what is actually contained within the ITO. The defence was required to make arguments in the hypothetical and alternative.

[39] The Crown admitted from the outset of the application that the ITO was deficient with respect to a search for firearms. However, given that the warrant was still validly issued for drugs, the weapons that were found are still admissible.

[40] The Crown argues that the affiant, as an experienced police officer, is entitled to make inferences based on his training and experience. The issuing justice is entitled to rely upon those inferences. The authorizing justice is also entitled to draw reasonable inferences from the contents of the ITO (see: Sadikov, at para. 82 and Sanchez, at para. 20).

[41] The Crown argues that the ITO fairly sets out the information that the police had that connected Mr. Moir to other addresses, for the consideration of the issuing justice. However, the ITO does contain ample links between Mr. Moir and 201-453 Talbot, temporally proximate with when the warrant was sought. Furthermore, the police did not have to establish that Mr. Moir lived at the apartment, just that items that they were seeking were likely to be found at the premises.

[42] The Crown, who have seen the unredacted ITO, argue that the information from the CIs is compelling. There is significant first-hand information. There is considerable detail. Furthermore, the CI information was corroborated by other CI information and the police investigation.

[43] The Crown does concede two deficiencies with the ITO. The first is that it failed to refer to surveillance conducted on June 3, 2020. However, the Crown argues that surveillance in no way detracted from the information contained within the ITO and that reasonable grounds existed without this surveillance.

[44] The Crown also concedes that it would have been preferable for the affiant to have included the full criminal records of the informants for the issuing justice. However, the Crown argues that what was included within the appendix demonstrates that the officer was acting in good faith. Further, the Crown argues that “past and proven” does not require that CI information has led to convictions. It is sufficient if the information has led to arrests and seizures.

Analysis:

Credibility:

[45] I disagree with counsel for the defence that the number of confidential informants and sources is unimportant. Where there are fourteen different sources of information, and the information is consistent among many of the sources, in my view it adds to the overall credibility and reliability of the information. Information from some sources with less credibility can be bolstered by information from more credible sources. I also view that the information provided by some sources can corroborate the information provided by others. Thus, it is an important feature of this case that the police gathered information from fourteen different sources. Quite simply, the number of eyewitnesses does matter.

[46] With respect to the ITO, it does not attach the criminal records with respect to the CIs/sources. For each CI/source, the ITO identifies whether the individual has provided information in the past, whether that information led to arrests or seizure of contraband, whether the individual has a criminal record and a brief statement with respect to the individuals’ motivation. The nature of the contraband seized is specified. Where the individual has a criminal record, the affiant has included a brief statement as to whether the individual has been charged with obstruction of justice or perjury. Where there was a charge relating to either of those offences, a description was provided in the appendix. Admittedly, any charges unrelated to obstruction of justice or perjury are not laid out for the issuing justice. However, the issuing justice would be aware that there are other criminal charges.

[47] I agree with defence counsel that charges other than those related to obstruction of justice or perjury could be relevant to a CI’s credibility. Thus, the failure to include the actual criminal record deprives the issuing justice, and reviewing justice, the ability to completely assess the credibility of the CI/source.

[48] I also agree that an informer providing information that leads to the laying of charges has different value than information leading to the seizure of contraband, or convictions. However, a CI’s credibility is not tainted or bolstered by the ultimate result of the investigation. It is not determinative whether the prosecution led to convictions. In R. v. Nguyen, 2015 ONCA 753, the court stated at para. 12:

[12] Whether or not convictions had yet ensued as a result of those drug-related arrests does not detract from the reliability of the informant. Considerable time often elapses between an arrest and trial and, in any event, an arrest and seizure of drugs may not result in a conviction for any number of reasons unrelated to the reliability of the informant.

[49] The ITO here does lay out the history of the CI/source for the issuing justice to review. It fairly sets out where a CI or source’s information was of “unknown reliability”. This allowed the issuing justice to evaluate how valuable the information from the CI has been in the past. The ITO permits the issuing justice to review and consider each CI/source’s motivation. The issuing justice was also in position to assess if the CI/source had a criminal record and thus weigh their information accordingly. Where no such record existed, the issuing justice could take that into account.

[50] I agree with defence counsel that the ITO suffers from many of the issues present in Rocha. Code J. discussed this in R. v. Greaves-Bissesarsingh, 2014, ONSC 4900, at para. 27, as follows:

[27] The kind of limited disclosure of the results of a criminal records check concerning an informant, in a search warrant Information, was criticized by the Court in R. v. Rocha (2012), 2012 ONCA 707, 292 C.C.C. (3d) 325 at paras. 6, 8, and 33 (Ont.C.A.). It is neither false nor misleading, as far as it goes, but it does contain an obvious material omission, namely, whether the records check revealed criminal convictions for offences other than obstruct, perjury or public mischief….

[51] Code J. ultimately found that the failure to include the actual criminal record in his case did not materially mislead the Justice of the Peace.

