Court File and Parties

COURT FILE NO.: CR-23-90000497 DATE: 2024-06-21 ONTARIO SUPERIOR COURT OF JUSTICE

Between: HIS MAJESTY THE KING – and – ANDREW FRANCIS Defendant

Counsel: N. Baldwin and E. Gilman, for the Crown N. Kelsey, for the Defendant

HEARD: June 10, 11, 12, 2024

PUBLIC REASONS FOR DECISION ON GARAFOLI APPLICATION

P.T. SUGUNASIRI J.:

Overview

[1] Andrew Francis is charged with several drug offences stemming from a warranted search of his vehicle and residence. At the time the warrant was issued, the police were investigating firearms charges on the force of a tip from a confidential source (CS) and subsequent surveillance by members of the Gun and Gang Taskforce. On June 22, 2021, they executed the warrant and located what they believe to be controlled substances and proceeds of crime. They did not locate a firearm.

[2] Mr. Francis argues that the warrant should be quashed and the evidence excluded because the police did not have a credibly based probability that a firearm would be found at Mr. Francis’ residence or vehicle. The Crown conceded that the warrant to search Mr. Francis’ car and residence could not have issued based solely on the Information to Obtain (“ITO”) which was redacted to protect confidential informer privilege. As such, we jumped to step six of the Garofoli process that resulted in a judicial summary of the redacted parts; R. v. Garofoli, [1990] 2 S.C.R. 1421. After hearing submissions from defence counsel and the Crown, I ruled that the judicial summary found at Exhibit 1 provides a sufficient basis upon which the defence could challenge the content of the warrant and for Mr. Francis to make full answer and defence. The Crown also confirmed on the record and the defence accepted that it was the CS’ independent tip that led to the investigation to satisfy Mr. Francis’ concern that the CS might have been acting as a state agent. Mr. Francis also applied to cross-examine the affiant of the ITO but later abandoned the request.

Brief Conclusion

[3] The sole issue on this application is whether the warrant to search Mr. Francis’ car and residence could have issued. After considering the ITO, including the redacted information, I find that, there was sufficient reliable information that might reasonably be believed such that the warrant could have issued. Further, it was open to the issuing justice on the information presented in the ITO to infer that evidence of the offence would be found in Mr. Francis’ vehicle and at the residential address associated with him. I find no violation of section 8 of the Charter of Rights and Freedoms (“Charter”) and dismiss the application.

Analysis

Legal Principles

[4] Section 487(1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.

[5] A search warrant is presumed to be valid and the onus is on the Applicant to show that there was insufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at para. 30; R. v. Crevier, 2015 ONCA 619 (Ont. C.A.), at para. 45 (aff’d 2016 SCC 32).

[6] The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at a specified time and place: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[7] Reasonable and probable grounds do not equate to a balance of probabilities where an issuing justice must find that it is more likely than not that things to be searched are at the target location: Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 167; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

[8] Direct evidence is not required to draw a link between evidence of an offence and the premises/location to be searched. The issuing justice is entitled to draw reasonable inferences from the evidence in the ITO: R. v. Kalonji, 2022 ONCA 415, at para. 25; R. v. Vu, 2013 SCC 60, at para. 16. That said, permissible inferences must be more than mere speculation: R. v. Morelli, 2010 SCC 8, at paras. 81-82; R. v. Coluccio, 2019 ONSC 4559.

[9] Because the core of DC Priebe’s ITO was based on information from a CS (who I refer to as “they” as a short form for “he/she”), the issuing justice was required to assess whether the CS was credible and compelling, and whether their information was corroborated by other aspects of the investigation (the “Debot factors”). These are not isolated inquiries. Weaknesses in one area may be offset by strengths in another: R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at para. 53; R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (Ont. C.A.), at para. 16.

The ITO could establish reasonable and probable grounds to believe that Mr. Francis had committed an offence by being in possession of a firearm

[10] Could the ITO establish reasonable and probable grounds to believe that Mr. Francis had committed an offence? Yes. Based on a review of the whole ITO available to the issuing justice, it was open to the issuing justice to conclude that that Mr. Francis was in possession of at least one firearm based on credible and compelling CS information that was sufficiently corroborated.

[11] Detective Constable Priebe swore the ITO in question. The vetted and available information from the CS is as follows:

a. They were present when Mr. Francis has been in possession of a firearm; b. They described him as a black male, Jamaican background, approximately 35-40 years old and approximately 6’2” tall; c. They provided some information on where the male lived; d. They know this male to drive a 4-door black BMW and believed it to be a newer model; e. The male frequents at Oxford Bar located at 2691 Eglinton Ave, Scarborough; f. They have seen the BMW parked out front of the Oxford Bar; g. On two different occasions the CS observed the male in possession of a firearm; h. On one occasion the CS described the firearm as a handgun with a specific description; i. The CS advised that the male was observed driving the same black BMW; j. The CS was shown a photo a Ministry of Transportation photo of Mr. Francis and they confirmed that this was the black male they had seen in possession of a firearm; and k. The CS observed the black male, identified him to be Mr. Francis, and provided the information to the handler, less than 60 days prior to the execution of the search warrant on June 22, 2021.

