COURT FILE NO.: CR-21-6389
DATE: 20240320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
PRITPAL SINGH and HARKIRAN SINGH
Defendants
Andrew Choat and Joseph Selvaratnam, for the Crown.
Ravin Pillay for Pritpal Singh
Harval Bassi for Harkiran Singh
HEARD: January 11, 16, 17, and 18, 2024
RULING ON THE DEFENDANTS’ GAROFOLI APPLICATION
AND REASONS FOR JUDGMENT
C. BOSWELL J.
I. OVERVIEW
THE CHARGES
[1] Pritpal Singh and Harkiran Singh are father and daughter. They are jointly charged with possession of heroin for the purpose of trafficking. Mr. Singh is individually charged with a further four offences, including a second count of possession of heroin for the purpose of trafficking, trafficking heroin, possession of opium, and possession of proceeds of crime in excess of $5,000.
[2] The charges arose out of Project Cheetah, a wide-ranging, cross-border investigation into importing and trafficking controlled substances. York Regional Police obtained a number of search warrants during the course of the investigation. When the warrants were executed on April 8, 2021 the police located and seized the following:
(a) Roughly 2.5 kilograms of heroin at a commercial premises, located in Brampton and associated with both accused, known as Karebear Playground;
(b) Roughly 39 grams of heroin from a vehicle connected to Mr. Singh; and,
(c) 25 grams of opium and $32,000 in cash in a bedroom at Mr. Singh’s personal residence.
THE TRIAL
[3] The charges against the accused came up for trial in mid-January 2024. The trial was blended with a defence application to set aside the search warrants that led to the seizures on April 8, 2021, and to exclude any evidence seized.
[4] The defence application, conventionally known as a Garofoli application[^1] commenced on January 11, 2024, with a motion by the accused for leave to cross-examine York Regional Police Service Detective Constable Dalton O’Neill. DC O’Neill was the affiant of the affidavits filed in support of the applications for the warrants in issue. I granted leave to conduct a focused cross-examination in a short ruling released on January 15, 2024, and reported as 2024 ONSC 270.
[5] DC O’Neill was cross-examined on January 16, 2024. Counsel’s submissions were heard on January 17, 2024. Later that evening, I provided counsel with a “bottom line” ruling so that the trial could continue the next day. In particular, I advised counsel as follows:
For written reasons to follow, the Garofoli application with respect to the CDSA warrants to search Karebear Playground, 16 Ocean’s Pond Court, Centreville Creek, the white tractor truck bearing license plate BE56972, and the dark Dodge Caravan bearing license plate CPMX814 is dismissed.
[6] I reserved my decision with respect to the validity of the balance of the impugned search warrants.
[7] The trial proceeded on January 18, 2024. On that date, counsel filed an Agreed Statement of Fact, which effectively made up the whole of the Crown’s case. The accused elected not to call any evidence.
[8] I was invited by the Crown to acquit Ms. Singh on the sole count she faced and I did so.
[9] I was invited by the Crown to enter convictions against Mr. Singh on all counts. Mr. Singh’s counsel made no submissions with respect to four of the five counts, all but conceding that the essential elements of those counts were made out on the content of the Agreed Statement of Fact. Defence counsel’s submissions focused on Count 1, the charge of trafficking in heroin.
[10] On January 18, 2024 I entered convictions against Mr. Singh on Counts 2 through 5, again for written reasons to be provided. I reserved my decision on Count 1.
[11] The following reasons explain:
(a) The basis for the bottom line ruling delivered with respect to the Garofoli application on January 17, 2024;
(b) My ruling on the validity of the balance of the warrants challenged in the Garofoli application;
(c) The basis for the convictions against Mr. Singh on Counts 2-5; and,
(d) My ruling with respect to Count 1.
II. THE GAROFOLI APPLICATION
THE EVIDENTIARY RECORD
[12] The evidence tendered on the Garofoli application consisted of the following:
(a) DC O’Neill’s affidavits filed in support of the warrant applications sworn March 30, 2021 and April 6, 2021;
(b) The testimony of DC O’Neill from his cross-examination on January 16, 2024; and,
(c) The affidavit of Phuong Tran (a legal assistant in Mr. Pillay’s office), sworn December 12, 2023. This affidavit attached three exhibits: (i) a video of a meeting between Pritpal Singh and a man named Mohammud Ullah on March 17, 2021; (ii) a transcript of the ruling of Justice M. Misener, dated March 22, 2023, in relation to a Charter application in the prosecution of Mr. Ullah; and (iii) the notes of surveillance officer D.C. Ivkovic from March 17, 2021.
[13] I will briefly review the substance of the warrant applications, insofar as they relate to Mr. Singh, as well as the salient parts of the testimony given by DC O’Neill during his cross-examination. I will address the exhibits to Ms. Tran’s affidavit as they become relevant to the live issues in this ruling.
(i) The March 30, 2021, Warrant Application
[14] On March 30, 2021, York Regional Police made an application for 45 search warrants under the Controlled Drugs and Substances Act and another 42 search warrants under the Criminal Code. The warrants targeted the residences, business locations, vehicles, and electronic devices of 15 different targets, one of whom was Mr. Singh.
[15] The majority of the warrants were granted by Henschel J. on April 3, 2021, including warrants to search three premises and four vehicles associated to Mr. Singh. Specifically:
(a) What appears to have been Mr. Singh’s primary residence, located at 16 Ocean’s Pond Court, Caledon, Ontario (“Ocean’s Pond”);
(b) A rural property containing numerous outbuildings, trailers, vehicles, and containers located at 12850 Centreville Creek Road, Caledon, Ontario (“Centreville”);
(c) A commercial property housing a business known as Karebear Playground, located at units 26-29, 2120 North Park Drive, Brampton, Ontario (“Karebear”);
(d) A black Dodge Caravan bearing license plate CPMX814;
(e) A grey Dodge Caravan bearing license plate CDMX950;
(f) A white tractor truck bearing license plate BE56972; and
(g) A white tractor truck bearing license plate PR47771.
Going forward, I will refer to these warrants as the “CDSA Warrants”.
[16] This first warrant application was supported by a 697-paragraph affidavit (conventionally referred to as an Information to Obtain or “ITO”) sworn by DC O’Neill on March 30, 2021 (“ITO#1”). Paragraphs 84-109 and 415-442 were particularly germane to Mr. Singh.
[17] As ITO#1 outlines, Project Cheetah had its roots in an initial purchase of heroin by an undercover police officer from a man named Parshotem Malhi. The undercover officer became a trusted purchaser and was eventually introduced by Mr. Malhi to a number of other individuals importing and trafficking heroin. One of those other individuals was a man named Haripal Nagra.
[18] On September 16, 2020, Mr. Nagra trafficked five ounces of heroin to a man named Rupinder Dhaliwal who in turn provided four ounces to the undercover officer. On this date, Mr. Nagra was operating a white Cadillac Escalade. The drug transaction occurred inside the Escalade in the parking lot of the plaza where Karebear was located. The police conducted a search of the records of the Ministry of Transportation and learned that the Escalade was registered to Pritpal Singh and leased to a man named Karan Sahota, who resided at 11 Crevice Gate, Brampton. Mr. Singh thus appeared on the radar of the police.
[19] The police learned that Mr. Singh has a criminal record for attempted murder. He was also the subject of an extortion and uttering threats investigation after a complainant was purportedly accused by him of stealing 55 kilograms of cocaine.
[20] Following the heroin transaction on September 16, 2020, a police surveillance team followed Mr. Nagra to the rear of Karebear. They did not specifically see Mr. Nagra enter Karebear. He was out of view for roughly eleven minutes, after which he was observed meeting with someone in a dark coloured Dodge Caravan.
[21] The police determined that Karebear was registered to Mr. Singh’s wife and daughter. They identified Karebear as a location frequented by Mr. Singh. They also determined that Mr. Singh’s son, Pawanbir Singh, had been arrested at the rear of Karebear in possession of 40.5 grams of heroin and over $8,000 in cash.
[22] On March 17, 2021, Mr. Singh was followed by a police surveillance team from his residence at Ocean’s Pond to Centreville, which is a rural property in Caledon. He later attended at Karebear, before being followed to the parking lot of a commercial premises known as 30 Coventry Road, Brampton. On this occasion, Mr. Singh was driving a black Dodge Caravan bearing license plate CPMX814.
[23] A man arrived in a Toyota hatchback. The man parked a short distance from Mr. Singh. He entered the passenger side of Mr. Singh’s vehicle where he remained for approximately five minutes before he returned to the Toyota. Both vehicles then left the parking lot. A short time later the police conducted a traffic stop of the Toyota. They identified the driver as Mohammad Ullah. They arrested Mr. Ullah for possession of a controlled substance (the “Ullah Takedown”). They found 13.5 ounces of heroin in a plastic bag in the centre console of the Toyota. DC O’Neill opined that Mr. Singh had trafficked the heroin to Mr. Ullah.
[24] DC O’Neill identified Mr. Singh’s principal residence as Ocean’s Pond. He also identified Centreville as a location frequented by Mr. Singh. That location is, as I noted, a rural property. It includes a large estate home and an adjoining property with a number of trucks, trailers and storage vehicles situated on it.
[25] DC O’Neill also identified a number of vehicles associated to Mr. Singh including: a black Dodge Caravan bearing license plate CPMX814 (“814); a grey Dodge Caravan bearing license plate CDMX950 (“950”); a white tractor truck bearing license plate BE56972 (“972”); a white tractor truck bearing license plate PR47771 (“771”); and a black Dodge Caravan bearing license plate BK16678 (“678”). These various vehicles were associated to Mr. Singh in the following ways:
- 814 was registered to Kandola Express Transport Limited, whose head office Ocean’s Pond. It is the vehicle Mr. Singh was observed in on the date of the Ullah Takedown. Mr. Singh was also observed travelling in this vehicle on February 9, 2021, with Mr. Nagra;
- 950 is registered to Mr. Singh’s son, Pawanbir Singh. Nevertheless, Mr. Singh was observed operating 950 on February 18, 2021. He attended Karebear then proceeded to a parking lot at 2937 Queen Street, Brampton. About ten minutes after he arrived, a white Toyota vehicle attended at the same parking lot and parked driver’s door to driver’s door beside 950. Surveillance officers believed an object may have been passed between the windows. DC O’Neill opined that this was a drug transaction;
- 972 is a white tractor truck registered to P & G Freight Services, a company DC O’Neill said is associated to Mr. Singh. Mr. Singh was observed by the police operating the truck on two occasions prior to the warrant application. On one occasion, on March 21, 2021, Mr. Singh was observed to travel in the truck to a parking lot at 2645 Steeles Avenue, Brampton. At 10:50 p.m. a white Honda Accord attended at the same lot. Mr. Singh was observed exiting the driver’s side of the truck and appeared to pass something to the occupants of the Honda before they both exited the area. DC O’Neill opined that the interaction with the occupants of the Honda was a drug transaction. The same white Honda had been observed on March 3, 2021, at the residence of a man named Gurbinder Sooch, who police had identified as a drug dealer;
- 771 is a vehicle that Mr. Singh was observed operating and attending at Centreville in;
- 678 is another vehicle registered to Kandola Express Transport Ltd. The vehicle was observed by surveillance officers at Ocean’s Pond on a number of occasions. On February 25, 2021, an unidentified male was observed driving 678 from Ocean’s Pond to a residence at 11 Crevice Gate, Brampton. The male was inside the residence for roughly 10 minutes. He then exited, carrying two garbage bags which he put in the rear of 678. He then attended a car wash on Airport Road where he met with the occupants of four other vehicles. Another unidentified male entered the front passenger seat of 678 for a short duration.
