Court File and Parties

COURT FILE NO.: CR-22-30000193-00000 DATE: 2023-07-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty The King – and – David Webster

Counsel: Levi Vandersteen, counsel for the Crown Kurt Wildman, counsel for the Applicant

HEARD: March 9 and 27, 2023

R. MAXWELL J.

Ruling on Section 8 of the Charter / Garofoli Application

I. Introduction

[1] The Applicant is charged with possession of a loaded, restricted firearm and careless storage of ammunition, contrary to ss. 95(1) and 86(1) of the Criminal Code, and possession of fentanyl and crack cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act (the “CDSA”).

[2] In October of 2020, police commenced a drug investigation regarding the Applicant. As part of the investigation, they received confidential source information.

[3] Based on the information, the police applied for a CDSA search warrant for a residence located at 102 Woodfern Drive in Toronto, believed to be the Applicant’s residence, and a search warrant for a 2020 Hyundai Santa Fe, bearing license plate CMJH 179, believed to be associated with the Applicant. [1]

[4] On October 30, 2020, a Justice of the Peace issued a telewarrant to search the Woodfern Drive address and the Hyundai.

[5] On November 2, 2020, the police executed the search warrant at 102 Woodfern Drive in Toronto. The Applicant was in a bedroom of the residence with his partner. In the bedroom, the police located a loaded firearm, 102 rounds of ammunition, various drug paraphernalia including scales and packaging, $1535 in Canadian currency, and a quantity of crack cocaine and fentanyl.

[6] That same day, the police also executed the search warrant on the Hyundai and seized a quantity of fentanyl.

[7] The Applicant was arrested and charged accordingly.

[8] The Applicant seeks to have the evidence obtained as a result of the search warrant excluded from his trial on the basis that his rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated, and that in the circumstances, admitting the evidence would bring the administration of justice into disrepute.

[9] In brief oral reasons delivered on May 1, 2023, I dismissed the s. 8 application, with reasons to follow. These are my reasons.

[10] I find that, after considering the Information to Obtain (“ITO”) as a whole, including the redacted information, there was sufficient reliable information that might reasonably be believed upon, which the warrant could have been issued. Further, it was available to the issuing justice, on the information presented in the ITO, to infer that evidence of the offences would be found in either or both of the vehicle associated with the Applicant and the residential address associated with the Applicant. As such, I find that the Applicant’s rights under s. 8 of the Charter were not breached and the application should be dismissed.

I. Procedural History - The “Step Six” Application

[11] The search warrant in this case was based on information provided by a confidential source (“CS1”). The Applicant was provided with a redacted copy of the ITO to protect the identity of CS1.

[12] The Crown sought to rely on the redacted ITO to support the issuance of the search warrant for both the residence and the vehicle. However, the Crown also gave notice of its intention to proceed to “Step Six” application if I found that the redacted ITO provided insufficient grounds to justify the warrant to search the residence and the vehicle: R. v. Garofoli, [1990] 2 S.C.R. 1421.

[13] In reasons released on March 9, 2023, I found that the redacted ITO did not provide a sufficient basis to determine whether the search warrant could have issued. The Crown then proceeded with its application to rely on the unredacted ITO under Step Six of Garofoli: R. v. Crevier, 2015 ONCA 619; R. v. Brown, 2021 ONCA 119, at paras. 35-39.

[14] The Crown provided the Court with an unredacted copy of the ITO, which was made a sealed exhibit on the application. Crown counsel prepared a draft judicial summary of the redacted portions of the ITO. On review of the proposed summary, I suggested additional information could be provided to the defence without compromising confidential informant privilege. The Crown and I communicated in writing regarding the proposed judicial summary and revisions. Those communications were also marked as sealed exhibits on the application.

[15] The Crown agreed that additional information could be provided to the defence. The revised judicial summary was then provided to the defence and I heard submissions from the defence requesting additional disclosure. Following submissions, some additional information was disclosed to the defence. The finalized judicial summary was marked as an exhibit on the application.

II. Applicable Legal Principles

[16] Section 487(1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.

[17] A search warrant is presumed to be valid and the onus is on the Applicant to show that there was not sufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at para. 30; R. v. Crevier, 2015 ONCA 619 (Ont. C.A.), at para. 45 (aff’d 2016 SCC 32).

