R. v. Blumenstock, 2025 ONSC 3075
COURT FILE NO.: CR-24-223
DATE: 2025-05-23
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King, Respondent
AND
Matthew John Blumenstock, Applicant
BEFORE: Spencer Nicholson
COUNSEL:
K. Johnson for the Crown
C. Szpulak for the Applicant
HEARD: March 10, 2025
Section 8 Application to Exclude Evidence
NICHOLSON J.:
[1] Matthew Blumenstock stands accused of multiple drug and weapons offences following a lengthy police investigation into a cannabis distribution network. He brings this Garofoli Application to exclude items seized from 275 Pittock Park Road in Woodstock, primarily weapons, drugs and Canadian currency, as well as any utterances he made to police. He relies upon sections 8 and 24(2) of the Charter.
Background Facts
[2] In April of 2022, various police forces commenced an investigation with respect to an individual named Kyle Catherwood. Catherwood was believed to be operating a large cannabis distribution network. The investigation involved various investigative techniques, including physical and electronic surveillance, tracking of phones and vehicles and data transmission recordings. The investigation was triggered by information received from a confidential informant.
[3] Throughout this process, the police attempted to obtain various judicial authorizations to permit the use of the investigative techniques. Many judicial authorizations were granted, but some were declined based on the information provided to the presiding justice.
[4] Commencing June 7, 2022, the police were judicially authorized to collect transmission data recorder (“TDR”) sessions of Catherwood. The TDR provided several phone numbers that were contacting Catherwood, including the phone number 226-9**-9***.
[5] That phone number led police to the Applicant, Mr. Blumenstock, and the subscriber address of 275 Pittock Park Road, Woodstock, Ontario.
[6] Between June 7, 2022 and October 23, 2022, that phone number contacted Catherwood’s phone number 902 times. The Crown points out that the Applicant was Catherwood’s third most frequent contact during this period of time. Police surveillance observed Catherwood with several of his more frequent telephone contacts, including the Applicant. However, between May 24, 2022, and November 3, 2022, the Applicant was only observed in the presence of Catherwood on two occasions.
[7] The police conducted searches on the Ministry of Transportation database with respect to the Applicant which revealed only an address in Brantford, Ontario. The Affiant of the Information to Obtain (“ITO”) in question indicated that he simply believed that this address had not been updated on the database. However, as noted, the subscriber address for the Applicant’s cellphone was 275 Pittock Park Road, Woodstock, Ontario. In the police database “Versaterm”, the Applicant’s listed address was also 275 Pittock Park Road.
[8] During the surveillance of Catherwood, he was observed at 1334 Sandbar Street frequently and was thought to reside there. He was noted to meet with several individuals with several small and large boxes, as well as backpacks and grocery bags observed being loaded into vehicles or brought into the residence. There were exchanges of envelopes observed at the Sandbar residence as well. One of the individuals observed on several occasions was David McNiven who drove a BMW. Another individual, Keiryn Jacobs, also attended the Sandbar residence frequently, retrieving bags and dropping off envelopes. Jacobs also appears to have known the keycode for the garage door at the Sandbar residence.
[9] Of note, Jacobs was followed to a residence on Kaladar Place where McNiven’s BMW was parked in the laneway. This address was believed to be the residence of McNiven.
[10] As noted, the Applicant was observed during this investigation on four occasions. I will describe the police observations more fully when I describe the ITO. However, there were observations which to the experienced police officers appeared consistent with drug transactions. He was also observed at 275 Pittock Park Road. The police observed numerous cardboard boxes stacked against the garage wall.
[11] It is important to note that on the occasions that Catherwood was surveyed but the Applicant was not present, Catherwood often was seen with cardboard boxes. For example, on November 3, 2022, he was observed at Red Eagle Organic cannabis dispensary dropping off five large cardboard boxes. He was also frequently observed in brief car to car meetings which the police suspected were drug transactions.
