COURT FILE NO.: CR-22-305 (Brampton) DATE: 2024-04-17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

-and-

Ahman Ottley

COUNSEL: M. Dykstra and S. Karim, for the Crown M. Cremer, for Mr. Ottley

Heard: February 25, 27 and 28, 2024

Justice. R. Chown

REASONS FOR DECISION

1Ahman Ottley brings this application for an order excluding certain evidence based on alleged Charter breaches. Most significantly, he seeks to have drugs and a gun excluded. These were found in searches of Mr. Ottley’s car and residences. He alleges breaches of his rights under s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms.

2Police arrested Mr. Ottley on November 25, 2021 for possession of a controlled substance for the purposes of trafficking. The police grounds for arrest came from background information, police surveillance, and a confidential informant (CI).

3The arrest occurred in a parking lot. Mr. Ottley was alone in his car. A search of his person revealed no useful evidence. Police found over $7,000 in cash and 11.8 g of MDMA, along with a digital scale and packaging used for the sale of drugs in his vehicle. At the time, police believed the MDMA to be fentanyl. Police subsequently obtained a warrant to search two residences used by Mr. Ottley: one on Ryegrass Crescent in Brampton, and one on Cedarhill Crescent in Kitchener. The police found 360 g of methamphetamine at the Ryegrass residence. They found a 9mm Glock semi-automatic handgun at the Cedarhill residence.

4The resulting Superior Court indictment of Mr. Ottley includes seven counts, including possession of methamphetamine for the purpose of trafficking and firearms offences.

Issues

5There are four issues in this application:

1. Was the arrest and detention of Mr. Ottley arbitrary?
2. Was the search of Mr. Ottley’s car unreasonable?
3. Were the searches of the Brampton and Kitchener residences unreasonable?
4. If there were breaches of Mr. Ottley’s Charter rights, what is the appropriate remedy?

6There is also a preliminary issue to address. The police have not disclosed the identity of the CI and have disclosed only redacted versions documents that describe the information the CI provided. The issue, then, is whether Mr. Ottley’s right to make full answer and defence has been impaired as a result, and if so the appropriate remedy.

7I will summarize the facts and will then address the preliminary issue, followed by the four primary issues.

Facts

2020 Found in Incident

8In January 2020, Halton Regional Police executed a search warrant at an address in Mississauga. Mr. Ottley was not a subject of the investigation that led to the search. However, he was present in or “found in” the residence when police arrived and conducted the search. Police found 6 kg of suspected cocaine, a debt list, 9 cell phones, a Smith and Wesson .40 calibre handgun with an extended magazine, .40 calibre ammunition, a money counter, a small scale, and food saver vacuum sealer bags. Police were aware that Mr. Ottley had arrived at the residence only shortly before the search was initiated. Police arrested but then released Mr. Ottley unconditionally. For convenience, I will refer to this incident as the “2020 found in incident.”

May 2021 Surveillance

9Mr. Ottley had no criminal record at the time (and still has no criminal record). However, this encounter led police to investigate Mr. Ottley. On May 21, 2021, ¹ Peel Regional Police conducted surveillance of Mr. Ottley, following him from his residence on Ryegrass in Brampton to the area of Gordon Lummiss Park in Mississauga. The drive took about ½ hour. At that location, a male got into Mr. Ottley’s vehicle at 08:49 and got out at 08:50 and walked away. Mr. Ottley then headed back to Brampton. Police observed him at 10:41 on Inspire Boulevard. A male got in the vehicle at 10:45 and got out at 10:46 and walked away. Police later observed Mr. Ottley at a residential address on Winston Churchill Boulevard on the outskirts of Brampton. A male approached the vehicle at 11:22 and leaned over and spoke with Mr. Ottley. Within a minute or two, the male walked away towards the residence. Police notes describe the interaction as a possible drug transaction by the driver’s side window. Mr. Ottley was then observed to return to his residence on Ryegrass. In total Mr. Ottley had been observed driving about 100 km (minimally), according to Google Maps, for these three brief encounters. Police believed that Mr. Ottley had conducted three drug transactions. However, at the end of that day, police believed that Mr. Ottley observed them, and that he likely became aware he was under surveillance. They elected to hold off on further surveillance of Mr. Ottley.