[18] The court reviewing a search warrant ITO does not stand in the place of the justice who issued the warrant, nor is it an opportunity for the reviewing court to substitute her view for the one of the issuing justice: R. v. Sadikov 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para. 84-87. Rather, as Watt J.A. summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99, leave to appeal refused [2012] S.C.C.A. No. 111:

[…] the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[19] The standard of persuasion for the issuance of the warrant, reasonable and probable grounds, is a credibly-based probability. It requires more than an experienced-based hunch or “reasonable suspicion”: Sadikov, at para. 81. It does not however mean “proof beyond a reasonable doubt” or even the establishment of prima facie case: R. v. Morelli, 2010 SCC 8 (S.C.C.), at paras. 127-128; R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at p. 1166.

[20] The standard is that the affiant subjectively believes that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: R. v. Herta, 2018 ONCA 927, at paras. 20-21; Sadikov, at para. 81.

[21] Direct evidence is not required to draw a link between evidence of an offence and the premises to be searched. The issuing justice is entitled to draw reasonable inferences from the evidence in the ITO: R. v. Kalonji, 2022 ONCA 415, at para. 25; R. v. Vu, 2013 SCC 60, at para. 16. The reviewing justice must consider whether the inferences drawn by the affiant in the ITO are logically reasonable and not based on speculation or conjecture.: R. v. Getfield, 2022 ONCJ 615, at para. 19.

[22] Further, while affiants may rely on training and experience in coming to reasonable and probable grounds, bald, conclusory statements cannot support reasonable and probable grounds: R. v. Morelli, 2010 SCC 8, at paras. 81-82; R. v. Coluccio, 2019 ONSC 4559.

[23] In reviewing the ITO for sufficiency, the court is required to take a common-sense and holistic approach. The ultimate question was whether the issuing justice could have found that the content of the ITO, and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that evidence in respect of the commission of an offence would be located in the place to be searched.

III. Analysis of the Sufficiency of the ITO

[24] Where the police rely upon information from a confidential informant for reasonable and probable grounds necessary to justify the issuance of a warrant, the information must be assessed having consideration for the “three C’s” – that is, whether the information is compelling, whether it is corroborated by other aspects of the investigation, and whether the information is credible. These are not isolated inquiries. Weaknesses in one area may be offset by strengths in another: R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at para. 53.

[25] The standard of review is high. A search warrant should not be set aside unless the applicant establishes, on the whole of the material presented, that there was no basis upon which it could have been issued. The court should look to a variety of factors in assessing information from a confidential informant, including the degree of detail of the “tip”, the informant’s source of knowledge, and indicia of the informer’s reliability such as past performance or confirmation from other investigative sources: Garofoli, at paras. 62 and 68; R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (Ont. C.A.), at para. 16. The review must be conducted on the totality of the circumstances.

A. The Debot Factors

i. The Credibility of CS1

[26] The credibility assessment relates to the trustworthiness of the confidential source. It involves consideration of the source’s motivation, their criminal history, and their history of providing information to the police: R. v. Greaves Bissearsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493.

[27] Information about CS1 is contained in Appendix X of the ITO. Significant portions of the information are redacted. The judicial summary of this section and the portions that are unredacted provide information about CS1’s credibility and reliability.

[28] In my view, the ITO discloses numerous factors which support CS1’s credibility:

• CS1 is a registered confidential informant;
• CS1 is well entrenched in the drug subculture. The unredacted ITO provides information as to how long CS1 has been using illicit drugs;
• CS1 is not a first-time informant. CS1 has provided information to the police on at least five prior occasions. The unredacted ITO reveals the dates when CS1 provided information to the police on prior occasions. All prior occurrences have resulted in drug-related charges and drug and/or drug-related seizures. All prior occurrences resulted in individuals being taken into custody. While the ITO does not reveal CS1 ever provided information in the past which proved to be unreliable, CS1’s known history of providing information on multiple occasions in drug-related investigation which resulted in charges and/or seizures enhances their credibility.
• CS1’s motivation is known. CS1 was motivated by monetary compensation. The ITO reveals that CS1’s handler explained to CS1 that there would be no guarantee about any type of monetary compensation and that the only way they would receive any compensation was if the information proved to be reliable, credible, and accurate. CS1 was also advised that providing police with false or misleading information is a criminal offence. CS1 understood the circumstances and still wished to provide information;
• the ITO reveals that CS1 has received monetary compensation on several occasions in the past;
• The unredacted ITO revealed if CS1 has a criminal record and/or outstanding charges, and if any, whether or not CS1 has any convictions and/or outstanding charges for crimes of dishonesty, crimes against the administration of justice, and/or drug-related crimes. While the Applicant is not aware of whether CS1 has a criminal record and/or outstanding charges, and if any, the nature of any convictions and/or outstanding charges, I have taken it into account and view this factor as a neutral factor on credibility.

