Court File and Parties

COURT FILE NO.: CR-23-000157-0000 DATE: 2024 02 01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King v. Daniel Thompson

BEFORE: Fowler Byrne J.

COUNSEL: V. Palermo & C. Hanak, for the Applicant/Accused R. Ward & E. Perchenok, for the Respondent/Crown

HEARD: January 18, 2024

APPLICATION TO EXCLUDE EVIDENCE - RULING

[1] The Applicant, Daniel Thompson, has brought this application to exclude evidence that was obtained during the execution of a search warrant at 124 Cadillac Crescent, Brampton, Ontario (“124 Cadillac”), pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”). He seeks this relief on the basis that his rights under section 8 of the Charter were infringed.

[2] A search warrant was also issued and executed with respect to Mr. Thompson’s vehicle. Mr. Thompson takes no issue with that search warrant.

[3] I am hearing this Application as a case management judge. Mr. Thompson is scheduled to proceed to a trial before a judge and jury on March 18, 2024.

I. The Charges

[4] Mr. Thompson is charged with the following offences:

a. On February 9, 2022: i. Trafficking in a Schedule I substance, namely cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act (“CDSA”); ii. Possession of proceeds of crime, under $5,000, contrary to s. 354(1)(a) of the Criminal Code of Canada (“Code”);

b. On February 21, 2022: i. Trafficking in a Schedule I substance, namely cocaine, contrary to Section 5(1) of CDSA; ii. Possession of proceeds of crime, under $5,000, contrary to s. 354(1)(a) of the Code;

c. On March 25, 2022: i. Trafficking in a Schedule I substance, namely cocaine, contrary to Section 5(1) of CDSA; ii. Possession of proceeds of crime, under $5,000, contrary to s. 354(1)(a) of the Code (x2); iii. Possession of a Schedule I substance, namely cocaine and Amphetamines, for the purposes of trafficking, contrary to Section 5(2) of the CDSA (x2); iv. Possession of a Glock 27 handgun, without being the holder of a licence permitting such possession, contrary to Section 91(1) of the Code; v. Possession of a Glock 27 handgun while knowingly not having a licence permitting such possession, contrary to Section 92(1) Code; vi. Possession of a Glock 27 handgun without being the holder of an authorization or license permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to Section 95(2) of the Code; vii. Careless storage of a firearm, namely a Glock 27 handgun, and ammunition contrary to Section 86(1) of the Code (x4); viii. Possession of a firearm, namely a Glock 27 handgun, knowing that the serial number thereon had been defaced, contrary to Section 108(1)(b) of the Code; ix. Possession of a prohibited device, namely a cartridge magazine, while not being the holder of a licence permitting such possession, contrary to Section 92(2) of the Code;

[5] No viva voce evidence was called on this application. In making my decision, I relied on the Information to Obtain (“ITO”), the warrants, advertisements published on Leolist, texts exchanged between Mr. Thompson and an uncover police officer, and surveillance reports of the Toronto Police Service (“TPS”).

II. Issues

[6] The sole issues to be determined are as follows:

a. Were Mr. Thompson’s rights under s. 8 of the Charter infringed when the Toronto Police Service obtained and executed a search warrant at 124 Cadillac? b. If so, should any evidence obtained as a result of that search be excluded?

III. The Law

[7] Section 8 of the Charter states that everyone has the right to be secure against unreasonable search or seizure. A search will be reasonable if it is authorized by law, if the law is reasonable and if the manner in which the search is carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[8] A search will be lawful if conducted by way of a valid search warrant. A warrant is presumptively valid. The Applicant bears the onus of showing that it was not validly issued: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at para. 66; R v. Campbell 2010 ONCA 588, 270 O.A.C. 349, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549.

[9] To show that the warrant was not validly issued, the Applicant must show that the minimum standard required for authorizing a search was not established in the ITO that was submitted to the Justice of the Peace. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offense has been committed and that there is evidence to be found at the place of the search at the specified time and place. In other words, the test for this reviewing court is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could, not would, have issued: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-40; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 84; R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at para. 66, citing Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168.

[10] The scope of this review is narrow. It is not a de novo hearing of the application. It is not my role to substitute my opinion for that of the authorizing justice: Sadikov, at para. 84.