CI Information

10DC O’Neil of the Peel Regional Police commenced his investigation of Mr. Ottley on November 15, 2021, after receiving information from Officer Deol. Officer Deol was the handler of a CI who had provided information that Mr. Ottley was involved in trafficking drugs in Peel Region.

November 2021 Surveillance

11As a result of that information, Peel Regional Police began further surveillance efforts of Mr. Ottley on November 16, 2021. Mr. Ottley was observed leaving the driveway and going a very short distance around the corner on his street where he stopped for three minutes. He then did a U-turn and drove to a location a short distance from Ryegrass, where he stopped on a dead-end street, Lansing Square. However, Mr. Ottley did not get out of his car. Police believed that Mr. Ottley had engaged in countersurveillance techniques, although by the time of the hearing of this application, DC O’Neil concluded that the first stop was more likely to measure drugs for sale. In any event, while Mr. Ottley was parked on Lansing Square, police saw a male walking on Conestoga Drive, several blocks away, towards Mr. Ottley’s location. Police observed Mr. Ottley leave Lansing Square and they next saw his car 10 minutes later at a nearby mall. They observed the male who had been walking get out of the car. The proper inference is that Mr. Ottley picked up the male, drove him a short distance, and then let him out at the mall. Mr. Ottley then drove the short distance back to Ryegrass. Police believed that a drug transaction took place between Mr. Ottley and the male.

12On November 17, 2021, police observed Mr. Ottley drive to a Whole Foods market on Kennedy Road in Brampton where a female got into his car. They drove to Cranwood Circle and parked for about one hour. The female got out of the car and went into a residence. The police did not come to the conclusion that a drug transaction had occurred with this interaction. Mr. Ottley then returned to Ryegrass.

13On November 18, 2021, Mr. Ottley left Ryegrass at 17:25 and drove only a few houses down the street before stopping for about two minutes. Police then followed Mr. Ottley from Ryegrass to Whaley Drive in Mississauga (again close to Lummiss Park). A male got into the car for about a minute, and he then got out again and walked away. Police believed that this was a drug transaction. Mr. Ottley drove back to Ryegrass. On the way, he went into a plaza parking lot, went around a building, and then came back out of the parking lot. Police believe this to be a countersurveillance maneuver. Mr. Ottley then went back to Ryegrass. At 21:20, Mr. Ottley came out of the residence carrying a duffel bag. He was accompanied by a female who was also carrying a bag. They drove to the Cedarhill residence in Kitchener. The police discontinued surveillance and did not resume surveillance until November 24, 2021.

14On November 24, 2021, the police did not make any observations of Mr. Ottley, despite watching the Ryegrass residence until about 15:00.

15On November 25, 2021 at 08:28, police followed Mr. Ottley from Ryegrass back to Whaley Drive in Mississauga. He made a stop on a dead-end street close to his house, and police again believe this was a countersurveillance maneuver. At Whaley Drive, a male approached the car and got in. They drove a half a block and went around the corner, where they stopped and the male got out of the car, having been in the car for about one minute. Mr. Ottley then drove back to Ryegrass. Mr. Ottley left the residence at 15:05, drove a half a block again and stopped until 15:17. The police believed this was countersurveillance. Police then observed Mr. Ottley’s car in the parking lot of a Whole Foods grocery store in Mississauga. At 16:18, a male got out of a car from a nearby parking space, and got into Mr. Ottley’s car, getting out of it at 16:19. The male then left in the car he had come in. Police believed this was a drug transaction.

Arrest and Search Incident to Arrest

16At this point, the police decided they would arrest Mr. Ottley for possession of controlled substances for the purpose of trafficking. They observed Mr. Ottley leave the Whole Foods and go to the parking lot of a Toys ‘R’ Us store in Etobicoke. Police arrested Mr. Ottley at that location at 16:49 on November 25, 2021. He was alone in his car at the time. He was cooperative.