[29] In addition, and as will be discussed in greater detail below, whether or not the information provided by CS1 was based on first-hand information/observations or hearsay was disclosed to the issuing justice in most instances. It is clear from the ITO that CS1’s information about the Applicant’s vehicle, as well as the pricing and packaging of the cocaine, was based on firsthand information.

[30] The Applicant submits that, with respect to CS1’s information that the Applicant was also dealing in fentanyl, he argues that there is reason to doubt the credibility of the information provided. Specifically, he points out that, under “Background of Investigation from CS1”, the affiant reported that CS1 stated “D” sells fentanyl for “$20 a point”, or $20 for 0.1mg. However, in Appendix X, the affiant recorded that CS1 advised that someone bought a “ball” (3.5g) of fentanyl from “D” for $1000. The Applicant submits that, at a price point of $20 per “point”, a “ball” of fentanyl should have cost $750.

[31] While an argument can be made that there is a discrepancy between the “per point” pricing for fentanyl and the cost CS1 reported for a “ball” of fentanyl, I do not agree that this raises a serious concern about the credibility and reliability of the information. Based on the unredacted ITO, the issuing justice had sufficient information to know the source of CS1’s information about the fentanyl, the recency of the information, and the degree of details about the transaction to be satisfied that CS1’s information about “D” selling fentanyl was reliable and reasonably capable of being believed.

[32] Taking the information together, there was a sufficiently strong basis for the issuing justice to conclude that CS1 was a credible source.

ii. Whether CS1’s Information was Compelling

[33] This factor relates to the information itself and whether it is reliable. Some characteristics of a “reliable” tip include if the tip is based on first-hand information, if the tip is detailed, and if the tip is reasonably current: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28; R. v. Nguyen, 2015 ONCA 753, 342 O.A.C. 144, t para. 18; Greaves-Bissesarsingh, at para. 40.

[34] The information provided by CS1 in this case was reasonably compelling. A review of the ITO reveals that the information CS1 provided was largely first-hand observation and therefore, more compelling than if it were information based on rumour or gossip: R. v. Markiewicz, 2014 ONCA 455.

[35] CS1 provided three tips to the police, each of which is detailed in Appendix X of the ITO. Appendix X reveals that, for each of the three tips provided by CS1, the date when CS1 provided information to the police is disclosed. The Crown provided the Applicant with additional information through a notation on the ITO that all of the information was provided within 60 days of the execution of the search warrant.

[36] In the first tip, CS1 gave detailed information about their relationship to “D” and a transaction they engaged in with “D”:

• they know a drug dealer who goes by the nickname “D”, and how long they have known “D”;
• a description of “D” as a black male with light skin and an afro, approximately 20 years of age;
• they met “D” through a friend;
• “D” always drives new vehicles that are rentals; the unredacted ITO reveals the source of this information and whether it is first-hand or hearsay;
• CS1 bought an ounce of cocaine from “D” for $1600;
• “D” brought the drugs in a Ziploc bag that appeared to be cut from a block of cocaine;
• The cocaine had a strong smell;
• “D” was driving a new, white Hyundai SUV with licence plate number CMJH 179;
• “D” told CS1 that he had high grade fentanyl as well.

[37] The unredacted ITO discloses how long CS1 has known “D”. All of the information related to the purchase of cocaine is first-hand information. I also accept that the confidential source’s information about the price of the cocaine, the manner in which it was packaged, and the make, model, and license plate of the vehicle “D” drove to the transaction, provides some detail beyond information which is commonplace.

[38] Further, the unredacted ITO provided the issuing justice with information to assess when the drug transaction CS1 described occurred, in relation to when CS1 provided the tip.

[39] While the source of the information set out above is known and is largely first-hand, the source of some additional information CS1 provided in their first tip is unknown. For example, the source of CS1’s information that “D”’s product is “considered to be really high end” and that he “supplies mid-level drug dealers only or sells ounce level or more on referrals” is unknown.

