Court File and Parties

COURT FILE NOS.: CR-24-81 (Brampton) DATE: 2024-11-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – TOSHJAIH WILLIAMS

Counsel: Shazin Karim, for the Crown/respondent Paul Aubin, for the accused/applicant

HEARD: September 25, 2024 [^1]

REASONS FOR ruling on application to exclude evidence

Rahman, J.

1. Introduction

[1] The accused/applicant, Toshjaih Williams, is charged with various firearms-related offences. He applies to exclude evidence, including a firearm, seized from his home pursuant to a search warrant. The applicant contends that there were insufficient grounds for the warrant’s issuance. The applicant alleges three problems with the information to obtain (ITO) the search warrant. First, the applicant argues that the ITO has insufficient grounds to establish that an offence was being committed. He says that the video footage the police relied on to allege that he was holding a gun does not support that assertion. Second, the applicant alleges that there were insufficient grounds to establish that a firearm would be found in his home. The applicant contends that the affiant relied on stereotypical generalizations about how someone who has a gun would behave and that there were insufficient grounds to support finding a firearm in his home six weeks after he was allegedly seen carrying one. Finally, the applicant argues that there was insufficient evidence in the ITO to establish that he was the person seen with the firearm. He argues that the breach of his Charter rights warrants exclusion of the evidence seized pursuant to the warrant.

[2] The Crown, respondent, opposes the application. The respondent argues that there were sufficient grounds to issue the warrant. The respondent argues that when the ITO is read as a whole, it contains sufficient grounds to believe an offence had been committed and that a firearm would be found in the applicant’s home. The respondent says that the police were entitled to rely on their experience in identifying the item that they saw as a gun. They were also allowed to rely on their experience and provide their opinion about the likelihood of the applicant’s possession of the gun. The respondent further argues that there was sufficient information in the ITO identifying the applicant as the driver of the Volvo. Finally, the respondent argues that, even if the warrant should not have issued, the court should not exclude the evidence because its admission would not bring the administration of justice into disrepute.

[3] For the reasons that follow, the application is granted. There were insufficient grounds to establish that an offence had been committed. The basis for believing that the applicant had a gun was not objectively reasonable. It follows that there was also insufficient evidence to establish that a credibly-based probability that there was a gun in the applicant’s home. The warrant should not have issued as there was no basis to establish the two most important pre-conditions. The Charter breach justifies exclusion of the evidence. Although the police had a warrant, the issuing justice was misled somewhat about the police’s ability to see a firearm. The impact on the applicant’s Charter-protected interests was significant because it involved a search of his home. The importance of the evidence to the Crown’s case, and its reliability, cannot save the evidence from exclusion.

2. Background to the issuance of the search warrant

[4] The search warrant at issue in this case arose out of an investigation that police conducted in response to a 911 call about two males chasing another on Kingknoll Drive in Brampton. The 911 caller said that at least one of the males was in possession of a black handgun. The caller said that the four people involved were associated to two black vehicles, an Audi and a Volvo. The vehicles left the area before police arrived. The police believed that the applicant was driving the Volvo.

[5] The affiant who swore the ITO in support of the warrant relied on his review of reports completed by other officers. He also relied on his own firsthand investigation, including his own review of security video footage, described below.

[6] The affiant explained that he reviewed an occurrence report authored by another officer, Cst. Said. Cst. Said spoke to the 911 complainant who told him that the “parties were associated to 3 Danum Road in Brampton.” Cst. Said canvassed the area for video footage of the incident and located some video that showed the two black cars arriving at separate times. The officer saw a black Audi park between 1 and 3 Danum Road. The Audi’s driver was a male with light skin, six feet tall. The Audi had a passenger as well.

[7] A black Volvo station wagon arrived a short time later and parked beside the Audi. The driver was a Black male with a blue hoodie. The passenger was a Black male, six feet tall with a skinny build and black t-shirt and white jogging pants. The Volvo’s driver and passenger “exited the vehicle and chased a passenger of the Audi westbound on Kingknoll Drive.” Cst. Said testified that the Volvo’s driver had a black item in his hand that was “believed to be a firearm.” It is this observation of the firearm that formed the sole basis for believing the Volvo’s driver had possession of a firearm.

