Court File and Parties
COURT FILE NO.: CR-23-90000430 DATE: 20240424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – SPIRO RUSHA Applicant
Counsel: Chris Kalantzis, for the Crown Randall Barrs, for the Applicant
HEARD at Toronto: March 4th, 5th, 6th, 2024
J.K. Penman J.
Overview
[1] On September 20, 2022, Spiro Rusha was charged with the following offences: possession for the purpose of trafficking fentanyl; possession for the purpose of trafficking cocaine; possession for the purpose of trafficking morphine; possession for the purpose of trafficking alprazolam; possession for the purpose of trafficking oxycodone; possession for the purpose of trafficking psilocybin; possession of proceeds of crime under $5,000; and possession of proceeds of crime over $5,000.
[2] The charges arise from the execution of a search warrant issued on September 19, 2022, by Justice of the Peace Parker. Based on information received from three confidential informants (the “CIs”), the affiant PC Baboulas believed that Mr. Rusha was in possession of narcotics and that evidence of those offences would be found in the residence at 402-65 Gamble Avenue. During the search the police located a quantity of drugs and cash. Mr. Rusha was arrested near the residence, shortly before the execution of the warrant.
[3] Mr. Rusha has brought an application to exclude the evidence seized during the execution of the warrant pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. He argues that the search warrant ought not to have been issued as it failed to make out reasonable grounds to believe that there would be evidence of an offence found at the target address. The applicant further seeks to cross-examine the affiant and sub-affiants of the Information to Obtain (the “ITO”). He argues that the cross-examination will demonstrate the affiant failed in his obligation to give a full, frank, and fair account of the investigation, and that there were insufficient grounds to believe evidence would be found at the address. The defence also takes the position that the ITO is heavily redacted and, on its face, is insufficient to form the basis for reasonable grounds to believe that an offence occurred or that evidence of that offence would be found in the target address.
[4] Counsel for Mr. Rusha also argues that his ss. 7, 8 and 9 Charter rights were violated when he was unlawfully detained and arrested as the police did not have proper grounds for the arrest. They also argue that the arresting officer used excessive force in arresting Mr. Rusha, causing him injuries.
[5] The Crown takes the position that the ITO demonstrates reasonable and probable grounds to believe that evidence of the offences would be found in the target address. The CIs provided detailed and compelling information sufficient to establish grounds for the issuing justice to grant the authorization. They rely on Step 6 of the procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, for both the warrant review and challenge to the grounds for arrest. The Crown provided a draft judicial summary. The Crown also opposes the application to cross-examine the affiant and sub-affiants.
[6] I was provided with the redacted copy of the ITO, the unredacted copy of the ITO, and the proposed judicial summary drafted by the Crown. I heard from the two arresting officers, Sergeant Rahim and DC Zamir, and was provided with the preliminary hearing evidence of DC Nguyen. The two-second clip of the September 18, 2022 surveillance was filed, along with a video that captures a portion of Mr. Rusha’s arrest.
Sufficiency of the Judicial Summary
[7] At Step 6, the Crown may seek to provide a summary of the redacted areas for the reviewing court's consideration in conjunction with the unredacted ITO – a summary the Crown believes will enlarge the information available to the defence without compromising informant confidentiality. Garofoli advances the oft-quoted proposition that the court should consider the unredacted ITO “only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” This involves the reviewing court considering whether the Crown’s summary assists with this objective. The court can accept the Crown summary as sufficient or raise inquiries and recommend amendments to its contents. This can involve removing redactions or expanding on the information in the summary. If the court finds it appropriate, it may refer the Crown summary to be further edited.
[8] The reviewing court must be mindful of the precariousness of deciding what to disclose, taking care not to reveal information that could identify the informant or narrow the pool of who the informant might be. As the Court of Appeal for Ontario cautions: “Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer”: R. v. Omar, 2007 ONCA 117, at para. 40.