[40] With that said, the information in the first tip is compelling, in that it is based largely on a first-hand interaction and is detailed as to the pricing and packaging of the cocaine. CS1’s description of “D”’s vehicle is detailed. The recency of the transaction was known to the issuing justice, and the information was provided by CS1 within 60 days of the execution of the search warrant and was not stale dated. The timeliness of the tip enhances the compelling nature of the information.

[41] In the second tip, CS1 provided information about another direct transaction with “D”:

• they purchased an ounce of cocaine from “D” for $1600;
• “D” met up with a person or persons and provided another ounce of cocaine for $1600; the ITO discloses whether this information is based on first-hand observation/knowledge or hearsay;
• “D” was driving the white Hyundai SUV with plate CMJH 179;
• additional specific transactional information about “D”’s drug-dealing activities, including the type of drug/drugs involved, and whether CS1’s information about this transaction was firsthand or hearsay.

[42] Much of the content of the second tip was redacted from the ITO to protect the identity of CS1. However, there was sufficient information available to the issuing justice to determine when CS1’s transaction with “D” occurred, as well as the recency of the information concerning “D” meeting up with a person or persons to provide an ounce of cocaine for $1600. As noted above, whether CS1’s information about “D”’s transaction with another person or persons was first-hand or hearsay was known to the issuing justice.

[43] The source of CS1’s knowledge of additional specific transactional information contained in the second tip was also disclosed in the ITO.

[44] In the third tip, CS1 disclosed a transaction for a “ball” (3.5 grams) of fentanyl for $1000. The ITO reveals whether CS1’s information about the transaction is based on first-hand observation or hearsay. “D” stated that he was picking up a large quantity of cocaine which was really high grade. Whether CS1 received this information first-hand or as hearsay was known to the issuing justice.

[45] The tip also provided additional specific transactional information about “D”’s drug dealing activities, although the source of some of this information is unknown (i.e., first-hand or hearsay).

[46] There was sufficient information available to the issuing justice to assess the recency of the transactions described. The information provided in the tips was specific and detailed, including pricing for cocaine and fentanyl. The source of CS1’s knowledge is known and is largely firsthand knowledge. The information provided, in my view, was reasonably compelling.

iii. Whether the Information was Corroborated

[47] Aspects of CS1’s information was corroborated by police investigation.

[48] CS1’s general description of “D” as a light skin black male with an afro hairstyle, around 20 years old, was corroborated through data base checks. Specifically, a search of the Ministry of Transportation records revealed that the Applicant has a date of birth of May 26, 2000, and an address of 102 Woodfern Drive in Toronto. The Ministry of Transportation database also contained a photograph of the Applicant.

[49] CS1’s description of “D” was generally consistent with the Applicant’s photo contained in the Ministry of Transportation records.

[50] Additionally, the affiant entered the Applicant’s name in the Master Name Index System (“MANIX”) of the Toronto Police Service. The database check noted the Applicant’s full name as “David Webster” with a date of birth of May 26, 2000, a home address at 102 Woodfern Drive in Toronto, and a home phone number of (416) 750-1062, corroborating CS1’s information about “D”’s age and providing some indicia of reliability for CS1’s information that the dealer’s nickname was “D” (short for “David”).

[51] Both the MANIX and the Ministry of Transportation records tend to also support a conclusion that the Applicant resided at 104 Woodfern Drive. The affiant noted there were “five related occurrences on file” within MANIX for the Applicant, meaning that the Applicant’s name and personal identifiers came up in five records.

[52] The Applicant points out that the ITO is silent on the process used to have CS1 identify “D” from a photo. He argues that if CS1 was shown only one photo, then depending on how long and how well CS1 knew “D”, the photo may not provide real corroboration of identification. He also submits that there is no evidence to corroborate CS1’s information that the person he transacted with went by the nickname “D”.

[53] I agree with the Applicant that it would have been preferrable had the ITO disclosed the manner in which CS1 identified “D” from a photograph. However, based on the length of time that CS1 knew “D”, even if CS1 was shown only the photo of the Applicant, it would still provide some corroboration of CS1’s identification.

[54] Further, it was open to the issuing justice to draw a reasonable inference that someone named “David” might go by the nickname “D”, as CS1 said. The combination of CS1’s general description of the Applicant, his information about the Applicant’s nickname, and the consistency of this information to the photograph and name for the Applicant found in the Ministry of Transportation records provided a degree of assurance that CS1’s information about the identity of the person they transacted with was credible.

