RULING ON DISCLOSURE AND CHARTER APPLICATIONS

Overview

[1] The applicant, Thomy Baez-Eusebio, brings two applications:

(a) A disclosure application seeking an order that the Crown disclose a copy of the Information to Obtain (ITO) in respect of the search warrant under the Liquor License Act for 17-1290 Finch Avenue West, a commercial unit in Toronto.

(b) A Charter application seeking an order that evidence obtained from the search of the Honda Civic be excluded under s. 24(2) since his rights under s. 8 of the Charter were breached. As part of this application, the applicant seeks leave to cross-examine the affiant of the ITO of the search warrant of the Honda Civic.

[2] The applicant is charged with 13 offences involving firearms, possession of controlled substances, and failures to comply with court orders. The applicant’s trial is scheduled for March 24 to April 11, 2025.

[3] On March 24 and 25, 2025, I heard the two applications and dismissed them with written reasons to follow. These are those reasons.

Background

[4] The Major Crimes Unit (MCU) of 31 Division of the Toronto Police Service (TPS) conducted an investigation under the Liquor Licence Act, R.S.O. 1990, c. L.19 that a commercial unit located in a strip mall in Toronto was operating an illegal bar.

[5] On September 6, 2019, a Justice of the Peace authorized a search warrant for the commercial unit under the Provincial Offences Act, R.S.O. 1990, c. P.33. The warrant, valid until September 15, 2019, permitted night searches.

[6] On September 9, 2019 at 1:43 a.m., several police units executed the search warrant. The applicant, along with four co-accused individuals, were located in the unit. The applicant is alleged to have been located directly behind the bar when officers first entered. He allegedly made eye contact with officers and crouched down out of view. All occupants were detained upon execution of the search warrant. A handgun was located in plain view in a large rubber box directly behind the bar where the applicant had been standing.

[7] The five individuals found in the unit were arrested for joint possession of the handgun. The trial is proceeding only in respect of the applicant.

[8] The applicant was searched incident to arrest. Police located keys to a Honda Civic on his person and the corresponding vehicle was found parked near the entrance to the unit. The Honda Civic was sealed and towed to a police facility. Police obtained a Criminal Code, RSC 1985, c C-46 search warrant for the vehicle. A subsequent search of the Honda Civic found a satchel on the front passenger seat containing two prohibited devices: (a) an overcapacity pistol magazine with a 31-round capacity loaded with 18 rounds inside; and (b) an automatic pistol switch for a Glock handgun, which turns a semi-automatic handgun into a fully automatic handgun. Within the Honda Civic, police also located 61.52 g of cocaine, 4.80 g of fentanyl, and 0.48 g of crystal methamphetamine. All the narcotics were packaged for sale.

The Disclosure Application

[9] The applicant requests a copy of the ITO under the Liquor License Act (“LLA ITO”) for the search warrant that authorized police entry into the unit. The Crown opposes disclosure arguing that there is no legal basis upon which such disclosure can be ordered.

[10] The applicant submits that:

(a) The Crown is obliged to disclose all material and information that is in its possession and control whether inculpatory or exculpatory: R. v. Stinchcombe, [1991] 3 S.C.R. 326, para. 343.

(b) Search warrants are part of the investigative pre-trial process of the criminal law. An individual who is “directly interested” in a warrant can inspect the information and the warrant after the warrant has been executed: A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, para. 180.

(c) Public access to warrants and ITOs will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, para. 4.

(d) The Crown’s failure to disclose the LLA ITO has deprived the applicant of his right to question the validity of the search warrant which led to his arrest. Accordingly, the applicant’s right to answer and defence has been impacted.

(e) Proceeding to trial without a copy of the LLA ITO would constitute an ineffective defence and may result in a miscarriage of justice.

[11] The Crown’s response does not appear to directly address the defence argument that the applicant is entitled to disclosure of the LLA ITO because he has a “direct interest” in the warrant. Rather, the Crown submits that the applicant does not have standing to challenge the LLA search warrant: R. v. Edwards, [1996] 1 S.C.R. 128, para. 45; R. v. Le, 2019 SCC 34, para. 223. Accordingly, the Crown submits that it has no obligation to disclose the LLA ITO to the Defence.