[26] Justice Henschel did not grant the warrant sought by the police to search 678. She declined to authorize that warrant because the vehicle was alternatively described in the ITO as bearing license plate number BK26678. She was concerned about the accuracy of the description in the draft order provided. She granted the balance of the warrants sought with respect to Mr. Singh.
(ii) The April 6, 2021 Warrant Application
[27] On April 6, 2021, York Regional Police made an application for three more search warrants under the CDSA and nine more search warrants under the Criminal Code. The nine Criminal Code warrants were sought in relation to an alleged offence of possession of property obtained by crime. The locations sought to be searched were the same sought in relation to Mr. Singh in the March 30, 2021, application plus a residence located at 11 Crevice Gate, Brampton, associated to a man named Karah Sahota.
[28] According to DC O’Neill, the second warrant application sought search warrants with respect to the same locations identified in the March 30, 2021, application (plus 11 Crevice Gate) but provided additional grounds. In particular, the police were now asserting that, in addition to heroin trafficking, Mr. Singh was involved in cargo theft.
[29] The April 6, 2021 application was supported by a 261-paragraph ITO sworn April 6, 2021 (“ITO#2”). It described nine targets of interest, including Mr. Singh. Paragraphs 84 to 131 and 193 to 228 are particularly germane to the investigation of Mr. Singh.
[30] Much of the information provided in relation to Mr. Singh in this second ITO was a repeat of the content of the first ITO. There were, however, a number of paragraphs outlining what DC O’Neill described as “New Information” relating to an alleged cargo theft.
[31] Significantly, on March 17, 2021, a group of four or five South Asian males between the ages of 20 and 30 attended a truck yard at 11339 Albion Vaughan Road in Vaughan. They travelled in a white Honda Civic and a white truck bearing license plate BE56972 (i.e. “972”), which was pulling a trailer bearing license plate F5214R. The police determined that tailer was stolen. In any event, the group was able to start another truck and reverse its trailer so that it was back-to-back with trailer F5214R. The group of males began moving the contents of the second trailer into F5214R.
[32] A witness confronted the males and they fled in the Civic, leaving 972 behind. Some time later a tow truck driver dropped off a male at the lot and that man drove 972 away. The police tracked down the tow truck driver and he told them he had received a phone call from a client with a caller ID of “P Singh”, using phone number 647-267-0198, asking that he move a truck. He assisted with towing a truck and trailer and then, at the request of the client, dropped the client off at 11339 Albion Vaughan Road. That client proceeded to remove 972 from the lot.
[33] DC O’Neill deposed that on an earlier occasion - February 16, 2021 - surveillance officers had observed 814 behind Karebear being loaded with boxes from a U-Haul vehicle that had been rented by Mr. Singh. 814 was subsequently followed to Centreville. DC O’Neill opined that the U-Haul contained property obtained by crime.
[34] On April 7, 2021, Justice Henschel granted eight of the nine warrants sought under the Criminal Code, including a warrant to search 678 (the search she had not authorized on April 3, 2021). Going forward, I will refer to these warrants as the “Criminal Code Warrants”. Justice Henschel declined to authorize the warrant in relation to 11 Crevice Gate, endorsing that she was not satisfied that reasonable grounds had been established to believe that a search of that location would afford evidence of the offence of possession of property obtained by crime.
(iii) The Cross-Examination of DC O’Neill
[35] As I noted, DC O’Neill was cross-examined on his two ITOs on January 16, 2024. The cross-examination was limited in scope by my ruling of January 15, 2024. In particular, it was limited to three areas:
(a) The failure to disclose, in either ITO, the fact that surveillance officers saw nothing in Mr. Ullah’s hands before or after he met with Mr. Singh on March 17, 2021, and nothing in Mr. Singh’s hands when he left Karebear to attend the meeting with Mr. Ullah;
(b) Deficiencies in ITO#1 regarding the grounds to believe that evidence of drug possession or trafficking would be found in the locations sought to be searched; and,
(c) Deficiencies in ITO#2 regarding the grounds to believe that the offence of cargo theft had been committed by Mr. Singh.
[36] I will briefly set out DC O’Neill’s testimony in relation to each area.
[37] DC O’Neill testified that he understood the need to be full, fair and frank in terms of the disclosure made in the ITOs. He understood “full” to mean that he must not leave anything material out. “Fair”, he said, means balanced. And “frank” means truthful and focused. He believed he had made full, fair and frank disclosure of all material facts in both ITOs. That said, he accepted that, given the scope and complexity of the investigation, there may well have been certain things missed or overlooked. Preparing these ITOs was, he said, the hardest thing he has ever done as a police officer.
[38] DC O’Neill was cross-examined at some length about how he described the March 17, 2021, meeting between Mr. Singh and Mr. Ullah in his ITOs, particularly ITO#1. He acknowledged, under cross-examination, that Mr. Ullah was never observed by surveillance officers to be carrying anything, either before or after being in Mr. Singh’s vehicle. Indeed, a video taken by surveillance officers (marked Exhibit “A” to Ms. Tran’s affidavit sworn December 12, 2023), clearly reflects that Mr. Ullah had nothing in his hands either before entering Mr. Singh’s car or after exiting it. DC O’Neill, did not, however, indicate in either ITO that no exchange was observed between Mr. Singh and Mr. Ullah on March 17, 2021, nor did he reference the surveillance video.
[39] DC O’Neill readily accepted that evidence of an exchange is of significance to investigators. He conceded that he did not mention the lack of anything in Mr. Ullah’s hands in either ITO. Similarly, he conceded that he did not make a point in either ITO to advise the issuing justice that Mr. Singh was not observed to be carrying anything when he left Karebear just prior to the meeting with Mr. Ullah.
[40] In an effort to explain why the ITOs did not mention the absence of an observed exchange, DC O’Neill testified that it would be unusual for a drug purchaser to leave a vehicle carrying drugs in plain view. He said he has done surveillance in many drug cases and that the buyer never gets out of the seller’s vehicle carrying drugs out in the open.
[41] In relation to the March 17, 2021, meeting, he said the exchange had to be inferred based on what preceded and followed the meeting in Mr. Singh’s vehicle. In his view, he had provided all of the material information that supported the inference urged upon the issuing justice. The fact that no exchange was observed did not undercut the reasonable grounds to believe the meeting between Mr. Ullah and Mr. Singh was a drug transaction. He added that had something actually been observed in Mr. Ullah’s hands, he would have disclosed that in the ITO. On the other hand, the fact that nothing was observed was not something he considered material to the investigation.
[42] After further cross-examination, DC O’Neill allowed that perhaps he should have noted in the ITO that nothing was seen in Mr. Ullah’s hands. But he maintained that, to the extent it was an oversight, it was not a serious one.
[43] DC O’Neill was further cross-examined on his grounds for believing that evidence of a criminal offence would likely be found at Karebear, Ocean’s Pond and Centreville.
[44] In relation to Karebear, he testified that:
- Mr. Nagra, a known heroin trafficker, was observed on September 16, 2020, at the back of the plaza where Karebear is located. He went into one of the establishments in that plaza. He said there were only two possibilities – he either went into Karebear or he went into an adjoining pizza restaurant. Given Mr. Nagra’s association to Mr. Singh and Mr. Singh’s association to Karebear, he reasoned that Mr. Nagra likely went into Karebear; and,
- The police had “countless” hours of surveillance on Karebear, including numerous attendances by Mr. Singh. When you combine the totality of the evidence they gathered, he said, it amounts to reasonable grounds to believe that controlled substances were stored there.
[45] In relation to Ocean’s Pond, he said that he had formed the opinion that Mr. Singh was a drug trafficker. Traffickers, in his experience, frequently store drugs in their homes.
[46] Finally, in relation to Centreville, he testified that Mr. Singh was observed on many occasions coming and going from that property. In his experience, drug traffickers use numerous places to store, weigh and cut their drugs. Centreville was a discrete, remote location with numerous storage trailers. In his view, it was reasonable to believe that evidence of drug trafficking would be found at that location.
[47] More generally, DC O’Neill testified that the police had focused their warrant requests on places Mr. Singh was known to frequent and vehicles that he was associated with.
[48] DC O’Neill was also cross-examined about his reasonable grounds for the Criminal Code Warrants.
[49] He testified that he formed reasonable grounds to believe that Mr. Singh was involved in cargo theft based on the events at the truck yard on March 17, 2021. He agreed that there was no suggestion that Mr. Singh was one of the individuals in the truck yard in the early morning hours of March 17, 2021. But based on the fact that a truck associated to Mr. Singh (972) was used in the attempted theft coupled with the tow truck driver’s indication that a number identified as “P Singh” had called him seeking, amongst other assistance, a ride to the truck lot, he was satisfied that reasonable grounds existed to conclude that Mr. Singh was involved in the attempted cargo theft.
[50] DC O’Neill denied the suggestion that he had no basis to believe that there was any stolen property at any of the places sought to be searched.
THE GOVERNING PRINCIPLES
[51] A judicially authorized warrant is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether, on the basis of the sworn evidence filed, the issuing judge could (not should) have granted the warrant. See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at para. 56, where Sopinka J. outlined the test 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.
[52] The Criminal Code Warrants were sought and granted under s. 487(1) of the Criminal Code. Before a warrant may be granted under that section, the issuing justice must be satisfied that there are reasonable grounds to believe that an offence has been committed and that evidence of that offence is to be found in the place to be searched. These requirements are the minimum standard for compliance with s. 8 of the Charter. See R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at para. 39.
[53] The CDSA Warrants were sought and granted under the provisions of s. 11(1) of the Controlled Drugs and Substances Act.
[54] A justice reviewing a warrant application brought pursuant to section 11 must be satisfied, on sworn evidence, that there are reasonable grounds to believe that:
(a) a controlled substance or precursor in respect of which the CDSA has been contravened;
(b) anything in which a controlled substance is contained or concealed;
(c) offence-related property; or
(d) anything that will afford evidence in respect of a CDSA offence or a related proceeds crime,
is in a place described in the warrant.
