Court File and Parties

COURT FILE NO.: CR-24-20000266 DATE: 20240614 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – GORDEL SHARP Applicant

Counsel: Gary Valiquette, for the Crown John Fennel, for the Applicant

HEARD: April 22 and 25, 2024

Charter Rulings

B.P. O’MARRA J.

Overview

[1] In the early hours of April 16, 2021, members of Toronto Police Service (TPS) executed search warrants on a residence in Mississauga and a car parked nearby. The applicant was the target of both searches. He was in the residence at the time along with his spouse and two small children. In the master bedroom police found a Gucci satchel with $2,760 in Canadian currency inside. Police also found keys for a Hyundai EXL (EXL) rental vehicle in the pocket of a vest amongst a pile of clothes on the floor.

[2] The EXL was parked nearby. Among the items the police found in the car were the following:

• identification documents, including a health card and driver’s licence in the name of the applicant;
• banking receipts in his name;
• rental agreement for the EXL in his name;
• 2 socks behind a side panel of the console. One sock had two Ziplock baggies with chunks of what is admitted to be cocaine. The other sock contained a digital scale and a Ziplock bag that contained 2 baggies containing what is admitted to be cocaine.

The applicant was arrested but was released without charge at the scene.

[3] On April 20, 2021, the applicant was driving the EXL from Niagara Falls to Toronto. He was followed by surveillance police officers in unmarked vehicles. As the applicant drove on a street in Toronto, he was boxed in by several police cars and stopped. The applicant was removed from the EXL. A pat down search of the applicant before he was placed in a cruiser for transport to the station revealed the following:

• a digital scale and cocaine in a plastic bag were found in his vest pocket;
• $3,765.00 in Canadian currency in two bundles was located in the pocket of his track pants.

[4] A search of the EXL revealed the following:

• identification documents in the applicant’s name were found in a Ziplock bag in the centre console;
• 2 cell phones were found on the front passenger’s seat;
• A Ziplock baggie in a white sock was hanging out of the middle console. It contained cocaine;
• a ripped plastic bag containing cocaine was found in the lower door frame of the driver’s door.

[5] The applicant sought exclusion of the evidence seized on April 16 and 20, 2021 based on alleged violations of sections 8 and 9 of the Charter. The applicant did not testify or call evidence on the applications.

[6] On April 25, 2024, I dismissed those applications. These are my reasons.

The Searches on April 16, 2021 of 112 Troy Street, Mississauga and the EXL.

[7] The applicant was one of the named targets in a large wiretap and surveillance investigation by TPS named “Project Red Owl.” An authorization pursuant to Part VI of the Criminal Code was granted on March 10, 2021 to run up to and including May 8, 2021. Two further authorizations were granted. The applicant was a “principal known person” in all three authorizations.

[8] A pretrial application to exclude the intercepted communications pursuant to the authorizations was dismissed on November 6, 2023.

[9] On April 13, 2021, Detective Constable Graham of the Ontario Provincial Police (OPP), applied for a search warrant pursuant to the Controlled Drugs and Substances Act (CDSA), for places and vehicles that included the following:

• 112 Troy Street, Mississauga;
• A 2021 Hyundai EXL.

[10] The items to be searched for included controlled substances and items used in the drug trade, as well as documents related to ownership or interests in the places to be searched.

[11] The Information to Obtain (ITO) included the following information related to 112 Troy Street:

112 Troy Street, Mississauga

• On January 13th, 2020, officers from the Toronto Police Service 11 Division executed a Controlled Drugs and Substances Act search warrant at 112 Troy Street, Mississauga, and located Gordon SHARP inside. A search of the residence revealed 234.62 grams of crack cocaine and $47,895 in Canadian currency. SHARP was subsequently charged and held for a Show Cause hearing. The charges are still before the Courts.
• On December 4th, 2020, police attended 112 Troy Street, Mississauga, in relation to a domestic incident. Information was received that Gordel SHARP and his girlfriend Chanell DEAN were involved in a verbal argument. In the occurrence, the address listed for Gordel SHARP is 15 Pelham Park Gardens, Toronto, however, it is noted in the occurrence that SHARP lives at 112 Troy Street occasionally.
• On April 13th, 2021, Gordel SHARP was observed during surveillance to leave from this residence and walk to his vehicle, the 2015 Subaru IPP named in this application.
• Location Based Services (LBS) information for the device belonging to 416-616-6463 associated to Gordel SHARP as regularly shown in the area consistent with this address, including on today’s date.