[55] CS1’s information that “D” drove a rental white Hyundai SUV with license plate CMJH 170 was corroborated by a search of records from the Ministry of Transportation. The records revealed that, on August 13, 2020, the Applicant was issued a notice under the Provincial Offences Act for speeding while driving a vehicle bearing Ontario license plate CMJH 179. The affiant further confirmed that Ontario license plate CMJH 179 is attached to a 2020 white Hyundai Santa Fe registered to the car rental company Hertz Canada.

[56] Police also conducted limited investigation to connect the Hyundai to the Applicant’s home address of 102 Woodfern Drive. On October 30, 2020, Detective Constable Hill of 55 Division went to 102 Woodfern Drive and found a white 2020 Hyundai SUV with licence plate CMJH 179 parked in front of the address. The vehicle was running, and the lights were on.

[57] As he passed the Hyundai, Detective Constable Hill observed a black male with a tall, skinny build, a light complexion, and dark hair sitting in the driver’s seat of the vehicle.

[58] In arguing that the level of police corroboration is lacking in this case, the defence points out that there are no observations connecting the Applicant to drug dealing. The police did not conduct surveillance on the Applicant or make any observations of the Applicant in the course of the investigation, other than once observing him to be sitting in the Hyundai parked in front of 102 Woodfern Drive. There is no independent corroboration of CS1’s information that “D” is involved in trafficking cocaine or any other drug.

[59] The Crown accepts that the police did not conduct surveillance or gather corroborative evidence that the Applicant was engaged in drug trafficking. However, it is not required that the police confirm the very criminality of the information of a confidential informant: R. v. Lewis, 1998 107 O.A.C. 46. The standard of “reasonable and probable grounds” does not carry, as a pre-requisite, confirmation that criminal activity has occurred. What is important is whether there is some evidence that might reasonably be believed to support the issuance of a warrant.

[60] The level of corroboration, in his case, was limited, however the steps the police took did corroborate a connection between the Applicant and the Hyundai vehicle, as well as the address of 104 Woodfern Drive. The investigative checks also corroborated aspects of CS1’s information about “D” including, importantly, the type of vehicle he used while dealing drugs.

[61] The Applicant suggest that CS1’s description of “D” as having an afro is inconsistent with the description provided by the officer who observed the male at the address, in that the officer stated only that the male had dark hair but did not mention an afro. I do not consider this to necessarily be an inconsistency, and in any event, it does not undermine the corroborative value of the MTO photograph, which matches the general description he provided for “D”.

B. Assessing of the Three Debot Factors

[62] In my view, CS1 provided detailed, largely firsthand, information that “D” was involved in trafficking cocaine and fentanyl. CS1 is a tested, registered informant who had given information on numerous occasions in the past resulting in drug-related arrests and seizures. CS1 had no apparent motivation to lie or give false information. Some aspects of CS1’s information was corroborated by independent investigation, including his description of “D”, the make and model of the vehicle he used during drug transactions, and CS1’s information the “D” drove a rental vehicle.

[63] In all of the circumstances, I am satisfied that the ITO set out grounds to believe that “D” was trafficking controlled substances, and that he used his vehicle for transactions. The Applicant does not strenuously argue that if CS1’s information is deemed to be sufficiently credible, compelling and corroborated, the ITO failed to set out grounds to believe that evidence of the offence of drug trafficking would be found in the Hyundai. In my view, the issuing justice had more than ample grounds to conclude, based on the information from CS1, that evidence of the offence would be found in the Applicant’s vehicle.

[64] However, the Applicant raises the further issue of whether the ITO also established grounds to believe that evidence of the Applicant’s drug trafficking would be found in the residential address. I am also satisfied that the ITO set out sufficient grounds to establish a connection between the Applicant and the residential address of 104 Woodfern Drive. I will turn to this issue next.

C. Grounds to Search the Applicant’s Home

[65] The Applicant argues that the ITO does not disclose a basis to believe that evidence of drug trafficking would be located at 102 Woodfern Drive. He submits that the affiant relied on vague and conclusory statements and opinions in the ITO as a basis for his belief that evidence of drug trafficking would be found at the Applicant’s home.

[66] He points to the ITO, under the heading “Grounds To Believe That The Items To Be Seized Are At The Place To Be Searched” where the affiant stated:

Drug traffickers are also aware of the potential hazards of keeping a large supply of drugs directly on their person should they be subject to intervention by law enforcement; thereby relying on storing these drugs in a location readily accessible and safe to the dealers. In this particular incident, within the dwelling unit of the subject.