See R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376, at para. 81.
[55] The “reasonable grounds” requirement imports a credibly based probability standard. That standard requires more than suspicion but demands less than a balance of probabilities. See R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20.
[56] The onus in a Garofoli application is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the authorizations in issue. Discharging that onus generally requires the applicant to attack the preconditions to the authorization. In other words, to undermine the existence of reasonable grounds. A failure to undermine those grounds, usually leads to a conclusion that the issuing justice could have authorized the warrant.
[57] That said, as Justice Doherty observed in R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis on which to issue the warrant”. The standard to be met to trigger the court’s discretion to set aside a warrant on this residual ground is high: see R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 70.
[58] Mr. Singh advances both lines of attack. He simultaneously asserts that the ITOs in issue did not provide reasonable grounds to support the issuance of the warrants and, moreover, that DC O’Neill deliberately or recklessly misled the authorizing justice.
[59] The analytical approach a reviewing judge should take to the sufficiency of an ITO was described by Fairburn J.A., as she then was, in Herta, at para. 21. She instructed that the reviewing judge must take a common sense and holistic approach and added that the ultimate question is whether the issuing justice could have found that the ITO, in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that an offence had occurred and that evidence of it could be found at the place to be searched.
[60] The reviewing judge does not necessarily limit his or her consideration to the ITO that was before the issuing justice. Erroneous or unconstitutionally obtained evidence must be excised from the original ITO. At the same time, the reviewing judge may consider, within limits, additional evidence adduced during the voir dire to correct minor errors in the ITO. As Fish J. instructed in Morelli, at para. 41:
The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (R. v Araujo, (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire ito correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
[61] The standard against which alleged errors or omissions in the ITO are tested is the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 122.
[62] As Watt J.A. summed it up in Paryniuk, at para. 67, “[w]hen the dust settles after excision and amplification…there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.”
THE POSITIONS OF THE PARTIES
(i) The Position of the Defence
[63] Defence counsel submit that the impugned ITOs fail to establish the reasonable grounds necessary to support the granting of any of the sought-after warrants. In particular:
(a) They fail to establish reasonable grounds to believe that Mr. Singh committed any drug-related offence. This is especially so, they say, because any evidence arising from the Ullah Takedown must be excised from the ITOs given that it was determined in the prosecution against Mr. Ullah that the evidence had been obtained unconstitutionally;
(b) They fail to establish reasonable grounds to believe that Mr. Singh was engaged in cargo theft; and,
(c) They fail to establish reasonable grounds to believe that any offence-related property, whether drugs or stolen cargo, would be found at any of the locations sought to be searched. Defence counsel submit that, at best, the police had a suspicion that offence-related property might be found at one or more of the locations to be searched. What they were truly engaged in, the defence say, is intelligence gathering.
[64] Defence counsel further submit that even if reasonable grounds did exist to support the granting of the impugned warrants – or any of them – DC O’Neill materially misled the authorizing justice about the significance of the evidence gathered in relation to the meeting on March 17, 2021, between Mr. Singh and Mr. Ullah. In particular, he failed to advise the issuing justice that no exchange had been observed between them.
[65] In the submission of defence counsel, DC O’Neill’s “strategic omission threatens the integrity of the prior authorization process” justifying, on this residual ground alone, the setting aside of the impugned warrants.
[66] As I noted, DC O’Neill testified that, at worst, his failure to mention the lack of any observed exchange between Mr. Singh and Mr. Ullah was an oversight of trifling significance. Defence counsel demur. Not only do they assert that it was of material significance, but they also contend that DC O’Neill contorted himself under cross-examination in an effort to downplay the significance of his misleading omission. They say his testimony was both internally and externally inconsistent. They point, in particular, to the following examples:
(a) DC O’Neill initially testified that the absence of any observation of an exchange between Mr. Singh and Mr. Ullah was an important fact. He went on to say, however, that he had never seen a party to a transaction leave a vehicle carrying something out in the open. His March 30, 2021, ITO however, sets out a number of instances where a target was seen carrying items. See for instance, para. 467 where the target was observed with a backpack; para. 531 where the target was provided with a small box from a nearby vehicle; and para. 544 where the target was observed placing a duffel bag into a vehicle under surveillance; and,
(b) DC O’Neill testified that it was not his practice to disclose that no exchange was seen in a meeting thought to be a drug transaction. This is simply not true, defence counsel contends, as there are 11 separate paragraphs across the two ITOs in issue where DC O’Neill qualified surveillance observations by noting that no exchange was observed. See paras. 33, 34, and 40 of the April 6, 2021, ITO and paras. 159, 185, 218, 308, 324, 340, 402, 406, and 616 of the March 30, 2021, ITO.
[67] DC O’Neill, the defence says, knew he was obliged to disclose the critical fact that no exchange was observed between Mr. Singh and Mr. Ullah. He appreciated the fact that without the Ullah Takedown evidence, he could not have anything more than a suspicion that Mr. Singh was involved in heroin trafficking. His failure to mention the absence of any observation of an exchange suggests that the issuing justice may have been tricked into believing that such an exchange was observed. The non-disclosure tended to strengthen the inference that the heroin in Mr. Ullah’s vehicle came from Mr. Singh.
(ii) The Position of the Crown
[68] As one might anticipate, the Crown’s position is entirely opposite to that of the defence.
[69] Crown counsel identifies the request to excise the Ullah Takedown evidence as decisive. In the Crown’s position, however, the accused lack standing to seek excision because the alleged Charter breaches that led to the unconstitutionally obtained evidence were breaches of the rights of a third party, not those of the accused. The Crown asserts that the Court of Appeal’s decision in R. v. Chang, 2003 29135 (ON CA), [2003] O.J. No. 1076 is binding on this court and dispositive of the issue. Crown counsel submits that Chang, and in particular, para. 35 of Chang, stands for the proposition that the breach of a third party’s rights does not engage the rule of automatic excision.
[70] When the ITOs are read as a whole, including the evidence obtained as a result of the Ullah Takedown, there is more than sufficient evidence, the Crown says, to establish reasonable grounds to believe that Mr. Singh trafficked heroin.
[71] In relation to ITO#2, the Crown similarly submits that there is more than sufficient evidence to establish reasonable grounds to believe that Mr. Singh was a party to the attempted cargo theft on March 17, 2021. Principally, a vehicle registered to one of his companies and one which he had been seen operating, was utilized in the attempted theft. Moreover, a number registered to a “P. Singh” contacted a tow truck driver who dropped off a client at the truck yard in Vaughan where the attempted theft took place. The client drove off in the truck associated to Mr. Singh.
[72] The Crown made relatively brief arguments in relation to the connections between Mr. Singh’s alleged drug trafficking and the alleged cargo theft and the places to be search. The Crown submits that the ITOs only had to raise a reasonable inference that evidence of the alleged offences could be found at the target locations. Based on the content of the ITOs, when read as a whole, they did so.
[73] Finally, Crown counsel submits that before a warrant could be set aside on the residual ground relied upon by the defence, the court would have to be satisfied that DC O’Neill engaged in misrepresentation so serious that it undermined the pre-authorization process. A finding would be required that DC O’Neill intentionally misled the issuing justice through conduct so serious as to amount to an abuse of process.
[74] In the Crown’s submission, regardless of how DC O’Neill’s testimony under cross-examination is interpreted, his conduct does not come anywhere near close enough to rise to the level required to set aside the warrants on the residual ground. There was nothing in the content of either ITO authored by DC O’Neill that implied that something was observed in Mr. Ullah’s hands either before or after his meeting with Mr. Singh on March 17, 2021. The simple fact that DC O’Neill mentioned, with respect to other instances of surveillance, that exchanges had not been observed does not, the Crown contends, raise an inference that an exchange was observed on this occasion.
DISCUSSION
[75] My analysis will focus on the following issues, as identified by the parties:
(a) Whether the Ullah Takedown evidence must be excised from DC O’Neill’s two ITOs;
(b) Whether the ITOs establish reasonable grounds to believe that Mr. Singh was involved in heroin trafficking;
(c) Whether the ITOs establish reasonable grounds to believe that evidence of heroin trafficking would be found at each of the locations to be searched;
(d) Whether the ITOs establish reasonable grounds to believe that Mr. Singh was involved in cargo theft;
(e) Whether the ITOs establish reasonable grounds to believe that evidence of cargo theft was likely to be found at each of the locations to be searched; and,
(f) Whether the ITOs ought to be set aside on the residual ground that DC O’Neill deliberately or recklessly misled the issuing justice, rendering the ITOs unreliable as a basis upon which to issue the impugned warrants.
Issue One: Must the Ullah Takedown Evidence be Excised?
[76] Issues one, two and three focus on the CDSA Warrants, which were issued on the strength of ITO#1. The Ullah Takedown evidence is set out at paragraphs 434-439 of that ITO.
[77] The Ullah Takedown evidence was, in my view, central to establishing reasonable grounds to believe that Mr. Singh was trafficking heroin. There is no question that Mr. Singh met with Mr. Ullah in a commercial parking lot, in his van, for roughly five minutes. There could, of course, be a number of innocent explanations as to why Mr. Singh and Mr. Ullah might meet for five minutes in his car in a commercial parking lot, but the meeting was at least consistent with a drug transaction.
[78] The fact that Mr. Ullah was found, immediately after the meeting with Mr. Singh, with some 13.5 ounces of heroin in the centre console of his vehicle tends to support the inference that his meeting with Mr. Singh was to acquire heroin. Again, the presence of heroin in Mr. Ullah’s vehicle immediately following a meeting with Mr. Singh is not conclusive evidence that Mr. Singh trafficked the heroin. But such a conclusion is an available inference.
[79] Mr. Ullah was charged with possession of heroin for the purpose of trafficking. His counsel brought an application to exclude the drugs seized from his car as evidence at his trial in the Ontaio Court of Justice. The application succeeded. Misener J., who heard the application, found that the police did not have reasonable grounds to arrest Mr. Ullah based on their observations of his meeting with Mr. Singh. She concluded that he had been arbitrarily detained, contrary to s. 9 of the Charter. She further concluded that the search of his car – conducted as an incident to his arrest – was unlawful and in breach of s. 8 of the Charter, given that Mr. Ullah’s arrest was unlawful. In short, she concluded that the evidence seized from Mr. Ullah’s car – the 13.5 ounces of heroin – had been unconstitutionally obtained.
[80] As a general rule, unconstitutionally obtained evidence must be excised from an ITO. See R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281; R. v. Wiley, 1993 69 (SCC), [1993] 3 S.C.R. 263; and R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 (collectively, the “Grant trilogy”). See also R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 116 where Watt J.A. instructed that “Information obtained by unconstitutional means must be excised from the ITO on Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued.”