[9] In R. v. Crevier, 2015 ONCA 619, at para. 83, the Court of Appeal discusses the balance between providing the defence with sufficient awareness of the excised material to challenge it in argument or by evidence, while at the same time ensuring informer privilege is maintained:
This means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot. The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege.
[10] After hearing from defence counsel in combination with questions from the court, Crown counsel proceeded to further “un-redact” information from the ITO. This was then provided to defence counsel as an “updated judicial summary”. This summary took the form of the unredacted information being typed over the initial redacted area. This meant that the summary nicely tracked the redactions in the ITO, making it very easy to follow not only what was redacted but also where in the ITO the redacted information was contained, as suggested in Crevier, at para. 85.
[11] I was satisfied that the updated judicial summary contained enough information to allow Mr. Rusha to mount an attack on the warrant, while at the same time protecting the identity of the confidential informers. The summary allowed Mr. Rusha to know the nature of the information behind the redactions, and what went into the ITO and what did not. I am satisfied that this ensured Mr. Rusha was able to meaningfully argue whether the information contained in the ITO was sufficient to meet the criteria in R. v. Debot, [1989] 2 S.C.R. 1140 (“Debot (SCC)”).
Leave to Cross-Examine
[12] In R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, at para. 40, the Supreme Court established that the test for leave to cross-examine is not an onerous one. The applicant need only show that a reasonable likelihood exists that the cross-examination will assist the court in determining a material issue. Specifically, “a basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”: at para. 10, citing Garofoli, at p. 1465.
[13] The applicant sought to cross-examine the affiant on information they alleged was false or misleading. Specifically, it was argued that paragraphs 16 and 21 of the ITO, dealing with identifying the target, are both internally and externally inconsistent. They argued that either the affiant misled the justice by “taking credit” for identifying the target or that his reliability as an affiant is questionable.
[14] Paragraph 16 reads as follows:
After receiving the initial information from CS1, CS2, and CS3 and the investigative checks by myself, I was able to corroborate the provided information to identify the subject and confirm the subject’s identity.
[15] Paragraph 21 reads as follows:
DC Di Pasquale conducts investigative queries into the above information from lines 19 to 21, and discovers a male named Spiro Rusha, who is listed in Versadex with an address of 402-65 Gamble Ave, which is in close proximity to Pape and Cosburn Avenue, Toronto.
[16] I was not satisfied that this area of cross-examination would assist the court in determining a material issue. The issue of the discrepancy between these paragraphs is evident on the face of the ITO and that argument could be made in submissions.
[17] The applicant also wished to cross-examine the affiant on paragraphs 67 and 68, alleging that there is a material omission. Specifically, that the affiant failed to include that Mr. Rusha was just hanging out with friends and then took a TTC bus. The paragraphs read:
On Saturday, September 17, 2022, DC Nguyen #10958 attended the area of Gamble Avenue and Pape Avenue in the City of Toronto to conduct static surveillance on the areas the subject is known to frequent.
DC Nguyen #10958 located the subject on the south-east corner of Pape Avenue and Gamble Avenue. The subject was wearing ripped jeans, a white tee shirt, white and blue Nike shoes, a black shoulder bag, with white wireless headphones in his ears and a cell phone in his hand. The subject also had long brown hair tied back in a bun. (Photos below)
[18] This alleged omission could also be argued on the face of the ITO. DC Nguyen’s evidence has been filed on the application and it is thus available to the defence to argue that the affiant failed to include these other details. I was not satisfied that cross-examination on the affiant’s decision not to include the rest of the observations of Mr. Rusha that day would assist me in determining if the authorization should have issued.
[19] Counsel for Mr. Rusha sought leave to cross-examine the affiant on paragraphs 83-89, but specifically paragraph 89, where the affiant states the following:
Investigative checks and information provided by the confidential sources has been confirmed, as best as can be, that the subject sells Controlled substances and has a cache in the address sought in this application. [Emphasis added.]
