BARRIE COURT FILE NO.: CR-22-00000021 DATE: 20230718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SEEBASTIEN HARIRAJ Defendant

Counsel: Jennifer F. Briscoe, for the Crown Kim Schofield, for the Defendant

HEARD: September 26-28, 2022, February 2, 3, 28, 2023 (Agreed statement of Fact filed)

REASONS FOR DECISION

M.L. EDWARDS, R.S.J.

Overview

[1] Mr. Hariraj is charged with one count of Possession for the Purpose of Trafficking a Schedule I substance, specifically cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the Act), and one count of Possession of Proceeds of Crime, contrary to s. 354(1)(a) of the Criminal Code of Canada (the Code). The trial of this matter is scheduled for September 28, 2023.

[2] On November 16, 2018, Detective Constable Alexander Wonch (“Wonch”) of the York Regional Police swore an Information to Obtain (the ITO) for a search warrant for Mr. Hariraj’s home at 375 Ferndale Drive South, Barrie. A search warrant was issued on November 16, 2018, at 8:59 p.m. Police executed the warrant at 375 Ferndale (“Ferndale”) which resulted in the seizure of approximately 8.5 kgs. of cocaine in seven shrink-wrapped packages; $5,500 found in the master bedroom; $3,160 found in the third bedroom safe; as well as other items that allegedly would link someone to drug dealing.

[3] Ms. Scofield sought exclusion of all of the evidence seized from Ferndale on the basis that the search warrant was facially deficient after accounting for necessary excisions and that what remains in the ITO does not support the issuance of the warrant.

[4] Ms. Scofield seeks to cross-examine Wonch, arguing that this would allow Hariraj to make full answer and defence. Specifically, Ms. Schofield sought to cross-examine Mr. Wonch as it relates to the statement made by Wonch at paragraph 81 of the ITO, in which Wonch states:

I know that Seebastien Hariraj has a criminal record for break and enter, drugs and other Criminal Code offences. I know this from a criminal record check done on October 25, 2018.

[5] Ms. Schofield also sought to cross-examine Wonch with respect to information that he did not disclose in the ITO as it relates to the investigation of other individuals who were the subject of other ITO’s, resulting in searches of other residences. These other residences were surveilled by the police who made observations of Mr. Hariraj allegedly involved in drug dealing.

The Facts

[6] The facts which are referenced in paragraphs 7-18 above are facts that were agreed to between the parties and filed as an Agreed Statement of Fact after the hearing of this application.

[7] Between June 28, 2018 and November 16, 2018, police were engaged in Project Dunk – a six month long investigation into a sophisticated drug trafficking network of former members of the Iron Dragons Motorcycle Club. On November 16, 2018, members of the Biker Enforcement Unit obtained judicial authorizations pursuant to a s.11 of the CDSA to search three addresses: 47 McCausland Court in the city of Barrie (which I will refer to throughout these reasons as McCausland), 15 Monck Road in the town of Sebright, 1194 Arnold Street in the town of Innisfil. Later that day, they obtained a fourth judicial authorization pursuant to s.11 of the CDSA to search the Mr. Hariraj home at 375 Ferndale Drive South, Barrie.

[8] Shortly before 5:05 a.m. on November 16, 2018, on the strength of the authorization, police executed the search warrant at McCausland. Located inside the residence were Michael Belletti (“Belletti”) and Michael Sapage (“Sapage”).

[9] As a result of the execution of the aforementioned search, the police located and seized amongst other things: a. 425.6 grams of cocaine b. 228.7 grams of Methamphetamine c. Large cocaine press d. 3 digital scales e. 2 different types of cutting agent consisting of 2070 grams of an unknown agent and 400 grams of baking soda located near the press f. Bundled Canadian currency in the amount of $5,530 CDN

[10] Belletti and Sapage were charged with possession for the purpose of trafficking.

[11] At 5:05 a.m. on November 16, 2018, police executed a search warrant at 1194 Arnold Street in the town of Innisfil. Located inside the residence were Nicole Pezetta and Alexandre Cousin, as well as their two children.