[8] Both of the Volvo’s occupants ultimately returned to that car and left the area. The driver of the Audi also returned to his car and left in the same direction as the Volvo.

[9] The affiant also reviewed video of the incident and added some details to the foregoing. He added that the Audi’s driver returned to the Audi shortly after getting out of it. The Audi’s driver accessed the car’s trunk and retrieved an item “believed to be a handgun” which he then concealed in his waistband. After the chase described above, the two occupants of the Volvo searched the Audi before leaving the area. When they Audi driver returned, the affiant said that “he pulls [an] object from his waistband believed to be a handgun.”

3. The application to set aside the warrant

[10] As mentioned above, the applicant’s attack on the warrant focuses on the following:

1. The ITO lacked sufficient grounds to establish that an offence had been committed.
2. The ITO lacked sufficient grounds to establish that a gun would be found at the applicant’s home when the warrant was executed.
3. The ITO lacked sufficient grounds to establish that the applicant was the Volvo’s driver.

[11] I will deal with each of these areas in turn.

3.1. Reasonable grounds to believe an offence had been committed

[12] The affiant set out his basis to believe an offence had been committed under the heading “Reasonable Ground to Believe that an Offence Has Been Committed.” The affiant detailed his review of a report authored by Cst. Said. The report details the officer’s observations of the video of the incident. The affiant sets out what is presumably in his colleague’s occurrence report. As already mentioned, he says that a black Audi and a black Volvo are seen parked next to each other. The applicant is alleged to be the driver of the Volvo. After giving a description of the Volvo’s driver, the affiant states “Video captures the driver of the black Volvo had a black item in his right hand, believed to be a firearm.” The affiant then explains that he reviewed video of the incident himself. The affiant also says that “On video, the driver of the Volvo was observed carrying a small black object believed to be a handgun.” There is no further description of the item. The police included screenshots of the black Volvo. They did not include any screenshots of the male carrying the black item that was believed to be a handgun.

[13] At the hearing of this application, the applicant filed still images from the video depicting the two occupants of the black Volvo, including the person alleged to be the applicant. Crown counsel agreed that these stills accurately represent the portions of the video footage that the affiant would have been referring to when he said he saw the Volvo’s driver with a handgun. It is fair to say that the video is not sufficiently clear to make out exactly what is in the Volvo’s driver’s hand.

[14] The respondent argues that when the ITO is read in its totality, the issuing justice was entitled to find reasonable grounds to believe an offence had been committed. While acknowledging that the video footage did not clearly depict the object in the Volvo driver’s hand, the respondent argues that the issuing justice was entitled to consider the officer’s experience and the information from the 911 caller.

[15] I cannot agree with the respondent that the ITO contained reasonable grounds to believe that an offence had been committed. To be clear, the offence alleged here is that the applicant, not somebody else, possessed a firearm. The video footage in this case cannot support the officers’ conclusion that the Volvo’s driver (whom the police alleged was the applicant) had a handgun. The still image from the video, which the respondent acknowledged was a fair representation of what the officer would have looked at, does not show an object clearly enough that one can say it is a handgun. This may have been why the affiant used the phrase “believed to be a handgun” rather than saying that he saw a handgun. Even accounting for a poor choice of language by the officer, [^2] the video does not depict the object in the driver’s hand clearly. This may also explain why the officers could give no better description than to say that the item was black. Respectfully, no amount of expertise can permit an officer to conclude that an indiscernible black item is a handgun. The 911 caller’s information is similarly unhelpful in adding to the grounds respecting the Volvo’s driver. The caller said that at least one of the males had a handgun. The police also alleged that the Audi’s driver possessed a handgun. The affiant said the video depicted the Audi’s driver placing a gun in his waistband. Therefore, the 911 caller’s observation of a handgun does not add to the affiant’s grounds about the Volvo’s driver having a handgun, because the 911 caller could have been referring to the Audi’s driver possessing a handgun.