[20] These paragraphs are contained within the section titled “Grounds to Believe that the Items to be Seized are at the Place to be Searched”. Mr. Barrs argued that cross-examination on this point would show that the police had not been able to confirm any of the CI info and specifically that there were no grounds to believe that the items sought would be found in the target address.
[21] I agreed with the Crown that this paragraph was intended to be a conclusory paragraph and issues with its substance could be argued on the face of the ITO itself. Cross-examination on this area would amount to a fishing expedition.
[22] Mr. Barrs also sought leave to cross-examine on the lack of corroboration of the nickname “Albanian”. This too was an argument that could be made on the face of the ITO. There was no corroboration of the nickname. If the police had become aware of information that Mr. Rusha had a nickname other than “Albanian”, the argument may well have been different.
[23] The arguments on the above areas of the ITO are all based on the affidavit itself, and not any other extrinsic evidence. I agree with Dambrot J.’s comments in R. v. Riley, 2008 ONSC 63219, at para. 11:
This ground for cross-examination exemplifies much of the approach of the applicants. They argue, in effect, that where there is a weakness in the affidavits, they should be entitled to cross-examine. I do not agree. The weaknesses in the affidavits are matters for argument upon the Garofoli application. They are not, of themselves, grounds for cross-examination. Only where some basis exists, however meagre, that cross-examination on the point will elicit testimony tending to discredit the existence of one of the preconditions to the authorization will cross-examination be permitted.
[24] The defence sought leave to cross-examine the affiant with respect to paragraphs 71-74 of the ITO, but particularly 71 and 74, concerning surveillance of Mr. Rusha that took place on September 18, 2022. The paragraphs read as follows:
- A video was also taken of the subject, who at one point appeared to be reaching under a patio fence at the north side of Café Serano located at 1055 Pape Avenue, Toronto (south-east corner of Gamble Avenue and Pape Avenue). The subject removes a black item from under the fence and moves it to the rear passenger seat of waiting vehicle, bearing license plate CWHN 547. That vehicle was queried on CPIC with the following results:
Black Jaguar CJ8, 4 door.
Registered owner: Christinel-Aristidis Tambas with an address of [ redacted ] .
- The subject entered the front passenger seat of the vehicle, which left eastbound on Gamble Avenue, Toronto. Police did not follow the vehicle. Snippets of that video are shown below.
[25] Counsel for Mr. Rusha argued that the affiant misrepresented the clip in his use of the language “moves it to the rear passenger seat”, suggesting that this was indicative of drug trafficking. On the video, which is two seconds in length, it is unclear what Mr. Rusha does with the black object. The video is from a live photograph from a cellphone. DC Nguyen testified at the preliminary hearing and agreed that he did not know what Mr. Rusha did with the black object.
[26] Mr. Barrs also argued that the affiant failed to include that not only did Mr. Rusha enter the vehicle, but his friends did as well, and then the vehicle drove away. It was argued that this additional information takes away from the suggestion that this was a drug transaction and should have been included in the ITO. Ultimately the defence argued this was a deliberate attempt to mislead the issuing justice, mischaracterize facts, and employ strategic omissions. I granted leave to cross-examine on these areas.
[27] In cross-examination, DC Baboulas acknowledged that the clip does not show Mr. Rusha putting the black object on the rear passenger seat, as the affidavit suggests. He testified that the affidavit should have read “moves it to the area of the rear passenger seat”. He was not attempting to mislead the justice but was trying to be full, frank, and fair to the issuing justice. In that vein, he included three screenshots from the video which show the black object in Mr. Rusha’s hands, and his arms and body moving towards the rear of the vehicle. DC Baboulas denied the suggestion that he was attempting to portray what occurred in the clip as evidence of drug trafficking.