17Police searched Mr. Ottley incident to arrest. They found nothing of evidentiary value on his person. Police searched Mr. Ottley’s car incident to arrest. They found a satchel bag on the front passenger seat containing $6,700 in cash. They found another satchel bag behind the driver’s seat. Inside that satchel bag, the police found what they thought at the time was fentanyl but, as already indicated, turned out to be MDMA. They also found ripped up grocery bags consistent with drug packaging, two cell phones, a scale, and small Ziplock bags.

Search Warrant

18Police applied for a search warrant for Ryegrass and Cedarhill. In the ITO, police referenced all the foregoing information, and more. The ITO contained considerable detail from the CI, as well as the results of the search of the vehicle. The search warrant was granted for the search of both residences, and these searches revealed the methamphetamine and handgun as described above.

Preliminary Issue – right to make full answer and defence – opportunity to challenge the CI evidence

19Information from a CI is what triggered the November 2021 surveillance efforts by police. The CI told police that a person named “Pronto” was involved in trafficking drugs in the Region of Peel. The CI gave the police the particulars of “Pronto’s” car, including the licence plate. That car is registered by and is used by Mr. Ottley.

20The Crown is duty bound to protect the CI’s identity. Accordingly, the Crown redacted anything that might have helped to identify him: R. v. Herta, 2018 ONCA 927, at para. 22. Because the defence cannot see the redacted information, a judicial summary of the redacted information has been provided to the defence. As is the normal practice, this summary was first drafted by the Crown and I reviewed it, comparing its contents to the unredacted original information to confirm its accuracy and adequacy. Ms. Cremer argued that I should require further disclosure of the redactions, but counsel agreed that I could reserve on the question of whether the judicial summary provided to the defence is sufficient to allow the defence to make full answer and defence. The parties would make provisional arguments on the assumption that I would not order production of further information to Mr. Ottley.

21The procedure followed here is well used. It has been held that the judicial summary “need only make the accused aware of the nature of the redacted material, not its substance and not its details. The summary must be sufficient to allow the accused to mount a challenge to the redacted material by argument or evidence”: R. v. Reid, 2016 ONCA 524, at para. 90.

22Ms. Cremer submitted on behalf of Mr. Ottley that the redacted state of the ITO, even with the judicial summary, impairs Mr. Ottley’s ability to challenge the reliability and credibility of the CI and test whether the information provided by the CI meets the requirements in R. v. Debot, [1989] 2 S.C.R. 1140 (credible, compelling, and corroborated).

23On behalf of the Crown, Mr. Dykstra submitted that Ms. Cremer did have adequate information from the redacted ITO and the judicial summary to allow her to attack the issuance of the warrant. He said that, in fact, Ms. Cremer did an effective job of addressing the Debot requirements during argument, without the specifics of the redacted material. I agree with the Crown on this point. In conjunction with the unredacted material from the ITO, the summary contained meaningful information that permitted Mr. Ottley to argue that the Debot requirements had not been met.

24The very first redaction in the ITO provides a good example. The sentence reads: “Constable DEOL #4077 has known CI since ___.” The date is redacted. Ms. Cremer noted that the length of the relationship between the police handler and the CI is an important piece of information in assessing the reliability of the CI’s information. Mr. Dykstra Crown agreed that it is important but noted that the court has the information. Ms. Cremer did not need to know the length of the relationship to submit that the information is necessary. It may be necessary for the reviewing judge, but that does not mean that it is necessary for Mr. Ottley to have it. Ms. Cremer identified the potential significance of the redacted information and highlighted it. That allows me to assess the Debot factors, even if the defence is unable to do so fully.

25The defence factum addresses the issues well. I am not at all left with the sense that only one side of the case has been argued before me.

26As will be seen, the CI information is strong. At the same time, the CI information is almost superfluous because the police surveillance is also strong and on its own comes close to justifying reasonable and probable grounds for the arrest.

1. Was the arrest and detention arbitrary?

27“Everyone has the right not to be arbitrarily detained or imprisoned”: Charter, s. 9.

28The requirements for a lawful arrest are set out in R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17:

In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. These grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

29Fairburn J.A. stated in R. v. Canary, 2018 ONCA 304, at para. 21 to 23, that reasonable and probable grounds for arrest has both an objective and a subjective component. The subjective component requires that the officer must have an honest belief that the person committed an offence. That is, the officer must subjectively believe there are reasonable grounds to make the arrest. The objective component requires the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time.

