COURT FILE NO.: CR-22-805

DATE: 20230124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Regan Pauli and Kevin Chambers

BEFORE: Justice. M.D. McArthur

COUNSEL: R. Prendiville, Counsel for the Federal Crown A. Prevost, Counsel for Regan Pauli, the applicant B. Wansbutter for Kevin Chambers, co-accused

HEARD: January 19, 2023

Ruling on Section 8 Application

Background

[1] The Stratford Police Service investigated Duane Lewis, a person suspected to be a mid-to-higher-level drug trafficker. The investigation went over a seven-week period and involved confidential informants, surveillance and various judicial authorizations including a tracking warrant.

[2] The information from the confidential informants basically indicated that Duane Lewis was selling cocaine and methamphetamine and drove a grey Nissan automobile. Mr. Lewis had a criminal record for trafficking substances and conspiracy to traffic.

[3] An initial set of search warrants were sought and obtained on September 29, 2020 and were valid until October 2, 2020. These warrants did not reference 224 Elgin Street East, St. Mary’s address. The Information to Obtain (ITO) for both set of search warrants referenced earlier surveillance that involved locations in Kitchener, Stratford, Woodstock and elsewhere. The latter ITO added the St. Mary’s address.

[4] On October 4, 2020, Mr. Lewis was observed driving to a location in the northeast area of London for 16 minutes and then leaving and driving to 224 Elgin Street East, St. Mary’s, the residence of Ms. Pauli where Mr. Lewis remained for 2 hours and 28 minutes. He departed that location and drove toward Stratford when he was stopped by police and arrested and found to be in possession of 174 grams of cocaine, 404 grams of methamphetamine, 55-6 milligram hydromorphone pills, 2-3 milligram hydromorphone pills and one 12 milligram hydromorphone pill.

[5] The affiant deposed that he believed Duane Lewis purchased substances in London and then trafficked substances at the residence address of 224 Elgin Street East, St. Mary’s. The affiant applied for a tele-warrant involving various earlier-identified residences as well as the Elgin Street property.

The Application and Position of the Parties

[6] The applicant, Ms. Pauli, brings this application challenging the facial validity of the search warrant issued on October 5, 2000 by tele-warrant.

[7] The applicant submits the warrant was not valid on its face, this amounted to a violation of the applicant’s Section 8 Charter Rights and that the evidence should be excluded.

[8] The Federal Crown submits there was no violation and, if there was, the evidence should not be excluded.

The Legal Principles

[9] The well-established test is, on the totality of the circumstances, whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. See R. v. Araujo, 2000 SCC 65 at para 51 and 54 and R. v. Morelli, 2010 SCC 8 at para 40.

The Issue – sufficiency of evidence

[10] The issue in this case is whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of the offence of possession for the purpose of trafficking in cocaine and methamphetamine would then be found at 224 Elgin Street East, St. Mary’s.

[11] The court’s analysis of the evidence should be contextual as opposed to piecemeal. See R. v. Nero, 2016 ONCA 160. A police officer's training and experience may be relevant in determining whether the requisite legal standard for a search has been met, however, courts are not required to uncritically accept or deferred to a police officer's conclusion just because it is grounded in their experience and training. See R. v. MacKenzie, 2013 SCC at paras 50 and 64.

Analysis

[12] There is no doubt that the Information to Obtain referred to other locations. No issue is taken as to any of these locations. The federal Crown submits that the totality of the circumstances that the court should consider in this case include the surveillance of Mr. Lewis that included the habits police observed him to keep, the known drug dealers with whom he frequently met, the known drug locations to which he resorted, the countersurveillance driving techniques he employed and his involvement in activity matching the patterns of a drug dealer or distributor. This court is mindful of these features in this case.

[13] However, where there are multiple locations sought to be searched, it is the sufficiency of the evidential connection of the specific location that is to be considered in the context. This is the issue in this case.

The ITO in issue

[14] The ITO for the tele-warrant in this matter involves approximately 90 paragraphs of information. It is substantially the same ITO in relation to obtaining the earlier search warrant except with the additional references to 224 Elgin Street East, St. Mary’s which were not mentioned in the earlier ITO.