[11] That being said, I do not undertake my review solely on the basis of the ITO as it was presented to the Justice of the Peace. I may exclude or excise erroneous information included in the original ITO, or have reference to “amplification” evidence. Amplified evidence is additional information not provided to the issuing Justice of the Peace. Amplification evidence though, must only be used in a limited way. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search. Instead, it is to be used to correct some minor or technical error in the drafting of the ITO. In all cases, the focus is on the information available to the police at the time they drafted the ITO, rather than what they learned afterwards: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; Morelli, at paras. 41-3; Sadikov, at para. 85.

[12] I can also take into account that the authorizing Justice of the Peace may draw reasonable inferences from the evidence in the ITO, and that the affiant need not underline the obvious. Therefore, when considering if this warrant could have been issued, I must consider all the information that was available to the issuing Justice of the Peace, as well as any reasonably available inference that he or she could have drawn from that information: R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; R v. Hamouth, 2023 ONCA 518, at para. 11.

[13] Accordingly, based on the record before me, excised and amplified appropriately, if I conclude that the authorizing justice could have granted the warrant, then I should not interfere: Garofoli, at p. 1452; R v. Gero, 2021 ONCA 50, at para. 67; Morelli, at para. 40.

[14] In determining whether reasonable and probable grounds exist for the issuance of a warrant, the affiants training and experience as a police officer may be considered by the issuing Justice of the Peace. That being said, hunches or intuition grounded in the officer’s experience will not suffice: R v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 60-63; R v. Chehil 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47.

[15] Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer’s experience and training supports the link the Crown asks the court to draw, the more compelling that link will be: Chehil, at para. 47.

IV. Facts

[16] The essential facts in this Application are uncontested.

[17] The charges stem from an investigation into a Leolist advertisement for the sale of cocaine. Members of the TPS contacted the poster of the Leolist ad and engaged in drug-related conversations.

[18] The text communication with the individual who posted the Leolist ad was available for my review. On January 24, 2022, the undercover officer asked the suspect where he was, and he said he was in Hamilton. The suspect indicated that he could come to the undercover officer who was around Sherway Gardens in Mississauga. In further communication on January 26, 2022 the undercover officer asked, “Yo u [sic] ever in the Toronto area? Or you always in Hamilton?” The suspect responded: “Brampton too”.

[19] On February 9, 2022 the undercover officer initiated texting with the suspect again and asked: “u out Brampton area?” to which the dealer responded “ya”. The undercover officer then asked, “U live?” To which he responded “ya”. They then arranged to meet at 35 Tribune Drive in Mississauga at 8:30 p.m.

[20] On February 9, 2022, the undercover officer, DC Wecker, met the suspect at 35 Tribune Drive in Brampton. The suspect was sitting in his car, which was a VW Passat. The surveillance team noted the license plate number. The suspect went into the undercover officer’s car and purchased 2.21g of cocaine from the suspect in exchange for $300. Once the transaction was over, the suspect drove off and there was no further surveillance on this date. The notes of the officer showed that it was later ascertained that the VW Passat was a rental car, rented from an agency in Scarborough.

[21] The undercover officer then initiated text conversation with the suspect on February 21, 2022. On that exchange, the undercover agent arranged to meet at the same location, being 35 Tribune Drive for the purchase of $600 worth of cocaine. On this occasion, the suspect arrived in a silver Nissan Infiniti and parked in the driveway of the home. Again, the undercover officer noted the suspect’s car. The suspect provided DC Wecker with 5.81g of cocaine in exchange for $550 as he did not have enough cocaine to fill the $600 order.

[22] The TPS continued surveillance after the second buy. The suspect left in the Nissan Infiniti and drove to Cadillac Crescent and stopped the car in front of No. 104. He remained in the car but after approximately six minutes, the suspect started driving again and drove over to a Shoppers Drug Mart. He was in the store for approximately 10 minutes and came out with a shopping bag. The surveillance team then followed the Nissan Infiniti which returned to Cadillac Crescent and parked in the driveway of 124 Cadillac, which is less than 1 km from 35 Tribune Drive. The suspect got out of the car and entered the house through the front door. After five minutes, the suspect exited the home and eventually drives to 6950 10th Line West in Mississauga. He reverses into the driveway of Unit 88 at that address. Another man got into his car. After speaking with this other man in his car, and approximately 15 minutes after his arrival, the suspect and the other man enter that townhouse together. Police surveillance ended thereafter.

