Court File and Parties

Court File No.: CR-23-50000142 Date: 2024-10-04 Ontario Superior Court of Justice

Between: His Majesty The King – and – Jahvon Taijah Powell, Defendant

Counsel: A. Lerner, for the Crown C. Gill, for the Defendant

Heard: June 17, 2024; Oral ruling given July 10, 2024

Reasons for Decision on Garofoli Application

P.T. SUGUNASIRI J.:

Overview:

[1] Mr. Powell is charged with possession of a handgun, an overcapacity magazine and fentanyl for the purpose of trafficking. The charges arise from the police searching Mr. Powell’s apartment on March 15, 2022, and locating a Glock 19 9mm handgun loaded with 16 rounds of Luger 9 mm ammunition in an over capacity magazine. The Information to Obtain (“ITO”) a search warrant for Mr. Powell’s residence was first based on information provided anonymously through Crime Stoppers (“Source #1”). That source provided firsthand information that Mr. Powell was in possession of a handgun and lived at 121 Humber Blvd. in Toronto. A Justice of the Peace denied the request. The police investigated further and augmented the ITO with information from a confidential source (“Source #2) who also provided firsthand information that Mr. Powell had a handgun and lived at the Humber buildings, either 101 or 121.

[2] The Crown conceded that the warrant to search Mr. Powell’s residence could not have issued based solely on the redacted ITO. The Crown 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. Mr. Gill was content with the judicial summary and did not pursue the original application to cross-examine the affiant. Mr. Powell challenges the constitutionality of the search on the sole basis that the police did not have reasonable and probable grounds to believe that the handgun observed by two sources would be found at his residence.

[3] This is an argument discussed in many cases in this court as well as in R. v. Kalonji, 2022 ONCA 415. In that case, the ITO showed that the target, Donaldson, possessed several firearms and resided at Brunel Court. The Court of Appeal for Ontario concluded that it was open to the issuing justice to infer that a firearm would be found in his residence because he himself was the link between the firearms and his home: at para. 30. In R. v. Blake, 2023 ONSC 2749 the level of evidence needed to support the search of a residence arose again. Mr Blake was also known to have a gun but argued that the ITO lacked case specific information to establish reasonable grounds that items of evidentiary value would be found at his home. Justice Ducharme agreed with Mr. Blake, rejected the Court of Appeal’s reasoning in Kalonji because among other things, it appeared at odds with R. v. Herta, 2018 ONCA 927, and excluded the evidence. Mr. Powell argues that I should follow suit.

[4] In an oral ruling on July 10, 2024, I dismissed Mr. Powell’s application on the basis that quite apart from the debate raised by Justice Ducharme, this ITO provides sufficient case specific information to tie the firearm to Mr. Powell’s residence. These are my brief written reasons that follow my oral ruling.

Analysis:

Legal Principles

[5] 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.

[6] 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).

[7] 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.

[8] 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.

[9] 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.

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 in Mr. Powell’s residence

[10] 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 Coluccio and now Blake, the defence argues that there was no case specific information to connect the firearm to Mr. Powell’s residence. In this case there is no dispute that both sources have stated that Mr. Powell has a firearm (para. 16 of redacted Appendix D to ITO, p. 25, redacted Appendix E). Based on my review of paragraphs 16 to 20 of the unredacted Appendix “D” indicating the information provided by Source #1, there is sufficient case specific information for the issuing justice to have tied the firearm to Mr. Powell’s residence. Further, in redacted Appendix E, Mr. Powell can see that Source #2 states that they believe Mr. Powell lives at the Humber buildings (verified by the police through Toronto Community Housing to be 121 Humber Blvd, unit 309), has a handgun and has in the past threatened young males in the complex with it. In my view, this case specific information combined with the totality of the information received from the sources and the police’s own corroborative investigation gave the issuing justice ample fodder to infer that a firearm would be found at Mr. Powell’s home. This is not just a case with a man, a gun, and a known address.

[11] If I am incorrect that the information in the ITO provides compelling evidence for an issuing justice to conclude that there were reasonable and probable grounds to believe that evidence of a crime would be located at Mr. Powell’s home, I also rely on paras. 26-28 of Kalonji. The Court of Appeal for Ontario 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 Coluccio, 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. For her Honour, this proved fatal to the constitutionality of the warrant. The Court of Appeal overturned Justice Forestell and confirmed at paragraph 27 of Kalonji that it was enough that the target was known to have a firearm and was attached to the target residence. That evidence was present in spades here.

Conclusion:

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

P.T. Sugunasiri J. Released: October 4, 2024