[12] The ITO included the following information about the applicant’s drug business:

• On April 3rd, 2021, intercepted communications of Gordel SHARP indicated that he was trafficking controlled substances to Kelldon PASCAL [Principal Known Person]. The communications indicated that SHARP was going to leave the controlled substances with his brother, Robert SHARP who he referred to as “bro”, at the “ends.” Based on the intercepted communications combined with SHARP’s current house arrest condition, I believe that this was in reference to leaving the controlled substances at 15 Pelham Gardens, Toronto.
• On April 7th, 2021, intercepted communications of Gordel SHARP with his mother, Delcia SHARP, showed that he was storing an item(s) in the basement, within a “black sock, at her residence. I believe this residence to be 15 Pelham Park Gardens, Toronto. I further believe that the item was illicit in nature as SHARP and his mother appeared to use guarded language when discussing the item being stored at the residence.
• On April 12th, 2021, intercepted communications of Gordel SHARP indicated that he was going to traffic what is believed to be 4 ½ ounces of cocaine to an unknown male and that he needed to go to another location first. During the conversations, SHARP indicated that he “would be there soon”, would “be there in 10min” and “was walking up there.” Location Based Services (LBS) information associated to SHARP’s mobile device showed in the area of Pelham Park Gardens housing complex, Toronto. 15 Pelham Park Gardens is located within this housing complex and is consistent with the (LBS) information.

[13] The ITO included information that associated the applicant to two vehicles:

1. 2015 Subaru IPP

   • MTO records indicate Ontario licence plate CLWZ072 is registered to a 2015 Subaru IPP, white in colour with Vehicle Identification Number (VIN) JF1GPAK63F8228303. The vehicle is owned by Karen O’BRIEN, born February 26th, 1987, of 1615 Dundas Street East, Unit 315, Toronto, Ontario.
   • On April 12th, 2021, Gordel SHARP was observed to be driving this vehicle during surveillance.
   • On April 13th, 2021, Gordel SHARP was observed during surveillance operating this vehicle.

2. 2021 Hyundai EXL

   • During surveillance on today’s date, April 13th, 2021, Gordel SHARP was observed to attend a business believed to be a car rental business located at 1538 Warden Avenue, Toronto. At the time, SHARP was driving the 2015 Subaru IPP. An unknown female associated to SHARP then drove the 2015 Subaru IPP away from the business and SHARP drove this vehicle away. Surveillance has continued on SHARP in this additional vehicle.
   • I believe that Gordel SHARP is still associated to the 2015 Subaru IPP but now is also associated to this new vehicle believed to be a rental vehicle.

[14] The ITO included reference to numerous intercepted communications involving the applicant from and including March 26, 2021 to and including April 13, 2021. Many of the intercepts included coded language for drugs and drug trafficking. Times were referenced to meet for drug transactions.

[15] On April 13, 2021, a search warrant was granted by Justice Pringle of the Ontario Court of Justice. The places to be searched included 112 Troy Street, Mississauga and the EXL associated to the applicant.

[16] Based on the drugs, cash and drug related items found on April 16, 2021, the applicant was arrested but released unconditionally from the scene. The Part VI authorization was still in effect and would be for a further period. The police plan was to let the investigation, including intercepts and surveillance, to continue to see where it led.

Arrest and Search on April 20, 2021

[17] Intercepted communications from and including April 16, 2021 (after his arrest and release) to and including April 20, 2021 included numerous references to drug trafficking by the applicant. He was kept under surveillance by members of TPS, as well as members of Niagara Regional Police (NRP) on April 20, 2021. On that latter date the applicant was in Niagara Falls driving the EXL. His intercepted communications and actions that day indicated that he had arranged a sale of drugs for later that day in Toronto. As he drove towards Toronto, he was followed by members of NRP. The officer in charge of TPS investigators directed that the applicant would be stopped, arrested, and searched when he was in Toronto.

[18] In the early afternoon of April 20, 2021, the applicant’s vehicle was boxed in and stopped by plain clothes members of TPS. He was detained, searched, and arrested. Drugs and related items were found in a search of his person and the EXL.

The Applications

[19] The applicant submits the police lacked reasonable grounds to search the Troy Street residence and the EXL on April 16, 2021. The applicant further submits that the detention on April 20, 2021 contravened s. 9 of the Charter and the searches contravened s. 8 of the Charter.

Analysis

[20] The lawfully intercepted communications and surveillance of the applicant from early April 2021, provided a reasonable basis to believe he was involved in drug trafficking on a routine basis. His words and actions included reference to arranging meetings for drug transactions. Those routinely involved him being mobile in the car. The use of a car was an essential feature of his drug trafficking. There was a reasonable evidential basis to believe he was connected to the Troy Street residence and that controlled substances and related items would be at that address. The fact that he changed vehicles to the EXL on April 13, 2021 did not diminish the role of his cars in the drug trade.

[21] In regard to April 20, 2021, there were further intercepted communications and surveillance that showed he continued to be actively involved in the drug trade. The recovery of drugs and related items linked to the applicant on April 16, 2021 further supported the reasonable grounds to stop and arrest him on April 20, 2021. The search of his person on the latter date was reasonably incident to a lawful arrest.

Result

[22] The applications pursuant to sections 8, 9 and 24 of the Charter are dismissed.

B.P. O’Marra J. Released: June 14, 2024