[23] Following this second drug purchase, the police conducted various investigative searches. The TPS learned that the Nissan Infiniti was registered to the Applicant herein, Daniel Thompson, with the address of 124 Cadillac. Also, a MTO search on Mr. Thompson disclosed that his address was 124 Cadillac and had been since 2019. DC Wecker, the undercover officer, positively identified the MTO photograph of Mr. Thompson as the suspect who sold him cocaine during both drug transactions.

[24] Accordingly, at this time, the TPS decided to obtain a search warrant to search 124 Cadillac and the Nissan Infiniti.

[25] In the ITO, the affiant indicated that the police intended to complete a drug transaction and arrest the suspect at that time. The police would then attempt to use a key from the suspect to gain access to the home and the vehicle. The police stated that this would help eliminate any possible damage to gain entry and help lessen any disturbances. They also indicated it would help ensure the safety of all involved.

[26] A tele-warrant was issued by Justice of the Peace Triantafilopoulos on March 15, 2022, and was valid from 9:00 a.m. on March 16, 2022 until 9:00 p.m. on March 19, 2022.

[27] On March 16, 2022, the undercover officer made arrangements to meet the suspect in the area of 35 Tribune Drive for another transaction. The undercover officer attended and waited. When Mr. Thompson did not arrive, the undercover officer contacted Mr. Thompson who advised that he forgot about the deal and would not be able to make it.

[28] Again, on March 17, 2022, an undercover officer from TPS drugs tried to contact Mr. Thompson to arrange for a third buy. He was unsuccessful. After that, due to conflicting work priorities, a further attempt could not be met prior to the expiry of the warrant.

[29] Accordingly, several days later, the TPS sought a second tele-warrant. The ITO was sworn by Detective Constable Pinto of the TPS on March 21, 2022. It contained the same information as the first ITO, except there was a new Appendix G attached at the end. The ITO disclosed that there were already two drug purchases made on February 9 and February 21, 2022 with an undercover officer.

[30] DC Pinto outlined the reasonable grounds on which to believe that evidence would be found at 124 Cadillac in Appendix C of the ITO. At the beginning of Appendix C, DC Pinto outlines his experience:

“I am a member of the Toronto Police Service and have been so employed since April 2014. I am currently assigned to the Toronto Police Service Drug Squad and have been since July 2021. I perform my duties in a plainclothes capacity. I have experience in the preparation and execution of search warrants; the purchase of illicit drugs acting as an undercover operator and conducting surveillance on subjects”.

[31] The pertinent information related to the investigation that was contained in this ITO is as follows:

a. That the TPS purchased cocaine from Mr. Thompson on two occasions as undercover officers; b. With respect to the first buy, the affiant described the amount purchased, the money paid, the location of the buy, the car Mr. Thompson drove, and his description; c. With respect to the second buy, the affiant described the amount purchased, the money paid, the location of the buy, and the car Mr. Thompson drove; they also reported that they conducted surveillance on Mr. Thompson who was followed back to 124 Cadillac, that he entered the front door of that property, then left the property and got back into the Infiniti; he was then followed to 6950 10th Line West, in Mississauga; d. Advised that in 2021, Mr. Thompson was arrested for possession of a controlled substance, believed to be cocaine, while in someone else’s car, but those charges were subsequently withdrawn; e. As of October 4, 2019, Mr. Thompson’s registered address through a MTO search was 124 Cadillac; f. The Nissan Infiniti used by Mr. Thompson on the second buy was registered to him, and to 124 Cadillac.