[16] The ITO did not contain sufficient grounds to establish that an offence had been committed. That is a sufficient basis to set the warrant aside and find that the applicant’s s. 8 right against unreasonable search and seizure was breached. However, for the sake of completeness, and because the number of deficiencies is relevant to the court’s exclusionary decision, I will consider the other two grounds that the applicant advances.

3.2. Insufficient grounds that the items sought were in the place to be searched

[17] The applicant alleges that the ITO did not support a reasonable belief that the firearm would be in the place to be searched. Strictly speaking, since I have found that there were insufficient grounds to believe that the applicant (as the Volvo’s driver) possessed a handgun, it stands to reason that there could not have been sufficient grounds to support finding a handgun at the applicant’s home. However, I will address the applicant’s alternative argument that, even if the police had seen him with a gun, that there were insufficient grounds to support that there was a gun in his home.

[18] The police obtained a search warrant for the applicant’s home six weeks after the incident on Kingknoll Drive. The affiant addresses his grounds to believe that the items the police wanted to search for would be in the applicant’s home under the heading “GROUNDS TO BELIEVE ITEMS SOUGHT ARE AT PLACE TO BE SEARCHED.” Respecting the firearm, the affiant included the following paragraph:

Firearms, ammunition, and magazines: On July 15, 2023, Toshjaih Williams, was seen by a witness in possession of a handgun. In addition, I observed the male believed to be Toshjaih Williams in possession of the said handgun occupying the black Volvo. On August 21, 2023, the O.P.P. located the black Volvo abandoned on highway 427. It is my experience that subjects do not leave firearms unattended and tend to keep them close to them. I believe that the handgun in Toshjaih possession [sic]at his address located at 609-7820 McLaughlin Road South, Brampton.

[19] The applicant argues that there were insufficient grounds to support a reasonable probability that a firearm would be found in the place to be searched. The applicant says that, apart from the affiant’s improper generalizations and behavioural assumptions in the underlined passage above, there was no basis to believe that there would be a firearm at the applicant’s home six weeks after the police allegedly saw him with a gun. In support of his argument that the police relied on the applicant relies on the Supreme Court’s decision in R. v. Morelli, 2010 SCC 8. In Morelli, Fish J. cautioned (at para. 79) that, “[t]o permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence.”

[20] There are really two aspects to this alleged deficiency. One relates to the affiant’s alleged reliance on expertise and where someone will keep a firearm, and the other relates to the remoteness of the event. Regarding the first issue, I do not consider the affiant’s assertion about the fact that someone would keep a gun with them to be an improper generalization. That someone would keep a firearm close to themselves, or carry it with them, is a commonsense proposition. However, I do agree with the applicant that the information here was stale-dated and there was an insufficient information in the ITO to support reasonable grounds to believe that the firearm would still be in the applicant’s possession.

[21] The affiant’s assertion about people keeping firearms near themselves was simply stating a commonsense proposition. Illegal firearms are a valuable commodity. As illegal items, they are hard to come by. They are generally not purchased as mere curiosities or collector’s items. Someone who acquires an illegal handgun usually does so to carry it for protection or aggression or both. It stands to reason that, unless it is borrowed or rented, a person who owns a firearm will keep it with them or somewhere close to themselves. If someone is at home, they would probably have their illegal gun with them. Although the affiant said he was relying on his experience on this topic, he did not have to. Issuing justices are allowed to rely on reasonable inferences from evidence in the ITO: R. v. Vu, 2013 SCC 60, at para. 16. It stands to reason that an affiant is permitted to spell out such inferences in the ITO, especially if those inferences form the basis for their grounds. In drawing such inferences, there will always be some degree of generalization. In Vu, the Supreme Court held that an issuing justice could properly infer that documents showing ownership of a home would be found inside the home. And as I raised during submissions, it is a fair generalization that people carry their smartphones with them or keep them close by. No degree of expertise is required to draw such an inference. The fact that the affiant mentioned his experience is of no moment.