[12] The Crown submits that it has met its disclosure obligation under Stinchcombe. All relevant, non-privileged material in its possession has been disclosed to the Defence.

[13] The Crown further submits that:

(a) The traditional Stinchcombe rules of disclosure do not apply to applications where the accused bears the burden of persuasion. The Crown is not required to make disclosure for a Charter application unless and until the applicant demonstrates a legal and factual basis for its claim and that the material sought in furtherance of that claim is of some potential legal relevance. The onus must be on the accused to show that the material which he seeks produced is of some potential legal relevance: R. v. Simon, [1992] O.J. No. 100 (ONCA), para. 10.

(b) Simply filing an application alleging a Charter violation or an abuse of process is not enough to trigger additional disclosure obligations on the Crown: R. v. Ahmad, para. 42, 46. A Charter application that raises an entirely untenable legal argument cannot be used as a basis to trigger a corresponding disclosure obligation on the Crown: R. v. T.G., 2017 ONSC 1314, para. 17.

[14] I disagree with the applicant that MacIntyre can be relied upon to support his disclosure request. Since MacIntyre involved a different factual backdrop, the court balanced a very different set of principles. In MacIntyre, a member of the general public sought to inspect a search warrant and information after execution. The Court’s discussion naturally focused on weighing open court principles against other social values: MacIntyre, at p. 186-7. Significantly, the analysis in MacIntyre did not consider the right to make full answer and defence, which is a cornerstone of the contemporary law of disclosure: Stinchcombe; R. v. Mills, [1999] 3 S.C.R. 668; R. v. McNeil, 2009 SCC 3. Currently, Stinchcombe and O’Connor govern the two disclosure regimes (first party, third party respectively) in criminal cases and provide authoritative guidance on how to weigh the right to make full answer and defence when assessing a disclosure request: R. v. Gubbins, 2018 SCC 44, para. 29.

[15] Stinchcombe requires the Crown to disclose to an accused all information in its possession that is not clearly irrelevant or privileged: at p. 339. The Crown has discretion to make determinations as to relevance and privilege, but a trial judge may review the exercise of this discretion: Stinchcombe, at p. 340. When defence counsel initiates a review, the Crown bears the burden of showing that the information is clearly irrelevant or privileged: Stinchcombe, at pp. 339-40.

[16] I find that the LLA ITO, which is presumptively valid, is clearly irrelevant since the applicant does not have standing to challenge the LLA search warrant, which was issued in respect of suspected violations of the LLA. As mentioned, the applicant also filed a Charter application alleging a s. 8 breach arising from purported deficiencies in the ITO for the search warrant for the Honda Civic, not the LLA ITO. Before challenging the search warrant for the commercial unit, the applicant must establish a reasonable expectation of privacy in the commercial unit. He has none. There is no evidence that the applicant had any connection to the subject matter of the alleged search, other than the fact that the applicant was a “found in” in the commercial premises when the search warrant was executed. The applicant did not have a reasonable expectation of privacy in the afterhours bar.

[17] Based on the Edwards factors and the totality of the circumstances, the applicant was simply present when the search warrant of the commercial unit occurred. He was not in possession or control of the commercial premises or an owner of it. There is no evidence that he had a history of use of the unit, or an ability to regulate access to the unit. He did not have a subjective expectation of privacy. But even if I were to accept that he had a subjective expectation of privacy, this expectation was not objectively reasonable in view of all of the circumstances: R. v. Buhay, [2003] 1 S.C.R. 631, para. 18. Since he does not have standing to challenge the LLA search warrant, he does not have a right to disclosure of the ITO in respect of the LLA search warrant. The disclosure application is dismissed.