[32] Under the heading entitled “Grounds to Believe that the Items Seized will afford Evidence of the Stated Offense” the affiant stated:

20. Drug suppliers need to provide customers with accurate weights, according to what the customer is paying for it. Drug dealers will weigh drugs and prepackage them, so they are readily available for sale. The seizure of packaging materials and weighing instruments such as scales, afford evidence to the trafficking of controlled substances.
21. To maintain a successful drug enterprise, a drug supplier needs to be in regular communication with customers, suppliers, and co-conspirators. Contact information for suppliers and co-conspirators is commonly stored in cellular phones, laptops, personal computers, tablets, and other electronic data devices. These devices may also contain records related to co-conspirators in the form of debt lists and other transaction records. The seizure of debt lists, and transaction records would provide evidence of the trafficking of controlled substances. On the basis of the factual grounds set out in this document, it is reasonable to believe that electronic data devices found would contain one of these types of information.
22. The seizure of documents, electronics or otherwise, and identification would afford evidence as it could show ownership or association of the party, and the place to be searched.
23. The seizure of cash and currency, particularly in large amounts, provide evidence to the distribution of controlled substances. From my experience, proceeds of crime consisting of monies and evidence of proceeds of crime: such as banking documents, safety deposit box keys and documentation for said boxes are located within residences of persons involved in the trafficking of narcotics. In this specific case the undercover officer provided THOMPSON with pre-recorded police buy money on two separate occasions.

[33] Under the section “Grounds to Believe Items Are at The Location to Be Search[ed]” the affiant deposed that on February 21, 2022, after the second drug buy:

THOMPSON was observed parking his Infiniti with Ontario license plate…. on the driveway of 124 Cadillac Crescent, before exiting the vehicle and entering the front door.

[34] The officer also notes that the location of the first and second purchases were a two minute drive from Cadillac Crescent. He also relies on the MTO address on file for Thompson being 124 Cadillac. Then the officer states at subparagraph 24(d):

Larger quantities of drugs are commonly kept at the residence or associated storage locker because the dealer does not want to be in possession of large quantities of product for various reasons like being stopped by Police or being robbed of their product. I believe drugs are being stored in the residence located at 124 Cadillac Crescent, Brampton, as THOMPSON has been observed entering this address after dealing drugs to the UC, and has his address on file with MTO.

[35] In Appendix G, it disclosed that a prior search warrant was granted. It also described the previous attempts to execute the search warrant during the initial period. When asking for an additional period of time, namely to March 29, 2022, the officer deposed that he wanted a longer timeframe as Thompson could be “unpredictable” and that the police would prefer to set up a third buy before executing the search warrant for the reasons already mentioned.

[36] This warrant was granted by Justice of the Peace Bubrin and was valid from 12 a.m. on March 23, 2022 until 12 p.m. on March 29, 2022 - a period of six days.

[37] On March 24, 2022, DC Wecker arranged for a third drug purchase from Mr. Thompson. It was scheduled for March 25, 2022 at the same location as the previous purchases. It was Mr. Thompson who suggested that they meet in Brampton at the same place as before. This purchase was completed and immediately thereafter Mr. Thompson was arrested and searched. Using keys obtained from Mr. Thompson during the search incident to arrest, the police opened and searched Mr. Thompson’s Nissan Infiniti and also were able to search 124 Cadillac Crescent.

[38] As a result of the search of 124 Cadillac Crescent, the police seized a number of items from what they believed to be Mr. Thompson’s bedroom. These items included additional cocaine, MDA, a Glock 27 firearm with ammunition, and additional loaded magazine, cash, baggies, digital scales and a second cell phone.

V. Agreed Excisions

[39] Both parties agree that there are two parts of the ITO that should be excised.

[40] First, paragraph 29 of the Appendix C, which outlines the affiant’s grounds, requests a sealing order due to the involvement of a confidential informant. Both parties acknowledge that there is no confidential informant involved in this matter, and that in any event, Mr. Thompson received full disclosure of the ITO materials.

[41] Second, in paragraph 28 of appendix C of the ITO, the affiant requests a three day window from March 16 to March 19, 2022. This is contradicted by Appendix G which requests a search window from March 23 to March 29, 2022. The parties agree that the first time reference was obviously left in, in error, and that it was understood by all parties that it was the later time frame that was being requested.

VI. Position of the Applicant

[42] Mr. Thompson argues that there were insufficient reasonable grounds on which the Justice of the Peace could have issued this warrant and not a credibly based probability that there would be further evidence at 124 Cadillac.

[43] In particular, Mr. Thompson argues that there were significant omissions in the ITO that would have highlighted this for the issuing Justice of the Peace:

a. the ITO omits to indicate that Mr. Thompson is also connected to the City of Hamilton, which he argues makes it less likely that there would be evidence at 124 Cadillac Crescent; b. the ITO omits all of the surveillance evidence gathered, which shows that Mr. Thompson did not go directly back to 124 Cadillac Crescent after the second buy, as one would infer from the ITO narrative; c. the ITO omits to advise that the VW Passat that Mr. Thompson used on the first buy was a rental car, that was rented in the Scarborough area.