30Where the grounds are based on CI information, “the court must consider whether the information provided was compelling, whether the source was credible, and whether the information was corroborated by police investigation. The court must consider the totality of the circumstances, and weaknesses in one area may be compensated to some extent by strengths in the other two areas”: R. v. Bajich, 2019 ONCA 586, at para. 9.

31Mr. Ottley’s factum submits that it is the CI information and the police surveillance that forms the basis of the arrest in this case. Ms. Cremer discounted the “2020 found in incident” entirely or almost entirely. She noted that on that occasion, the police released Mr. Ottley because they were aware he had arrived at the residence only shortly before the police search. Ms. Cremer advised that he arrived six minutes before the police warrant was executed. There is no evidence Mr. Ottley knew the cocaine or handgun were there or that he knew that some of the others there were drug dealers. And even if he knew they were drug dealers, it is not an offence to know a drug dealer or to be present in the same location as a drug dealer. Ms. Cremer submitted that it would be unduly prejudicial to put any weight on this circumstance simply because Mr. Ottley was present. She noted that we must be careful about people innocently ending up in a place where police activity is occurring.

32I provisionally agree that the prejudicial effect of the “2020 found in incident” would be outweighed by the probative value of this evidence. But when the surveillance evidence is considered with the backdrop of Mr. Ottley’s proximity to an extremely large quantity of cocaine and a handgun in January of 2020, the “2020 found in incident” is not a neutral fact. The police were entitled to take it into consideration when forming their grounds for arrest. ²

33Ms. Cremer further submitted that Mr. Ottley’s activities while under police surveillance should not be assumed to be nefarious. There may be innocent explanations for the long drives for “short meets.” People take wrong turns from time to time, and pulling over and retracing one’s steps in a vehicle should not be deemed to be suspicious. Indeed, even DC O’Neil acknowledged that his observation of Mr. Ottley pulling over almost immediately after leaving his residence should not be interpreted as countersurveillance. As I mentioned above, DC O’Neil testified that he had come to believe he had previously misinterpreted this as countersurveillance. On subsequent reflection, he decided it was more likely that Mr. Ottley pulled over to measure product. ³ This is itself speculative, and DC O’Neil’s change of opinion only highlights the risks of making inferences from circumstantial evidence.

34Ms. Cremer also emphasized that there is no evidence about any of the people Mr. Ottley met up with. There is no evidence that they were drug users or drug traffickers or involved in the drug trade. The meetings took place, generally, in suburban neighbourhoods. There is no evidence Mr. Ottley attended any known drug houses. The police made no actual observations of drugs or money changing hands. There were no wiretaps or phone records that might corroborate drug activity. Innocent people do the kinds of things police observed Mr. Ottley doing. The described conduct could be meaningless.

35To paraphrase Moldaver J. in R. v. MacKenzie, 2013 SCC 50, at para. 70, the concerns Ms. Cremer raises are not idle concerns. They bear careful consideration. However, in MacKenzie, Moldaver J. went on to explain in that:

[71] Reasonable suspicion must be assessed against the totality of the circumstances. Characteristics that apply broadly to innocent people … cannot on their own, support a finding of reasonable suspicion, although they may take on some value when they form part of a constellation of factors.

[72] Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. [Underlined emphasis added.]

36Thus, for example, the “2020 found in incident” takes on added significance when a previously reliable CI tells police not more than 23 months later that Mr. Ottley is engaged in drug trafficking. The long drives for “short meets” and the multiple short encounters seem less likely to have an innocent explanation when added to these facts. As one reflects on the probabilities that arise from the evidence, the proper explanation for the turns down dead-end streets and other unusual driving start to shift away from inadvertence and towards countersurveillance. The potential that the “2020 found in incident” was innocent starts to seem less likely.

37The police observations during surveillance are consistent with selling drugs. While it is not overly hard to imagine innocent explanations, drug dealing is a reasonable explanation for what the police observed. The required standard to justify an arrest is not proof beyond a reasonable doubt. As stated above, “the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest”: Storrey, at para. 17.