[12] A search of the residence revealed a black safe stored in the kitchen cabinet. Located inside the safe and elsewhere in the residence were the following: a. 611.1g of cocaine in four separate bags; b. a functioning digital scale with cocaine residue; c. packaging material; d. 29 – 5mg oxycodone pills; and e. a small quantity of cannabis resin (shatter).

[13] Nicole Pezetta and Alexandre Cousin were charged with possession for the purpose of trafficking cocaine and oxycodone contrary to s. 5(2) of the CDSA.

[14] There was no judicial review of the search warrants related to McCausland, 15 Monck Road and the 1194 Arnold Street addresses.

[15] On November 15, 2018 at 7:40 p.m. Justice Grainee Forrest signed a CDSA search warrant for Mr. Hariraj home at 375 Ferndale Drive South, Barrie.

[16] At 8:22 p.m. Officer Pollard arrested Mr. Hariraj as he was walking to his vehicle from LA Fitness 100 Mapleview Drive East, Barrie.

[17] At 8:23 p.m. Officer Morelli read Mr. Hariraj his rights to counsel and cautioned him. The vehicle was searched and found therein was: a. $1,460; b. 3 cell phones; and c. Clear zip lock baggie with powder believed to be drug residue.

[18] At 8:59 pm on November 16, 2018, police executed the search warrant at 375 Ferndale Drive South in the city of Barrie. As a result of executing the warrant they seized: a. Approximately 8.5 kilograms of cocaine in 7 shrink-wrapped packages; b. $5,500 in the master bedroom; c. $3,160 in the 3rd bedroom safe; d. Digital scale in kitchen; e. Digital scale and plastic shrink-wrap packaging in laundry room; f. Commercial bill counter and smaller bill counter in basement; g. Plastic wrap food saver; and h. Envelopes and bills in the name of Seebastien Hariraj addressed to 375 Ferndale.