[44] Mr. Thompson also argues that the ITO made a number of misrepresentations with respect to the likelihood that evidence would be located at 124 Cadillac Crescent. The statements made in paras. 20-23 of Appendix C of the ITO are generalized statements about how drug dealers behave and are not connected to 124 Cadillac Crescent. For example, there is only one cell phone that the TPS was aware of. There was no surveillance about what happened to the purchase money on the first buy and there is evidence that Mr. Thompson may have used the purchase money from the second buy in Shoppers Drug Mart (which was not disclosed in the ITO). There was no surveillance showing the purchase money being brought into the house and it could have been left in the car. Mr. Thompson also argues that subparagraph 24(d) is a generalized statement about drug traffickers and is not applicable to this case, given what the surveillance actually showed.

[45] Mr. Thompson also argues that an address on file of the MTO since 2019 is not current evidence of Mr. Thompson’s address. As association with an address alone is not sufficient to provide reasonable grounds to search. There is very little evidence in the ITO which establishes a sufficient link to 124 Cadillac to support reasonable grounds to believe that evidence would be found there. Mr. Thompson argues there is equally enough evidence that could link him to Hamilton or the house on 10th Line West.

[46] Mr. Thompson further argues that there are insufficient details given about DC Pinto’s experience such that the issuing Justice of the Peace could have relied on the generalized statements made. His experience is only stated in very general terms. While he had been with the TPS for eight years as of the time he swore this information, he had only been with the drug squad for eight months. He argues that there is no information about what type of experience he had before then. Mr. Thompson argues that to rely on an officer’s experience to form reasonable grounds, that experience must be substantial. If the affiant had more relevant experience, it should have been detailed.

[47] Finally, Mr. Thompson argues that the statement of the affiant that Mr. Thompson was “unpredictable”, and therefore they needed a larger window in which to execute the warrant, was a misrepresentation.

[48] Mr. Thompson argues that, once the relevant information is added and the extraneous information excised, the only evidence the Justice of the Peace would have been left with was a MTO confirmation that Mr. Thompson lived at 124 Cadillac in 2019, that he was at that address for five minutes after the second purchase and that the location of the drug purchase was approximately two minutes away. That evidence alone, would not have been sufficient and the Justice of the Peace could not have issued the warrant.

VII. Analysis

[49] With respect, I disagree that the affiant left out important information in the ITO. The ITO did specify that a different car was used for the first buy. Nothing was hidden. There was no information provided that this car was or was not connected to Mr. Thompson, and no warrant was requested with respect to that vehicle. The issuing Justice of the Peace is entitled to infer that this vehicle was not a subject of interest.

[50] I have also reviewed the text messages exchanged between the parties and fail to see that there is any significant connection to the City of Hamilton which should have been included in the ITO. At most, the texts show that at the time the first connection was made between the undercover officer and Mr. Thompson, he was physically in Hamilton. The texts also show that Mr. Thompson worked in Hamilton, Toronto, and Brampton. There was no misrepresentation made in this situation.

[51] I do agree that the ITO is missing some information in that it failed to accurately describe Mr. Thompson’s travels after the second buy and before he entered 124 Cadillac Crescent. This is information that was available to the affiant at the time the ITO sworn and should have been included. Nonetheless, even if that information had been included, I am not convinced that it would have changed the ITO to such an extent that the warrant could not have been issued.

[52] With respect to Mr. Thompson’s argument that the assumptions made by the affiant were insufficient and that his experience could not be relied upon, I also disagree.

[53] DC Pinto indicated that he had been a police officer since 2014, which means that he had been working with the TPS for eight years at the time he swore the ITO. He also indicated that he had been with the drug squad for the last eight months. He did not stop there. He detailed that he works in a plainclothes capacity. He further detailed his experience in that drug squad to include the preparation and execution of search warrants, the purchase of illicit drugs while acting as an undercover operator and conducting surveillance. He did not state simply that he worked in the drug squad. He provided further particulars. That specified experience entitles him to make statements regarding the conduct and practices of drug traffickers which he personally has experienced as a member of the drug squad and working undercover in that squad.