38In R. v. Awad, 2018 ONSC 4901, at para. 108, O’Bonsawin J., then of the Ontario Superior Court, cites a long passage from an unreported decision of Paciocco J. (at the time of the Ontario Court of Justice) in a case called R. v. Osman (April 6, 2016). The passage resonates here, so I will repeat it:

What is far more significant, however, are the observations made by surveillance officers of Mr. Osman’s conduct, beginning shortly after the surveillance commenced. That information consisted of credible reports from colleagues, and personal observations by Det. Cory, showing that on seven occasions over a short period, Mr. Osman was observed in what could reasonably be inferred to be fleeting, apparently pre-planned meetings with one or more other persons, which took place in locations — a hotel room or a car — where what was said and done could be observed by others. . . ⁴

I am persuaded that these events are objectively consistent with drug trafficking and Det. Cory was entitled to treat them that way. I am of this view, in part, because the officers testified before me that in their experience these meetings were conducted in a manner that is consistent with low-level drug transactions. This falls within the range of experience of drug squad officers.

Indeed, the claim by Det. Cory that these meetings were consistent with low level drug trafficking is supported objectively by simple common sense. Even someone who has never been involved in a low level drug deal need only imagine how a drug deal would go down to recognize this. First, the reasonable person would appreciate that a brief meeting is adequate for the purpose. Second, common sense would confirm that it is in the interests of the parties to a drug deal to limit the prospects of detection, and to meet and separate briskly. It is also natural that persons engaged in such deals would prefer privacy, choosing to meet inside cars or rooms where their actions, including any transfer of packages or actual hand-to-hand contact, cannot be easily observed by witnesses. A pending drug deal also provides a reasonable explanation for travelling and then pulling over for a curt meeting with another person in another vehicle.

39As I say, this passage resonates here. The surveillance evidence in combination with the “2020 found in evidence” probably provides enough of a basis for the required grounds such that the arrest was lawful and was not arbitrary. The CI information easily tips the scale in favour of finding that there were reasonable and probable grounds for the arrest.

40Separately, the strength of the CI evidence is also significant. The CI was a carded, proven, reliable informant. Some of the information the CI provided was detailed.

41Regarding the CI’s identification of Mr. Ottley, Ms. Cremer submitted that DC O’Neil ⁵ ought to have been concerned about how that identification was made. The description of Mr. Ottley provided by the CI is concerningly general (“male, black, between 19-25 years old”). The CI apparently only gave an alias, “Pronto,” for Mr. Ottley and not his name. The CI was shown a photo of Mr. Ottley and asked if that was Pronto. Ms. Cremer notes that it could well have been that the CI was an addict who was receiving money or other consideration and the police should have been concerned about how the identification was made, given what we know about the frailty and dangers of identification evidence. However, in addition to identifying the photograph, which I agree is highly unreliable, the CI identified Mr. Ottley’s vehicle plate number for police. That is very specific information and far more compelling. The resulting identification evidence was sufficient to support the arrest. ⁶ The CI’s identification evidence likely will not be necessary at trial.

42To return briefly to the preliminary issue, Ms. Cremer submitted that there is not enough information to challenge the basis of the identification of Mr. Ottley and other details regarding whether the evidence is compelling or corroborated. Information as to the CI’s criminal record or absence of criminal record is not provided. The materials do not reveal whether the CI is a customer or trafficker. The motivation for the CI to be an informer is also unclear. This very discussion shows that the defence could and did challenge the evidence, without knowing the unrevealed specifics. It is true that the defence is limited in coming to its own conclusions, but the absence of the details did not hamper the defence ability to point out the areas of concern.

43It is the totality of the evidence that matters in assessing whether reasonable and probable grounds existed to arrest Mr. Ottley. There are possible innocent explanations for the facts described in the ITO. But I am satisfied that, in totality, the evidence provided the objective basis needed to support DC O’Neil’s belief that Mr. Ottley was involved in drug trafficking.

44Ms. Cremer acknowledged during argument that the involved officers had the requisite subjective belief.

45In result, I find that the arrest and detention of Mr. Ottley was lawful and reasonable. His s. 9 rights were not violated by or during the arrest.