[22] Alternatively, the officer was entitled to provide his opinion about where someone would likely keep a firearm. An affiant’s opinion does not have to meet the standard of admissibility required at a trial: R. v. Prosser, 2016 ONCA 467, at para. 18. A police affiant is entitled to inform an issuing justice of their experience regarding the typical behaviour of someone who possesses firearms: R. v. Lacroix, 2018 ONCA 842, at para. 9. This approach is no different than that used by courts when assessing a police officer’s grounds for a warrantless arrest, detention, or search. In such cases, a court considers whether someone standing in the shoes of an officer would have the belief or suspicion that the officer did. The police officer’s experience is a necessary lens through which those grounds are assessed: R. v. MacKenzie, 2013 SCC 50, at para. 62. It would be ironic if an officer’s experience was relevant in assessing their grounds for a warrantless search or arrest, but not relevant when the same officer applies for a judicially authorized search.

[23] The second issue – the remoteness of the information – is not resolved by either commonsense or expertise. Six weeks had passed between the July incident and the issuance of the warrant. The affiant did not address why he believed that the firearm would still be in the applicant’s possession six weeks after he had allegedly been seen running with it. Unlike his assertion that people keep firearms with them, he made no such assertion about his experience about how long people typically keep firearms. How long someone holds onto an illegal item like a firearm is not something that an issuing justice can infer as a matter of common sense. The affiant offered no opinion on this issue. Even if the ITO had established that the applicant possessed a gun, it did not establish a reasonable probability that the applicant would still have possessed the gun. Had the search warrant been sought closer to July 15, 2023 – perhaps within a week or two – it may have been more reasonable to infer that the possessor of the gun would still have it. There is no magic number of days that will constitute sufficient temporal proximity to infer continued possession. But where six weeks have passed, the timing of the first-observed possession and continued possession is too remote.

3.3. Evidence that the Volvo driver was the applicant

[24] Given my conclusion on the first two of the applicant’s grounds, I will deal briefly with the last alleged deficiency. The applicant argues that there were insufficient grounds to establish that he was the Volvo’s driver. I cannot agree with the applicant that there was an insufficient link in the ITO to establish that he was the driver. The ITO sets out a fairly compelling basis to show that the applicant was driving the Volvo. The police are not required to establish a target’s identity to the same standard of proof required at a criminal trial. Indeed, the standard of credibly-based probability does not even require the police to establish the preconditions for issuance of the warrant on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, at para. 81. In this case, the police established a strong link between the Volvo and the applicant. The distinctive features of the Volvo and the ultimate link of the applicant to that Volvo was enough to furnish grounds to establish a reasonable probability that the applicant was the Volvo’s driver.

3.4. Conclusion on section 8 of the Charter

[25] The applicant has established that the warrant to search his home ought not to have been issued and has therefore established a breach of his s. 8 Charter right. It is therefore necessary to conduct the three-step Grant inquiry to determine whether the Charter breach here warrants exclusion of the evidence: R. v. Grant, 2009 SCC 32.

4. Section 24(2) of the Charter

[26] The application of the Grant inquiry to the applicant’s case demonstrates that the admission of the evidence would bring the administration of justice into disrepute.

[27] The first step of the Grant inquiry requires a court to examine how serious the police conduct is that led to the breach of an applicant’s Charter rights. This conduct can be placed on a continuum with good faith, technical breaches on one end, and bad faith, flagrant breaches on the other. Normally, the police’s reliance on a what they believed to be a valid warrant would be evidence of good faith. A search where the ITO lacks the required grounds is unwarranted but not warrantless: Morelli at para. 99. The rationale for finding good faith is that the police are entitled to rely on a judicial officer’s apparent conclusion that their grounds are sufficient, even if a judge at trial later finds that they have fallen short. However, where, as here, the police inaccurately describe key evidence, they will not be able to rely on their good faith reliance on a warrant. The rationale for finding good faith reliance on a warrant disappears because the police did not put all of the relevant facts before the issuing justice.