[81] The rule of excision appears to be policy-driven. It is intended to prevent the state from benefitting from the illegal acts of police officers. See Grant, at para. 50. See also R. v. Zacharias, 2023 SCC 30, [2023] S.C.J. No. 30, at paras. 30-31.
[82] There is no debate that had evidence been obtained in breach of Mr. Singh’s constitutional rights, it would have to be excised from DC O’Neill’s ITOs. But the question raised in this case is whether evidence that was obtained through the breach of a third party’s constitutional right(s) must similarly be excised from the ITOs.
[83] There is inconsistent legal authority on this issue. As my colleague, Di Luca J., recently observed in R. v. El-Zahawi, 2024 ONSC 122, [2024] O.J. No. 108, at endnote 30, “the caselaw on standing for the purpose of excision is deeply divided”. I will take a moment to consider some of the more prominent cases to have dealt with the issue.
R. v. Shayesteh
[84] The Court of Appeal for Ontario appears to have first addressed the issue in R. v. Shayesteh (1996), 1996 882 (ON CA), 111 C.C.C. (3d), 225. Mr. Shayesteh was charged with conspiracy to import cocaine and opium. The Crown’s case depended largely on evidence obtained through intercepted phone calls between the accused and his alleged co-conspirators. Mr. Shayesteh argued that a judicial authorization relied upon the police to intercept his phone calls was invalid because it was based on evidence obtained from prior illegal searches.
[85] There had, in fact, been four wiretap authorizations granted in relation to the investigation that ultimately led to Mr. Shayesteh’s arrest. He was only named as a target in the last two. Indeed, he only came to the attention of the police following communications intercepted as a result of the second judicial authorization. That authorization permitted the police to intercept the communications of one of the alleged co-conspirators.
[86] Mr. Shayesteh challenged the validity of the second authorization, even though he was not a named target of it. He asserted that it should be set aside and any evidence obtained as a result of it should be excised from any ITOs used to obtain the third and fourth authorizations.
[87] The Crown argued that Mr. Shayesteh had no standing to assert a violation of the rights of the co-conspirator and, consequently, no right to demand excision of the information obtained as a result of any such violation.
[88] Charron J.A., as she then was, disagreed with the Crown on the standing issue. She found that because Mr. Shayesteh’s own telephone calls were intercepted as a result of the targeting of the co-conspirator, he clearly had an expectation of privacy with respect to those communications. Since his own reasonable expectation of privacy was implicated, he had standing to dispute the legality of the second intercept.
[89] It is significant, in my view, to recognize that Charron J.A. did not conclude that any unconstitutionally obtained evidence – regardless of its pedigree – must be excised from an ITO. She found that Mr. Shayesteh had standing to challenge the validity of the second authorization because his own expectation of privacy was implicated in it.
R. v. Chang
[90] The issue was back before the Court of Appeal roughly a decade later in Chang, in a factual context not altogether dissimilar from that in Sheyesteh.
[91] Mr. Chang, an immigration officer at Toronto Pearson International Airport, was charged with conspiracy to assist a foreign national to enter Canada illegally. Like Mr. Shayesteh, Mr. Chang came to the attention of the police in the course of an investigation into the activities of third parties.
[92] In June and July 1995, the RCMP obtained wiretap authorizations in Quebec in connection with the investigation of bid-rigging of municipal contracts in Quebec City. Mr. Chang was not a target of the investigation at that time. He came to the attention of the police, however, because his name was raised, during intercepted communications, as someone involved in the sale of phony visas for entry into Canada.
[93] The RCMP proceeded to obtain wiretap authorizations in Ontario in September and December 1995 to intercept Mr. Chang’s telephone communications.
[94] The charges against Mr. Chang were based largely on communications intercepted pursuant to the Ontario authorizations. Those authorizations were sought and granted on the strength of information obtained through the Quebec authorized intercepts.
[95] Mr. Chang brought a Garofoli application challenging the validity of the Ontario authorizations. In the context of that application, he urged the court to conduct a Garofoli application on the Quebec authorizations. His goal was to persuade the court that the Quebec authorizations were invalid, that any information obtained through the implementation of those authorizations was unconstitutionally obtained, and that any such information should be excised from the ITOs filed in support of the Ontario authorizations.
[96] The trial judge refused to conduct a Garofoli application in relation to the Quebec authorizations. She limited her consideration of the Quebec authorizations to a facial validity analysis. The Court of Appeal held that she had done the right thing. Moreover, the Court of Appeal held that Mr. Chang had no standing to challenge the sufficiency of the evidence upon which the Quebec authorizations were granted.
[97] Unlike the situation in Shayesteh, Mr. Chang’s communications were not intercepted pursuant to the prior (Quebec) authorizations. He did not therefore have an expectation of privacy in the communications intercepted in Quebec.
[98] Mr. Chang argued that he did not need to have an expectation of privacy in the communications intercepted in Quebec in order to seek excision of them. He argued, relying on Plant, Wiley and Grant, that any information obtained by the police as a result of any unlawful activity (including in relation to third parties) should be excised by the reviewing court when determining the validity of a search warrant. Notably, O’Connor A.C.J.O. and Armstrong J.A. held, at para. 35:
...[E]ach of those cases involved the breach of the applicant's own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party's rights.
[99] The obvious signal from the Court of Appeal – consistent with the ruling in Shayesteh – was that only evidence unconstitutionally obtained as a result of the breach of the accused’s own Charter rights will be subject to automatic excision from an ITO filed in support of a warrant application.
R. v. Vickerson
[100] More recently, the British Columbia Court of Appeal reached a similar conclusion in R. v. Vickerson, 2018 BCCA 39, [2018] B.C.J. No. 129.
[101] Mr. Vickerson was charged with possession of cocaine for the purpose of trafficking. He became the target of a police investigation as a result of confidential information provided to the police from two sources to the effect that Mr. Vickerson was selling drugs from his house.
[102] On December 20, 2013, the police had Mr. Vickerson’s residence under surveillance. They observed a male, later identified as Mr. Schnarr, attend briefly at the residence. The police conducted a traffic stop of Mr. Schnarr shortly after he left Mr. Vickerson’s residence. They arrested him for possession of cocaine, on the belief that he had purchased cocaine from Mr. Vickerson. Mr. Schnarr admitted that he had drugs hidden in the crotch of his pants.
[103] The police sought and obtained a warrant to search Mr. Vickerson’s residence. They did so on the basis of an ITO, the main components of which were (i) the evidence provided by confidential informants; (ii) evidence of surveillance on Mr. Vickerson’s home; and (iii) the arrest of Mr. Schnarr.
[104] Mr. Vickerson brought a Garofoli application to determine the validity of the warrant. He asked that the court excise the evidence obtained as a result of the arrest of Mr. Schnarr, which he argued was obtained unconstitutionally.
[105] The trial judge concluded that the arrest and subsequent search of Mr. Schnarr were lawful, but in any event held that Mr. Vickerson did not have standing to challenge the arrest and search of a third party.
[106] The British Columbia Court of Appeal agreed with the trial judge on the issue of standing. Bennett J.A. observed that there was no evidence to support the conclusion that Mr. Vickerson had a reasonable expectation of privacy with respect to the search of Mr. Schnarr’s vehicle, the arrest and search of Mr. Schnarr, or the seizure of drugs from him.
[107] To be clear, the British Columbia Court of Appeal did not directly address whether the rule of excision might be engaged had there been a conclusive finding that evidence seized from Mr. Schnarr had been unlawfully obtained. In my view, however, the signal from the court was that only evidence which implicates the accused’s own Charter-protected interests will be subject to the exclusion rule.
R. v. Guindon
[108] Mr. Singh’s counsel place significant evidence on the decision of my colleague, Bird J., in R. v. Guindon, 2015 ONSC 4317, [2015] O.J. No. 7169.
[109] Mr. Guindon and others were charged with drug-related offences. A significant part of the Crown’s case against Mr. Guindon was based on telephone communications that were intercepted pursuant to a judicial authorization. The authorization was granted on the strength of an ITO that included information relating to what Bird J. referred to as “the events of March 7, 2012”.
[110] On March 7, 2012, Durham Region Police officers stopped a vehicle driven by a woman named Kasey Skitch. Ms. Skitch was arrested for drug-related offences and she and her vehicle were searched. Drugs and a cellular telephone were seized.
[111] Based largely on information obtained from the seized cell phone, the police obtained an authorization to intercept the telephone communications of a number of individuals, including Mr. Guindon.
[112] Mr. Guindon applied to set aside the authorization and, in the course of doing so, sought to excise any evidence obtained as a result of the events of March 7, 2012. Bird J., I note, found that the arrest and search of Ms. Sketch were unlawful. The Crown took the position, relying on Chang, that an applicant on a Garofoli application may only seek excision of unconstitutionally obtained evidence if it involved an infringement of the applicant’s own rights.
[113] Bird J. expressed the view that the judgment in Chang was not so broad as to limit excision, in all cases, to evidence obtained as a result of the breach of the applicant’s own constitutional rights. She distinguished the facts in Chang – where the applications judge was being asked to conduct a full Garofoli inquiry into the validity of the extraprovincial wiretap authorizations – from the facts before her. In Guindon, as she noted, there was already a determination that the impugned evidence had been obtained unconstitutionally.
[114] She concluded that Mr. Guindon was entitled to challenge the legality of the evidence upon which wiretap authorizations, search warrants and production order impacting on his privacy interests were based. A failure to excise references to evidence unlawfully obtained as a result of the roadside stop of the Skitch vehicle would, she said, permit the state to benefit from the illegal conduct of the police. In the result, all such evidence was excised.
R. v. Hamid
[115] The decision of Bird J. in Guindon was followed in the case of R. v. Hamid, 2019 ONSC 5622, [2019] O.J. No. 5560. Mr. Hamid was charged, along with two co-accused, with conspiracy to import cocaine and importing cocaine. The Crown’s case was constructed largely on evidence of private communications that were intercepted pursuant to five consecutive wiretap authorizations.
[116] All three co-accused applied to set aside the wiretap authorizations and to exclude any evidence obtained as a result of them.
[117] Mr. Hamid was not an initial target in the investigation. He had not been named either as a principal or other known party in either of the first two authorizations. His communications were first intercepted as a result of the second authorization. Thereafter, he was named as a principal target on the third, fourth and fifth authorizations.
[118] Each authorization built on evidence gathered from the implementation of the prior authorization(s). All three co-accused challenged the lawfulness of the first authorization. They asserted that any information obtained unlawfully through that first authorization should be excised from any subsequent ITO filed in support of subsequent authorizations.
[119] The Crown took issue with Mr. Hamid’s standing to seek excision of evidence gathered during the implementation of the first authorization since he was not a named party to it and none of his private communications had been intercepted in the course of it. His standing to challenge the second through fifth authorizations was not in issue given that his private communications were intercepted during the implementation of each of those authorizations: see Shayesteh.