2. Was the search of the car unreasonable?

46“Everyone has the right to be secure against unreasonable search or seizure”: Charter, s. 8.

47Following a valid arrest, the police have the authority to conduct a search incident to arrest provided the search is for one of three purposes: (1) the safety of the public or the police; (2) protection of any evidence from destruction; and (3) to discover evidence for the offence for which the person has been arrested.

48The Crown did not attempt to justify the search based on officer or public safety concerns or on concerns about destruction of evidence. The Crown’s position is that the search was permitted as part of the police common law power to search to discover evidence for which the person has been arrested. The scope of the search incident to arrest is dictated, not by whether there exist reasonable and probable grounds but simply by the police having some reasonable basis for doing what they did. Per R. v. Fearon, 2014 SCC 77, at para. 17:

This is not a standard of reasonable and probable grounds, but simply a requirement that there be some reasonable basis for doing what the police did. For example, if the purpose of the search is to find evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested. [Citations omitted.]

49The police “must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable”: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 25.

50Mr. Ottley also argues that the scope of the search went beyond the legal authority for a search incident to arrest because the police looked inside the satchel bags inside the car. This argument is not supported by the jurisprudence. To be sure, courts have not established “any categorical limit applicable to all arrests and all purposes incidental to them”: Fearon, at para. 13, but there is no requirement that a search incident to arrest is limited to items that are in plain sight. In Fearon, at para. 16, Cromwell J. wrote:

The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

51Cromwell J. went on to explain in Fearon, at para. 21, that “the police must be attempting to achieve some valid purpose connected to the arrest. That turns on what they were looking for and why.” Cromwell J. also referred to R. v. Nolet, 2010 SCC 24, where a search of a bag in the back seat of a truck cab was justified by the officer’s regulatory search for documents, and once the bag was open, a large quantity of cash was found. That in turn led to a charge of possession of the proceeds of crime, which in turn led to a further search that revealed drugs, which in turn led to further charges.

52In this case, the arrest took place about a ½ hour after the police observed what they believed was a drug transaction, after having observed several such transactions over the previous days of surveillance. These transactions occurred in the secrecy of Mr. Ottley’s car. The police had ample reasons connected with the investigation to search the car and the satchels in the car for evidence.

53In result, I find that the search of the car was not unreasonable. Mr. Ottley’s s. 8 rights were not violated by the search.

3. Were the searches of the Brampton and Kitchener residences unreasonable?

54The searches of Ryegrass and Cedarhill were authorized by the warrant. That warrant is under review in this application. Per Fairburn J.A., in Herta, at para. 20:

The question for a reviewing court is not whether the court would have issued the warrant or authorization, but whether it was open to the issuing justice to have done so. In a case like this, involving a s. 487 warrant, the question is whether there are reasonable grounds to believe – constitutionally defined as credibly-based probability – that there is evidence respecting the commission of an offence in the location to be searched. [Citation omitted.]

55The discussion above about the police grounds for arrest is partially applicable to the question of whether there were reasonable and probable grounds to search the two residences. However, the issuing justice had the additional evidence of the results of the search of the vehicle. The affidavit in the ITO indicated that the police located a black satchel containing “a large quantity of Canadian cash.” The affidavit also stated that police found a second black satchel on the floor behind the driver’s seat and inside that satchel they “located a medium sized zip lock bag, containing a grey powder substance believed to be fentanyl.” ⁷

56In addition, the ITO stated that when he conducted the search of Mr. Ottley’s car, DC O’Neil found a key chain lanyard with the Cedarhill address on it, along with two keys to a safe. I believe in his evidence during the hearing, DC O’Neil stated that the keys were keys to a post box. Regardless, the issuing justice had considerable additional information tending to show that Mr. Ottley was trafficking drugs, including this information about a potential safe connected to Cedarhill.

57Per Fairburn, A.C.J.O., in R. v. El-Azrak, 2023 ONCA 440, at para. 96:

The “reasonable grounds to believe threshold” does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. It requires that the well-known standard of “credibly-based probability” be applied: Hunter v. Southam Inc., at pp. 167-68; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. The question for the issuing justice is whether the ITO sets out sufficient grounds to establish a reasonable belief that an offence has been committed and that there will be evidence of that offence located in the location to be searched.