[54] Mr. Thompson also argues that there was no credible probability that evidence would be found at 124 Cadillac. I disagree.

[55] It is true that there was no surveillance of Mr. Thompson actually carrying any drugs or the proceeds of his transaction directly into the home. That type of direct evidence is not required. That being said though, there was evidence available to the Justice of the Peace from which he could make a reasonable inference that evidence of the crime would be at 124 Cadillac. We know that Mr. Thompson arrived at the first two drug buys with a specific weight of cocaine. It is not unreasonable to assume that he would require a scale and packaging materials. Mr. Thompson was advertising online. It is safe to assume that he would have a larger quantity of illegal drugs available as he was advertising to a large consumer base. Mr. Thompson was utilizing a cell phone to arrange the drug purchases. It is not unreasonable to assume that he would have more than one cell phone. Even if I consider that Mr. Thompson left the second drug buy and went to the drug store before he went home, it is reasonable to infer that he did not spend the entire $550 that he received at the drugstore and that he had the some of that money with them when he returned to 124 Cadillac Crescent.

[56] Also, the issuing Justice of the Peace had direct evidence of Mr. Thompson entering that residence through the front door with his shopping bag and when he left, there is no indication that he kept the bag with him. The drug buys also happened close to that residence. There was also evidence that that this was Mr. Thompson’s address because it was registered as such through his car ownership and through MTO. That, as well as the police officers experience, is sufficient evidence that would link Mr. Thompson and his illegal activity to both his car and his residence. All of this shows that the TPS had more than a suspicion that evidence of drug trafficking could be found at 124 Cadillac.

[57] I am also not sure that the characterization of Mr. Thompson as “unpredictable” was a misrepresentation. By the time the TPS applied for the second tele-warrant, there were four drug buys arrived. For two of them – half of them – Mr. Thompson either did not show or could not make it. Also, the TPS disclosed that they were unable to try again before the warrant expired because of their work conflicts. There was no effort to hide the TPS’s part in their inability to execute the warrant within the first time frame.

[58] I have reviewed the case law provided by Mr. Thompson.

[59] In R. v. Ceballo, 2021 ONSC 4721, the police obtained information from confidential sources and others, that two individuals, not Ms. Ceballo, were selling cocaine. The police had received information that one of the suspects was working with “Sparkles” and that she was “chopping drugs” out of a particular address. In seeking a warrant to search a particular apartment, the ITO asserted that Ms. Ceballo was “Sparkle”. In finding the warrant invalid, Justice Davies found that there was no information in the ITO from which it could be inferred that Ms. Ceballo was Sparkles. The ITO also contained inaccuracies about Ms. Ceballo’s previous interaction with police in relation to illegal drugs. There was nothing in the ITO that would connect her with the suspect. There was also conflicting information as to where Ms. Ceballo lived. Surveillance showing the suspect driving a car registered to Ms. Ceballo, driving in an out of parking lot of a residence, was insufficient to support a reasonable inference evidence that the suspect lived at that residence, particularly when they had information that he may have lived elsewhere.

[60] Ceballo is distinguishable from the case before me. In this case, the TPS had two pieces of evidence showing that Mr. Thompson indicated his address was 124 Cadillac. Mr. Thompson was observed by TPS surveillance entering the front door of that house on his own, after shopping at Shoppers Drug Mart. When he left five minutes later, there is no indication that he still has his shopping bag. He was seen entering the front door of the property on 10th Line West as well, but there is no government documentation connecting him to that residence and he entered with another individual. There is no other evidence of another address, and no other surveillance showing him living elsewhere.

[61] Mr. Thompson also provided me with the case of R. v. Dhillon, 2010 ONCA 582, 270 O.A.C. 107. In that case, the police relied on information from a confidential informant, and their own surveillance to obtain a search warrant to a particular residence. Upon review, the reviewing judge found that he was not satisfied that the information provided by the confidential informant had sufficient reliability or credibility to assist the authorizing Justice of the Peace. The evidence was not excluded though, applying the test set out in R. v. Collins, [1987] 1 S.C.R. 265. It should be noted that after the reviewing judge released his decision and before the matter was before the Court of Appeal, R. v. Grant, 2009 SCC 32, [2009] 2. S.C.R. 353 was released which modified the Collins analytical framework for the exclusion of evidence under s. 24(2) of the Charter.