[120] Citing Guindon, Petersen J. observed that Garofoli jurisprudence requires the automatic excision of “erroneous” information. She held that it would be “incongruous to preclude an applicant from seeking to excise information that was unconstitutionally obtained except in circumstances where the applicant could show that his or her own rights were infringed.”
[121] She went on to hold that the policy underlying the automatic excision rule in relation to unconstitutionally obtained evidence – to prevent the state from benefitting from the illegal acts of police officers – applies equally whether the rights violated were those of the applicant or a third party.
[122] Again, the Crown argued that Chang was dispositive. And, like Bird J. in Guindon, Petersen J. expressed the view that the ruling in Chang was not so broad as to restrict excision, in all cases, to evidence obtained as a result of the breach of the applicant’s own constitutional rights.
[123] She ultimately concluded that Mr. Hamid did not have standing to challenge the validity of the first authorization. That said, his co-accused did have such standing. And if she determined that the first authorization was unlawful, then Mr. Hamid was entitled to seek excision of any references to any evidence unconstitutionally obtained through the first authorization.
R. v. Kang
[124] A departure from the Guindon and Hamid line of cases is reflected in the decision of Ker J., of the British Columbia Supreme Court, in R. v. Kang, 2020 BCSC 1151, [2020] B.C.J. No. 2377.
[125] Sam and Gary Kang were two of a group of 13 co-accused indicted on drug-related charges as a result of a large-scale investigation by the Vancouver Police Department commenced in 2017.
[126] The case against the accused was significantly based on communications intercepted pursuant to a wiretap authorization. The ITO filed in support of the wiretap application contained information obtained by the police from a number of precursor searches. Individual accused challenged searches of places or things in which they individually asserted a reasonable expectation of privacy. All accused sought, however, to share in any excisions made as a result of the breach of the Charter rights of any accused.
[127] The issue addressed by the court was characterized by Ker J., at para. 2, as follows: when information “is obtained in violation of the Charter rights of one or some accused, is it excised from the affidavit [ITO] solely as against the accused whose Charter rights were breached….or as against all accused before the court”?
[128] Following a considerably deep dive into the jurisprudence and the principles that govern excision, Ker J. concluded that the correct answer was “excision for one, not excision for all”: Kang, at para. 6. In other words, she departed from the decisions in Guindon and Hamid. She found that they misconstrued the decision of the Court of Appeal for Ontario in Chang and improperly extended the ambit of the Grant trilogy.
[129] Ker J. held that before an accused person could have unconstitutionally obtained evidence excised from an ITO, he or she would have to demonstrate a link between him or her and the evidence sought to be excised. That link, she said, was a demonstrated reasonable expectation of privacy in the item or place searched that is the subject of the proposed excision.
R. v. Brounsuzian
[130] Ker J. preferred the reasoning of M.F. Brown J. in R. v. Brounsuzian, 2019 ONSC 4481, [2019] O.J. No. 6600, and she elected to follow that decision.
[131] Mr. Bounsuzian was charged with one count of conspiracy to traffic in cocaine and one count of possession of cocaine for the purpose of trafficking. He was tried together with five co-accused. He sought to exclude from his trial certain evidence that the police had seized during the execution of a warrant at 304-295 Adelaide Street West, Toronto – a property in which Mr. Bounsuzian had a reasonable expectation of privacy.
[132] Mr. Bounsuzian challenged the lawfulness of the warrant to search the Adelaide St. property. He argued that certain evidence referred to in the ITO filed in support of the warrant application ought to be excised on the basis that it had been unconstitutionally obtained. The impugned evidence had been seized from a property on Queen’s Wharf Rd., Toronto, as a result of a search the Crown conceded was unlawful. Mr. Bounsuzian did not have an expectation of privacy in the Queen’s Wharf Rd. property. He conceded that his own s. 8 rights were not engaged. He argued, however, relying on Guindon, that he was still entitled to automatic excision of the impugned evidence because it had been unconstitutionally obtained by the police.
[133] Brown J. disagreed, holding, at para. 75:
I do not agree with the defendant's position on this point. I acknowledge that there are cases from the Ontario Superior Court of Justice that have differing views on this issue. However, I am of the view that the controlling case on this matter is the Ontario Court of Appeal decision in R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397 (C.A.) at paras. 33-42. See also R. v. Ritchie, 2016 ONSC 1092 at para. 53, overturned on other grounds at R. v. Ritchie, 2018 ONCA 918; R. v. Dieckmann, 2013 ONSC 747 at para. 31 and R. v. Vickerson, 2018 BCCA 39 at para. 48. A defendant must demonstrate a violation of his or her own Charter rights in order to obtain a remedy under the Charter. A defendant is only entitled to excision from an ITO of evidence unconstitutionally obtained in violation of his or her own personal rights. If a defendant's own s. 8 Charter rights were not engaged in that he or she did not have a reasonable expectation of privacy, the defendant is not entitled to excision from the ITO of evidence obtained pursuant to the search. There is no remedy for the violation of someone else's reasonable expectation of privacy.
Analysis
[134] I certainly agree with Justice Di Luca’s observation that the case law on the issue of standing for the purpose of excision is deeply divided. I agree, however, with Justice Brown’s determination that Chang is the controlling authority, and I am of the view that I am bound to follow it.
[135] I appreciate that in Chang, the impugned evidence had not yet been determined to have been obtained unlawfully, which is different from this case (and, I note, different from the facts in Guindon). And I appreciate that the Court of Appeal did not expressly state in Chang that there could never be an occasion when an applicant in a Garofoli application might be entitled to excision of evidence obtained as a result of the violation of a third party’s rights. But in my view, the court’s comments at para. 35 of that decision effectively preclude excision of such evidence.
[136] The court expressly noted that each of the cases in the Grant trilogy involved evidence obtained as a result of a breach of the applicant’s own Charter rights. They distinguished the facts in Chang on that basis. They did not distinguish the facts in Chang on the basis that there had not yet been a finding that the third party’s rights had been breached. They said, specifically, “the trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result the Quebec Immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants.” That comment is tantamount to saying the rule of excision established by the Grant trilogy does not apply to evidence obtained as a result of the breach of a third party’s rights.
[137] I understand the policy rationale for the rule of excision – as expressed in Grant, at para. 50 – is that the police should not be able to benefit from the fruits of their unlawful activities. And I understand why some of my colleagues would apply that same rationale regardless of whether the breach was of the applicant’s rights or of a third party’s rights.
[138] But it is entirely settled law that Charter remedies are personal. Standing to challenge the lawfulness of a search or seizure of evidence depends on whether the applicant personally had a reasonable expectation of privacy in the place or thing searched or seized: see R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-12. The upshot is that an applicant on a Garofoli application has no standing to assert a breach of a third party’s Charter rights. Excision in circumstances involving purported breaches of third party’s rights, will therefore be dependent on whether those alleged breaches have been litigated prior to the Garofoli application.
[139] In the result, the application of the rule of excision where third parties’ Charter rights are implicated, will be uneven. One might say even a little arbitrary. Moreover, arguments may arise about whether a finding of a breach of a third party’s Charter rights in a separate proceeding are binding on the judge hearing the Garofoli application. As an example, I am not bound either by precedent or the principles of issue estoppel, by Justice Misener’s interlocutory ruling that Mr. Ullah’s Charter rights had been breached at the roadside stop. See R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64.
[140] The doctrinal underpinning of the rule of excision is a matter of some debate. Justice Brown appears to have approached it as Charter remedy. Others appear to disagree: see Code J. in R. v. Jaser, 2014 ONSC 6052, [2014] O.J. No. 6424, at para. 28; Ker J. in Kang, at paras. 92-120; and MacDonnell J. in R. v. Lam, 2015 ONSC 2131, [2015] O.J. No. 4249, at paras. 55-56.
[141] The Grant trilogy of cases does not provide an answer to the question about the doctrinal basis for the rule. It does provide, as I have noted, a policy reason supporting the rule. That reason was elaborated on by the Supreme Court in its recent ruling in Zacharias, where Rowe and O’Bonsawin JJ. explained, at paras. 33-34, that the policy rationale for the rule is twofold:
[33] First, respect for the Charter and robust protection of civil liberties mandates that the state not be permitted to minimize the impact of earlier unconstitutional actions that lead to a cascading series of well-meaning investigative steps. To allow the police to rely on their misconduct in such a way would fail to give meaningful effect to rights protected under the Charter.
[34] Furthermore, allowing the state to rely on Charter violations “through the back door” could incentivize police to be less careful in adherence to the law.
[142] I agree with those of my colleagues who have remarked that these policy rationales are engaged whether the rights infringed are those of the Garofoli applicant or those of a third party. That said, they are more strongly engaged when the rights in issue are personal to the applicant.
[143] For instance, Mr. Ullah was arrested and charged with possession of heroin for the purpose of trafficking. His vehicle was searched and 13 ½ ounces of heroin were located and seized. He was subsequently prosecuted in the Ontario Court of Justice. The prospect that the seized evidence might be excluded from trial and that the charges might therefore be dismissed against Mr. Ullah may offer a strong incentive to ensure Charter compliance at the time of his arrest and the search of his vehicle. That said, I would not expect the prospect that the same evidence might in future be excised from an ITO in a Garofoli application commenced by an as-yet unindicted third party, such as Mr. Singh, would provide much of a disincentive at all, given how entirely speculative it would be.
[144] Moreover, there is a strong current of fairness that informs the policy rationale. One of the reasons why the police should not be able to benefit from their own constitutional misdeeds, apart from discouraging bad behaviour, is that it is genuinely unfair to an accused person that the state should be permitted to use a process – a warrant application – to purportedly ensure constitutional compliance, when the application is based, in whole or in part, on evidence obtained in breach of the accused’s constitutional rights. In other words, if the purpose of obtaining prior judicial authorization for a search is compliance with s. 8 of the Charter, it is both incongruous to that process and unfair to the accused, that the evidence submitted in an effort to obtain that prior authorization was itself obtained in breach of the accused’s rights.
[145] That same unfairness is not present when the evidence on offer, tainted as it may be, was not obtained in breach of the accused’s rights.
[146] At any rate, the jurisprudence from the Supreme Court does not yet extend the rule of automatic excision to evidence obtained in contravention of a third party’s constitutional rights. And the jurisprudence from the Court of Appeal for Ontario, namely Chang, appears to me to limit the rule of automatic excision to evidence obtained in contravention of the accused’s own Charter rights.
[147] For these reasons, I have determined not to excise references to the Ullah Takedown from either impugned ITO.
Issue Two: Were There Reasonable Grounds to Believe Mr. Singh was Trafficking Heroin?