[67] The affiant went on to state, under “Conclusion”:

I believe on reasonable grounds that the items requested to be searched for in “Appendix A” will be found in the dwelling unit sought in this application, as it is not uncommon, by my experience, for those involved in drug trafficking to keep their cache of drugs close by so as (sic) able to provide a continuous and constant supply to their intended customers.

[68] CS1 did not provide any information to connect “D” to a home address, nor did the police make any observations consistent with the Applicant storing drugs at his home, or using his home for drug trafficking. There is no evidence that the Applicant kept drugs in the home, or that he came directly from the address enroute to the transactions, or that he returned to the house directly after transactions. The Applicant submits that there is little to no support for the affiant’s assertion that people who possess or traffick controlled substances may take them from their vehicle to their home, or keep items associated to drug trafficking in their home.

[69] The Applicant relies on R. v. Herta, 2018 ONCA 927, in which the Court of Appeal for Ontario concluded that there was insufficient corroborative evidence to establish grounds to believe that the target of a search warrant had a firearm in his residence. The Court concluded that the affiant’s basis for believing the target had a firearm in the home was conclusory because it was based on the confidential source’s bald statement that the target would not go anywhere without a firearm.

[70] If the affiant relied only on his opinion that drug traffickers often keep drugs in alternate locations, such as a dwelling, as a basis for seeking a search warrant for the Applicant’s home, I would agree with the Applicant that that would likely not provide a sufficient basis to issue a warrant to search the address. As the Court of Appeal for Ontario noted in Rocha, at para. 26, a mere conclusory statement that drugs will be found in the location to be searched will not suffice to justify the issuance of a warrant for the location.

[71] The Applicant cited numerous decisions that have commented that caution must be exercised to differentiate an affiant’s opinion that is based in evidence and opinions that are mere conclusory statements without foundation: See R. v. Norley, 2021 ONSC 6320, at para. 23; R. v. Wilson, 2020 ONSC 6522, at para. 16; R. v. Coluccio, 2019 ONSC 4559, at paras. 59-60.

[72] In my view, in this case the affiant based his assertion that evidence would be located in the Applicant’s home on more than just a conclusory opinion. The affiant had credible information that the Applicant lives at 102 Woodfern Drive, based on the fact that the address came up in numerous records in the MANIX system and was listed as his address in the records of the Ministry of Transportation. The affiant was also aware of Detective Constable Hill’s observation of the white Hyundai parked in front of 102 Woodfern Drive and someone who matched the description of the Applicant sitting in the driver’s seat of the vehicle on the same day that the search warrant was sought.

[73] In other words, unlike in the case of Herta, there was information that the Applicant resides at 102 Woodfern Drive or, at the very least, a reasonable inference that he lives at 102 Woodfern Drive.

[74] In my view, given that the ITO set out sufficient grounds to establish that “D” is the Applicant, that the Applicant engaged in drug trafficking, and that he resides at 104 Woodfern Drive, there were reasonable grounds to believe that a search of the residence would afford evidence of the offence: Kalonji, at para. 27; R. v. Meechan, 2018 ONSC 7033, at paras. 29-30; R. v. Singh, 2021 ONSC 702, at paras. 49-52. Reasonable inferences can be relied on in the absence of direct evidence: Kalonji, at paras. 24-24; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657. A commonsense inference was available to the issuing justice, based on the information connecting the Applicant and his vehicle to the address, that evidence of an offence would be located in the Applicant’s residential address: R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409, leave to appeal refused, [2020] S.C.C.A. No. 71, at para. 13.

[75] In the context of the information available to the affiant, I do not agree that the affiant relied on conclusory opinions and assumption in stating, in the grounds, that drug traffickers often store drugs in safe places that are readily available to them, such as in the dwelling unit of the subject. It was a reasonable inference to draw in this case, based on the totality of the information, the officer’s experience, and common sense.

D. The Manner in Which the ITO was Drafted

[76] The Applicant argues that the affiant drafted the ITO in a manner which was misleading or gave a false impression on certain points.

[77] He points first to Appendix X where the affiant, in the introductory paragraph, stated that “CS1 had been interviewed on several occasions in the past 90 days.” He argues that CS1 had only been interviewed three times.