[52] I also note that the quantity and quality of information that was received from each CI/source varied considerably. Where the information in the ITO becomes temporally proximate to the issuance of the warrant, within two months, the information becomes incredibly compelling as I will discuss below, in relation to linking Mr. Moir and the premises. Suffice it to say that the issuing justice was in position to consider the credibility of those CIs/sources in relation to the information being provided, and most importantly, how compelling that information was. The totality of the circumstances comes into play.

[53] Thus, the deficiencies in the ITO with respect to establishing the credibility of the CIs/sources, although present, are accounted for by the number of CIs/sources and the quality of their information. The credibility of each CI/source was bolstered by other CIs providing similar information. A significant number of CIs have a history of providing information specific to crystal methamphetamine in the past. A significant number of the CIs have provided information that has been useful in other investigations.

[54] The failure to include the criminal records does not automatically invalidate the ITO or the warrant obtained as a result of the ITO. I do not read Rocha as standing for that proposition. In Rocha, the ITO did not state at all whether or not the informant had a criminal record and instead only included the “peculiar statement” about the absence of perjury and public mischief convictions. It must be noted that if there was no criminal record for a CI/source, one could not be appended to the ITO. I can only say that it is possible that some, all or none of the CIs/sources had criminal records in this case. It would be difficult to fault the police for failing to append something that does not exist.

[55] It must be remembered that this is a drug case. The issuing justice would understand that CIs/sources in drug cases are not pristine. To be in possession of important information, these individuals are necessarily tangled up in the drug culture themselves. They have their own motivations for providing information, some of it being unsavoury. This was noted by Code J. in Greaves-Bissesarsingh, at para 38 and described as “not fatal, standing alone”.

[56] While I view the issue of credibility to be weakened due to the failure to include the criminal records, deficiencies with respect to credibility can be made up for in the other two areas.

Compelling:

[57] In order to be considered compelling, CI/source information needs to be reasonably current, detailed and specific. First-hand observations are more compelling than second-hand information gleaned from other sources. A vague or conclusory tip, based on second-hand hearsay that is not reasonably current, is not “compelling” (see: Greaves-Bissesarsingh at para. 40).

[58] In this case, the information provided by each CI/source varied in terms of how compelling it was. For example, not all of the CIs/sources connected Mr. Moir to the premises. The ITO fairly describes other locations such that the issuing justice could determine whether there was an adequate connection between Mr. Moir and the apartment on Talbot.

[59] Some of the CI/source information is dated relative to the execution of the search warrant. However, I consider the information from May 2020 onward to be temporally proximate in respect of tying Mr. Moir to the apartment. The stale information still connects Mr. Moir with drug trafficking.

[60] The CI/source information is specific and detailed. There is considerable detail about the drugs that Mr. Moir is trafficking, their quantities and even how they are stored. There is detailed and specific information about his bikes. Specific names and addresses are provided. Some CIs/sources have had direct contact with Mr. Moir, including for the purposes of purchasing drugs.

[61] Not all, but much of the information is first-hand. Importantly, the ITO makes it clear to the issuing justice which aspects of the information are first-hand, and which are not. Much of the first-hand information is extremely compelling, directly and unequivocally connecting Mr. Moir to 453 Talbot. Some first-hand information directly connects him to apartment 201. That information does so during the relevant time period.

[62] In short, the information provided by the CIs/sources is extremely compelling, with significant specificity and detail. Enough of it is first-hand information. The ITO makes it clear when the information is not first-hand. The information, from multiple sources, clearly linked Mr. Moir with apartment 201-453 Talbot St. in the two months before the execution of the search warrant.

Corroboration:

[63] When assessing whether the police have corroborated the information from a confidential informant, the police do not have to confirm or observe the commission of the offence (see: Rocha, at para. 22). In Rocha, Rosenberg J.A. referred to R. v. Caissey, [2008] 3 S.C.R. No. 451, where the majority had agreed with the test adopted by the majority of the Alberta Court of Appeal. Rosenberg J.A. stated at para. 23, as follows:

[23] In the Alberta Court of Appeal, the majority described the independent confirmation as: “the police independently confirmed a number of details, including the identity of the respondent and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle”: R. v. Caissey, 2007 ABCA 380 at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant’s apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.

[64] The defence argument focused on the surveillance. The surveillance was only part of the corroborating efforts. I am of the view that information from one CI can be corroborated by information from another CI, especially where the information from each is detailed and specific. In this case, multiple CIs provided information that was consistent in the details.

[65] The surveillance corroborates Mr. Moir’s connection to 453 Talbot Street. I agree with defence counsel that the surveillance does not show Mr. Moir using a key to gain entrance to the building. It does not show him entering or exiting apartment 201. On its own, the surveillance could not prove that Mr. Moir was residing at the premises. However, in the context of the specific CI information connecting Mr. Moir to the building, the surveillance is corroborative. Furthermore, it must be remembered that the more efforts the police make to corroborate CI, the more the investigation is placed at risk.

[66] The surveillance also corroborates CI information with respect to the motorcycle(s) that Mr. Moir was using and how he was transacting business from the premises.

[67] The arrests of Mr. Moir referenced within the ITO corroborated the CI information. He was found with significant sums of cash on his person, and with drugs on his person.