[148] In light of my decision not to excise evidence of the Ullah Takedown, the short answer to issue two is yes. On the whole of the evidence, I am satisfied that there were reasonable grounds to believe Mr. Singh was trafficking heroin. Evidence that tends to support those reasonable grounds includes:
(a) Mr. Singh’s connection to Mr. Nagra, who trafficked heroin to an undercover officer, through an intermediary;
(b) Surveillance conducted on Mr. Singh on multiple occasions where he was observed to interact with individuals in circumstances consistent with drug transactions, including:
- February 9, 2021, when he was followed to a commercial parking lot. Shortly after he arrived a male arrived in a silver Toyota. The male attended the front seat of Mr. Singh’s vehicle – 814 – for less than a minute before returning to his own vehicle;
- February 18, 2021, when he was observed leaving Karebear with a small cardboard box under his arm. He drove off in 950 and was followed to a commercial parking lot in Brampton. A minute later a white Toyota arrived and parked driver’s door to driver’s door beside Mr. Singh’s vehicle. Surveillance officers believed they observed an object passed between the vehicles;
- March 2, 2021, when he was followed to a commercial parking lot in Mississauga, while operating 972. He met with the occupants of white Honda sedan for roughly 25 minutes, then proceeded to a truck lot on Bren Road in Mississauga. There he exited his truck and passed something to the occupants of a white Honda Accord. Both vehicles then exited the area. This same white Honda was observed the following day attending at the Vaughan residence of a known drug trafficker;
- March 17, 2021, when he was observed meeting with Mr. Ullah in a commercial parking lot for five minutes; and,
(c) The Ullah Takedown evidence.
Issue Three: Were There Reasonable Grounds to Believe Evidence of Heroin Trafficking Would Be Found at the Target Locations?
[149] The evidence regarding the various locations sought to be searched was relatively thin.
[150] That said, I am satisfied, for the most part, that it was enough that the issuing justice could have authorized the impugned warrants, save with respect to the tractor truck bearing license plate PR47771. There was minimal reference in ITO#1 with respect to this vehicle. DC O’Neill said only that Mr. Singh had been observed travelling in it to Centreville. No details were provided regarding the number of observations or the circumstances of them. I confess that I am not even clear if 771 is a distinct vehicle or if it is merely a separate license plate affixed from time to time to the tractor truck otherwise bearing plate 972.
[151] Evidence that tends to support the conclusion that there were reasonable grounds to believe evidence of heroin trafficking would be found at the other target locations includes the following:
(a) Project Cheetah involved the investigation of the importation and trafficking of substantial amounts of heroin. Mr. Singh was observed meeting briefly with Mr. Ullah on March 17, 2021. After that meeting Mr. Ullah was arrested and found to be in possession of almost a pound of heroin. One available inference is that Mr. Singh trafficked the heroin to Mr. Ullah;
(b) Obviously, Mr. Singh would need somewhere to stash potentially significant amounts of heroin;
(c) Investigators determined that Mr. Singh’s principal residence was at Ocean’s Pond. In DC O’Neill’s experience, drug traffickers frequently have evidence of their trade located at their personal residences. It was reasonable, in my view, to believe that evidence of trafficking may be located at Ocean’s Pond, including controlled substances, debt lists and/or proceeds of crime;
(d) Karebear was determined to be a location Mr. Singh frequented. It was also a location where Mr. Nagra had been observed. Indeed, Mr. Nagra attended the rear of Karebear on September 16, 2020, following the trafficking of five ounces of heroin to an undercover police officer via an intermediary named Dhaliwal;
(e) Mr. Singh attended Karebear just prior to his meeting with Mr. Ullah on March 17, 2021. He also attended there just prior to a brief meeting with a Toyota in a commercial parking lot on February 18, 2021 – a meeting that was consistent with drug trafficking. Moreover, Mr. Singh’s son had been arrested outside of Karebear and found to be in possession of 40.5 grams of heroin and over $8,000 in cash;
(f) Centreville was a rural location frequented by Mr. Singh. It had a number of features that would make it suitable as a stash location. It appeared clear to surveillance officers that Mr. Singh was using it as a storage facility. Moreover, he attended there in 972 on March 2, 2021, and subsequently engaged in activity DC O’Neill identified as being consistent with a drug transaction;
(g) 814 is the vehicle that Mr. Singh occupied when he met with Mr. Ullah on March 17, 2021. It is also the vehicle he was occupying on February 9, 2021, when he participated in what DC O’Neill described as another meeting consistent with a drug transaction;
(h) 950 is the vehicle Mr. Singh occupied when he participated in a meeting with a white Toyota in a commercial parking lot on February 18, 2021 – a meeting DC O’Neill characterized as consistent with a drug transaction; and,
(i) 972 is the vehicle Mr. Singh occupied when he participated in what DC O’Neill characterized as another drug transaction on March 2, 2021.
[152] I am, in the result, satisfied that there were reasonable grounds to believe that Mr. Singh was trafficking in heroin and that evidence of that offence would be found at the locations authorized to be searched, save with respect to 771. I would set aside the CDSA warrant dated April 3, 2021, to search 771 on the basis that ITO#1 did not provide reasonable grounds to believe that evidence of the offence would be found in that vehicle.
[153] The next two issues focus on the Criminal Code Warrants.
Issue Four: Were There Reasonable Grounds to Believe Mr. Singh was Involved in Cargo Theft?
[154] ITO#2 set out the grounds to believe that Mr. Singh was involved in cargo theft. They can be summarized as follows:
(a) Evidence of the attempted cargo theft on March 17, 2021. Though Mr. Singh was not directly involved in the attempted theft, 972 – a vehicle clearly connected to him – was utilized in it. The tractor truck was abandoned when the thieves were confronted by a witness. Someone utilizing a phone with an identification of “P Singh” made arrangements for a driver to be dropped off at the truck yard where the theft was attempted and that driver left with 972;
(b) Evidence that Mr. Singh rented a U-Haul vehicle on February 16, 2021, and used that vehicle to transfer boxes to 814 at the rear of Kearbear. 814 was subsequently followed travelling to Centreville;
(c) Evidence that on February 19, 2021, Mr. Singh was observed operating a U-Haul truck and driving from Centreville to a parking lot at 2120 North Park Drive in Brampton (the location of Karebear). Subsequently, a vehicle registered to Amarjit Sahota of 11 Crevice Gate, Brampton, arrived. The driver of the vehicle attended the driver’s side of the U-Haul and drove it away; and,
(d) Evidence that on February 25, 2021, surveillance officers followed 678 to 11 Crevice Gate. A young South Asian male was driving it. He entered 11 Crevice Gate and exited it a short time later carrying two garbage bags which he placed in the rear of 678. It eventually travelled to an Asian Grocery store at 2120 North Park Drive, Brampton where the garbage bags were unloaded.
[155] I am satisfied, based on the attempted cargo theft on March 17, 2021, that ITO#2 established that there were reasonable grounds to believe that Mr. Singh was involved in cargo theft. I appreciate that there may be a number of individuals whose phone number identifies as “P Singh” and that the police did not obtain subscriber information for the number involved. Nevertheless, there was, in my view, a sufficient connection between Mr. Singh and the events of March 17, 2021, to establish a reasonable basis to believe that he was involved in the attempted theft.
[156] The balance of the evidence set out in ITO#2, specifically the events of February 16, 19 and 25, 2021, do not add much to the reasonable grounds assessment. The conduct observed by surveillance officers was arguably a little suspicious looking. But, in my view, none of these observations establishes reasonable grounds to believe that Mr. Singh was involved in cargo theft. Indeed, taken cumulatively, they do not rise above a suspicion.
[157] That said, the events of March 17, 2021, are, on their own, sufficient to meet the reasonable grounds standard.
Issue Five: Were There Reasonable Grounds to Believe Evidence of Cargo Theft Would be Found at the Target Locations?
[158] I come to a different conclusion regarding the assertion of reasonable grounds to believe that evidence of cargo theft would be found at the places sought to be searched.
[159] In my view, the connection between the observations made by surveillance officers on February 16, 19 and 25, 2021 and cargo theft is tenuous. To the extent that those observations purport to support reasonable grounds to believe that evidence of cargo theft will be found in any of the proposed search locations, I consider them insufficient for purpose.
[160] I have found that evidence of an attempted cargo theft on March 17, 2021, supports reasonable grounds to believe that Mr. Singh was involved in the offence of cargo theft. But again, any connection between the events of March 17, 2021, and any of the locations proposed to be searched is tenuous.
[161] Realistically there is no reasonable basis to believe that evidence of stolen cargo was likely to be found in any of the vehicles sought to be searched. ITO#2 lacks evidence as to the type of cargo being stolen. I understand that the attempted theft on March 17, 2021, involved tires. Significant items like that are not likely to be stored in vehicles.
[162] There is no evidentiary basis to connect alleged cargo theft to Ocean’s Pond. And the only connection drawn in ITO#2 between cargo theft and Karebear is evidence that boxes of unknown origin, containing unknown contents, were moved from a U-Haul vehicle to 814 in the parking lot behind Karebear. Even if one were to improperly speculate that the contents of the boxes was stolen cargo, there is no evidence that any of it went into or came out of Karebear.
[163] I accept that if the issuing justice concluded, as she must have, and as she was entitled to do, that there was a reasonable basis to believe that Mr. Singh was involved in cargo theft, she must inevitably conclude that a person involved in cargo theft must have a place to store the stolen cargo.
[164] I am satisfied that, reading ITO#2 as a whole, it was open to the issuing justice to conclude that there were reasonable grounds to believe that evidence of cargo theft would be found at Centreville. It was a location frequented by Mr. Singh. It was relatively secluded. It contained a number of outbuildings and shipping containers. It was apparent to surveillance officers that Mr. Singh was using it as a storage facility.
[165] It follows that I am satisfied that there were reasonable grounds upon which the warrant issued April 7, 2021, to search Centreville could have issued.
[166] On the other hand, I am not satisfied that there were sufficient grounds to support the issuance of any of the other warrants signed on April 7, 2021, with respect to Ocean’s Pond, Karebear, or any of the vehicles associated to Mr. Singh. In the result, I would set aside the Criminal Code Warrants issued April 7, 2021, save for the warrant in relation to Centreville.
Issue Six: Should the Warrants be Set Aside on the Residual Ground?
[167] I am not prepared to set aside any of the warrants on the residual ground, in other words on the basis that DC O’Neill deliberately, or at least recklessly, misled the issuing judge, rendering the ITOs unreliable as a basis on which to issue the warrants.
[168] The ITOs must be looked at in context. They were a massive undertaking for DC O’Neill. The fact that they were not perfect is understandable. But they were not, in my view, assembled in a reckless or negligent fashion. Nor were they misleading and certainly not intentionally so.
[169] DC O’Neill never left the impression that surveillance officers had seen anything in Mr. Ullah’s hands either before he entered Mr. Singh’s vehicle or after he left it on March 17, 2021. I appreciate that in other locations in the ITOs he noted where no exchanges had been observed during suspected drug transactions and that he did not do so in this instance. But that does not amount to a tacit suggestion that something might have been observed on the occasion in issue. The issuing justice, a very experienced criminal jurist, would not have been misled by DC O’Neill’s description of the meeting between Mr. Singh and Mr. Ullah.
