COURT FILE NO.: CR-21-1088-00

DATE: 2023 01 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Respondent

Ryan Mushlian for the Crown Respondent

• and –

ANDRY KORKIS

Applicant

Andrea VanderHeyden for the Applicant defendant

HEARD: December 21, 2022

REASONS ON CHARTER APPLICATION

D.E HARRIS J.

1The Applicant Andry Korkis applies under Section 8 and 24(2) of the Charter of Rights and Freedoms to exclude ammunition that was discovered by the police when they executed a search warrant on his residence. The Applicant submits that the Information to Obtain (ITO) the search warrant was facially deficient as it lacked the grounds necessary to support the search.

SUMMARY OF THE ITO

2The ITO provides the background to the investigation. On Friday, December 20th, 2019, Mr. Kourkis had been messaging the complainant’s wife via Kijiji in regards to buying a 9 week old American bulldog she was selling. The accused planned to meet the complainant in front of 75 Skylar Circle, Brampton at 7:30 pm to buy the bulldog.

3The accused entered the complainant’s vehicle outside this address. Once inside the vehicle, the accused pointed a silver firearm at the complainant and made off with the bulldog. As the accused was running away, the firearm accidentally discharged into his right leg. The bullet lodged in his right foot near his ankle. Police arrived and had no difficulty in arresting the self-immobilized accused. The firearm was recovered at the scene. The accused was taken to Brampton Civic Hospital to tend to his injuries.

4The firearm was a silver colt .45 Calibre semi-automatic with five live rounds in the magazine. The author of the ITO requested a warrant to search Mr. Korkis’ residence. It was stated in the warrant that the proposed search would afford evidence of ammunition. The offences in respect of the search were possession of a restricted firearm with ammunition contrary to section 95(1) of the Criminal Code; possession of a firearm knowing its possession is unauthorized contrary to section 92(1); robbery contrary to section 344 and breach of probation contrary to section 733.1 (1).

5The grounds for the belief that ammunition would be found were:

It is reasonable to believe that once we find the bullet [fired at the scene], we can compare it to ammunition located inside the magazine as well any ammunition located at his residence or the databank for any potential current of future matches.

The accused resides approximately 500 meters from the location where the robbery took place. It is believed that the accused was in possession of the firearm while being at his residence before the robbery took place and walked to 75 Skylar Circle where he used the firearm in the commission of the offense. It is reasonable to believe that the accused was going to return to his residence after the robbery and conceal the firearm. Firearm offences have been on the rise in the GTA, and public safety is the utmost importance to the police. With the magazine only having five rounds out of eight, it is believed that the accused has more ammunition rounds at his residence.

THE LAW

6The standard of review does not ask whether I would have issued the warrant but rather whether the warrant could have issued. By using the word “could”, deference is granted the decision of the issuing justice. The reviewing judge is not entitled to substitute his view for the issuing justice: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at paras. 67-68.

7Justice Hill has written two decisions which analyze in detail the meaning of reasonable grounds, the threshold for issuance of a search warrant: R. v. Ngo, 2011 ONSC 6676, at para 35; R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (ONSC), at para 41. Grounds require a “credibly-based probability.” Suspicion, conjecture, hypothesis or "fishing expeditions" are inadequate to meet the necessary standard.

8Based on the requirements of Section 487(1) of the Criminal Code, the ITO had to demonstrate three criteria:

a. Reasonable grounds to believe that an offence had been committed;

b. Reasonable grounds to believe that the things to be searched for will afford evidence of the offences; and

c. Reasonable grounds to believe that these things will be found at the specified location.

Sanchez, at para 22

9The first condition was easily met here. The complainant and the observations from the scene as related in the ITO supplied the necessary grounds to believe that the index offences had been committed.

10The second requirement is more difficult. How would the discovery of ammunition in the Applicant’s residence afford evidence of the offences listed, including illegal possession of a loaded gun and robbery? The gun was seized at the scene with ammunition in it. The bullet which was accidentally shot by the Applicant into his own leg had not yet been recovered at the time the ITO was sworn.