[19] As it relates to the facts found in the ITO the summary produced in the Crown factum accurately summarizes those facts which are reproduced below: a. June 28, 2018: observations of a blue Lexus (that will be referred to throughout these reasons as the Lexus) pull into the driveway at the residence of McCausland. Belletti is observed getting into the car with a red bag and exit the vehicle with the red bag. The Lexus departs the area. The license plate of the Lexus, CALE642, came back as registered to Seebastien Hariraj of 375 Ferndale Drive South, Barrie. Activity continued that day that was believed to be a drug transaction. b. July 15, 2018: Sapage appears to be involved in a quick drug transaction. c. July 16, 2018: Belletti arrives at the residence and is met by Sapage shortly thereafter. Mr. Hariraj and Belletti also meet, Belletti gets into the vehicle that the police identify as a dark coloured sedan with an “L” on the trunk. Belletti gets out within minutes. Nicole Pezzetta and others attend the residence. Again this activity believed to be a drug transaction occurs. d. July 19, 2018: Observations of Mr. Hariraj were made of him driving the Lexus which was seen parked at 375 Ferndale Drive South where he then exits the vehicle and briefly enters the residence then exits and departs. e. July 20, 2018: Belletti and Sapage were observed in what is believed to a drug transaction with a person identified and known to the police as Craig Kenehan (wearing an Iron Dragon Motorcycle Club vest). f. July 26, 2018: Sapage is observed removing several unknown objects from the driver’s side wheel wells and under the carriage of a black Dodge and places them in the garage. He then returns later and appears to place the unknown items back into the same area of the truck. The affiant notes that he believes this to be consistent with drug traffickers attempt to conceal illegal contraband. g. July 27, 2018: observations of the residence at McCausland Court wherein Craig Kenehan wearing an “Iron Dragons” t-shirt attends as well as Nicole Pezzetta. Observations of what is believed to be Mr. Hariraj driving the dark coloured Lexus attends and parks in the driveway. Belletti gets in and out of the car. The blue Lexus departs the area. The activities at the residence are believed to be multiple drug transactions. h. July 30, 2018: observations of the blue Lexus believed to be Mr. Hariraj driving arrives at the residence. Belletti boards and stays in the vehicle briefly. Belletti returns to the residence and the Lexus departs the area. Belletti and Sapage as well as other parties are observed in what are believed to be multiple drug transactions. i. August 2, 2018: observations of Mr. Hariraj exiting his residence at 375 Ferndale and getting into the blue Lexus. He is followed to various locations and returns home. Later, he is observed departing his residence once again and arrives at 47 McCausland Court. Belletti exits the residence and gets into Mr. Hariraj’s car and is back out of the car within minutes. The blue Lexus departs. These activities along with other observations are believed to be a drug transaction. j. August 3, 2018: Mr. Hariraj meets with Belletti. The blue Lexus arrives at the residence and Belletti boarded the passenger side of the vehicle. He stays in the vehicle for approximately one minute. Belletti returns to the house and the Lexus departs the area. Activity believed to be a drug transaction. k. August 13, 2018: surveillance of Mr. Hariraj’s residence at Ferndale and he is located at LA Fitness at 149 Live Eight Way, Barrie. He is observed boarding the blue Lexus with Ontario plates CALE642. Later that day, Mr. Hariraj leaves the garage of the residence with another male aboard a white Mercedes. l. August 31, 2018: observations of the blue Lexus and the driver believed to be Mr. Hariraj parked at the front of the residence at McCausland. Belletti and Sapage and others including Nicole Pezzetta, a target of the investigation are present at the residence. Activity believed to be multiple drug transactions. m. September 13, 2018: observations of what is believed to be Mr. Hariraj’s Lexus parked behind Belletti’s vehicle in the driveway at McCausland. Belletti is observed enter and then exit the vehicle with a bag. He enters his residence, then exits and again boards Mr. Hariraj’s vehicle and leaves carrying a bag. He stays in the vehicle but moments each time. The co-accused Sapage and others are present at the residence. The police observe activity believed to be multiple drug transactions. n. September 27, 2018: Belletti and Sapage and others were observed at McCausland. At one point Sapage exits his home carrying a black object in his right that is believed to be a handgun. o. September 28, October 2, 3, 4 and 13, 2018: continued observations to place Belletti and Sapage at the McCausland Court residence. p. October 16, 2018: Mr. Hariraj’s blue Lexus CALE642 is observing exiting the residence at 375 Ferndale and driving to and parking in the driveway 47 McCausland Court. The lighting was poor so the surveillance could only observe lights in the vehicle and a male believed to be Belletti exiting the vehicle as it drove off and travelled directly back to the residence at 375 Ferndale. Just prior to this, Belletti arrived at the residence as did others including Nicole Pezzetta, a target of the investigation. This activity is believed to be consistent with drug transactions. q. October 25, 2018: surveillance was done at 375 Ferndale Drive South and observations of the blue Lexus with vehicle license CALE642 arrived and parked in the driveway and shortly thereafter left the residence. r. October 30, 2018: observations of Mr. Hariraj arriving at the 375 Ferndale Drive South residence in a blue Lexus with Ontario plates CALE642. s. November 2, 2018: observations at Belletti’s residence at 15 Monck Road, Sebright where he is followed to a Tim Horton’s where activity consistent with a drug transaction occurs. t. November 8, 2018: observations continue at multiple locations including 47 McCausland Court. Mr. Hariraj is observed arriving at the 375 Ferndale Drive South residence in a blue Lexus with Ontario plates CALE642. Activity in and out of the McCausland residence consistent with drug trafficking. u. November 13, 2018, Mr. Hariraj is observed arriving at 375 Ferndale Drive South driving the blue Lexus license plate CALE642. v. November 15, 2018, the Applicant is observed arriving and leaving 375 Ferndale driving a Black Acura with vehicle license BBZE422. He travels to LA Fitness at 100 Mapleview Drive East, Barrie.

[20] Amongst the facts set forth in the ITO is a reference to the alleged criminal record attributed to Mr. Hariraj reproduced in para. 4 above.

Request to Cross-Examine the Affiant Wonch

[21] Ms. Schofield sought leave to cross-examine Wonch on the alleged misleading way that he chose to characterize certain observations in the ITO. Specifically, Ms. Schofield refers to various dates in June, July, August and September 2018, when various observations where made of a vehicle owned by Mr. Hariraj as well as observations made during the course of the surveillance suggestive of drug dealing.

[22] Ms. Schofield referenced information that had been provided to the court in support of other search warrants in relation to the residence at 47 McCausland Drive in Barrie, Ontario. While surveillance established a connection between Mr. Hariraj and the residence at 375 Ferndale, Hariraj was only ever seen at 47 McCausland on August 2, 2018 and October 16, 2018.