[28] In this case, I appreciate that the ambiguity in the description of the black item would have been apparent to the issuing justice. But that was only part of the problem here. The issuing justice was not provided with the image shown to this court purportedly displaying the observation of the gun. While there is no rule that an affiant must include photos of observations that they rely on, there is a rule that an affiant must make full, fair, and frank disclosure. That did not happen in this case. Even though I am not finding that the police deliberately misled the justice, the drafting of the warrant application, and failure to be full, fair, and frank, demonstrates a level of carelessness that moves this breach away from the good faith end of the spectrum. Negligence, carelessness, or inattention to constitutional standards in obtaining the warrant can “tip the scales in favour of exclusion” even where there is no impropriety or bad faith: R. v. Rocha, 2012 ONCA 707, at para. 43. Consequently, I find that the breach was serious enough that this first step of the Grant inquiry favours exclusion.

[29] The second step in the Grant inquiry requires a court to consider the impact of the breach on the applicant’s Charter-protected interests. Where s. 8 is concerned, the greater the invasion of privacy, the more serious the breach will be. The respondent acknowledges that the search of a dwelling will always involve a significant impact on a Charter claimant’s Charter-protected interests. The impact on the applicant’s Charter-protected interests here was significant. This step of the Grant inquiry strongly favours exclusion.

[30] Finally, the third step of the Grant inquiry considers society’s interest in an adjudication of the case on its merits. This step of the inquiry is concerned with “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: Grant, at para. 82. On this step of the inquiry, a court may consider the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue: R. v. Beaver, 2022 SCC 54, at para. 129. As it does in almost every case, the third step of the inquiry favours admission of the evidence. The evidence that the police recovered from the applicant’s home – particularly the gun – is reliable evidence. The Crown has no case once the evidence is excluded. Society’s interest in an adjudication on the merits is high in this case.

[31] The final balancing of the three lines of inquiry favours exclusion of the evidence. As the Court of Appeal observed in R. v. McGuffie, 2016 ONCA 365, at para. 63, where the first two lines of inquiry strongly favour exclusion, the third line of inquiry will rarely tip the balance in favour of admission. This is not one of those exceptional cases where the third line of inquiry can save the evidence from exclusion. Although McGuffie makes the balancing exercise somewhat automatic, it is important for the court to emphasize here, in plain language, why this balancing results in excluding evidence.

[32] The police here wanted to enter someone’s home to look for evidence. They told the judicial officer who could authorize that entry that they may have seen the person who lives in the home with a gun. But they did not explain why exactly they thought he had a gun and they overstated what they could see. In short, they wanted to go into the applicant’s house without being as certain as the law required them that the applicant had broken the law. Getting a search warrant for someone’s home is a serious and invasive investigative step. A search warrant gives police the right to forcibly enter someone’s home and root through their belongings. The police often go into the most private areas of a home looking for evidence. A reasonable and fully informed member of the public would not approve of the police being able to show up at their door armed with this authority unless the police had been up front with the issuing justice about the crime they believed they saw and why they thought they saw the crime. While the police turned out to be right, a court cannot rely on an after-the-fact justification to admit the evidence. Had the police been wrong, this matter would never have gotten to court. Exclusion of the evidence is required to maintain the repute of the administration of justice.

5. Conclusion

[33] The application is granted. The evidence seized from the applicant’s house is excluded from his trial.

Rahman, J.

Released: November 29, 2024

Footnotes

[^1]: I heard this application as a case management judge under s. 551.3 of the Criminal Code. [^2]: I appreciate that there is a lot of appellate authority emphasizing that police officers are not expert legal draftspersons: see for example R. v. Ngo, 2011 ONSC 6676, at para 34. Nonetheless, this kind of language, and the use of the passive voice often pervades ITOs and is at best, not helpful, and at worst, confusing.