Sufficiency of the ITO
Test on Review
[28] A search warrant is presumptively valid unless the applicant establishes there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. The reviewing judge does not substitute his view for that of the authorizing justice. If, based on the record before the authorizing justice as amplified on review, the reviewing judge concludes that the authorizing justice could have granted the authorization, the reviewing justice should not interfere.
[29] Evidence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant. The sole issue, however, is to determine whether there continues to be any basis for the decision of the authorizing justice: see Garofoli, at p. 1452. The question is whether there is sufficient, reliable information to justify the warrant. Specifically, whether there was some evidence that might reasonably be believed on the basis of which the authorization could have issued.
Confidential Informants
[30] In this case the ITO relied almost exclusively on information provided by three confidential sources. When the police rely on information from a confidential source(s), consideration must be given to whether the information is compelling, credible and/or corroborated by other aspects of the police investigation. These are not discrete categories and are not to be treated as silos. Weaknesses in one area may be offset by strengths in another: Debot (SCC); R. v. Charles, 2024 SKCA 8.
Was the Information provided Credible?
[31] Counsel for Mr. Rusha argued that the informants were anything but credible given their involvement in the criminal subculture and their financial motivation.
[32] I am satisfied that the information provided by the CIs as disclosed to the issuing justice was credible for the following reasons. First, and of some significance, two of the informers had successfully provided information to the police that led to seizures and arrests, one informer on four occasions and the other informer on six occasions. Details of these prior incidents were disclosed to the issuing justice.
[33] The other informant was an unproven source. All three are registered sources with Toronto Police Services and were warned about providing false information to the police.
[34] The motivation of the three informers as disclosed in the redacted ITO was financial. While on the redacted ITO, it states the informers are all entrenched in the criminal subculture, whether they have criminal records or outstanding charges was disclosed in full to the issuing justice.
[35] I am satisfied that when considering the information disclosed to the issuing justice, that two of the three informants are particularly credible, while the third is weak given they are an unproven source.
Was the Information Provided Compelling?
[36] As noted by Martin J.A. in R. v. Debot (Ont. C.A.), 54 C.R. (3d) 120 (Ont. C.A.) (“Debot (ONCA)”) at p. 219, and later adopted by Wilson J. on appeal, “Highly relevant to whether information supplied by an informer constitutes reasonable grounds” are considerations involving whether “the informer's 'tip' contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of CI information: Debot (SCC), at p. 1168-69; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 26.
[37] In this case, all three CIs provided information that was firsthand, detailed, and recent. Within the previous 90 days, CS1 provided police the following information about the drug trafficker. I have set out that information in summary form, consistent with the way it is set out in the final judicial summary:
(i) The drug dealer goes by Albanian. (ii) Albanian is a male, 5’7”, 25-30 years old, medium build, olive skin, long brown hair and has an accent. (iii) Albanian sells fentanyl. The source provided information about the quantity of Albanian’s drug trafficking and the multiple specific weights of drugs sold. (iv) The source gave information about the logistics of drug trafficking if you contact Albanian and provided a phone number for Albanian. (v) The source gave the timeframe that they last purchased drugs from Albanian as well as the type and quantity of drug purchased, a description of the drug and the way the source received the drugs from Albanian. (vi) The source advised where they met Albanian and how the source has seen Albanian move around, including a description of a vehicle Albanian was seen in. (vii) The source advised that Albanian deals around the area of Pape and Cosburn. (viii) The source advised who introduced the source to Albanian, when and where they met Albanian as well as specific information that the source knows about Albanian’s background. (ix) The source advised that Albanian is popular and lots of people know him and provided their belief about Albanian’s clientele. (x) The source provided information about a third party that the source knows still purchases fentanyl from Albanian and how frequently. (xi) The source provided information about where they believe Albanian to reside. (xii) The source was shown a police mugshot of the applicant and confirmed that the applicant was the person they knew as Albanian.