[15] The evidentiary context prior to October 4, 2020 includes the ITO references involving police surveillance on Mr. Lewis. Mr. Lewis had an apartment in the residence at 586 Brunswick Street, Stratford. The police made the following observations:

a. Mr. Lewis attending 78 Guelph Street, Stratford, the residence of an individual known to be involved in the drug culture and who had been convicted of drug possession and possession for the purpose of trafficking;

b. Mr. Lewis attending 31 McNab Street, Stratford, a residence with multiple individual rented rooms which had been subject to a prior CDSA search warrant execution and one of the residents was known to be involved in the drug culture and who had been convicted of drug possession;

c. Mr. Lewis attending 141 Brydges Street, the residence of a person was known to be convicted of drug possession multiple times;

d. Mr. Lewis driving to a parking lot and attending 24 Falstaff Street, Unit 1, the residence of another person known to be heavily involved in the drug culture and who had been convicted of drug possession numerous times;

e. A least 3 or 4 other individuals attended Mr. Lewis’ residence in Stratford, who are described as heavily entrenched and convicted of drug offences or known to be involved in the drug culture;

f. Mr. Lewis attended 497 Mary Street, Woodstock, the residence of a person known to police as involved in the drug culture with a drug record and criminal record;

g. Mr. Lewis attended 36 Stafford Street, Woodstock, a four-unit complex with individuals involved in the drug subculture;

h. Mr. Lewis attended a specific trailer and campground site in Kitchener. While there, another individual arrived and a hand-to-hand transaction with Mr. Lewis was observed to take place at the individual’s vehicle over a seven-minute period. Mr. Lewis is also observed at the trailer site in relation to other brief periods of Mr. Lewis meetings with individuals;

i. Mr. Lewis’ attendances at these locations or the other individuals’ attendances at Mr. Lewis’s residence was numerous and of a brief duration from a few minutes to less that a ½ hour and usually in the shorter part of this range of 3 to 5 minutes.

j. Mr. Lewis drove a grey Nissan Maxima vehicle throughout. There were various observations about the nature of Mr. Lewis driving which need not be referred to further for this ruling.

k. A cell phone tracking warrant was also granted on August 25, 2020 during the investigation that assisted in the surveillance activities of the police that included Mr. Lewis’ attendances to London. The notable observations involving London included Mr. Lewis entering an exiting the door of an electronics store and then meeting in a parking lot area in the northeast area of the city on September 15, 2020, the latter of which was believed by police to be a meeting for Mr. Lewis’ purchase of substances;

l. These evidential features have been referred to as context in relation to the applicant’s residence as will be discussed in this ruling.

[16] Mr. Lewis had a criminal record with multiple conviction entries of convictions in Stratford and London with one conspiracy to traffic in substances in 1999. He was also charged in February 2019 with 3 counts of simple possession of methamphetamine, cocaine and hydromorphone in relation to a domestic occurrence.

Events of October 4 and 5, 2020

[17] At 1:12 am on October 5, 2020, Mr. Lewis was stopped while operating his motor vehicle. Police discovered 174 grams of cocaine, 404 grams of methamphetamine, 55 – 6 mg and one-12 mg hydromorphone tablets in his possession. In the ITO, the police reviewed the tracking data from his cell phone for October 4, 2020 with Mr. Lewis’s vehicle attending in the north-east area of London at Highbury Ave and Fanshawe Park Road for 16 minutes and then proceeding to 224 Elgin Street East, St. Mary’s, arriving at 10:28 pm and remaining for 2 hours and 28 minutes and then proceeding toward Stratford.

[18] The affiant believed that Mr. Lewis met with someone at the corner of Highbury Ave and Fanshawe Park Road in London and purchased controlled substances and that Mr. Lewis stopped at the residence of the applicant on the way to Stratford.

[19] None of the confidential informants in the ITO make reference to 224 Elgin Street East, St. Mary’s, the applicant nor the co-accused present at the applicant’s residence.

[20] The ITO specifically outlines the grounds to believe things sought will be present at specific locations, namely;

a. 586 Brunswick Street in Stratford, 497 Mary Street in Woodstock and the trailer at the campground site in Kitchener in paragraphs 61 to 85 of the ITO

b. 224 Elgin Street East, St. Mary’s in paragraphs 86 to 90 of the ITO which, in summary, are as follows:

i. The affiant believes methamphetamine and cocaine will be located along with packaging, paraphernalia to weight, traffic and administer these substances including cell phones, computers and other offence-related property;

ii. On dates in September 2020, Mr. Lewis was observed by surveillance attending 224 Elgin Street East, St. Mary’s on numerous occasions. The cell phone tracking data on October 4th is as outlined above. Mr. Lewis was found in possession of the substances when stopped operating his vehicle after being at this residence.