[12] When the police moved to make arrests, there were 6 vehicles and 4 addresses for which warrants were obtained. The addresses included the Sandbar residence, the Richmond Street apartment, the Kaladar residence and the Pittock Park Road residence. Catherwood, Jacobs, McNiven and the Applicant were all specifically named in the search warrants.
[13] The police executed a search warrant on 275 Pittock Park Road on November 9, 2022. They discovered a 12-gauge shotgun, brass knuckles, approximately $162,060.00 CDN, and large quantity of cannabis, as well as other Schedule I and II substances. The Applicant was out of the country at the time of the search but surrendered himself to police shortly upon his return.
Charter Arguments Raised by the Applicant
[14] This Application involves a facial validity challenge. The Applicant did not seek to cross-examine the affiant.
[15] The Applicant argues that there were insufficient grounds for the issuance of a search warrant on 275 Pittock Park Road. Particularly, the Applicant argues that the ITO did not contain a sufficient link between the Applicant’s alleged drug dealing and 275 Pittock Park Road.
[16] In advancing his argument, the Applicant notes that there was no confidential informant information pertaining to him. He argues that there was minimal surveillance conducted on him during this investigation and that he was only observed at 275 Pittock Park Road on one occasion.
The ITO
[17] I note that the ITO relied upon for this Application contains some redactions which is obviously a normal occurrence.
[18] The ITO was sworn by Officer Antoni Uchmanowicz, who had 18 years of experience as a police officer at the time. He had been seconded to a Provincial Joint Force Cannabis Enforcement Team (“PJFCET”) whose purpose was to investigate, inter alia, illegal cannabis dispensaries, cannabis delivery services and cannabis production sites. Prior to that, he had been a member of the Guns and Drug Unit in London.
[19] The ITO includes a photograph of each of the four premises for which the search warrant was sought. There is a photograph of 275 Pittock Park Road, Woodstock. It is noted to be single-family dwelling house and the primary residence of the Applicant. There is a footnote on the ITO that indicates the source of this information is a detective constable of the PJFCET from a location of interest report authored on October 25, 2022.
[20] I note that in the ITO, the Affiant described seeking tracking warrants and a TDR warrant on May 31, 2022 and being denied those warrants. He attached the warrant refusal signed by Justice Bertrand. She denied the warrant due to the dated nature of the CI information and the limited surveillance conducted. The Affiant appears to have reapplied and was granted the warrants on June 6, 2022.
[21] The ITO relied upon two confidential human sources, one of whom had contacted Crime Stoppers anonymously. Counsel for the Applicant acknowledged that it was unnecessary for this court to consider the Debot factors (whether the CI information is credible, compelling and corroborated) in relation to those CIs. The ITO did, however, address the Debot factors.
[22] However, the CIs only provided information implicating Catherwood. In particular, CI #1 provided information:
- that Catherwood was trafficking cannabis in London, Woodstock and Brantford;
- that Catherwood was using delivery drivers to distribute the cannabis;
- that Catherwood was utilizing a website thc4udelivery.com to traffic cannabis;
- identifying Catherwood’s phone number.
[23] CI#2 provided information that:
- Catherwood resided at 1334 Sandbar Street in London;
- Catherwood drove a white Cadillac and a white corvette.
[24] Catherwood’s address was verified through a Versaterm inquiry, a CPIC inquiry and an MTO database search. Both the Versaterm and CPIC systems are described in a footnote to the ITO.
[25] Similarly, Versaterm, CPIC and MTO inquiries were conducted with respect to Jacobs, McNiven and the Applicant. The Versaterm searches showed that each of the individuals had listed addresses as noted, including connecting the Pittock Park Road address to the Applicant. However, the Affiant did note that the MTO searches in respect of Jacobs and the Applicant showed different addresses. He stated for both, “I believe that this is a former address that has not been updated with the MTO”. He did not otherwise explain why he believed that to be the case.