[38] Within the previous 90 days, CS2 provided police with the following information about a drug trafficker. Once again, that information is set out in summary form, as in the final judicial summary:
(i) The drug dealer goes by Albanian. (ii) Albanian is a male, white, average height, average build, long dark hair and speaks with an accent. (iii) Albanian sells fentanyl and has other drugs available. (iv) The source provided information about when they last purchased fentanyl, the quantity, and the price as well as a description of the fentanyl. (v) The source gave a description of how Albanian packages fentanyl, as well as the modus operandi of how Albanian sells fentanyl to the source. (vi) The source purchased fentanyl from Albanian in the Pape and Cosburn area. (vii) The source advised that Albanian deals with a lot of people.
[39] Within the previous 90 days, CS3 provided police with the following information about a drug trafficker. Again, that information is set out in these Reasons in summary form, as in the judicial summary:
(i) The drug trafficker goes by Albanian. (ii) Albanian is a male, white, approximately 30 years old, slim build with brown hair in a ponytail. (iii) Albanian has not been in the area too long. (iv) The source provided the location where Albanian sells. (v) The source provided the address where they believe Albanian resides and how Albanian accesses the building. (vi) Albanian sells fentanyl. (vii) The source provided information about the price, quantity, and frequency they have purchased fentanyl from Albanian as well as how the drugs were packaged. (viii) The source provided information about the timeframe of sales from Albanian. (ix) Albanian sells out of his home.
[40] I find the information provided by the CIs highly compelling.
Was the Information Provided Corroborated?
[41] Counsel for Mr. Rusha focused a lot of his arguments on the overall lack of corroboration of the source information, and that the mischaracterization of one aspect of the corroboration was sufficiently misleading as to render the authorization invalid. Counsel for Mr. Rusha argued that there was little to no corroboration of the criminality of the tip, nor any corroboration that fentanyl would be found at the residence.
[42] There is no doubt that confirmation of innocuous, general information is only of limited value. Information that could be easily gathered by anyone familiar with the target of the investigation provides no confirmation that the target has been engaged in the criminal activities alleged: see Debot (SCC), at pp. 218-219; R. v. Zammit (Ont. C.A.), 13 O.R. (3d) 76 (C.A.), at p. 117.
[43] At the same time, information may be confirmed and corroborated without necessarily providing evidence of the criminality alleged by the confidential source: see R. v. Caissey, 2007 ABCA 380, 84 Alta. L.R. (4th) 226, at paras. 12-25, aff’d 2008 SCC 65; Rocha, at paras. 21-24.
[44] I do not accept the submission that there was a lack of corroboration of the source information. The information provided by the three sources was very similar to one another and therefore highly corroborative: see R. v. Ahmed, 2012 ONSC 6266, at para. 200, where the leading authorities on this point are set out. Specifically, the three sources provided the following corroborative information amongst each other:
a. They know the subject by the name “Albanian”. b. They provided a similar physical description of “Albanian”. c. They described that the subject sold fentanyl and described the quantity and weight of drugs sold. d. They described purchasing from “Albanian” in the Pape and Cosburn area. e. They described detailed purchases of drugs from the subject.
[45] In addition, the police investigated the tips and confirmed aspects of the source information. Specifically, the police confirmed through database checks and police surveillance that Mr. Rusha’s physical description was consistent with the information provided by the CIs.
[46] The police were able to confirm through database checks and surveillance that Mr. Rusha’s residence was 402-65 Gamble Avenue, an address within a few blocks of Pape and Cosburn. That 402-65 Gamble Avenue was Mr. Rusha’s address at the time was not disputed on the application.
[47] Police were able to observe Mr. Rusha in the Pape and Cosburn area, often at a local café. This supported the information from the sources that placed Mr. Rusha’s drugs dealing in the area of Pape and Cosburn. Counsel for Mr. Rusha argued that this added nothing to the analysis given the “innocent explanation” for Mr. Rusha being in an area proximate to his residence. However, as our Court of Appeal said in R. v. Dunkley, 2017 ONCA 600, 385 C.R.R. (2d) 183, at para. 15: “The police must only be satisfied that the possibility of innocent coincidence is removed based on the conformity of the events actually observed to the pattern anticipated by the tip.”