11Justice Moldaver, as he then was, in R. v. Canadian Broadcasting Corp. (1992) 1992 CanLII 12752 (ON SC), 17 C.R. (4th) 198 (Ont.Gen.Div.) considered the minimal nature of the “will afford” requirement, quoting with approval from Re Bell Telephone Co. of Canada, 1947 CanLII 374 (ON SC), 4 C.R. 162, [1947] O.W.N. 651, 89 C.C.C. 196 (H.C.) and then going on to make further comment,

As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or other properly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree afford evidence of the commission of an alleged crime. It is not necessary that the thing in itself should be evidence of the crime, but it must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime.

Applying that interpretation to the case at hand, I am satisfied that the information did contain reasonable grounds which could satisfy the issuing judge that the material sought would, not taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences.

(Emphasis in original)

12In my view, the ITO met this low threshold. If ammunition matching the recovered firearm was found in the Applicant’s residence, it would bolster the case against him.

13One can be forgiven for believing that nothing of substance would be added to the case for guilt by the discovery of additional ammunition. The firearm was recovered at the scene and contained several bullets in the magazine. The Applicant was found wounded outside the vehicle as a result of accidentally shooting himself with the firearm. What more was needed to demonstrate guilt? That, however, is not the correct test. Ammunition in the Applicant’s residence matching the firearm would be another means, besides the observations from the scene, connecting the Applicant to the gun and therefore to the offences alleged against him.

14If for example, it was argued by the defence that the seized gun was actually the complainant’s, not the Applicant’s, the finding of ammunition to fit the gun would have a tendency to show that the gun was indeed the Applicant’s, not the complainant’s. Besides the observations at the scene and afterwards, ammunition in the residence would firm up the Crown’s case.

15The “will afford” requirement does not require a qualitative measure of the probative weight of the sought-after evidence. Simply because the evidence may appear to be of only cumulative probative value does not imply that it would not afford evidence of the offences charged. In this instance, the ammunition fulfilled the requirement by adding marginally to the evidence that was already apparent.

16The thrust of the Applicant’s submissions were aimed at the third requirement, the sufficiency of the grounds that the thing sought, ammunition for the firearm, would be found in the residence. In my view, the grounds were sufficient to enable the warrant to have issued on this basis as well.

17Bullets are as important to guns as film or digital storage is to cameras. Other examples can easily be imagined. One is not functional according to the purpose for which it was designed without the other. There is no purpose to a gun except to fire ammunition or, at the least, to threaten to fire ammunition. The purpose for which a gun is designed--shooting people or things--requires ammunition.

18Contained in the Applicant’s gun recovered at the scene were five bullets. He fired one into his own thigh to make a total of six that had been in the gun. The magazine only held a maximum of eight. In my view it was a reasonable inference that he had more ammunition stored at the residence, particularly because it was very close to the scene of the crime. There is no reason to think that he would have brought all his ammunition with him--particularly when the handgun held only a maximum of 8 bullets--to commit the alleged robbery and left none behind.

19The only two alternatives are that there was no ammunition left at home or there was ammunition at home. Clearly, the latter was much more likely. Possessing and using the gun at the scene made it more likely that he had additional supplies at home—ammunition—to operate the gun. That is only logical. A gun needs bullets to function. The Applicant’s contention that it is only speculation and conjecture which could support reasonable grounds cannot be accepted. There was sufficient value to the inference that there would be ammunition in the residence to clear the reasonable grounds hurdle.

20For these reasons, the ITO was facially sufficient, and Section 8 was not violated. The Charter application is dismissed.

21I would add one additional remark. The admissibility of the ammunition found at the residence came up several times in this oral hearing, in particular during the Section 24(2) of the Charter portion of the argument. It is tangential to the Section 8 search warrant issue. But to assist the trial judge, it should be noted that admissibility of the ammunition is a valid question. The search for ammunition met the “will afford” test and was therefore of some at least marginal relevance in the investigation. However, the probative weight of this evidence at trial, depending on what defences are raised, may well be quite low. On the other hand, the prejudicial effect of this evidence is not insubstantial. It is bad character evidence. It may well be that the discovery of the ammunition will be inadmissible at trial. That will be for the trial judge to decide based on the evidence and counsels’ arguments. 05acbe2b510843cbb2b11ea5097

D.E. Harris J.