Discussion and Findings

[21] Firstly, unlike all of the other locations targeted in the ITO, there is no drug connection with any of the occupants then at 224 Elgin Street East, St. Mary’s. The applicant was known and identified. Ms. Pauli was not identified as having any reference or connection to any past or ongoing drug involvement or associations. None of the surveillance on numerous occasions identified short duration visits, hand-to-hand transfers or other observations reasonably connected to drug activity. The co-accused was also not identified in advance as having any connection to either the residence or drug activity in any manner.

[22] Secondly, the tracking data of Mr. Lewis’s vehicle to London for October 4, 2020, without any other supportable indications such as surveillance or other evidence, leaves the court to speculate on the source(s) of the substances in Mr. Lewis’s possession and, in any event, do not advance the connection of the residence, the property, its outbuildings or its occupants to any drug activity or association other than mere suspicion. Simply put, without other proximate context, a court cannot do more than find this as mere suspicion.

[23] This court need only observe and point to the other evidence involving the other targeted locations in the ITO that demonstrate credibly-based probability does exist in each of those locations to find evidence of the offences of possession of the substances, including for the purpose of trafficking of them.

[24] Thirdly, the context alone in this case does not enhance the inferences to be made in relation to 224 Elgin Street East, St. Mary’s or its occupants beyond mere speculation. The Federal Crown in submissions referenced police experience, other investigative theories and possibilities that could lend support to warrant. There may be cases where these are considerations that the court considers. However, if this case the basis of the connections to the specific property at 224 Elgin Street East, simply do not rise above mere speculation and supposition notwithstanding the strength of the connections with other properties and amongst the other individuals in relation to drug activities.

Sufficiency and Section 8 Charter

[25] For these reasons, this court finds that, only in relation to 224 Elgin Street East, St. Mary’s, there was insufficient evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of the offence of possession for the purpose of trafficking in cocaine and methamphetamine would then be found at that location.

[26] Based on this finding, the search warrant for 224 Elgin Street East, St. Mary’s should not have issued, the search was unreasonable and in violation of the applicant’s rights under Section 8 of the Canadian Charter of Rights and Freedoms.

[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[27] As to the evidence seized, the police search at this location after obtaining the tele-warrant resulted in seizing 62.4 grams of methamphetamine found in the applicant’s bedroom. Both the applicant and the co-accused were found in the applicant’s bedroom at the time of the search.

[28] The Court must weigh the various indications and to strike the appropriate balance to determine whether, in all of the circumstances of the case, the admission of evidence obtained by any Charter breach would bring the administration of justice into disrepute.

[29] The approach that governs the determination of the admission of evidence obtained in breach of a Charter right is set out in R. v. Grant, 2009 SCC 32 and related and subsequent cases. There are, in brief, three factors to be considered:

1. The seriousness of the Charter infringing state conduct;

2. The impact of the breach on the Charter protected interests of the accused; and

3. Society's interest in the adjudication of the case on its merits.

[30] In relation to the first factor, the search of a person’s residence without proper grounds is serious infringing. Even though the fact of the tracking data involving Mr. Lewis in relation to the applicant’s residence and earlier surveillance mentioned are features that likely would have been a feature of the ITO, the courts ought not to be seen condoning unlawful conduct and intrusion into the homes of persons without a proper basis.

[31] There is no finding of any bad faith or wilful or reckless disregard by the police in this case. The court is sensitive to the exigencies and demands of the police in such fluid investigations. Nevertheless, the admission of the evidence would tend to bring the administration of justice into disrepute if admitted in these circumstances. The court must preserve public confidence in and ensure state adherence to the rule of law. This necessarily involves the form and substance of obtaining ex parte judicial authorizations especially where the intrusion involves an individual’s home. This factor leans towards exclusion of the evidence obtained.

[32] The second factor is the impact of the breach of the Charter protected interests of the Applicant. A warrantless search of a residence is amongst one of the more serious intrusions upon privacy. This factor also leans towards exclusion of the evidence obtained.

[33] The third factor involves consideration of society's interest in adjudication on the merits. Our society has an interest in ensuring that those who transgress the law are brought to trial in accordance with the law. This court has considered the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. The seriousness of the offence is a valid consideration. Drug use and drug trafficking in serious substances continues to plague our communities. This court realizes the exclusion of evidence may effectively diminish or undermine the prosecution case.

[34] This court finds that, although this third factor may militate towards admission of the evidence, the first and second factors combined favour exclusion and, overall, on balance, favour the exclusion of evidence in this case.

Conclusion and Order

[35] This court orders that the evidence obtained pursuant to the search of 224 Elgin Street East, St. Mary’s shall be excluded.

Justice M.D. McArthur

Date: January 24, 2023