[170] I adopt the following comments of Brown J. from para. 39 of Brounsuzian:
The review of a warrant is not an exercise in examining the conduct of the police with a fine tooth comb, fastening on their minor errors or acts or omissions and embellishing those flaws to the point where it is the police conduct on trial rather than the sufficiency of the evidence in the application.
[171] As I noted earlier, the threshold to be met to trigger the court’s discretion to set aside a warrant on the residual ground is high. The circumstances here do not meet that threshold.
[172] In summary, I am satisfied that there were reasonable grounds to support the issuance of each of the CDSA Warrants, save the warrant to search 771. The application to set aside the warrant to search 771 is granted. The application to set aside the balance of the CDSA Warrants is dismissed.
[173] I am further satisfied that there were reasonable grounds to support the issuance of the Criminal Code Warrant to search Centreville. The application to set aside that Criminal Code Warrant is dismissed. The application to set aside the balance of the Criminal Code Warrants is granted.
[174] The upshot of these conclusions is that the only unwarranted search conducted by the police related to 771. I am not even sure if 771 was actually searched and, consequently, whether there was any breach of Mr. Singh’s s. 8 Charter right. In all the circumstances, Mr. Singh has not met his onus to establish that his s. 8 right to be free from unreasonable search and seizure was infringed. There is no need, in the result, to engage in an analysis under s. 24(2) of the Charter.
III. THE TRIAL
[175] As I noted, the evidence on Mr. Singh’s trial consisted entirely of the Agreed Statement of Fact filed on January 18, 2024 (the “ASF”). Some of the more significant content of the ASF includes:
(a) On September 16, 2020, an undercover officer met with Rupinder Dhaliwal in a parking lot at 2120 North Park Drive in Brampton (where Karebear was located). The undercover officer provided Mr. Dhaliwal with $10,800 of police buy money. Mr. Dhaliwal attended at a white Cadillac being operated at the time by Haripal Nagra and he entered the front passenger seat. After a brief stay, Mr. Dhaliwal re-entered the car being operated by the undercover officer. Mr. Dhaliwal gave the undercover officer a bag containing 107.72 grams of heroin;
(b) Immediately following the drug transaction on September 16, 2020, Mr. Nagra walked to the rear of Karebear. Surveillance officers lost sight of him at that time. He reappeared roughly 10 minutes later and got back into the white Cadillac. Moments later a dark Dodge Caravan pulled up to the Cadillac. Mr. Nagra got out, retrieved something from the rear of the Cadillac and passed it to the driver of the Caravan;
(c) Mr. Singh was the owner of the Cadillac. He leased it to Karan Sahota. It was impounded by the police on October 2, 2020, for stunt driving. Mr. Singh, accompanied by Mr. Nagra, retrieved the vehicle from the impound on October 9, 2020;
(d) Police surveillance officers observed Mr. Singh participate in a number of meetings consistent with drug trafficking, including:
(i) On February 9, 2021, he was observed leaving the rear door of Karebear holding a white rectangular object. He was followed to a commercial parking lot in Brampton. Shortly after he arrived a male arrived in a grey Toyota. The male attended the front seat of Mr. Singh’s vehicle for less than a minute before returning to his own vehicle. He had his left hand in his jacket pocket as he walked back to his vehicle. He opened the passenger door of the vehicle and placed an object in the door. The registered owner of the grey Toyota was Mohammad Ullah;
(ii) On February 18, 2021, he was observed leaving Karebear with a small cardboard box under his arm. He was followed to a commercial parking lot in Brampton. A minute later a white Toyota arrived and parked driver’s door to driver’s door beside Mr. Singh’s vehicle. The driver of the Toyota got out of his vehicle and handed a roll of plastic to Mr. Singh through the driver’s side window. Mr. Singh then left the parking lot, eventually travelling to 12850 Centreville Creek Road, Caledon; and,
(iii) On March 17, 2021, he was observed entering the rear of Karebear. Karebear has internal surveillance cameras. They do not, however, show the area near the back door. The police seized the surveillance recording from this occasion. Mr. Singh cannot be observed within Karebear, which supports the inference that he never progressed into the premises beyond the area near the back door.
(iv) After leaving Karebear on March 17, 2021, he was followed to a commercial parking lot in Brampton. Roughly two minutes later Mr. Ullah arrived in his grey Toyota. He got into the passenger seat of Mr. Singh’s vehicle where he remained for roughly five minutes. He then returned to his own vehicle and both cars left the lot. Mr. Ullah was followed and then stopped by police. He was arrested for possession of a controlled substance. His vehicle was searched and a bag containing 373.06 grams of heroin was located in the centre console.
(e) On April 8, 2021, York Region Police executed a search warrant at Karebear. In a utility room at the rear of the premises they located a black bag. Inside the bag were two cardboard boxes. The boxes contained plastic bags of heroin, weighing, in total, 2,533.92 grams. A black garbage bag was also found, which contained 7,756.9 grams of diphenhydramine, which is a cutting agent for heroin. A digital scale was located nearby;
(f) Police also searched the safe in the office of Karebear. It was found to contain, amongst other things, $2,190 in Canadian currency;
(g) On that same date, the police searched Centreville. They found the dark Dodge Caravan bearing license plate CPMX814 parked there. In the driver’s side door they found a book with pages cut out. It contained 36.68 grams of heroin in a plastic bag;
(h) The police further searched Ocean’s Pond on April 8, 2021. They located a plastic bag in the top drawer of a dresser in an upstairs bedroom which contained 25.48 grams of opium and $500 in U.S. cash. On the bedside table to the right of the bed, they found three cell phones. They later obtained a warrant to search the phones. One of the phones contained saved images of Mr. Singh’s MTO driving record, a photograph of a CRA notice addressed to Kandola Express Transport Limited and a photograph of Mr. Singh’s social insurance card.
In the top drawer of that same beside table, the police found a number of documents in the name of Mr. Singh.
A safe was located in the bedroom closet. Inside the safe was $31,985 in Canadian currency, along with Mr. Singh’s social insurance card and a passport photo of him.
Counts 2 - 5
[176] Counts 2 and 3 charge Mr. Singh with possession of heroin for the purpose of trafficking.
[177] Count 4 charges Mr. Singh with possession of opium.
[178] Count 5 charges Mr. Singh with possession of the proceeds of crime exceeding $5,000.
[179] Possession is a central feature of each of these offences. Mr. Singh was not found to be in actual possession of the drugs or proceeds that form the basis of the charged offences. The assertion is that he was in constructive possession of them.
[180] Constructive possession was described by Fish J., at para. 17 of Morelli, as follows:
Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
[181] The central question in relation to each of counts 2 through 5 is whether I am satisfied beyond a reasonable doubt that Mr. Singh had constructive possession of the drugs and proceeds in issue.
[182] The Crown’s case is constructed on circumstantial evidence. When that is the case, before a conviction may be entered, the court must be satisfied beyond a reasonable doubt that Mr. Singh’s guilt is the only reasonable inference to be drawn from the evidence as a whole. See R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, at para. 20.
[183] It is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that may amount to just one link in the chain of proof: see R. v. Lights, 2020 ONCA 128, [2020] O.J. No. 677, at para. 37.
[184] Inferences consistent with innocence need not arise from proven facts. They may also arise from a lack of evidence: see Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. The Crown must negate these reasonable possibilities, but it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: see Lights, at para. 38. The “only reasonable inference” criterion does not mean that guilt has to be the only possible inference: see R. v. Vernelus, 2022 SCC 53, [2022] S.C.J. No. 53, at para. 5.
[185] Considering the evidence as a whole, the only reasonable conclusion that may be drawn is that Mr. Singh was, in the early part of 2021, deeply entrenched in drug trafficking. I am satisfied beyond a reasonable doubt that he knew of the heroin found at Karebear and at Centreville as well as the opium found at Ocean’s Pond. I am further satisfied beyond a reasonable doubt that he had control over those drugs and that he kept them in those places for his benefit – specifically as stock in his commercial trafficking business. I make the same finding with respect to the money found in the safe at Ocean’s Pond. I find that it constituted the proceeds of drug sales.
Karebear
[186] A very substantial amount of heroin was located in the utility room of Karebear on April 8, 2021. Karebear is a location that Mr. Singh had an obvious connection to. He was observed attending at that location on numerous occasions, including on a number of occasions immediately prior to his engaging in what appeared to surveillance officers – and what appear to me – to have been drug transactions.
[187] On March 17, 2021 he attended at Karebear. His daughter let him into the premises through the backdoor, but he was not otherwise observed on surveillance cameras entering the main area of the unit. I infer that he remained in the back area where the utility room was. I find that his purpose on that occasion was to obtain heroin immediately prior to his meeting with Mr. Ullah.
[188] Mr. Singh’s daughter, his co-accused, also had a connection to Karebear. Indeed, she appears to have been principally responsible for its operation. That said, there is no evidence that she was ever observed by surveillance officers engaging in conduct consistent with trafficking. Whether she knew of the presence of the heroin in the utility room at Karebear, I cannot say. But her connection to Karebear does not undermine the finding that Mr. Singh constructively possessed the heroin located there.
[189] Mr. Singh was a frequent visitor to Karebear, he was observed on numerous occasions engaging in conduct consistent with drug trafficking, heroin was found in a vehicle in his control, opium was found in what I conclude was his bedroom at Ocean’s Pond and a substantial sum of cash was found in a safe in that same room, along with documentation personal to Mr. Singh.
[190] The only reasonable conclusion, on the whole of the evidence, is that Mr. Singh had knowledge and control of the heroin found at Karebear. It was his stock in trade.
[191] There can be no reasonable debate that the amount of heroin involved was consistent with trafficking.
Centreville
[192] I reach the same conclusion with respect to the heroin found in 814, while it was parked at Centreville.
[193] Mr. Singh was observed on numerous occasions operating 814. It was, for instance, the vehicle he was operating when he met with Mr. Ullah on March 17, 2021. That vehicle was registered to Kandola Express Transport Limited. Kandola is a company connected to Mr. Singh. Its registered address was the same as Mr. Singh’s principal residence. Moreover, a tax notice to Kandola was located on a phone found in what I have concluded was Mr. Singh’s bedroom. Also on the phone were documents personal to him.
[194] Mr. Singh was also observed attending Centerville on numerous occasions.
[195] I find that Mr. Singh had care and control of 814 and that he knew of the presence of the heroin located in the vehicle which was parked at Centreville. He used that vehicle in connection with his drug trafficking business.
[196] The only reasonable conclusion, on the whole of the evidence, is that the heroin found in 814 was Mr. Singh’s heroin. It is agreed that the amount of heroin found in 814 could constitute up to 386 doses. It had a street value of anywhere between $3,000 and $15,472. Clearly, it was an amount consistent with trafficking in heroin.