Did the Affiant Mislead the Justice?
[48] The police conducted surveillance of Mr. Rusha on September 18, 2022. During the surveillance, DC Nguyen took a photo of Mr. Rusha at Café Serano, which is on the southeast corner of Gamble and Pape. When looking at the live photo afterwards the officer realized it captured Mr. Rusha picking up a black item from under the patio fence and moving it towards a waiting vehicle. DC Nguyen acknowledged at the preliminary hearing that the video did not capture what Mr. Rusha did with the black object.
[49] The affiant also acknowledged that the video photo does not capture what Mr. Rusha did with the black object, notwithstanding writing in the affidavit that he “moves it to the rear passenger seat of a waiting vehicle”. It is clear from the video that Mr. Rusha has the item in his hands, and he is moving his arms towards the back passenger side of the vehicle. Mr. Barrs suggested that this characterization by the affiant was designed to leave the reader with the impression that this was a drug transaction.
[50] Mr. Barrs’ main argument was that this mischaracterization invalidates the warrant as it in effect perpetrated a fraud on the issuing justice. He agreed that these paragraphs could be excised from the authorization but argues the net result would be no corroboration of the source information, and the warrant would also fail on that basis. Mr. Kolantzis for the Crown argued that there is no basis to excise these paragraphs and what is captured in the video is in fact consistent with drug trafficking. The Crown also argued that I could amplify the record by adding the word “area”, so the sentence would more accurately read “moves it to the area of the rear passenger seat of a waiting vehicle”: see R. v. Araujo, [2000] 2 S.C.R. 65, at paras. 57-59.
[51] I am not convinced that the affiant was attempting to mislead the issuing justice in his characterization of what had been observed. The affiant referenced the details of the observations and included three screenshots which clearly show what Mr. Rusha was doing. Specifically, that he had bent down and picked up a black object and was moving it towards the rear passenger side of the vehicle. The affiant never suggested that this was indicative of drug trafficking. I find, however, that it was open to the issuing justice to find that the behaviour was at minimum suspicious and possibly indicative of drug possession, if not drug trafficking.
[52] I am satisfied that the ITO should be amplified to add the phrase “area of the” so the sentence in paragraph 71 is more accurate. This was an inadvertent, technical error. I do not find it was intentional nor in bad faith, particularly given the officer included screenshots of exactly what he was describing, and the issuing justice would have been able to draw their own conclusions.
Connection of Evidence and Applicant to Target Address
[53] It was established and not disputed that Mr. Rusha resided at 402-65 Gamble Avenue. There was no other location associated with Mr. Rusha in the information. The only other location referenced in association with Mr. Rusha was Café Serano, a place he frequented but did not have any other connection. In addition, when considering the combination of CI information and police investigation, there was a reasonable basis for the inference that evidence of Mr. Rusha’s drug trafficking would be found at 402-65 Gamble Avenue.
[54] The authorization sought also allowed police to search for items in addition to drugs. Specifically, they were looking for scales, packaging, money, debt lists and documents related to the control or tenancy of 402-65 Gamble Avenue. It was reasonable for the issuing justice to infer that the evidence sought would be found at 402-65 Gamble Avenue. As Nordheimer J.A. said in R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, at para. 53, and endorsed by the Supreme Court of Canada in R. v. James, [2019] 3 S.C.R. 918:
The proper inquiry was whether there were reasonable grounds to believe that evidence of an offence would be found, either in the vehicle the respondent was driving, or in the residence to which he appeared to be connected. The search warrant covered both. That evidence could include actual drugs but it could also include other items relating to an offence, including identified cellular telephones, debt lists, packaging materials, and other materials that could connect to the offences being investigated.