[23] Ms. Scofield also sought to cross-examine Wonch with respect to what she described as a lie when Wonch represented in the ITO that Hariraj had a criminal record.

The Legal Principles Re Leave to Cross Examine

[24] Where leave is sought to cross-examine the affiant of an ITO, the applicant must provide a basis to establish that cross-examination will illicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds. The applicant must satisfy the court that the proposed cross-examination is reasonably likely to assist in determining whether the necessary grounds existed for the issuance of the search warrant. See R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 56 and R. v. Sadikov, 2014 ONCA 72, at paras. 39 and 40. The test for leave to cross-examine is not an onerous one. While the test may not be an onerous one it is, however, meant to weed out frivolous requests but not requests where cross-examination could reasonably assist the applicant. See R. v. Pires, [2005] 3 S.C.R. 3, at para. 40.

[25] The mere fact that the ITO contains erroneous information or fails to disclose material facts, even if deliberate, is not a sufficient basis for granting leave to cross-examine. The applicant must show that there is a reasonable likelihood that the proposed cross-examination would negate the existence of one of the statutory preconditions. See Pires; Lising at paras. 30-31.

[26] Where cross-examination will only reveal factual inaccuracies, material omissions or overstatement, leave to cross-examine is not automatic. See R. v. Cook, 2008 ONSC 63139, [2008] O.J. No. 4764, at para. 28. Cross-examination which is intended to show that some of the information relied upon by an affiant is false, will not be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. See Pires, at para. 41.

[27] The law as it relates to the cross-examination of an affiant was recently reviewed and summarized by Leibovich J. in R. v. Chen, 2020 ONSC 1300, at para. 6 as follows:

1. The proposed cross-examination may be directed at the credibility or reliability of the affiant;
2. Cross-examination that only shows that the information relied upon was false is not likely to be useful unless an inference can be raised that the affiant knew or ought to have known that the information was false. Simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination. Put another way, “The focus is on the reasonableness and honesty of the affiant’s belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant”;
3. Cross-examination may “undermine” the grounds set out in the ITO either by contradicting information in the ITO or by adding information that was not in the ITO. “The honesty and/or reasonableness of the affiant’s grounds for believing that the warrant should issue are the ultimate target of the cross-examination”; and
4. Cross-examination may be allowed on a wider basis if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO.

Analysis Re Leave to Cross Examine

[28] As I indicated to counsel at the completion of oral argument, I allowed the cross-examination of Wonch as it relates to his statement in the ITO at para. 81 quoted in para. 4 above, which deposes as a statement of fact that Mr. Hariraj had a criminal record for a break and enter and drugs. Mr. Hariraj’s only criminal record is for one isolated offence completely unrelated to drugs whatsoever.

[29] Wonch deposed at para. 81 of the ITO that he knew Mr. Hariraj had a criminal record for break and enter and drugs and other Criminal Code offences as a result of a criminal record check done on October 25, 2018. Cross-examination with respect to what, on its face, appeared to be factually inaccurate, supported the inference that Wonch knew or ought to have known that this statement was false. See Pires, at para. 41. On this basis I allowed Ms. Schofield to cross examine Wonch.

[30] As it relates to the other areas in which Ms. Schofield sought to cross-examine Wonch, I was satisfied that Ms. Schofield, through disclosure, had access to sufficient information to make out her argument that the warrant should never have been issued and, as such, refused leave to cross-examine Wonch in those areas.

Position of the Defence As to Why the Warrant Should not Have Been Issued

[31] There are 2 residences of importance. The first was Mr. Hariraj’s residence - 375 Ferndale. The second was 47 McCausland Drive. Police surveillance was conducted at McCausland. Mr. Hariraj was only seen at McCausland on August 2 and October 16, 2018. All other dates were when the police were conducting surveillance and they observed a vehicle believed to be that of Mr. Hariraj. On those dates when the Lexus or a vehicle believed to resemble a Lexus, Mr. Hariraj was not actually observed. Also the only date Mr. Hariraj was seen driving from his residence to McCausland was on October 16. He was not seen after October 16. It is alleged that McCausland was the so called “stash house”.