Ocean’s Pond
[197] I find that Ocean’s Pond was Mr. Singh’s principal residence. Opium was found in a room that I have concluded was Mr. Singh’s bedroom. The opium was found in the top drawer of a dresser. It may have been helpful to have additional evidence about the contents of that dresser. Having said that, this room was clearly Mr. Singh’s bedroom. And Mr. Singh was clearly deeply involved in the trafficking of significant amounts of opioids.
[198] The only reasonable conclusion, on the whole of the evidence, is that the opium was Mr. Singh’s – he knew of it and he had control over it.
[199] The same must be said of the significant amount of cash in the safe. The safe contained not only cash but personal documents of Mr. Singh.
[200] I have noted that the street value of the heroin found in 814 was as much as $15,000. That pales in comparison to the street value of the heroin found at Karebear, which the parties agree was valued at between $87,500 and $125,000 if sold by the kilogram.
[201] It is axiomatic that drug trafficking is a cash-based business. Significant cash would be needed to purchase the amounts of heroin seized in this case. Significant cash would be generated by the sale of such significant amounts of heroin. The money found in the safe is entirely consistent with drug trafficking.
[202] Indeed, on the whole of the evidence, the only reasonable conclusion that can be drawn is that the cash in the safe was the proceeds of the sale of heroin.
Conclusions
[203] I am satisfied, to the reasonable doubt standard, that Mr. Singh had constructive possession of the heroin found at Karebear and in 814. Moreover, that he possessed that heroin for the purpose of trafficking in it. These findings support convictions on counts 2 and 3.
[204] I am similarly satisfied, to the reasonable doubt standard, that Mr. Singh constructively possessed the opium and cash found at Ocean’s Pond. And I am satisfied, to the reasonable doubt standard, that the cash constituted the proceeds of crime. These findings support convictions on counts 4 and 5.
Count 1
[205] As I noted, counts 2-5 were not particularly contentious and virtually no submissions were made about them. Counsel’s focus in submissions was on count 1.
[206] Count 1 charges that Mr. Singh trafficked in heroin. Its focus is on the alleged sale of heroin to Mr. Ullah on March 17, 2021. To convict Mr. Singh on count 1, I must be satisfied beyond a reasonable doubt that he trafficked the heroin seized from Mr. Ullah immediately following his meeting with Mr. Singh. Again, because the evidence is circumstantial, I must be satisfied that his guilt is the only reasonable inference to be drawn from the evidence.
[207] I have already reviewed the facts relating to that transaction in detail at other parts of this ruling and will not repeat them here.
[208] The Crown’s position is that the meeting between Mr. Singh and Mr. Ullah on March 17, 2021, was for the purpose of making a heroin exchange. Mr. Singh attended at Karebear for roughly 10 minutes. He did not socialize with his daughter. The Crown urges the court to conclude that he attended there to pick something up and, more particularly, to pick up heroin.
[209] At 4:03 p.m., one of the phones later seized from the bedside table in Mr. Singh’s bedroom made an 18 second call to a phone later seized from Mr. Ullah at the time of his arrest. Two minutes later, Mr. Singh and Mr. Ullah met in the parking lot of a plaza at 30 Coventry Road, Brampton. Mr. Ullah attended inside Mr. Singh’s vehicle and, the Crown suggests, purchased heroin from Mr. Singh – heroin that was seized from him a short time later at a roadside traffic stop.
[210] Crown counsel accepted that there were possible inferences that could be drawn from the meeting between Mr. Singh and Mr. Ullah other than the trafficking of heroin by Mr. Singh. For instance:
(a) They could have met simply to communicate with one another;
(b) Mr. Ullah may have been the seller and Mr. Singh the purchaser of heroin; or,
(c) Mr. Ullah may have met with Mr. Singh with the intention of purchasing heroin, but the transaction was aborted.
[211] In each of the foregoing scenarios, Mr. Ullah would have had the heroin in his possession prior to meeting with Mr. Singh.
[212] Crown counsel submitted that each of the foregoing possible inferences may safely be ruled on in the circumstances of the case.
[213] The Crown submits that Mr. Singh and Mr. Ullah obviously had a means of communicating with one another. They did not, therefore, meet solely for the purpose of communication. They met in person, the Crown says, to do something that they could only do in person. And that something was an exchange of drugs.
[214] Mr. Ullah could not have made a sale of heroin to Mr. Singh on this occasion because when he was arrested, he had only $20 in cash on his person. Moreover, Mr. Ullah did not have any equipment in his car for splitting or doling out drugs. He had only one bag of heroin.
[215] Finally, the prospect that the sale was aborted makes no sense. Evidence from Mr. Ullah’s phone makes it clear that he and Mr. Singh had been communicating with one another throughout the day. The transaction was orchestrated well. It went down quickly and efficiently. And Mr. Ullah was caught with heroin in his possession immediately after the meet.
[216] In the Crown’s submission, any non-culpable explanations for the meeting between Mr. Singh and Mr. Ullah on March 17, 2021, have been negated. The only reasonable inference is that Mr. Singh trafficked heroin to Mr. Ullah on this occasion.
[217] Defence counsel’s submissions placed great emphasis on the absence of evidence. He noted that:
(a) Mr. Singh had been under police surveillance all day on March 17, 2021, and at no time was there an observation of him in possession of anything that looked like the bag of heroin found in Mr. Ullah’s vehicle;
(b) Nothing was observed by surveillance officers to be in Mr. Singh’s possession when he left Karebear immediately prior to the meeting with Mr. Ullah. Moreover, nothing was observed in Mr. Ullah’s hands before he entered Mr. Singh’s vehicle or as he returned to his own vehicle;
(c) Nothing on the surveillance recording from inside Karebear shows Mr. Singh inside the facility or what he was doing there;
(d) Mr. Singh did not have direct access to Karebear. He had to contact his daughter to let him in. This suggests that he was not stashing heroin at Karebear;
(e) There is no forensic evidence from the bag of heroin – no fingerprints or DNA;
(f) There was a significant amount of cutting agent found at Karebear, but no evidence that the same cutting agent was contained in the heroin seized from Mr. Ullah;
(g) There is no background evidence about Mr. Ullah. It can be inferred that he was a heroin trafficker, but it is not clear what level he was trafficking at. This evidence might assist in determining whether he was a buyer or a seller; and,
(h) There is no evidence about what other activity was on Mr. Ullah’s phone on the date in question.
[218] Defence counsel further submitted that the Crown had not negated the possibility that Mr. Ullah was the seller and Mr. Singh the buyer on the occasion in issue. He noted that:
(a) Mr. Ullah’s phone records on the day in issue demonstrate that Mr. Singh initiated the calls between them. One would expect, counsel said, that if Mr. Ullah was the buyer, he would have initiated the calls.
(b) Mr. Ullah could easily have pre-packaged any heroin sold to Mr. Singh. He did not need to have equipment in his car to do so; and,
(c) Mr. Singh may have attended Karebear to obtain money, rather than drugs.
[219] In defence counsel’s submission, Crown counsel has failed to establish, to the reasonable doubt standard, that Mr. Singh trafficked heroin on the occasion in issue.
[220] For essentially the submissions made by the Crown, I am satisfied that the only reasonable inference to be drawn on all the evidence is that Mr. Singh trafficked heroin to Mr. Ullah on the date in question.
[221] I reach this conclusion for the following reasons:
(a) On the basis of the whole of the evidence, including the amount of heroin found at Karebear and in 814, and the amount of money found in a safe in Mr. Singh’s bedroom, I conclude that he was a trafficker in heroin;
(b) Given the amount of heroin found and seized from Karebear less than a month after the March 17, 2021, meeting in issue, I find that Karebear was a stash house used by Mr. Singh;
(c) Mr. Singh was observed on at least one earlier occasion interacting with Mr. Ullah. On February 9, 2021, they had a meeting similar to the one on March 17, 2021. On February 9, 2021, however, Mr. Ullah was observed to walk back to his car, after meeting with Mr. Singh, with his left hand in his jacket pocket. He then placed an item into the passenger side door of his car. These observations are consistent with a drug transaction and would suggest that Mr. Ullah was the purchaser and that Mr. Singh was the supplier;
(d) Mr. Singh attended at Karebear – a place I have found to have been a stash house – just prior to meeting with Mr. Ullah. He was at Karebear for only ten minutes. He did not appear to socialize with his daughter. He did not appear to proceed past the area at the back of the premises. To be fair, the office was in the rear and it is possible that Mr. Singh attended at the office rather than the utility room. In the context of the circumstances as a whole, however, I think it more likely, and I infer that, Mr. Singh attended Karebear to obtain heroin from his stash;
(e) According to the ASF, Mr. Ullah’s phone initiated two calls to Mr. Singh’s phone at 1:05 p.m. on March 17, 2021. The calls lasted a total of 26 seconds. A third call was initiated by Mr. Ullah’s phone two minutes later and the call lasted 90 seconds;
(f) Mr. Singh called Mr. Ullah while he was exiting Karebear. Within about five minutes, they met in the commercial lot at 30 Coventry Road. Their meeting was consistent with a drug transaction. The fact that Mr. Ullah was not seen with anything in his hands does not, in my view, detract from the inference that drugs were exchanged. I would certainly not expect Mr. Ullah to walk through the parking lot carrying some 13 ounces of heroin in open view;
(g) Mr. Ullah was arrested almost immediately after the meeting with Mr. Singh. He was found to have 13 ounces of heroin and almost no cash. Thirteen ounces is a significant amount of cocaine. This was not a street level, hand-to-hand transaction between a dealer and an addict. This was an exchange between two individuals who traffic in significant amounts. Given the seizure at Karebear, I conclude that Mr. Singh was a person who had the means to traffic in such significant amounts; and,
(h) Mr. Ullah, I find, arranged to meet with a person I find to have been engaged in the trafficking of significant amounts of heroin. They met in a commercial lot for five minutes. This was not the first time they had done so. Following the meeting, Mr. Ullah was found to be in possession of a significant amount of heroin.
[222] In my view, the only reasonable inference to be drawn from a consideration of the evidence as a whole, is that Mr. Singh supplied the heroin found in Mr. Ullah’s possession at the time of his arrest on March 17, 2021.
[223] In the result, on count one, I find Mr. Singh guilty of trafficking in heroin.
C. Boswell J.
Released: March 20, 2024
[^1]: A Garofoli application takes its name from the Supreme Court’s ruling in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. It is a defence-initiated review of the sufficiency of the evidentiary record that supported the granting of a judicial authorization or warrant. The goal is to exclude evidence the Crown seeks to tender at trial, on the basis that the evidence filed in support of the authorization or warrant failed to meet the standard required by s. 8 of the Charter, see Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722, at endnote 2.