[55] The defence relies on the decision in Charles, where the trial judge found the warrant was invalid in a case where four confidential informants had provided information about drug trafficking yet none of them linked their assertion of drug trafficking to the residence. The trial judge had found “the degree of detail so low as to be the likely product of gossip or rumour”: at para. 35. That case is distinguishable on its facts as here, the degree of detail provided by the CIs was clearly based on firsthand information and not rumour or gossip.
[56] When considering all the information available to the police at the time of the issuance of the warrant, there was a sufficient basis for the belief that the evidence would be found at 402-65 Gamble Avenue. Three CIs provided information that was detailed, firsthand and compelling with respect to Mr. Rusha trafficking in fentanyl. It was reasonable for the police to believe that evidence of drug trafficking would be found at Mr. Rusha’s residence. See in this regard, R. v. Kalanji, 2022 ONCA 415, at para. 27; R. v. Hamouth, 2023 ONCA 518, at paras. 19-21.
Conclusion – Section 8
[57] This was a warrant based on information from three confidential sources. The overall credibility of the sources was high, with two having provided information on multiple occasions in the past while one was unproven. The information provided was highly compelling. The source information was corroborated amongst each other and aspects of it through police investigation.
[58] Considering the totality of the circumstances, I am satisfied that there were reasonable grounds to believe that there were controlled substances and related items within 402-65 Gamble Avenue on September 20, 2022.
Grounds for the Arrest of Mr. Rusha
[59] Counsel for Mr. Rusha argued that the police did not have reasonable grounds to believe that he was in possession of controlled substances when they arrested him on September 20, 2022.
[60] Sergeant Rahim was the officer in charge of this investigation and was privy to all the source information contained in the ITO. He testified that it was his decision to arrest Mr. Rusha prior to the warrant execution and in a public location for safety reasons. While he was involved in the arrest, it was DC Zamir who effected Mr. Rusha’s arrest.
[61] Sergeant Rahim summarized his grounds for arrest which included the following:
a. There were three CIs, two of whom were proven, one unproven. b. The sources all provided info on one male that went by the name “Albanian”. c. All of sources provided info that this male sold fentanyl. d. All of sources purchased fentanyl from the male, and one of sources was able to view a mugshot of the male and identified him as Spiro Rusha. e. Information which included where Mr. Rusha was dealing drugs, information regarding quantities, and the method by which he went about selling his product. f. The police were able to corroborate certain information provided by the sources. g. The sources in large part corroborated each other.
[62] Much of the grounds relied upon by Sergeant Rahim come from the ITO, including aspects which remain redacted that he did not refer to in his evidence. The Crown relies on the Step 6 procedure and asks the court to rely on as much of the unredacted material as necessary to justify the arrest.
[63] In my view, there was a reasonable basis for Mr. Rusha’s arrest in the ITO. I accept that there is no principled reason why the application of Step 6 to the search warrant process should not be applied outside of that context to warrantless arrests. Although our Court of Appeal has not specifically endorsed this approach, in R. v. Iraheta, 2018 ONCA 229, at para. 19, Fairburn J.A. said the following:
The final ground of appeal relates to whether Garofoli step six can be applied when considering the sufficiency of grounds for arrest. The appellant maintains that this issue is yet to be commented upon in this court. He also argues that there is a live issue about whether, even if step six can be invoked in this context, evidence gathered incident to the arrest can be admitted at trial. I accept that the appellant's argument in this regard is somewhat novel and to be developed. On the basis of the law as it currently stands, though, the appellant will have to persuade this court of the correctness of his novel position. In other words, there is no authority that currently supports the suggestion of an error.
[64] Several other decisions have followed this approach: see R. v. Williams, 2018 ONSC 3654, 412 C.R.R. (2d) 32, at para. 117; R. v. McCalla, 2019 ONSC 3256, 439 C.R.R. (2d) 72, at paras. 1-2, 22-24; R. v. Learning, 2010 ONSC 3816, 215 C.R.R. (2d) 9, at paras. 103, 107.