[32] After the cross examination of Officer Wonch Ms. Schofield proceeded to argue the application by reference to the materials before the Court that she had received as part of the Crown disclosure. She argues that for at least one month Mr. Hariraj was not seen doing anything other than what might be described as routine day to day activities.

[33] Mr. Hariraj was only actually identified on August 2. A Lexus Licence plate was observed on June 28, August 2, and October 16. The Lexus was only observed at Ferndale and McCausland on August 2 and October 16.

[34] June 28 was the first date that the Lexus was seen at McCausland when it is alleged in the ITO that Belletti is seen getting into the vehicle. Ms. Schofield then took the court to the actual video of June 28 at 7:40 p.m. All that can be seen is a vehicle in the driveway. The video does not depict anyone getting into or out of the vehicle. Ms. Schofield argues that if the video does not depict anyone getting into or out of the vehicle there is no basis for the belief that Mr. Hariraj was the source of the drugs for Belletti.

[35] Ms. Schofield further argues that the observations made on June 28 may have involved what could be interpreted as drug transactions but none of the observations involved Mr. Hariraj.

[36] The observations made of Mr. Hariraj on July 19 were restricted to him being at his residence on Ferndale. On July 30 the ITO suggests Mr. Hariraj attended at McCausland. Ms. Schofield argues by reference to the actual video that all anyone could see from the video was a dark coloured car attending at 3:55 p.m. The most that can be discerned is the top of the vehicle. As such Ms. Schofield argues it would be impossible to have concluded that it was Mr. Hariraj in that vehicle on July 30.

[37] On August 2 the ITO suggest that Mr. Hariraj was seen leaving Ferndale and went to McCausland. Ms. Schofield by reference to the actual video suggests it would be impossible from the video to discern this was Mr. Hariraj’s vehicle.

[38] On August 3 the only observations made came from the video. The video depicts a blue sedan and Ms. Schofield argues it would be impossible to know from police surveillance that this was Mr. Hariraj’s Lexus let alone that it was Mr. Hariraj driving the car.

[39] On August 31 the ITO suggests that observations were made of a blue vehicle with a licence plate and that this was Mr. Hariraj’s car. By reference to the actual video Ms. Schofield argues that all one can actually see is the roof of the vehicle, not the make, nor colour of the vehicle let alone its licence plate.

[40] On October 16 there is no video but there are observations and surveillance which establishes that a Lexus left Ferndale and arrived at McCausland where a “shadow of a male person” is observed. As it relates to this observation Ms. Schofield asks the Court to compare the belief of the deponent at page 57 of the ITO to the actual surveillance report which makes no reference to any packages being seen.

[41] Ms. Schofield also asks the Court to compare the observations reflected in the McCausland ITO with the Ferndale ITO. In the McCausland ITO there is a lot of activity much of which is not reflected in the Ferndale ITO. Specifically Ms. Schofield argues that paragraphs 117, 118, and 120 of the McCausland ITO should have been in the Ferndale ITO.

[42] As it relates to the belief that it was Mr. Hariraj observed at McCausland Ms. Schofield suggests that the basis for such belief was “flimsy” at best.

Position of the Crown

[43] Ms. Briscoe argues that even if the information in the ITO about Mr. Hariraj’s criminal record was inaccurate or misleading that the question still remains could the search warrant have been issued. The test is not whether a prima facie case been made out but rather whether there were reasonable and probable grounds to believe that Mr. Hariraj was involved in trafficking drugs and that drugs might be found in his residence. She emphasizes that the role of the reviewing judge is not to parse the T’s and I’s but to look at the full picture. As such the inaccurate criminal record would not have affected the preconditions for the issuance of the warrant.

[44] Having allowed the cross examination of Wonch restricted to the issue of Mr. Hariraj’s criminal record Wonch’s evidence confirmed that he “ran” a criminal record check. He was confronted in cross examination with Mr. Hariraj’s actual criminal record which does not reflect any conviction for “drugs” nor any conviction for break and enter. Office Wonch when confronted with the actual criminal record suggested that he might have read the “record” wrong when it says the drug charges were dismissed. He further testified that he wrote it up as a criminal history as opposed to a criminal record.