[12] Appendix D to the ITO sets out the CS’ motivation, criminal history, if any, and the CS’s track record in providing information to the police. Included in the information available to the issuing justice is:

a. That the CS is a known source; b. That the CS has provided information to the police on multiple occasions; c. The number of warrants, arrests and charges resulting from the information, and the disposition where charges were laid. That category of information found at Appendix D, paragraph 6, is appropriately redacted and two and a half pages long; d. Whether the CS has a criminal record and/or outstanding charges with the court, and details of such charges, if any; e. That the categories of information in b and c above allowed the issuing justice to know whether the CS had been involved with or convicted of any crimes of dishonesty; and f. That the CS was told that they would receive no benefit if the information turned out to be misleading or false.

[13] It was open to the issuing justice to find the CS credible based on the unredacted information about the CS’s track record of multiple occasions of reporting as well as information of criminal history, if any.

[14] It was also open to the issuing justice to find the CS compelling in their reported observations of Mr. Francis which were largely first-hand. A tip is compelling when it is reliable. Some characteristics of a “reliable” tip include if the tip is based on first-hand information, if the tip is detailed, and if the tip is reasonably current: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 28; R. v. Nguyen, 2015 ONCA 753, 342 O.A.C. 144. Behind the redactions is information so detailed (including details about the handgun itself) that the issuing justice would have had no trouble concluding that there were reasonable and probable grounds to believe that Mr. Francis possessed a firearm. [1] Even the redacted Appendix D (summarized at paragraph 12 above) with the assistance of the judicial summary provides sufficient detail for the issuing justice to accept that there were reasonable and probable grounds to believe that Mr. Francis possessed a firearm. The information the CS provided is far more than what was provided in R. v. Castillo, 2011 ONSC 3257 - a case Mr. Francis relies on to challenge compellability.

[15] The police did not corroborate that Mr. Francis is in possession of a firearm but they did corroborate most of the CS’ other information except for the actual criminality under investigation. There is no requirement to confirm the actual criminality: R. v. MacDonald, 2012 ONCA 244 at para. 20; R. v. Lewis, (1998), 38 O.R. (3d) 540, at pp. 547-548. I find their corroboration sufficient especially given the strong reliability and compellability of the CS’ information. The police received information from the informant some time between April 22, 2021 and June 22, 2021 when they executed the search warrant. They conducted surveillance at the Oxford Pub. They saw a black male, approximately 6’4” tall, leaving the patio area to a black four-door BMW with licence plate CRDJ 662 which was parked in front of the pub. The police followed the BMW to the underground parking garage at 126 Bellamy Road where the male parked it in spot #10. They confirmed that the BMW’s plate number was registered to an Andrew Francis, born June 24, 1984, with a mailing address of 712 – 126 Bellamy Road. The police obtained a picture of the person registered to the BMW through the Ministry of Transportation and confirmed with the CS that the person they saw with the firearm at the Oxford Pub was the same Andrew Francis registered to the black BMW that the police observed at the Oxford Pub. On June 19 and then June 21, 2021, a detective went to 126 Bellamy and confirmed with the property manager that Andrew Francis was the tenant of unit 712 which had parking spot #10 attached to it. The police also conducted database checks to confirm that Andrew Francis did not have a firearms licence and no firearms registered to him.

[16] This is more than corroboration of innocent facts. The defence argues that the police could and should have prolonged their investigation. They should have had an undercover office to enter Oxford Pub to observe Mr. Francis inside. There was no reason for the police to put an undercover officer potentially in harms way. In R. v. Brown, 2021 ONCA 119, the corroborated facts were the colour and model of the target’s vehicle, a description of the accused and information that the accused “hung out” in a specific area in Toronto. Chief Justice Strathy held that the corroborative effect is minimal when viewed in isolation but sufficient when taken together: at para. 53. The police confirmed every aspect of the CS’s information except seeing the firearm itself. Taken as a whole, it was open to the issuing justice to conclude that the CS tip was credible, compelling and corroborated to raise reasonable and probable grounds to believe that Mr. Francis was in the possession of a firearm between April 22, 2021 and June 22, 2021.

The ITO contains sufficient case specific information for the issuing justice to accept that there were reasonable and probable grounds to believe that a firearm would be located either in Mr. Francis’ vehicle or residence

[17] Reasonable and probable grounds is a credibly-based probability. It requires more than an experienced-based hunch or “reasonable suspicion”: Sadikov, at para. 81. Relying on Collucio and similar cases, the defence argues that there was no case specific information to connect the firearm to Mr. Francis’ vehicle and/or residence. DC Priebe stated that in his experience firearms are found in locations such as residences and vehicles which the person occupies, possesses or controls. I agree that this statement offers nothing and is the type of generic statement that Justice Fish was concerned about in Morelli. The detective could have tied his experience to more case specific information. If this was the sole connection between the observed firearm and Mr. Francis’ residence/vehicle, I might agree with defence counsel that it is not enough. In my view, it was not the sole connection.