[68] I reject the argument that the police were required to thoroughly investigate other addresses connected with Mr. Moir. The police were not required to determine if there was an address with which Mr. Moir had a better connection. They had specific and detailed information linking him to this location. They had specific and detailed information linking this location to drug trafficking. Whether or not Mr. Moir has other locations with a comparable link is, in my view, irrelevant with respect to whether there were reasonable and probable grounds to believe that controlled substances would be found within that apartment.

[69] In my opinion, the ITO provides ample evidence corroborating the CI/source information for the issuing justice to review.

Fair, Frank and Full Disclosure:

[70] This ITO does not contain a lot of speculation or conjecture on the part of the affiant. Instead, the affiant simply lays out in chronological fashion the information that has been obtained from CIs/sources and the information that the police obtained from their own investigations/observations. The affiant in large measure allows the information to speak for itself.

[71] Importantly, the affiant also provides information connecting Mr. Moir to other locations so that the issuing justice would have a fair understanding of whether Mr. Moir should also be connected to apartment 201-453 Talbot Street.

[72] Where PC Lobsinger does make conclusory statements, those statements are supported by the information that he has provided in the ITO. They are not bald assertions. Other statements are fairly based on his experience investigating drug offences. Many of these assertions would be inferences that the issuing justice would likely make in any event.

Conclusion on the Sufficiency of the ITO:

[73] Search warrants are presumptively valid. Thus, the defendant had an uphill battle in meeting his burden of proving that this CDSA warrant should not have been issued.

[74] Obviously, where an ITO relies so profoundly upon CI/source information, the version that will be made available to the defendant will out of necessity be heavily redacted. This clearly made for a frustrating exercise for defence counsel in this case. Counsel could only speculate on the nature of the information provided to the issuing justice.

[75] That difficulty, however, does not alter the quality of the information that was, in fact, provided to this Justice of the Peace in this particular case. The information was extremely compelling. It was specific, detailed and timely. It directly connected Mr. Moir to apartment 201-453 Talbot Street during the relevant time period. In the totality of the circumstances, the compelling nature of the information made up for any deficiencies with respect to the credibility of the CIs/sources. Further, it was adequately corroborated by the police.

[76] I find that the ITO contained sufficient information that might reasonably be believed on the basis of which the warrant could have been issued by the presiding Justice of the Peace. In fact, on the information provided in the ITO, I have considerable difficulty envisioning a Justice of the Peace declining to issue the search warrant.

[77] Thus, I find that there was no breach of Mr. Moir’s section 8 Charter right to be free of unreasonable search and seizure.

Section 24 (2) Analysis:

[78] Given my conclusion on the breach, a section 24 (2) analysis is unnecessary. I will make a couple of brief comments in the event that an appellate court disagrees with my conclusion on the breach. The onus at this stage remains upon Mr. Moir to demonstrate that, having regards to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. This engages the tripartite analysis from R. v. Grant, 2009 SCC 32.

[79] As in Rocha and R. v. Blake, 2010 ONCA 1, the police here recognized that they required legal authorization to conduct a search of the premises. They did not act negligently or in ignorance of the applicable Charter requirements. The affiant’s only lapse is with respect to not including the full criminal record, a practice which was criticized in Rocha. Unlike Rocha, this ITO did disclose whether or not each CI had a criminal record at all.

[80] The ITO was authored in a fashion which I find was fair to the defendant. PC Lobsinger disclosed information that connected Mr. Moir to other premises. The ITO did not contain embellishment, but instead PC Lobsinger’s conclusions were substantiated by the information that he had laid out from the CIs/sources. PC Lobsinger was also, during the preparation of the judicial summary of the ITO, fair in what information could be disclosed to Mr. Moir. At times, he proposed to expand the information provided in the judicial summary.

[81] I also note that this was a thorough police investigation. The police did not rely only upon one CI/source. They had a total of fourteen CIs and sources. Even armed with the CI information, the police conducted surveillance to corroborate the connection between Mr. Moir and 453 Talbot Street.

[82] Thus, in my view, there is no basis for this court to disassociate itself from the state conduct. On the continuum, this was not a serious breach and I find that the police and PC Lobsinger in particular, were acting in “good faith” throughout.

[83] In considering the second of the factors from Grant, I agree with defence counsel that there is a high expectation of privacy in a person’s dwelling. Thus, an unauthorized search of a person’s abode is a very serious breach. This factor would weigh in favour of exclusion.

[84] The evidence obtained from the search is real tangible evidence. Society has a very strong interest in adjudicating cases involving drugs and weapons on the merits. As is usually the case, the third Grant factor weighs in favour of admitting the evidence.

[85] Even had I found a breach of Mr. Moir’s section 8 Charter rights I would not have excluded the evidence found within the apartment. In my view, the administration of justice would be brought into disrepute by excluding the evidence.

Disposition:

[86] For the foregoing reasons, the application is dismissed. The evidence obtained pursuant to the search warrant is admissible at trial.

Justice Spencer Nicholson

Date: November 7, 2022