[45] In response to questions from the bench Wonch acknowledged that it was his practice to include in an ITO the criminal history of an accused which could include charges withdrawn or an acquittal. After further questioning from the Bench, Wonch conceded that in the future it may be more appropriate to only include an accused’s actual criminal record which by definition does not include an acquittal.

[46] Ms. Briscoe argues that the video and the surveillance reports are not evidence and that as a matter of fairness the Crown should be allowed to provide the full picture. As well the video and source documents needed to be properly authenticated.

[47] Ms. Briscoe argues that the ITO contains a lot of information that linked Mr. Hariraj to both the Ferndale address, the Lexus, and the McCausland address. The Lexus was licenced to Mr. Hariraj. Mr. Hariraj was seen driving the Lexus and parking it at Ferndale - thus linking him to Ferndale. Mr. Hariraj was seen twice at McCausland and what was believed to be a Lexus was observed on a number of occasions on the video.

[48] In making her argument Ms. Briscoe reminded the court that the test is not one of proof beyond a reasonable doubt but rather that the affiant had a reasonable belief that evidence would be found at Ferndale that would establish Mr. Hariraj was the supplier of drugs to McCausland. In that regard Ms. Briscoe argues that what is deposed to in the ITO was the belief of the affiant that he believed Mr. Hariraj was the driver of what was observed to be a blue sedan or blue Lexus with what were believed to be drug transactions. As such it is a compilation of facts set forth in the ITO that gives rise to the warrant being issued.

[49] Ms. Briscoe argues that there is nothing in the ITO that was misleading. On those occasions when the affiant could not establish from watching the video that the vehicle was a Lexus it is described as blue sedan or a vehicle believed to be a Lexus. When the Lexus was identified as the vehicle Ms. Briscoe argues that a fair inference to be drawn was that it would have been driven by Mr. Hariraj since it was registered in his name and he was on occasion actually seen driving the Lexus. As for the connection between McCausland and Ferndale Ms. Briscoe correctly notes that on October 16 Mr. Hariraj is actually seen driving between these two addresses.

[50] While Ms. Schofield meticulously picked apart the ITO by comparing what was reflected in the ITO with what was seen on the video. Ms. Briscoe argues that the role of the reviewing court is to read the ITO as a whole to demonstrate that there was a belief that Mr. Hariraj was involved in drug trafficking which at the very least was ultimately supported with the fact drugs were found at McCausland.

Analysis

[51] As a reviewing court where the accused argues his or her rights have been violated under s. 8 of the Charter my role is not to engage in a de novo assessment of the ITO. It is also not the role of the reviewing court to substitute my view for that of the issuing justice. The question for the reviewing court is not whether I would have issued the search warrant but rather whether the warrant could have been issued based on the sworn information contained in the ITO - see R. v. Araujo, [2000] 2 S.C.R. 992 at para 51.

[52] The onus in this case, as in all search warrant reviews, is upon Mr. Hariraj to establish that there was no basis upon which the Justice could issue the warrant that resulted in the search of his Ferndale residence with the resulting evidence of a large quantity of cocaine, cash and other paraphernalia commonly associated with drug dealing.

[53] The standard that a reviewing court must adopt in its review of an ITO is well known and set forth in R. v. Garofoli, [1990] 2 S.C.R. 1421 at para 56 as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record, which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence or fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[54] As it relates to the hearing before me I allowed Ms. Schofield to cross examine Wonch solely as it related to what appeared on its face to be an inaccurate statement made in the ITO about Mr. Hariraj’s criminal record. The cross examination confirmed that in fact, contrary to what the issuing Justice would have understood, Mr. Hariraj did not have a criminal record that would have associated him with the drug trade.

[55] The appropriate remedy given the erroneous information about Mr. Hariraj’s criminal record is to excise such erroneous information from the ITO. I am satisfied that Wonch provided an explanation for the erroneous reference to Mr. Hariraj having a criminal record related to drugs. That said police officers who are responsible for the preparation of an ITO that reference a criminal record need to be careful to include only information about criminal offences for which an individual has been convicted. In my view there is no room in an ITO to include information about charges for which an individual has been acquitted. An acquittal reflects a finding that someone charged with an offence is not guilty-such a finding does not amount to a criminal record.

