Court File and Parties

COURT FILE NO.: CR-23-0158-00 DATE: 2024-11-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King v. Elmi Ibrahim and Samatar Hamadu

HEARD: November 18 & 19, 2024

BEFORE: Fitzpatrick J.

COUNSEL: M. Haque, for the Federal Crown J. Fennel, for the accused, Elmi Ibrahim M. Mattis, for the accused, Samatar Hamadu

Endorsement on Step 5 Garofoli Application

[1] Elmi Ibrahim and Samatar Hamadu are charged on a nine-count indictment under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) and the Criminal Code, R.S.C., 1985, c. C-46. A jury trial in this matter is scheduled to commence on January 13, 2025.

Background

[2] The accused apply to quash a CDSA search warrant issued for premises located at 2646 Victoria Ave East, Thunder Bay (“2646”). The warrant also covered two other premises which were not contested on this application.

[3] The Information to Obtain (“ITO”) warrant was provided by Detective Constable Dennis Vincent. It was sworn April 5, 2022. The ITO contained information obtained from confidential informants. A redacted copy of the ITO has been provided to the defence by the Crown.

[4] The parties have engaged in Steps 1 to 4 of the so-called Garofoli process and have now reached Step 5: see R. v. Garofoli, [1990] 2 S.C.R. 1421. A redacted ITO, including a judicial summary of the redactions, has been provided to the accused. As a result of a subsequent agreement between counsel for Mr. Ibrahim and the Crown, further material was excised from the ITO. This further amended ITO was made as Exhibit 1 on this hearing. It was this version of the ITO that the court considered in assessing the merits of both accused’s positions on the present application.

[5] The accused were granted leave and conducted a limited cross examination of the affiant, Detective Constable Vincent, on November 18, 2024.

[6] The issue for resolution is whether the ITO, as edited, supports the authorization for the search of 2646.

The Law

[7] Judicial authorizations are presumptively valid: see R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 85. The applicants bear the burden of establishing that there was an insufficient basis for the issuance of the warrant: see R. v. Collins, [1987] 1 S.C.R. 265, at para.21. This is not a de novo hearing, and I am not entitled to substitute my views of the ITO over that of the issuing justice: see R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 73.

[8] Section 11(1) of the CDSA states as follows:

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

[9] In seeking an ex parte authorization, the affiant must provide full and frank disclosure of material facts; however, an ITO need not include every minute detail of the police investigation: see R. v. Araujo, 2000 SCC 65, 2 S.C.R. 992, at para. 46.

[10] In dealing with a matter, the ITO must be read as a whole: see R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 84.

[11] An issuing justice is entitled to draw reasonable inferences from evidence in the ITO, in the absence of direct evidence: see R. v. Wu, 2013 SCC 60, 3 S.C.R. 657. Common sense inferences may also be drawn from evidence contained in an ITO: see R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409. An affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched for are at the location to be searched: see R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at para. 29. However, permissible inferences must be more than mere speculation: see R. v. Coluccio, 2019 ONSC 4559, 440 C.R.R. (2d) 114.

Positions of the Parties

[12] Counsel for the accused were succinct, focused, and straightforward in their submissions. While there was evidence that one of the subjects of the investigation – a person with the street name “EZ” or “Easy” – had committed drug trafficking offences at other locations in Thunder Bay, the ITO contained no direct evidence connecting 2646 to this drug trafficking activity. For ease of reference, I will refer to this person as “Easy” going forward.

[13] While the ITO provided direct evidence of Easy coming and going from 2646, counsel for Mr. Ibrahim submits that there was no evidence, nor even an appropriate inference to be drawn, that drug activity or evidence of any such offences would be found at that location.

[14] Counsel for Mr. Ibrahim argued that the affiant had misrepresented certain facts in the ITO. He took issue with the contents of para. 41 (a), which stated as follows:

a. 2646 Victoria Avenue E. is where Easy remains primarily throughout the day and most evenings.

[15] Police had obtained a 60-day tracking device for a phone associated to Easy, pursuant to a warrant obtained in February 2022. The ITO contained information from D/C Vincent regarding Easy’s whereabouts, as revealed by the tracking device operating from late February 2022 through to the time the ITO was sworn. In cross examination, D/C Vincent admitted that the tracker used to follow a phone associated to Easy had a varying degree of accuracy with respect to exactly where on the ground the phone was located; D/C Vincent testified that the tracker could vary up to 400 to 700 meters from the actual location of the phone at any given time. Based on that evidence, counsel for Mr. Ibrahim argued that it was a misrepresentation to say that Easy remained primarily at 2646.

[16] The Crown argued that it was open to the issuing justice to accept D/C Vincent’s evidence that, based on his experience and the direct observations of Easy by police, a search of 2646 Victoria would provide evidence of an offence contemplated by s. 11.1 of the CDSA.