[65] It would seem incongruous that the police be in possession of sufficient information to justify grounds for an arrest, but then have that arrest found unlawful by virtue of the confidential nature of the information. Assuming the Step 6 procedure has allowed for a sufficient judicial summary, resort to Step 6 is appropriate when assessing the reasonableness of grounds to arrest.
[66] I have already found that the judicial summary provided enough information for Mr. Rusha to challenge the authorization and find that it is also sufficient for the purposes of assessing the reasonableness of the grounds to arrest Mr. Rusha.
[67] Counsel for Mr. Rusha argued that the police investigation did not reveal that Mr. Rusha was involved in drug trafficking, and there was no corroboration of the information provided by the informants as to Mr. Rusha being involved in drug trafficking. I do not accept this argument as the information provided by the informants was detailed, recent, compelling and in large parts corroborated.
[68] Considering the information that Sergeant Rahim was privy to, referred to in paragraphs 37-39 above, I am satisfied that the police had ample reasonable grounds to arrest Mr. Rusha for possession of controlled substances and that there was no violation of his s. 9 Charter rights.
Excessive Use of Force
[69] Counsel for Mr. Rusha argued that the police used excessive force in their dealings with Mr. Rusha upon his arrest, thus violating his s. 7 Charter rights.
[70] Section 25(1) of the Criminal Code allows police officers to use as much force as necessary in the circumstances to effect a lawful arrest. Section 25(3) prohibits a police officer however from using a greater degree of force, i.e., that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable.
[71] While, at times, the police may have to resort to force in order to effect an arrest or prevent an offender from escaping police custody, that degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. “Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences”: see R. v. Nasogaluak, [2010] 1 S.C.R. 6, at paras. 32, 34.
[72] Sergeant Rahim and DC Zamir testified that as they approached Mr. Rusha to effect the arrest, he turned and ran. Mr. Rusha did not get far before he was tackled to the ground by Sergeant Rahim. The approach towards Mr. Rusha is captured on video surveillance but Mr. Rusha being brought to the ground is not.
[73] Sergeant Rahim testified that when Mr. Rusha was brought to the ground, he would not release his arms, and was reaching his right arm into his waistband area. Although Sergeant Rahim was giving commands to get him to release his right arm, Mr. Rusha was not complying. As a result, the Sergeant delivered four to five blows to the right side of Mr. Rusha’s body. The Sergeant was not aware that Mr. Rusha had a pre-existing injury.
[74] Mr. Rusha then complied, was handcuffed, and brought to his feet. Shortly afterwards Mr. Rusha asked for and was given a cigarette by one of the officers. He can be seen on the video surveillance managing to smoke the cigarette while handcuffed.
[75] Sergeant Rahim eventually learned that Mr. Rusha was injured during the arrest and believed it was because of the blows that he had administered. Although the Sergeant was aware that Mr. Rusha was eventually taken to the hospital, he did not know specifics of any injuries. There was no evidence called as to the extent of Mr. Rusha’s injuries.
[76] The following factors were at play when Sergeant Rahim was attempting to effect the arrest of Mr. Rusha:
a. He was aware that Mr. Rusha had a prior conviction for a stabbing; b. There were two other males present, who might also have been in possession of weapons; c. Mr. Rusha ran away when the police first arrived on scene; d. Mr. Rusha would not comply with the officers’ commands to release his arms from under his body and was reaching for his waistband area.
[77] I have carefully considered the evidence of Sergeant Rahim and DC Zamir, the video surveillance, and the submissions of counsel. I am satisfied in the circumstances that Sergeant Rahim did not use excessive force in his dealings with Mr. Rusha, and there was no violation of Mr. Rusha’s s. 7 Charter rights.
Disposition
[78] The ss. 7, 8 and 9 Charter applications are dismissed.
J.K. Penman J.