[62] Although the reviewing Justice’s decision was overturned after applying the new test in Grant, the Court of Appeal agreed with the reviewing judge’s finding that the ITO disclosed no basis for issuing the warrant with respect to a particular address. Observations that the suspect was in the driveway of the address on two occasions and that gallons of paint were observed at the address (the police were investigating stolen paint) was an insufficient link between the suspect and the place.

[63] In that case, the reviewing Justice found errors in the ITO in that the affiant swore that surveillance observed a large number of 4 litre and five-gallon containers of paint in the garage of the subject property, while the surveillance notes did not indicate a large number of containers of paint or a 4 litre container, and there was no reference to five-gallon containers. The reviewing Justice did not find the information provided by the confidential information to be compelling, and too much time had passed between the informant’s information and the date on which the warrant was obtained (3 weeks).

[64] Again, that case can be distinguished from our case on the facts. I have no need no to rely on a confidential informant – all observations were firsthand. There are no such significant errors in the ITO before me. I have found only one relevant omission.

[65] Mr. Thompson also referred to the case of R. v. Blake, 2023 ONSC 2749 released in May of 2023. In that case, using the information of confidential informants, and additional surveillance, warrants were issued for Mr. Blake’s home and vehicle.

[66] In overturning the warrant, the reviewing Justice found that the confidential informants provided no evidence as to why evidence of cocaine trafficking would be found at Mr. Blake’s residence, and thus there were no reasonable grounds to believe that evidence would be found there. In the ITO, the officer makes the same sort of statements as to the practices of drug traffickers, as is found in the case before me, which the reviewing Justice referred to as non-particularized training and experience. There was no case-specific information supporting the generalized propositions. The surveillance showed Mr. Blake driving to and from the apartment building, but there was no surveillance of him entering a specific apartment. There was no evidence that he was transporting cocaine to or from this building. The only evidence they had was an MTO search showing that a particular apartment in this building was Mr. Blake’s address. At most, it amounted only to a suspicion.

[67] In Blake, the reviewing Judge was provided with the Court of Appeal decision of R. v Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, which he states mistakenly stood for the proposition that if there was evidence that a person committed an offence, and there was evidence of where he lived, that there were reasonable and probable grounds that a search of that residence would afford evidence of that crime. The suspect is the link between the offence and the residence.

[68] I have reviewed Kalonji. In that case, in overturning the reviewing Justice, the court stated that the issuing Justice of the Peace is entitled to draw an inference that the accused kept his firearm at his own residence. There had to be evidence though, that it actually was his residence. The court states:

[27] Given that the ITO sets out sufficient grounds to establish that the appellant had committed an offence, and that Brunel Court was one of his residences, there were reasonable and probable grounds to believe that a search of that residence would afford evidence of the offence, namely the firearms.

[69] In support of this statement, the Court of Appeal relied on R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 54, and R. v. Meecham, 2018 ONSC 7033, at paras. 29-30.

[70] Despite the decision in Blake, I am bound by the decision in Kalonji. I find that the issuing Justice of the Peace in this case was entitled to make an inference that evidence related to the drug crimes would be found at 124 Cadillac Crescent as indicated in Kalonji. The issuing Justice of the Peace had evidence that Mr. Thompson entered the front door of the residence. He had evidence that Mr. Thompson listed 124 Cadillac as his address on both the registration of his car and with MTO. He had evidence not only of Mr. Thompson’s association with that address but that he also returned to that address after conducting an illegal drug transaction and after making a stop at the local drugstore.

[71] In conclusion, I am satisfied that even with the appropriate excisions and amplification, there was a basis on which the warrant could have been issued. The ITO contains sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at 124 Cadillac Crescent.

VIII. Conclusion

[72] Given that I have found no violation of Mr. Thompson’s section 8 rights, it is not necessary for me to determine whether the evidence should be excluded.

[73] Accordingly, Mr. Thompson’s application for the exclusion of the evidence seized from 124 Cadillac Crescent is dismissed.

Fowler Byrne J. DATE: February 1, 2024