[56] The hearing before me was a sub facial attack on the validity of the search warrant both as it relates to the criminal record and the amplification of Officer Mullinder in terms of what he saw on the video and his belief as to what he was watching together with his actual surveillance observations. While Ms. Schofield presented a skilful attack on what the video showed and what she argues can be gleaned form the video ultimately it is not whether I agree with what Mullinder saw but rather it is Mullinder’s belief that must concern this court in conducting its review.

[57] While much of the focus of Ms. Schofield’s argument related to what can be seen on the video surveillance it is important in my view to review the entirety of all of the information found in the ITO that was before the Justice who issued the warrant. The summary prepared by Ms. Schofield reflects there were 9 occasions when a vehicle was seen at McCausland. If that was all of the information linking Mr. Hariraj to drug dealing it might be open to conclude that such information could not give rise to a belief that Mr. Hariraj was linked to the drug trade. Those 9 occasions reflected varying descriptions of the vehicle including references to a Lexus, a blue sedan and a vehicle with a logo associated with a Lexus. Those same 9 occasions did not reflect any identification of Mr. Hariraj as being the driver of the vehicle. So standing alone they could not justify the issuance of a warrant to search Mr. Hariraj’s residence.

[58] The ITO however includes a lot more information that was before the Justice that could give rise to a reasonable belief Mr. Hariraj was linked to dealing in drugs at McCausland. The affiant deposed it was his belief that what he saw happening on the video was a drug transaction given the same modus operandi i.e. a vehicle identified as a blue sedan or Lexus pulls up to McCausland; an individual believed to be Belletti exits McCausland and gets into the vehicle for a brief period of time; followed by the vehicle quickly leaving McCausland. The affiant does not depose he actually saw Mr. Hariraj dealing in drugs. Rather it was his belief based on the compilation of evidence that was important and before the Justice. The reviewing court can only set aside the warrant if there was no basis upon which the issuing justice could have been satisfied that the pre-conditions for the issuance of the warrant had been met - see R. v. Pires : Lising, [2005] 3 S.C.R. 3, at para 30.

[59] There was reliable evidence linking Mr. Hariraj to the Ferndale address. He was seen at Ferndale and the Lexus which he was seen driving was registered to the Ferndale address. He was seen in surveillance conducted on July 5 and 19. He was also seen driving to McCausland on August 2 and then returning to Ferndale. On the other occasions when a blue sedan or Lexus was seen at McCausland it was a fair inference to believe it was Mr. Hariraj driving the vehicle seen on the video.

[60] In coming to my final conclusion I have applied the standard that has been universally accepted where a trial judge is asked to review a warrant. That standard was repeated at para 84 in R. v. Sadikov, 2014 ONCA 72 where Watt J.A. states the standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search.

[61] The common sense, practical and nontechnical analysis of the evidence set forth in the ITO allowed the issuing Justice to issue the warrant to search Mr. Hariraj’s residence. Based on the totality of all of the observations made from the video surveillance, the actual surveillance of Mr. Hariraj, together with the evidence of drug dealing revealed by the search of McCausland establishes more than sufficient reasonable and probable grounds to believe that there would be evidence of drugs found at Ferndale linking Mr. Hariraj to drug trafficking.

[62] If I am wrong in my analysis of the alleged s. 8 breach of Mr. Hariraj’s Charter right then I must still consider the application of s. 24(2) and the analysis mandated by Grant. Dealing first with the seriousness of the Charter infringing conduct I accept that the application for and the obtaining of a search warrant, to use the words of Rosenberg J.A. in R. v. Rocha, 2012 ONCA 707 at para 28, “is the antithesis of wilful disregard of Charter rights”. But as Rosenberg J.A. elaborates at para 29 of Rocha simply because a search warrant was granted doesn’t mean that the first Grant enquiry favours admission.