[18] While there is no direct evidence that anyone saw Mr. Francis with a firearm either in his BMW or at 126 Bellamy Road, it was open to the issuing justice to draw an inference that a firearm would be found in those locations based on the totality of the information. In particular, the redacted information found at item i, k, l of Appendix D as well as the timeline of events available to the issuing justice was ample fodder to raise the inference above reasonable suspicion or an experience-based hunch. [2]

[19] I also rely on Court of Appeal’s decision in R. v. Kalonji, 2022 ONCA 415 at paras. 26-28 that considered Justice DiLuca’s criticism of the police in Coluccio for not having a case specific basis to link the firearm to Mr. Coluccio’s residence. Following Collucio, Justice Forestell decided in Kalonji that even though there was information that the target was known to have a firearm in his vehicle, there was no link between the firearm and his residence. This proved fatal to the constitutionality of the warrant. The Court of Appeal confirmed at paragraph 27 that it was enough that the target was known to have a firearm and was attached to the target residence. Based on this information the issuing justice could draw a reasonable inference that the firearm would be found there.

The ITO is sloppy but not misleading

[20] This takes me to the defence’s legitimate complaint about the drafting of this ITO. Mr. Francis argues that DC Priebe has not met his obligation to provide, careful, fair and frank information. Instead, his ITO is misleading and disjointed. There are several typographical errors that the Crown addressed at this hearing. The Crown corrected item l in Appendix D to correct a date from 2020 to 2021. This was appropriate amplification because I find this to be a good faith error rather than an attempt to mislead or retroactively validate what might have been a warrantless search. I so conclude because there are several other random typographical errors in the ITO that points to inattention to detail.

[21] For example, the defence appropriately impugns paragraphs 45 and 48 where DC Priebe speaks of a controlled substances investigation as one justification for an extended period for execution of the warrant. The rest of the ITO makes it clear that the request for a warrant was for a firearms investigation and not a controlled substance investigation. In the context of the ITO as a whole, I find these errors to be a failure to give due attention to proofreading the ITO rather than an intention to mislead. It is conceivable, given the CS’ information, that the investigation started as both a firearms and controlled substances investigation and the latter fell away when the team could not corroborate the CS’ tip that he saw Mr. Francis sell narcotics in the area of the Oxford bar. Counsel argues that it was incumbent on DC Priebe to advise that nothing came of any controlled substance investigation that might have occurred. I disagree. It is obvious from the whole of the ITO that nothing came of the mobile surveillance of Mr. Francis coming in and out of what the police believed was an after-hours establishment. There was no need for DC Priebe to specifically say that they could not corroborate that part of the CS’s information. In any event, even if I excised those portions of the ITO and considered it afresh, the warrant still could have issued for the reasons I have already explained.

[22] Defence counsel also argues that DC Priebe was obliged to provide accurate information about the basis for the extended time for execution and the night warrant. Instead, he insinuated that Mr. Francis was part of a group of dangerous people. I do not read DC Priebe’s grounds that way. He explains that those in the possession of firearms are dangerous and that a night warrant is needed to allow the police to conduct the search in a way that maximizes public safety. Similarly, extended time was needed to allow the police to assess the situation they were walking into before executing the warrant against someone who was potentially in the possession of a firearm. There is nothing untoward about either of these explanations. This part may be inelegantly drafted but police are not lawyers trained in drafting. There is nothing in those sections that would mislead the issuing justice such that excision is required.

[23] The other typographical error raising the need for amplification is found in the statement under paragraph m of Appendix D. That statement describes the date in 2021 within 60 days of June 22, 2021, that the CS confirmed the identity of Mr. Francis by looking at an MTO photo. The Crown corrected the month in 2021 that this occurred. This is appropriate amplification given my finding that while DC Priebe failed to properly review his ITO for such errors, there is no basis to infer that he intended to mislead the issuing justice. [3] The amplification makes logical sense given the sequence of events found behind the redactions.

Conclusion

[24] I find that the warrant in this case could have issued and find no violation of section 8 of the Charter. I dismiss Mr. Francis’ application.

P.T. Sugunasiri J.

Released: June 21, 2024

Footnotes

[1] For example, see the information behind the redactions in paragraphs i, j, and k.

[2] I set out here what specific information is contained in the ITO that would allow the issuing to connect the firearm to Mr. Francis’ vehicle and residence. I redact it to protect confidential informer privilege…[redacted]

[3] I note that in all instances of amplification, the Crown made the correction rather than calling the affiant to do so. The defence did not object and dropped Mr. Francis’ application to cross-examine DC Priebe after colloquy with the court. I admit the amplification through the Crown as an officer of the court.