[78] I do not accept that the affiant’s statement that CS1 had been interviewed “several times in the past 90 days” was misleading. CS1 had, in fact, been interviewed several times. Moreover, the number of times CS1 was interviewed would have been apparent to the issuing justice.

[79] The Applicant further points to the affiant’s language, under “Conclusion” where the affiant stated:

The information provided by the confidential source has been corroborated through police computer database checks. Specifically, the subject is directly involved in the trafficking of controlled substances.

[80] The Applicant argues that it is not true that the police database checks corroborated CS1’s information that the Applicant is involved in drug trafficking.

[81] I agree with the Applicant that this statement is not correct, in that there is no information in the ITO to suggest that “D”’s drug trafficking was confirmed through police database checks. The sentence “Specifically, the subject is directly involved in the trafficking of controlled substances” should be excised from the ITO.

[82] Further, it would have been helpful had the affiant specified which aspects of CS1’s information was corroborated through police database checks. However, the issuing justice would have been aware of what information was corroborated by police database checks in reviewing the section of the ITO on “Corroboration”. There is nothing in this section which suggests that the police database checks corroborated CS1’s information that “D” was involved in drug trafficking. Therefore, while the two sentences were inaccurate and, in isolation, had the potential to mislead, I am satisfied that the issuing justice appreciated what the investigative information from the databases did, and did not, corroborate.

[83] The Applicant further argues that the affiant provided inaccurate and misleading information under “Conclusion” when he stated, in reference to the address of 102 Woodfern Drive:

The address in question was validated through Police database queries. This information is both current and corroborated.

[84] He submits that since CS1 did not provide the address or profess to have any knowledge of an address associated to “D”, it was misleading for the affiant to say the “address was validated” and that the information was “both current and corroborated.”

[85] I do not accept this submission. The database checks did establish a current address for the Applicant through the MTO records, which was corroborated through additional database searches in MANIX. This passage, in my view, does not suggest that CS1 provided the information which was then corroborated through the database checks.

[86] Finally, the Applicant asserts that the affiant misled the justice by saying, under “Background of David Webster” in Appendix C, that the MANIX search under his name revealed “five related occurrences on file.” He submits that because the affiant did not explain the nature of the occurrences, or clarify that “occurrences” can include benign police contact, such as being a witness or a complainant, and could relate to non-criminal matters, that the issuing justice could have been left with the impression that “five related occurrences” meant five drug-related occurrences where the Applicant was a suspect or a target. He argues that this information was strategic and misleading.

[87] I agree with the Applicant that it would have been preferrable that the affiant clarify the nature of the occurrences on MANIX to avoid a potentially erroneous interpretation of what “five related occurrences” means. With that said, the comment must be looked at in context. The affiant included the reference to other “occurrences” as part of a list of information he gathered in MANIX. He noted that he obtained a date of birth, a home address, a home phone number, and a business number associated to the name “David Webster”. As a final point, he stated that there were five related occurrences on file. The most readily available interpretation for the word “related” is that he found five entries with this information during the search in MANIX. It is less likely that “related” would be interpreted as “drug trafficking”, given that the comment was associated to the Applicant’s personal information and not his criminal antecedence.

[88] Further, the affiant defined the scope of MANIX at the beginning of the affidavit, which clearly sets out that “occurrence” covers a wide range of police contact.

[89] Therefore, while the ITO could have been improved in certain ways, I do not agree that the affiant misled the issuing justice.

IV. Conclusion

[90] For the reasons set out, I find that the ITO disclosed a credibly-based probability that the Applicant was trafficking controlled substances, and that evidence of drug trafficking would be found in the Applicant’s vehicle and/or his residence.

[91] Since the Applicant failed to establish a s. 8 breach, it is not necessary for me to conduct an assessment of whether the evidence should be excluded under s. 24(2) of the Charter.

[92] The application is dismissed.

R. Maxwell J. Released: July 18, 2023

Footnote

[1] In Appendix A, the affiant Officer Chadwick, listed the items to be searched for in the residential address of 102 Woodfern Drive in Toronto and in the 2020 Hyundai Santa Fe bearing Ontario license plate CMJH 179. The list included controlled substances, including but not limited to cocaine and fentanyl, scales, packaging and distribution materials, money related to the sale of drugs and records or booking keeping notes. Appendix B set out the offences for which the Applicant was under investigation: possession of a controlled substance, namely cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA.