COURT FILE NO.: CR-21-50000469-0000 DATE: 20231027

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – NAHOM MUSSIE Applicant

Brigid McCallum, for the Crown Joseph Giuliana, for the Defendant

HEARD: September 18-22, 2003 Dineen J.

Introduction

[1] The Applicant Nahom Mussie is charged with offences relating to human trafficking and with possession of fentanyl for the purpose of trafficking. The charges resulted from a police investigation into the sale of sexual services by S.M.. The police concluded that the Applicant was committing human trafficking offences with respect to S.M.. They arrested him and secured search warrants for a hotel room that had been occupied by the Applicant and S.M. and for the Applicant’s vehicle. Fentanyl was found in the hotel room safe, and the police seized multiple cell phones during the searches. The Crown intends to rely on text messages and other data found on the cell phones in support of the human trafficking allegations.

[2] The Applicant brought an application seeking relief for various alleged breaches of his rights under the Canadian Charter of Rights and Freedoms arising from these events. His primary argument is that the Informations to Obtain the search warrants rested on material misrepresentations of the facts. The Applicant submits that, once the misleading information is excised, the warrants are unsupportable. The Applicant further submits that the warrants should in any case be quashed on the basis that the police deliberately misled the issuing justice and engaged in an abuse of the ex parte process for obtaining the authorizations. The Applicant also challenges the police’s compliance with s. 10(a) and 10(b) upon his arrest and the decision to conduct a strip search at the police station. He further seeks a remedy for the loss of the notes of one of the investigating officers.

The factual background

The initial York Regional Police and CAS contact with S.M.

[3] The Applicant and complainant first came to the attention of the police on November 6, 2020, when D.C. Crook of the York Regional Police saw on online advertisement for sexual services featuring photos of a woman – later identified as S.M. – who appeared very young and who had a bruised eye and an apparent serious injury to her leg. An undercover officer responded to the ad and arranged to meet S.M. purportedly to buy sexual services. The hotel room the officer was told to attend was registered to the Applicant.

[4] D.C. Crook went to the motel with another officer and met S.M., after observing her to be dropped off nearby by a vehicle registered to the Applicant. The officers explained to S.M. that they were concerned for her safety because of the injuries visible in her ad. The occurrence report prepared by D.C. Crook reports that S.M. was walking with a limp and had a stain leaking through her pants. S.M. told the officers that she had escaped two traffickers, and that the man who had rented the hotel room was trying to help her and would let her keep her money. She showed the officers her leg injury, which appeared very swollen and in need of medical attention. She refused to go to the hospital at the time but asked D.C. Crook to return at 8:00 a.m. and to pose as her aunt in order to get her medical attention.

[5] The following morning, S.M. sent D.C. Crook “cryptic” messages about wishing to get medical attention, saying that she would attend Humber River Hospital. D.C. Crook and other officers went to the motel that morning as arranged and saw the Applicant’s vehicle. He answered the room door and told them that he had just arrived and would take S.M. to the hospital. S.M. insisted on accompanying the Applicant rather than the officers. The police attempted to follow the Applicant’s vehicle but lost it, saying that the Applicant drove at a high rate of speed. The occurrence report states that both Humber River Hospital and the nearby Etobicoke General Hospital had no record of S.M. checking in and that S.M. subsequently stopped communicating with the police. On November 11, however, D.C. Crook learned from the Children’s Aid Society that S.M. had attended Mackenzie Health Hospital on November 7. The CAS worker told her that S.M. was known to fabricate stories for attention and that she believed this stemmed from a mental illness.

[6] The next contact S.M. had with the police was on November 19, when D.C. Crook and Detective Cober located her at the Pinecrest Motel in Vaughan staying in a room registered to Laken Grace Burbidge. S.M. looked much healthier and said that she had received antibiotics. She promised to be in touch with D.C. Crook later but said she could not speak with them immediately because she would be “in trouble” if it became known that she was communicating with the police. She later messaged D.C. Crook to report that the Applicant – who she described as her uncle – took care of her, bought clothing for her children, and expected nothing in return. D.C. Crook helped her complete an application for public housing.

[7] On November 23, S.M. phoned D.C. Crook and discussed her history in the sex trade. She said that she had initially worked for a man who went by “Jookie” who let her keep money and did not physically abuse her, but when he was arrested she was recruited by a couple in Brampton who threatened her, took all of her earnings, and gave her only small amounts of crack cocaine. S.M. said that the Applicant was a friend of Jookie and had not taken her money but that she wished to leave the sex trade. A review of police records showed that the name “Jookie” was associated with a Mississauga man who had been the subject of human trafficking reports.

[8] On November 30, S.M. asked D.C. Crook to pick her up at the Vaughan Inn that following day and to help her determine if she was pregnant. The Applicant’s car was parked outside the Inn when D.C. Crook arrived. S.M. messaged D.C. Crook that she had gone to a walk-in clinic and so would be late. When she attempted to call S.M., D.C. Crook found that her number had changed and an online ad for sexual services with photos of S.M. that day featured a new phone number.

S.M.’s hospital visits on January 9 and 12, 2021

[9] On January 9, Toronto police responded to a call from the Applicant that a woman was jumping on his car, finding him and S.M. engaged in an argument. S.M. identified herself using her teenaged sister’s name R.M. The Applicant told the officers that he had been S.M.’s legal guardian since September 2020, and that he had been driving her to a methadone clinic when they began to argue about her methadone treatment. This led S.M. to climb out of the vehicle and jump on the hood. S.M. had been experiencing vaginal bleeding and asked for medical treatment. The attending officers escorted her and the Applicant to Mount Sinai hospital.

[10] S.M. told the officers that she had been experiencing the bleeding for almost a year since the birth of her son. She identified herself as R.M. to the hospital staff and asked the Applicant for her health card. The officers saw the Applicant appear to write down a health card number on a piece of paper and give it to S.M..

[11] A CAS worker was contacted by hospital staff on January 12 after S.M. attended at the Humber River Hospital. S.M. was again holding herself out as her underaged sister. She said that an adult male named Moses – an apparent reference to the Applicant – had taken her to the hospital for treatment for vaginal bleeding. S.M. denied having a sexual relationship with the Applicant, saying that he did not wish one after he learned her age. She described a history of drug use and said that the Applicant had started her on methadone.

[12] S.M. claimed that her parents had been arrested and incarcerated leaving her with nowhere to go, and that she had subsequently been pimped by friends of her parents in Brampton. Hospital staff held her overnight so that she would no longer have drugs in her system and sought to find a youth shelter for her.

Further Children’s Aid Society involvement with S.M. and the Applicant

[13] S.M. left the hospital the following morning and staff at the shelter she had been referred to declined to say whether she had gone there. The CAS called the Toronto Police human trafficking team and left a voice mail for S.M.’s parents. That afternoon, the Applicant called the CAS and identified himself as R.M.’s guardian and asked to speak to her CAS worker.

[14] When the worker returned this call that evening, the Applicant said that he had met S.M. in September. She appeared abandoned and on drugs and she begged him for help. He has since supported her by putting her in hotels and Air BNB rentals, taking her for medical care, and buying her clothes. He believed she had been trafficked. He had recently discovered she was pregnant when she was sick and had vaginal bleeding but she had suffered a miscarriage. She had told him she has three children but he noted that she “lies a lot.”

[15] S.M. also spoke to the worker and again described being exploited by a couple in Brampton who had taken her in after Jookie had gone to jail on drug charges. She said they had forced her to work 15 hours a day and given her no money and told her not to speak to the police or CAS. She said she had a two-year-old child who lived with his 16-year-old father. She wished to stay in the condo she was in with the Applicant and refused to come into care, saying that Jookie was paying for the condo.

[16] The CAS subsequently spoke further with the Toronto police and with S.M.’s father and sister. and discovered that S.M. was named S. and was 23 years old and simply posing as her 17-year-old sister R., who was herself not in Toronto and seemingly doing fine.

[17] Two CAS employees tried to contact S.M. on January 15 by attending the condominium building where she and the Applicant were staying. One called the Applicant, who told her that S.M. was with building management. He described what she was wearing. Soon S.M. arrived in the lobby and the CAS workers approached her. She identified herself as R.M. again but eventually confirmed her identity as S.M. when confronted with evidence of this.

[18] S.M. appeared unwell and said she had been experiencing vaginal bleeding for three weeks. She asked the CAS workers not to speak to the Applicant any more, claiming that the Applicant was trafficking her. She further claimed that the Applicant knew her sister R.M. and that R.M. was into drugs, statements inconsistent with what her family had previously told the CAS. The workers tried to bring S.M. to a shelter in a taxi but she appeared very anxious and said that she would make her own way there.

[19] The reports of the CAS workers show that they were in contact throughout these events with D.C. Peck of the Toronto Police. D.C. Peck was reported to be unavailable to testify at the voir dire and her notes have never been produced, as I will discuss further below.

The arrest of the Applicant

[20] The Toronto Police decided to arrest the Applicant for human trafficking offences, and to attempt to secure housing and medical assistance for S.M., on January 20 when she was scheduled to attend Women’s College Hospital. A surveillance team saw the Applicant and S.M. leave the Woodbine Suites hotel at 12:41 p.m. and travel to a shopping plaza at Jane St. and Sheppard Ave. The Applicant was driving and parked in front of a convenience store. S.M. went into the store and a second car, an Acura, pulled in next to the Applicant’s vehicle.

[21] Two police officers – D.C. Rabbito and D.C. Alexandrowicz – testified that they were observing the Applicant’s vehicle from an adjacent plaza about 50 metres away. D.C. Rabbito testified that he saw S.M. leave the convenience store and then briefly enter the Acura. She then walked around to the driver’s side of the Acura. She may have spoken with the Applicant through his car’s open window, and then returned to Acura and spoke to its driver with her hands inside the car through the driver’s door window.

[22] D.C. Rabbito saw what he believed was either a handshake or a hand-to-hand transaction. Given the information he had received about S.M.’s drug use he believed it was the latter. D.C. Alexandrowicz did not himself witness the interaction at the driver’s side door but recalled D.C. Rabbito contemporaneously describing it and saying that he was confident from his drug squad experience that he had seen a hand-to-hand transaction. He did himself see S.M. enter the Acura and exit it carrying a small white paper bag. S.M. returned to the Applicant’s vehicle.

[23] The officers then followed the vehicle to a No Frills store at Jane St. and Wilson. Ave. S.M. entered the store and the officer directing the operation called for a takedown of the Applicant. D.C. Alexandrowicz saw the Applicant leave his vehicle at the request of another officer. He handcuffed the Applicant and informed him of his right to counsel, doing so first from memory and later verbatim from his memo book. The Applicant stated that he wished to call duty counsel.

[24] D.C. Alexandrowicz patted down the Applicant and found money and identification, and in the Applicant’s left sock found a driver’s license in the name of Laken Burbidge. Notwithstanding that the Applicant had not yet spoken to counsel, the officer asked who Ms. Burbidge was. He testified that the Applicant replied that it was his girlfriend and the woman who had gone into the store.

[25] While the Applicant was arrested, D.C. Rabbito went into the No Frills store and found S.M. at the back of the store near the bathrooms. She appeared in very poor condition: malnourished, poorly bathed and groomed, and with open sores on her neck. Her speech was also slurred and mumbling and she seemed to speak as though she were a child. D.C. Rabbito could not tell whether this was the result of substance use or whether she had a cognitive impairment.

[26] S.M. referred to D.C. Rabbito as the “pimp police” and seemed anxious to return to the Applicant in the parking lot and resistant to accompanying the officer to speak to a resource advocate. She was concerned that the Applicant had her money and identification and that her belongings were in their hotel room. She also told the officer that the Applicant provided her with fentanyl. According to D.C. Rabbito, she only calmed down when told that the Applicant was in custody, at which point she agreed to leave with him. She first asked to use the bathroom and he agreed, but observed when she returned that there was a powder smeared on her coat which caused him to fear that she had dumped a narcotic while in the bathroom. He explained his decision to allow her to use the bathroom, and the fact that there was no attempt to pull over the Acura that was involved in the possible hand-to-hand transaction, by saying that this was a human trafficking rather than a drug investigation and their focus was securing help for S.M..

The strip search of the Applicant

[27] Following the arrest and the conversation with S.M., the officers involved had an informal debrief in the parking lot. Officer Vandekerchove, who had been waiting at Women’s College Hospital in case S.M. went there as scheduled, arrived shortly before the debrief. He testified that in the course of the debrief he heard that S.M. had called the Applicant a fentanyl dealer and that a hand-to-hand transaction had been observed. He concluded that he should attempt to contact the transporting officer or the Division to which the Applicant was being brought to warn them about the possibility that the Applicant may be carrying fentanyl. Both D.C. Rabbito and D.C. Vandekerchove testified that the training they received emphasized the danger of fentanyl in quite extreme terms, suggesting that handling fentanyl or even breathing near it could create a risk of an overdose.

[28] The booking video captures a discussion between Officer Huang, who transported the Applicant to the station from the scene of his arrest, and the Staff Sergeant in charge of the station. Officer Huang requested a level 3 search – a strip search – due to the nature of the charges and indications of drug use and trafficking. After questioning the Applicant, the Staff Sergeant directed a level 2 search. This was conducted and nothing found. At 2:50 p.m., while the search was underway, he received a phone call from Officer Vandekerckhove, following which he told the Applicant that he had received information from the arresting officers that there were reasonable grounds to believe that he had fentanyl and was trafficking it, and that accordingly there would be a level 3 search.

[29] After the Applicant spoke to duty counsel at 3:05 p.m., the Staff Sergeant explained the grounds for the search in more detail, saying that police watching the Applicant had seen him doing hand-to-hand transactions and that there was information he may be trafficking fentanyl. Nothing was found during the level 3 search.

[30] D.C. Vandekerchove attended the station to conduct an interview with the Applicant. After he read the Applicant his right to counsel again, the Applicant asked to speak with counsel Kim Schofield. D.C. Vandekerchove called Ms. Schofield’s number and reached an associate in her office who then spoke with the Applicant. The Crown does not intend to lead any statement made by the Applicant at the station.

The execution of the search warrants

[31] While the arrest of the Applicant was under way, another officer who was then on the human trafficking team – D.C. Zeppieri – was tasked to prepare Informations to Obtain for search warrants for the room used by the Applicant and S.M. at the Woodbine Suites hotel and for his vehicle. D.C. Zeppieri prepared these while listening to the events unfolding over the police radio. I will discuss the ITOs in more detail below.

[32] The warrants were issued by Justice of the Peace Henderson at 7:10 p.m., and provided that the police could execute them between 7:10 p.m. and 8:59 p.m. The vehicle had by this time been towed to a Toronto Police impound lot. The officers involved testified that they did not have time to carry out both searches within the short time frame specified in the warrant, and so simply went to the impound lot and cut the police seal that had been placed on the vehicle’s door to signify the execution of the warrant, before returning to carry out the actual search the following day.

[33] The warrant to search the room at the Woodbine Suites was executed at 7:55 p.m. and the search completed by 8:30 p.m. The police seized a broken iPhone from a dresser and located money and fentanyl in the room’s safe. They found hotel keys, a Bitcoin receipt, and three cell phones in the Applicant’s car.

[34] Following the seizure of the fentanyl, D.C. Vandekerchove contacted 32 Division to advise them that the Applicant would be facing further charges and that he should be advised of this and informed again of his right to counsel. He had no note of exactly when this was done. Video from the Division shows that the Applicant was informed of the charges and offered a further opportunity to contact counsel at 8:53 p.m.

[35] The warrants issued on January 20 authorized a further search for various forms of data on any cell phone that were seized. Notwithstanding this, before requesting the extraction of this data from the seized phones, D.C. Zeppieri prepared an additional ITO that listed the place to be searched as the computer server of Toronto Police headquarters, and described the items to be searched for as the data sought by the police. This warrant was issued on September 20, 2021.

[36] The warrant and request for a search of the phones was forwarded to officers of the Toronto Police tech crimes unit. D.C. Steel and D.C. Harjaste were each tasked with searching phones seized as part of the investigation. Both testified that they were concerned that the September 20 warrant was not correctly prepared and that the place to be searched should have been identified as the evidence locker where the phone was stored and the item sought as the phone itself rather than the data, with a further description of the specific data that was to be extracted. D.C. Steel raised this concern with his superior and emailed D.C. Zeppieri to ask whether the warrant should be re-drafted or, alternatively, whether D.C. Zeppieri accepted responsibility for any issues if they proceeded. D.C. Zeppieri replied that the warrant was “good to go.” The tech crime unit accessed data on the phones and prepared extraction reports.

[37] The Crown’s case on the human trafficking charges rests substantially on the data extracted. S.M. died shortly after the Applicant’s arrest.

Issues

Was the Applicant’s arrest a breach of his s. 9 right?

[38] The Applicant contends that, at the time of his arrest, the police lacked reasonable grounds to arrest him for any of the charges he then faced (specifically: trafficking in persons by exercising control; receiving a financial benefit from trafficking a person; receiving a material benefit from the sexual services of a person; and, withholding S.M.’s Ontario health card).

[39] The Applicant argues that when all of the evidence available to the police is considered as a whole, it does no more than raise a suspicion or possibility that the Applicant had committed a criminal offence.

[40] The standard for a warrantless arrest was outlined by Fairburn J.A. (as she then was) in R. v. Canary 2018 ONCA 304 para. 21-23 as follows:

Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1) (a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer “must subjectively believe that there are reasonable grounds to make the arrest”: R. v. Saciragic, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, at para. 16. To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; Saciragic, at para. 16. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at pp. 250-51.

When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, [2013] 3 S.C.R. 250, at para. 73.

The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.

[41] In my view, the following factors considered in combination gave rise to a credibly-based probability that the Applicant had committed human trafficking offences against S.M.:

• S.M. was advertising sexual services at times when she was visibly injured and when she and the Applicant were reporting that she was suffering from vaginal bleeding. This gave rise to a reasonable inference on the part of the police that this was the product of coercion rather than voluntary choice. S.M. appeared physically very unwell when she last encountered CAS staff.
• The Applicant and/or his vehicle were continually present at the locations where S.M. was staying and apparently selling sexual services. He had rented a hotel room where she met with police officers who had arranged a meeting purportedly for that purpose.
• The Applicant identified himself as the “legal guardian” of S.M. notwithstanding that she was 23 years old and not a young person.
• A reasonable inference was available that the Applicant was exercising control over S.M.’s access to health care. She insisted on going to seek medical treatment in his company and was observed to have to obtain a health card number from him at the hospital, strongly suggesting that he had custody of her health card as a means of exercising control over her.

[42] I recognize that there was evidence capable of supporting alternative innocent inferences. The Applicant reached out to S.M.’s CAS worker, which could be viewed as an unlikely thing for a trafficker to do. This evidence also included many statements made by S.M. suggesting that she had been trafficked by other persons and that the Applicant had only sought to help or take care of her, although she is also reported to have told the CAS once that the Applicant was trafficking her. However, I agree with Crown counsel that nothing said by S.M. should be given any significant weight one way or the other in assessing the sufficiency of the police’s grounds.

[43] It is apparent, and it would have been apparent to the police at the time, that S.M. was entirely unreliable. She had told many contradictory or demonstrably false stories and frequently posed as her younger sister for unclear reasons. The Applicant himself had told the CAS that she “lies a lot” and a CAS worker had reported that S.M. was known to fabricate stories for attention due to a mental illness, an assessment consistent with her behaviour during the time period she was in contact with the police.

[44] Notably, her false stories included statements about the Applicant that appear designed to make him seem non-threatening to authority figures. Specifically, she said that he declined a sexual relationship with her when he discovered that she was underage, when in fact she was a similar age to him.

[45] I conclude based on all of the evidence available to the police at the time of the arrest that they possessed reasonable grounds. I find no breach of s. 9.

The search warrant issues

The approach to the review of search warrant

[46] The analytical approach required in the review of a warrant is described in R. v. Araujo 2000 SCC 5. In R. v. 1758691 Ontario Inc. (“ATV Farms”) 2019 ONSC 6951, Dawe J. succinctly summarized it as follows:

(i) The judge must first identify any parts of the information to obtain the warrant (the ITO) that are inaccurate or misleading, in the sense that they do not reflect what was actually known or believed by the affiant at the time of the search warrant application;

(ii) If these errors or omissions are found to be inadvertent, the judge must “amplify” the ITO by replacing the erroneous or misleading statements in the ITO with corrected and/or more fulsome versions that accurately reflect what the affiant actually knew or believed;

(iii) If the errors or omissions are found to have been deliberate, the judge must excise the faulty statements from the ITO without amplification;

(iv) The judge must then review the ITO “as reduced and amplified” and ask whether a justice who had been presented with this revised ITO could have properly issued the search warrant.

If the judge determines that the warrant could have properly been issued based on the revised ITO, he or she must then consider whether the investigators engaged in any misconduct that was so egregious, “in the totality of the circumstances”, that the warrant should still be quashed in order to protect the integrity of the prior authorization scheme.

The misleading and inaccurate sections of the ITOs prepared by D.C. Zeppieri

[47] The grounds set out in the ITOS for the hotel room and car are essentially identical. It is common ground that they do not amount to full, fair, and frank disclosure of the relevant facts within the knowledge of the police. Argument centred on the following extract from the grounds set out in the ITOs:

3. Officers spoke with M and she advised that she had been exploited by a pimp and was injured during the time that she was with the pimp. She advised that she would be willing to provide a statement to the police. When officers left she contacted them to advise that she was going to attend Humber River Hospital and as a result officers returned to the motel to check on her wellbeing. When they arrived at the motel they knocked on the door and were greeted by a male and he advised that he would transport M to the hospital and refused assistance from the police or ambulance. They agreed to allow him to transport her but they would follow to ensure she arrived safely and received treatment. While enroute to the hospital the male began to drive at a high rate of speed and the officers lost the vehicle. They attended the hospital but she did not arrive. Officers attempted to check on M again but she said she was fine and refused to meet again.

4. On January 9th, 2021 the Toronto Police Service (TPS) responded to a 9-1-1 call for an unknown trouble. Officers arrived and located both M and a male in a Toyota Rav 4 with Ontario licence plate ‘BWTS411.’ They told officers they had gotten into an argument but everything was ok. The victim told officers she was suffering from vaginal bleeding and they were on the way to Mount Sinai Hospital. Officers followed the accused and the victim to Mount Sinai hospital to ensure she would get treatment. While on scene at the hospital, the victim required her identification and health card to register for treatment. She went to the accused who was holding her identification and asked him for the health card. Officers observed the accused write the number of the health card down on a piece of paper but did not turn over the card to the victim. Officers spoke with the victim and attempted to get further information from her and offer her assistance but she refused.

5. On January 15th, 2021, the Human Trafficking Enforcement Team of the Toronto Police Service received information from a community support worker, that the victim was being exploited by the accused. The worker had been in contact with the victim and made arrangements to meet in person. Leading up to the meeting, the accused communicated with the worker, not the victim and made the arrangements. The accused demanded why she was meeting the victim and insisted on transporting her to the meeting. She had met the victim in person and had a brief conversation. During the meeting, the accused did not meet the worker in person, although he continued to communicate with her via text messages. It was clear he was in the area and wanted information on the meeting. The victim disclosed that she was being exploited and that the accused was taking all of her money and she was seeking assistance to leave him. She informed the worker that she was staying at the Woodbine Suites Hotel.

6. On January 20th, 2021, officers were advised by the support worker that M was due to have COVID-19 testing at Toronto Women’s College Hospital. It was determined that officers would use that moment to check on her well being and arrest MUSSIE for the offences as listed in APPENDIX B. Officers attended the Woodbine Suites and Hotel for the purpose of conducting surveillance at 9:00 A.M. Once at the hotel officers located the Toyota Rav 4 parked in the parking lot and maintained visual observations. At around 12:42 P.M. M and MUSSIE were observed entering the Rav 4 with licence plate ‘BWTS411.’ The vehicle was followed to the area of Jane Street and Wilson Avenue (Toronto) and a vehicle stop was initiated. MUSSIE was located in the vehicle as the driver and M was located in the vehicle as the passenger. Search incident to arrest led officers to locate credit card and an Ontario Driver’s Licence in his left sock. MUSSIE was also in possession of a quantity of currency which M advised was her money.

[48] There are a series of problems with this portion of the ITO. Paragraph 3 describes S.M. saying that she had been exploited by a pimp and injured in the course of this exploitation. The way in which the ITO is written invites the inference that S.M. was suggesting that this pimp was the Applicant. In fact, S.M. named other persons as the ones who had exploited her and did not attribute her injury to the Applicant, who she said was attempting to help her.

[49] This passage also suffers from a broader overarching problem with the ITO. It invites reliance on statements from S.M. without outlining the information in the possession of the police that made it clear that she was a compulsive liar whose word had little value absent some reliable corroboration.

[50] Paragraph 3 also invites the conclusion that the Applicant prevented S.M. from going to the hospital on the day in question without noting that records show that she attended a different hospital that day than the ones where the police looked for her.

[51] The description of the argument between the Applicant and S.M. in Paragraph 4 is significantly incomplete. It does not reflect that it was the Applicant who phoned the police after S.M. was jumping on his car and the argument was about her methadone treatment and his attempt to transport her to the clinic.

[52] Paragraph 5, like paragraph 3, relies on statements of S.M. without crucial disclosure about the information relevant to her credibility. It also implies that the Applicant was hostile to the CAS’s efforts to speak to S.M. and does not outline the fact that he had called her worker seeking assistance two days earlier and said that he believed that she had been trafficked. It also implies that he attempted to interfere with the CAS contact with S.M. on January 15 which is inconsistent with the CAS notes.

[53] Taken together, these paragraphs presented a significantly misleading picture to the issuing justice.

Were these errors inadvertent such that amplification is permissible?

(a) The evidence of the affiant

[54] The defence was granted leave to cross-examine D.C. Zeppieri about these deficiencies in the warrant. He testified that he had prepared somewhere between 5 and 30 ITOs before his involvement in this case. He understood his obligation to make full, frank, and fair disclosure to the Justice in this ex parte process and agreed that he could not leave out material information from the source documents he consulted.

[55] D.C. Zeppieri was a member of the TPS human trafficking team that conducted this investigation at the relevant time but testified that before he was tasked with drafting the ITOs, he had little involvement in the case. His only prior work on the investigation had been to assist in locating advertisements for sexual services.

[56] D.C. Zeppieri testified that the primary source of information for his ITO was a conversation with either or both D.C. Peck or D.C. Guy. As his evidence proceeded, he came to focus more on D.C. Peck as the likely source. She was the officer with primary carriage of the investigation who had the most knowledge. While he recalled that this conversation would have taken place at TPS headquarters, he inexplicably had no notes of when it was or what was said.

[57] D.C. Zeppieri referred to some source documents while drafting the ITO including occurrence reports and Ministry of Transport records to identify the Applicant’s license plate number, but said that he did not speak to the York Regional Police officers who met S.M. and did not review the CAS records of their contact with S.M.. He relied on information from D.C. Peck or D.C. Guy for these portions of the ITO. He testified that he wrote the impugned paragraphs from memory of what they had told him. It is possible that he may have forgotten relevant details when doing so.

[58] He acknowledged that some portions of the ITO were misleading and omitted material information when he was confronted with different source documents. Under questioning from Crown counsel, he agreed that he had also omitted information he had seen in source documents that might have assisted the application. To take one example, the ITO does not mention that the Applicant had claimed to be S.M.’s legal guardian.

[59] When asked for an explanation for the omissions, D.C. Zeppieri testified that he prepared the ITOs in relative haste and while he was simultaneously listening to the very active radio channel of officers who were involved in the Applicant’s surveillance and arrest. He testified that he just skimmed some of the material because he felt under time pressure as a result of the fact that officers who had been working since early in the morning were waiting at the door of the hotel room to execute the warrant.

(b) The unavailability of D.C. Peck or her notes

[60] The defence also sought leave to cross-examine D.C. Peck, submitting that she had relevant evidence to give in light of the fact that D.C. Zeppieri identified her as his primary source of information and that he had no notes and a very poor memory of their conversation or conversations.

[61] This issue was complicated by the fact that D.C. Peck’s notes are not available and that she has taken the position that she is unable to testify. She transferred out of the human trafficking team soon after the Applicant’s arrest. The current police case manager for this prosecution made extensive efforts to locate her notes without success. He attempted to contact her repeatedly and reached her only once on March 15, 2023. She said that she believed that she did have her notes and would try to locate them. She never contacted him again and did not respond to follow up messages.

[62] Crown counsel also advised that the TPS Wellness Unit has informed her that D.C. Peck is unable to work and unable to attend court because of an unspecified “approved workplace injury claim.” If I were to order that she testify, I was informed that counsel would be retained to attend on her behalf to seek to quash the order. Her status is apparently due to be re-assessed sometime in October. The trial of this case is presently scheduled for November 14.

[63] The test for granting leave to cross-examine is not an onerous one: R. v. Pires 2005 SCC 66 at para. 40. However, in view of the specific questioning defence counsel wished to pose to D.C. Peck, I concluded that there was no reasonable possibility that cross-examination would assist the Applicant in his challenge to the warrant.

[64] Defence counsel advised that the purpose of the cross-examination he wished to conduct was to establish that D.C. Peck would have provided all of the relevant information in her possession to D.C. Zeppieri before he began drafting the ITO such that its deficiencies were not the product of a miscommunication. Both parties ultimately agreed that this was an inference I could already draw on the record based on D.C.’s Peck’s role in the investigation and D.C. Zeppieri’s evidence that she briefed him on the case. I accordingly denied leave to cross-examine Officer Peck on the grounds that there was no reasonable likelihood that it would assist in determining a material issue and that it would consume significant court time unnecessarily.

(c) Findings on whether the deficiencies in the ITO were the result of inadvertence

[65] The Applicant submits that I should find that D.C. Zeppieri deliberately omitted relevant exculpatory information and painted a misleadingly tendentious picture of the information available to the police.

[66] There is a substantial foundation in the record for this submission and I have given it serious consideration. However, I conclude that the officer did not intend to mislead the issuing justice and that the errors are the result of unacceptable sloppiness instead.

[67] My impression of D.C. Zeppieri was of an ingenuous witness embarrassed by the deficiencies in the ITO. I formed this impression from both his demeanour and the substance of his evidence. Some of the police witnesses on this voir dire appeared eager to be of assistance to the Crown and to articulate as forcefully as possible their observations and grounds to believe that the Applicant had committed offences. D.C. Zeppieri was very different. Crown counsel struggled to get him to articulate his reasonable grounds even with relatively pointed questions and he gave little sense of being invested in the outcome of this case, one for which he did not have primary responsibility at the time and where he never interacted with the alleged victim.

[68] Having carefully observed his evidence, I cannot conclude that D.C. Zeppieri is a brazen liar who intentionally misled the issuing justice to obtain these warrants. I am satisfied that the actual explanation is that he took inadequate notes and prepared the ITOs in haste while distracted, relying on his memory. This resulted in his presenting a dramatically oversimplified account of a complicated factual situation. The nature of some of the errors – such as using the wrong name for the complainant on one occasion, presumably from the use of a precedent – reinforces my conclusion that the affiant was rushed and careless in preparing the ITO.

[69] In Araujo at paragraph 59, Lebel J. described the balance that must be struck when considering amplification:

When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

[70] The deficiencies in this ITO were more than minor and technical. I am also satisfied that there was no genuine situation of urgency involved; the fact that some police officers wished to end their shift is not a valid reason for rushing the drafting process and I presume it was offered more as an explanation than an excuse. In any case, as defence counsel observed, the subsequently-prepared ITO to examine the seized cell phones reproduced the same errors despite having been prepared with no time pressure whatsoever.

[71] Nonetheless, as I have said, I am satisfied that the mistakes in the ITO were honest ones and that it is appropriate to assess the sufficiency of the information placed before the issuing justice in light of the corrected information that is now available. In particular, I accept the submission of Crown counsel that, in addition to correcting the misstatements in the ITO that served to strengthen the apparent case for issuing the warrant, any uncorroborated information from S.M. should be entirely discounted on the basis of the evidence of her complete unreliability that was omitted from the ITO.

[72] The Crown properly seeks only quite limited amplification notwithstanding the fact that D.C. Zeppieri omitted some significant information supporting the warrant. Crown counsel asks that paragraph 3 and 4 be amplified to make clear that the Applicant is the “male” who was in S.M.’s company at the motel room where she was staying and offering sexual services and who argued with her in the Toyota Rav 4. I agree that this is appropriate.

Could the warrant reasonably have issued on the basis of an amplified and redacted ITO?

[73] After excising the misleading portions of the ITO, I conclude that there remains a narrow basis on which the warrant could issue. While the ITO did not include the Applicant’s description of himself as S.M.’s legal guardian, the other grounds set out at paragraph 41 of these reasons were present: the evidence that S.M. was advertising sexual services on days where she was sufficiently injured to require hospitalization and suffering from vaginal bleeding, that she was constantly in the company of the Applicant at the relevant times, and – crucially – that the Applicant appeared to be in possession of the health card she required to obtain hospital treatment such that she had to ask him to write down her card number, supporting an inference that he was controlling her access to health care through possession of her identification, in combination with the evidence that she insisted on accompanying him to the hospital.

[74] While I consider this to be a very close call, I find that the issuing justice could reasonably conclude on the basis of an amplified and redacted version of this ITO that there were grounds to believe that S.M. was being coerced into selling sexual services and that the Applicant was exercising control over her movements and her identification. I also conclude that it was reasonable to believe that evidence would be found in both the vehicle and the hotel room, including cell phones likely to have been used in the offences.

Should the warrants be set aside due to police misconduct?

[75] While I have found that D.C. Zeppieri did not intend to mislead the issuing justice, there is no doubt that the serious errors and omissions in the ITO would have had that effect. The officer was extremely careless and the basis to issue the warrant that I have found is much narrower and more nuanced than the case he made to the issuing justice.

[76] D.C. Zeppieri’s drafting errors represent serious negligence. However, I do not find that they are “so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed” (R. v. Vivar 2009 ONCA 433 at para 2; R. v. Paryniuk 2017 ONCA 87 at para 62).

Conclusion

[77] I find no breach of s. 8 with respect to the issuance of the warrants to search the room at the Woodbine Suites and the Applicant’s Toyota Rav 4. If I am wrong in concluding that D.C. Zeppieri did not intend to mislead the issuing justice, or alternatively in concluding that the warrants could reasonably be issued following the excision and amplification process, then I would have no hesitation in finding that the evidence should be excluded pursuant to s. 24(2). In my view the preparation of the ITOs represents a serious departure from the standards expected of the police and would constitute a serious breach of the Charter. When this seriousness is combined with the breach’s effect on the Applicant’s privacy interest in his car and hotel room, I conclude that society’s interest in a trial on the merits would have to yield.

Did the police breach s. 8 in the execution of the warrant to search the Applicant’s vehicle?

[78] As noted above at para 33, the warrant for the vehicle provided that the police were authorized to enter and search it between 7:10 p.m. and 8:59 p.m. on January 20, 2021. The officers involved testified that they did not have time to actually carry out the search during this period and so simply videotaped themselves cutting a piece of police tape that had been placed on the car to seal it to demonstrate that they were executing the warrant during the permitted time. They then returned the following day to actually carry out the search.

[79] The Crown submits that this amounted to compliance with the order. Counsel relies on R. v. Rafferty 2012 ONSC 703, where Heeney J. held:

The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: R. v. Woodall, [1991] O.J. No. 3565 (Gen. Div.), aff’d R. v. Woodall, [1993] O. J. No. 4001 (C.A.).

[80] While there is some out-of-province authority arguably to the contrary [1], the times set out in search warrant authorizations in Ontario have generally been interpreted as specifying the time of entry and not the time by which the search must be completed. In some cases, with Rafferty an example, a search might take days and the police may be unable to accurately estimate the time required in advance.

[81] That said, I question whether the actions of the police in this case complied with the terms of the warrant. This is not a case like Rafferty or Woodall where the police began their search but could not complete it within the time allowed by the authorization. The police here did not do anything meaningful within the specified time. I am doubtful that a sort of ritual “entry” of the vehicle that is nothing more than cutting a piece of police tape can amount to compliance with the time restriction on the warrant having the effect of permitting the police to carry out the actual search and seizure at their leisure.

[82] While I am inclined to think that it did, I have concluded that I need not finally decide whether this conduct amount to a breach of the Applicant’s s. 8 right because no exclusion of evidence would possibly be appropriate as a result. It is obvious from their evidence that the police believed that they were acting lawfully and this was not an unreasonable belief. There was no meaningful impact on the Applicant’s privacy interest. In my view, however, when applying for search warrants the police should request time parameters during which they can actually begin carrying out the search in a meaningful way. They should not assume that token compliance like what happened here will effectively grant them an indefinite extension of the authorized time.

The search of the seized cell phones

[83] The initial warrants to search the hotel room and vehicle both provided for a later examination of cellular phones seized for specific categories of evidence linked to the alleged offences. I accept the submission of Crown counsel that the forensic examination of the seized phones by the TPS tech crimes unit was authorized by those warrants and as such, the subsequent warrant obtained by D.C. Zeppieri to search the TPS server for data was superfluous. Any issues arising from the way in which that warrant identified the place to be searched, and D.C. Zeppieri’s somewhat cavalier dismissal of the tech crimes unit’s concerns, do not result in a breach of the Applicant’s s. 8 right.

The strip search

[84] The standard for the conduct of a strip search was established in R. v. Golden 2001 SCC 83. In that case, Iacobucci and Arbour JJ. for the majority found that the following evidence was sufficient to create reasonable grounds to conduct a strip search at the police station:

The appellant was arrested for trafficking after police observed him engage in two transactions involving what they believed was a narcotic substance. Further, the arresting officers found what they thought was crack cocaine under the table where another suspect was arrested. Constable Ryan also observed the appellant crushing a substance that looked like crack cocaine between his fingers during the arrest. Finally, Constable Ryan did have some experience, albeit in relatively few cases, with drug arrests involving suspects who secreted evidence in their groin or buttock areas.

[85] In the case at bar, the officer who directed the strip search relied on inaccurate information provided by D.C. Vandekerchove that the Applicant had been observed personally doing hand-to-hand transactions in addition to information that the Applicant had been trafficking in fentanyl.

[86] I accept that this was a miscommunication that resulted from D.C. Vandekerchove misunderstanding what D.C. Rabbito had said during the informal debriefing in the parking lot.

[87] I find that the search nonetheless did not violate the Applicant’s s. 8 rights because the actual observations of the police were sufficient to justify it. The fact that it was S.M. who carried out the apparent hand-to-hand transaction while she was being driven by the Applicant is not in my view crucial. It still provides corroboration for her statement that the Applicant was supplying her with fentanyl and created a realistic concern that the Applicant could have that drug on his person. The officers were justifiably concerned about the dangerousness of fentanyl and I find that, especially where the Applicant was being held for a bail hearing, the police were entitled to conduct a strip search to ensure that the Applicant did not have any of the drug.

Did the police breach the Applicant’s s. 10(a) and (b) rights?

[88] While several s. 10(a) and (b) issues were explored during the evidence, ultimately there were three areas of concern that were in issue by the time of submissions.

[89] The first is the completeness of the information provided by D.C. Alexandrowicz when he first advised the Applicant of his right to counsel upon arrest from memory instead of reading from his memo book. I find that the information the officer testified that he provided fulfilled his s. 10(b) obligations.

[90] The second issue is D.C. Alexandrowicz’s failure to hold off from questioning the Applicant before he had an opportunity to speak to counsel. The officer’s question to the Applicant about the identification found in his sock is manifestly a breach of s. 10(b). The Crown did not argue otherwise and is not seeking to adduce the Applicant’s answer.

[91] The third argument advanced by the Applicant is that there were unreasonable delays in implementing his right to counsel and in informing him of his increased jeopardy after the execution of the warrants and providing him with another opportunity to contact counsel.

[92] I find that it was reasonable for the police to wait until the Applicant was at the police station where a private location for him to speak to counsel was available. This took slightly longer than usual because the cells were full at the nearest station and the Applicant had to be transported to one 10 or 15 minutes further away. I find that the call to duty counsel was placed promptly. As the Crown observes, the overall delay was not dissimilar to that found to be reasonable in R. v. Keshavarz 2022 ONCA 312 at para 67.

[93] I also find that the Applicant was notified that he would face new charges and re-advised of his right to counsel without delay after the discovery of the fentanyl during the execution of the search warrants. D.C. Vandekerckhove testified that the search concluded at about 8:30 p.m. and that he contacted 32 Division to re-inform the Applicant of his right to counsel when he returned to TPS headquarters to complete the paperwork associated with the new charges. The booking video shows that the Applicant was told of the new charges and re-advised of his right to counsel at 8:53 p.m. I conclude that the police took immediate steps to get this information to the Applicant and that there was no delay engaging his Charter rights.

[94] The only breach of the Applicant’s s. 10(a) and 10(b) rights that I find is the single question posed by D.C. Alexandrowicz at the scene. I conclude that the exclusion of the Applicant’s answer to the question is a full and proportionate remedy for this breach. I find that this breach does not form part of the same transaction as the execution of the search warrants some six hours later by different officers such that the seizure of the evidence in the course of those searches engages s. 24(2).

[95] If I am wrong in that conclusion, then the Grant factors overwhelmingly support the admission of that evidence. D.C. Alexandrowicz erred significantly in asking the question but I conclude that he did so in reaction to concern that the seized identification could relate to another victim who needed immediate assistance. The impact of the breach on the Applicant’s interests was limited and is sufficiently vindicated by the exclusion of his answer. The remaining evidence seized pursuant to the warrants is reliable evidence crucial to the Crown’s case. On balance, the exclusion of the evidence on this basis would bring the administration of justice into disrepute.

The Applicant’s lost evidence application

[96] The Applicant also seeks a stay of proceedings as a result of the loss of D.C. Peck’s notes, arguing that they are important core disclosure and that the failure to preserve them is manifestly the result of unacceptable negligence within the meaning of R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.).

[97] I conclude that it is premature to rule on this question and that the resolution of this issue is best left to be assessed in the context of the trial, as La recognizes is generally appropriate: para 27-28. This is particularly so in view of the fact that D.C. Peck’s unexplained unavailability is to be reassessed before trial, thus giving rise to a real possibility that either her notes could become available or that new information about them may come to light.

Disposition

[98] I find that the evidence seized in the execution of the search warrants of January 20, 2021 is admissible in evidence.

Dineen J.

Released: October 27, 2023

COURT FILE NO.: CR-21-50000469-0000 DATE: 20231027 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – NAHOM MUSSIE REASONS FOR JUDGMENT Dineen, J.

Released: October 27, 2023

[1] Pars Oriental Rug et al v. A.G. Can. (1988) 18 C.E.R 6