[63] In the ITO filed in support of the warrant that lead to the search of Mr. Hariraj’s residence there was evidence (the criminal record) that was misleading, which I have excised as part of my analysis as to whether the warrant should have issued. On the continuum from an intentional use of false and misleading information at one end to mere inadvertence at the other end (Rocha para 29 citing Morelli at para 99-103) I have concluded that the inclusion of a criminal record suggesting Mr. Hariraj had been convicted of offences linking him to the drug trade was not at the intentional end of the continuum. Rather based on my understanding of Wonch’s evidence the inclusion of this criminal record reflected a very poor understanding of what a criminal record is vs a criminal history. A criminal history from the police perspective seems to include charges that are ultimately disposed of in favour of an accused. Charges disposed of other than by way of a finding of guilt should not be referenced as someone’s prior criminal record for the purposes of inclusion in an ITO.

[64] I have concluded that after excising reference to Mr. Hariraj’s criminal record that the ITO did not include any other information that would put the police conduct in obtaining the warrant as anywhere close to the egregious end of the continuum. As it relates to the second part of the Grant analysis it would be hard to reach any other conclusion other than the search was a serious intrusion into a place where Mr. Hariraj had a high expectation of privacy (Grant para 78).

[65] This then leaves the question of whether exclusion of the evidence found at Mr. Hariraj’s residence, which is clearly relevant and reliable, would undermine the truth seeking function of the justice system and render the trial unfair from a public perspective and thus bring the administration of justice into disrepute. Without the evidence of the drugs and related drug paraphernalia found at Mr. Hariraj’s residence the case for the Crown would be close to nonexistent. The evidence is important and it is real, relevant and reliable. The third part of the Grant analysis favours inclusion.

[66] In R. v. McGuffie, 2016 ONCA 365 at para 63 Doherty J.A. makes clear that the third Grant enquiry becomes important when one but not both of the first two parts of the Grant analysis “pushes strongly” towards the exclusion of evidence. Justice Doherty goes on to clarify that if the first and second inquiries make a strong case for exclusion it would be a rare case that the third line of enquiry would tip the balance in favour of admissibility. Most important from the perspective of the facts before this court is if the first two inquiries “provide weaker support for exclusion” then the third part of the Grant analysis will in most cases then confirm the admissibility of the evidence.

[67] If the evidence before this court had confirmed egregious police misconduct that lead to the issuance of the warrant this court would have little hesitation in disassociating itself from that misconduct by granting the order sought i.e. the exclusion of the evidence seized from Mr. Hariraj’s residence. Ms. Schofield in her argument suggests that the public would be shocked if they knew that a search warrant could be granted on such scant grounds as existed in this case. Ms. Schofield also categorizes the police conduct as reaching the level of either misconduct and or negligence. While I agree with Ms. Schofield that the insertion at para. 81 of the ITO of a misleading criminal record could be seen by some as police negligence there is no evidence before me that the insertion of a criminal history as opposed to a criminal record is a pattern in how police could mislead a justice into granting a search warrant. Police officers should however demonstrate care in the future to ensure that evidence of a criminal record alone finds its way into an ITO.

[68] As it relates to the balance of the evidence contained in the ITO I respectfully disagree with Ms. Schofield that there were flimsy grounds upon which the police could rely to obtain the warrant. Much of what is contained in the ITO standing alone could be seen as flimsy evidence. Observations of a blue sedan or what appeared to be a Lexus logo would amount to little that could justify the issuance of a warrant. Observations of an unknown driver attending at McCausland for a brief visit also amounts to little. Similarly the observations of what the police thought was a brief drug transaction occurring within the Lexus might be seen as very weak evidence that could justify the issuance of a warrant.

[69] What the issuing justice had before her however was the entire ITO which had to be read in its entirety and not piece meal. The issuing justice had the evidence of an experienced police officer who reached a belief that based on his observations from the stationary surveillance camera together with actual observations made of Mr. Hariraj linking him to a Lexus registered in his name at the Ferndale address that it was reasonable to conclude there would be evidence of drugs found at Ferndale. That belief was only reinforced when the search warrant was executed at McCausland where drugs were in fact located. The information contained in the ITO was a reflection for the most part of what the public might categorize as good police work. As such in my view a member of the public might be rightly concerned if the court conducting its Grant analysis in the context suggested by McGuffie was to exclude the evidence of the drugs and drug paraphernalia found at Ferndale.

[70] For the reasons set forth above Mr. Hariraj’s application is dismissed.

M.L. Edwards, R.S.J. Released: July 18, 2023