The s. 8 Charter Application

[18] The applicant seeks leave to cross-examine the affiant of the ITO that was used to obtain the search warrant for the Honda Civic. He submits that leave should be granted because the affiant was misleading about the context surrounding the applicant’s actions during the execution of the search warrant, particularly in relation to the other occupants of the commercial unit. The applicant suggests that the affiant made it appear that the applicant was the only one of the five found-ins to duck down upon seeing the police enter the premises, but this was not the case, as all the found-ins did so when police yelled “get down” when they entered the unit.

[19] Further, the applicant takes issue with the fact that, in order to seize the Honda Civic that was outside the premises, the affiant deposed that, based on his investigative experience, vehicles are “often” used to store contraband. However, the word “often” does not align with the legal standard used to seize items; namely, whether there were “reasonable” grounds to believe that there was evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, pp. 167-8.

[20] The Crown submits that the ITO was not misleading in any way. By virtue of finding the key on the applicant’s person and it matching the Honda Civic outside the premises, the police had more than reasonable grounds to seize the vehicle. Besides, under s. 489(2) of the Criminal Code, the police were entitled to seize the vehicle without a warrant where the police believed on reasonable grounds that the seizure of the item has been obtained by, or been used in, the commission of an offence and would afford evidence.

[21] I agree with the Crown’s submissions. It is well established that granting leave to cross-examine an affiant is within the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization; for example, the existence of reasonable and probable grounds: R. v. Garofoli, [1990] 2 S.C.R. 1421, p. 1465.

[22] Here, I conclude there is no basis to grant leave to cross-examine, because I find there is nothing misleading about the affiant’s statements in the ITO. Contrary to the applicant’s submissions, the affiant stated in the ITO that police ordered the found-ins to the ground, and that the found-ins went down to the ground (see para. 4 “Background of the Investigation”, sub-paragraph 3(l)). While it is true that the affiant referred to the applicant and no other occupant crouching down, when the ITO is analyzed as a whole, there is sufficient reliable information upon which the location and actions of all the found-ins is provided and the search authority could be grounded.

[23] Second, while the affiant used the term “often” rather than “probably”, the difference in words does not mean that the ITO was misleading or insufficient for justifying a search. The authorizing justice may draw reasonable inferences from the evidence in the ITO. The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical , non-technical basis (emphasis added): R. v. Sadikov, 2014 ONCA 72, para. 82.

[24] In my view, the police were justified in seizing the Honda Civic once they discovered that the key on the applicant’s person matched the vehicle. Police only searched the vehicle after obtaining a valid Criminal Code warrant. In this case, the police did not need further proof of a link between the applicant, the key found on him, and the vehicle – such as evidence of the applicant driving into the parking lot or entering or exiting the vehicle. Investigating officers are entitled to make seizures without a warrant when acting within the meaning of s. 489(2) of the Criminal Code: R. v. Chow, 2022 ONCA 555, paras. 44-52.

[25] After I denied leave to cross-examine the affiant on the ITO for the Honda Civic, the applicant reiterated his facial validity argument. He submitted that based on the contents of the ITO, the police had insufficient information to seize the vehicle and the ITO lacked reasonable grounds to found the search of the Honda Civic. The applicant described this as a breach of his s. 8 Charter right and requested exclusion of the evidence under s. 24(2).

[26] For similar reasons to why I declined to grant leave to cross-examine, I do not accept that there was no basis for the authorization of the search warrant. I find that the affiant had reasonable grounds to believe that there was a rational connection between the offences alleged and the Honda Civic that was outside the commercial premises. The handgun in the premises was observed in plain view in the location where the applicant had crouched down as officers entered the unit. A key to the Honda Civic parked outside was found on the applicant’s person. The Honda Civic was in the parking lot outside the commercial premises late at night. It was certainly a logical and reasonable inference that the vehicle out in the parking lot would be a reasonable location where evidence of a crime may be found. In my view, the ITO fairly set out all of this information in a full and frank manner. There was a basis for the issuing justice to conclude that the vehicle would contain evidence relevant to criminal offences and issue a search warrant. I find there was no breach of the applicant’s s. 8 rights and the application is dismissed.

Released: April 14, 2025

Giuseppe Pinto