Decision

[17] I am persuaded by the Crown’s argument that the redacted ITO before the Court on this application provided reasonable and probable grounds to believe that evidence of drug trafficking would be found at 2646. In my view, the ITO contained compelling, credible, and corroborated evidence of Easy’s participation in drug-related activities across Thunder Bay. The information from the various CIs placed Easy at different locations in Thunder Bay where drug transactions were taking place. Information from CIs 1, 2, 3, 4, 5, 6, and 7 collectively included the following details:

• The hierarchy in the drug trade;
• The importance and role of the lead figures in the trade;
• Easy being the boss of a drug crew operating in different locations in Thunder Bay;
• Trafficking activity;
• The use of specific locations in Thunder Bay as so-called trap houses where drugs are sold and the addresses of those places of sale;
• The sale of “down” and “fenty,” (street name for fentanyl) and “hard” and “soft” (street names for cocaine) and cocaine;
• The presence of drug paraphernalia in places occupied by Easy’s crew; and
• Quantities, price and quality of the product being sold directly by Easy and his associates.

[18] The totality of evidence was sufficient to establish that Easy was an active participant in criminal activity in Thunder Bay.

[19] D/C Vincent provided the issuing justice with evidence of his experience regarding drug trafficking methods in Thunder Bay at the time. While I am not entitled to substitute my views for that of the issuing justice I assess this information as reasonable and accurate; it is consistent with expert and participant evidence heard in numerous drug trials that I have presided over in the past few years here in Thunder Bay. Drug trafficking in Thunder Bay is now extremely lucrative, and many drug dealers from Southern Ontario are attracted by the elevated price for drugs that can be obtained from sales in trap houses across the city.

[20] The drug trade, as described by D/C Vincent, relies on a particular business model. Out of town dealers rely on a network of trap houses, where sales are made, and safe houses, which are chosen and operated so as not to draw the attention of police or rivals. Safe houses serve to protect significant profits, and act as a storehouse for storage of larger amounts of product. The safe house is a necessary component to the drug trade, as the main participants do not ordinarily reside in Thunder Bay. This information is contained at paras. 6, 7, 8, 13, 36, 37, 38, and 41 of the ITO.

[21] Easy’s connection to the trap houses identified in the ITO, along with his return to the alleged safe house, 2646, is set out in paras. 61, 63, and 66 of the ITO. The fact that Easy was not ordinarily residing in Thunder Bay is plain and obvious from the comings and goings indicated by the tracker on a phone associated to him. The connection to 2646 is confirmed by multiple direct observations by police of Easy entering the premises. In my view, a reasonable inference could be drawn from the evidence in the ITO that the volume and scope of Easy’s drug operation, involving multiple locations in Thunder Bay, combined with the number of times Easy had come and gone from the city, indicated that a safe house base of operations had to be located somewhere in Thunder Bay. D/C Vincent’s experience with how drug trafficking enterprises were organized in Thunder Bay in the spring of 2022 allowed the issuing justice to draw a reasonable inference that the 2646 was a safe house, and that a search of it would provide evidence of criminal activity related to drug trafficking.

[22] I was not persuaded by Mr. Ibrahim’s argument that the affiant misled or attempted to mislead the issuing justice by the statements contained in para. 41 of the ITO. The ITO must be considered as a whole. There is a great deal of other evidence included that does fairly and frankly acknowledge the limits on the tracker while nevertheless providing a general area of the city where Easy was frequenting at times material to the ITO: see para. 53, ITO. That area of the city is around 2646. Furthermore, the ITO demonstrates that the phone was moving around the province, including time spent in the GTA and in Wawa, heading towards Sudbury: see paras. 50–51. It is a notorious fact that if one is driving to the GTA from Thunder Bay, on the southern route, a stop in Wawa is usually followed by a stop in Sudbury as they are approximately 6 hours apart by way of Highway 17. In my view, the issuing justice would not have been misled by the statements in para. 41, in context of other material in the ITO. It is clear that the affiant is stating his belief, based on all of the evidence of Easy’s activity in Thunder Bay, that Easy remained mostly in the area of 2646, which therefore allowed a reasonable inference to be drawn that the residence was a safe house. At para. 12, the affiant notes that Easy had been back and forth from the Toronto area to Thunder Bay on three separate occasions. The issuing justice could take judicial notice that Thunder Bay is approximately 1400 kilometers from Toronto by car. In context of the entirety of the redacted ITO, para. 41 is not misleading.

[23] In my view, the redacted ITO was not drafted in a way designed to confuse or misdirect the issuing justice as to the situation of the police investigation. In my view, it was full, fair, and frank even as redacted. The information from the CIs and the police was credible, corroborated, and compelling. In my view, the ITO, as redacted in Exhibit 1, supports the authorization for the search of 2646. The authorization is confirmed.

[24] The applications to quash by both accused are dismissed. The evidence obtained by police during the search of 2646 will be admissible at trial.

[25] Counsel are to contact the trial coordinator to set a time for a one hour trial management conference sometime in the week of December 16, 2024.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick DATE: November 26, 2024