58The Crown acknowledged during argument that the issuing justice was required to find that there were reasonable and probable grounds to search each place that the warrant authorized the police to search. It is not disputed that for the warrant to have issued for the search of both Ryegrass and Cedarhill, the issuing justice was required to conclude that there was a credibly based probability that evidence was likely to be found at each location.

59The defence submitted that Ryegrass is the family residence – the residence of Mr. Ottley’s parents – and there is no reasonable basis to suspect that drugs would be found there. It is true that there was no evidence to support trafficking directly from the residence. For instance, there was no evidence of people coming and going from the residence.

60Ms. Cremer further submitted that there was no credible reason to believe evidence would be found at Cedarhill. Police only observed Mr. Ottley to attend at that location once, on the evening of November 18, 2021. He went there with a woman, believed to be the same woman he had been observed with on the 17th. They both took what DC O’Neil described as overnight bags. The police did not maintain observation of Mr. Ottley on the night of November 18, 2021, and did not conduct further surveillance of him until November 24, 2021. As such, the police have no information as to what Mr. Ottley may have done that evening or the following days. DC O’Neil acknowledged under cross examination that he had not been provided with any information from Officer Deol that Mr. Ottley had engaged in trafficking in Kitchener. Indeed, there was no evidence to this effect.

61However, the police credibly described in the ITO that drug traffickers will keep only a small supply on them to avoid being robbed by other drug dealers and thereby lose their supply. Also, this reduces the risk the dealer faces if arrested. The ITO explains, credibly in my view, that the bulk supply is usually kept in a location that is easily accessible to the drug trafficker.

62Mr. Ottley was observed to attend Ryegrass daily during surveillance. The evidence also demonstrated that Mr. Ottley had strong connections to Cedarhill in that he owned that property, his licence was apparently registered to that property, and he visited it on one occasion during the approximately five days that he was under surveillance in November 2021. As indicated, the ITO said that a safe key was found on the lanyard apparently connected with that property – giving a potentially logical place for Mr. Ottley to store drugs. Indeed, it is a reasonable and logical conclusion that Mr. Ottley would be likely to store drugs in a safe if there was a safe at that location.

63In El-Azrak, at para. 101, Fairburn A.C.J.O. found that it was “entirely reasonable to believe that the appellant, who was believed to be trafficking in fentanyl, would have the proceeds of this crime … at her home.” The same is true here. The issuing justice was entitled to infer that evidence of the trafficking offence would be found at both of Mr. Ottley’s residences. Put differently, it was open to the issuing justice to conclude that there were reasonable and probable grounds to believe that evidence would be found in each of the two residences.

64In result, I find that the searches of Ryegrass and Cedarhill were not unreasonable. Mr. Ottley’s s. 8 rights were not violated by the searches.

4. Section 24(2) Analysis

65I have found that Mr. Ottley’s Charter rights have not been infringed. It is therefore unnecessary to conduct a s. 24(2) analysis.

Disposition

66The evidence obtained from the searches shall not be excluded based on the alleged Charter breaches. The orders Mr. Ottley has requested in his notice of application are denied. His application is dismissed.

Chown J. Released: April 17, 2024

Footnotes

Footnotes

1. 1There is some uncertainty on the date because the date of the surveillance report is May 21, 2021 (C-1-34) but it describes surveillance on May 31, 2021 (C-1-36). I suspect that the reference to May 31 is in error. Nothing turns on this.
2. 2And the issuing justice was entitled to take it into consideration regarding the grounds for issuing the search warrant.
3. 3The change in view may have been because of the scale and small Ziplock bags found in Mr. Ottley’s car, suggesting it may have been his modus operandi to measure product in the car.
4. 4Sic – this was probably intended to say, “could not be observed by others.”
5. 5And the issuing justice for issue #2, discussed below, with respect to the grounds for the search warrant.
6. 6And, on issue #2, the search warrant.
7. 7As indicated, this was later found to be MDMA. The ITO also said that the police found “a large zip lock bag with white residue believed to be cocaine.”