[26] The ITO also identified the phone numbers that were most frequently in contact with Catherwood since the judicial authorization was obtained on June 6, 2022. As noted earlier, the Applicant was the third highest count, with 902. Jacobs was 7th on the list and McNiven did not appear on the list.
[27] The subscriber address on the phone number identified as belonging to the Applicant was the 275 Pittock Park Road address.
[28] Although the Applicant argues that the connection established between the Pittock Park Road address and himself is tenuous, it must be considered that in addition to the Versaterm and phone number subscriber address, that the police observed the Applicant physically present at that address on two occasions, including having access to the inside of it.
[29] Catherwood visited a property on Vesta Road on June 1, 2022. The Affiant described that this was believed to be a “stash house”. He entered the residence by the front door, exiting shortly afterwards carrying a large box which he transported to his Sandbar residence.
[30] The Affiant described the surveillance of Catherwood which shows several brief interactions with other people, which the Affiant concluded were drug exchanges. Catherwood was also seen receiving envelopes and many people attended his residence and retrieved packages. This includes Jacobs and the Applicant.
[31] The July 27, 2022 interaction between Catherwood and the Applicant is described at length. It occurred at the Vesta Road address. Catherwood was observed arriving at 10:22 am. The Applicant was seen exiting at 11:53 am from Vesta and must have arrived prior to 10:22 am as he was not observed arriving. The Applicant was carrying a large box which he placed into the trunk of his vehicle. Catherwood exited a minute later, they had a brief conversation and then they each departed separately.
[32] On September 7, 2022, Catherwood and Jacobs met and Catherwood gave Jacobs a small envelope. A few hours later, Catherwood met the Applicant at the Woodstock Centre where the Applicant gave Catherwood a small bag from his vehicle. That exchange was only three minutes in length. Also present was a woman identified as Annie Tomei, who in a footnote is described as currently facing one count of possessing illicit cannabis and one count of possessing cannabis for the purpose of distributing it. These charges are described as stemming from an investigation in 2021.
[33] On September 21, 2022, Jacobs was observed arriving at the Sandbar residence. He manually inputted a code into the garage door and retrieved a bag from inside the garage. He then drove to McNiven’s house at Kaladar Place where he attended for three minutes.
[34] On October 5, 2022, Catherwood was observed holding a large bundle of currency contained within a clear plastic bag. Later he exited the Sandbar residence carrying a large cardboard box. He drove to Red Eagle Organics cannabis dispensary which the Affiant noted was not a licenced cannabis retailer. Catherwood was observed taking two cardboard boxes from his car into the dispensary.
[35] On October 18, 2022, the Applicant arrived and entered the Sandbar residence. He exited two hours later carrying a medium sized backpack. He then drove to Jacob’s apartment on Richmond Street. Jacobs exited and handed the Applicant a yellow envelope. The Applicant then drove to a TD Bank parking lot where he parked beside a black BMW driven by an individual identified as Bay Duong. Duong handed the Applicant a backpack from the trunk of the BMW and retrieved a cardboard box from the trunk of the Applicant’s vehicle. The Affiant describes this meeting as, in his experience, a likely drug transaction.
[36] There were observations made of Catherwood on October 21, 2022 which the Affiant described as appearing to be another drug transaction. On the same date, Jacobs attended the Sandbar property and retrieved a bag from an unknown person. Jacobs then drove to McNiven’s residence for ten minutes before departing.
[37] On October 23, 2022, at 9:15 am, an officer attended 275 Pittock Park Road and observed the Applicant’s vehicle in the laneway. There were two other vehicles present registered to an older man with the same address.
[38] On October 25, 2022, Jacobs was under surveillance. He was observed conducting a potential drug transaction with another known contact of Catherwood.
[39] On October 26, 2022, the Applicant was observed at 7:21 am walking two large dogs in the area of 275 Pittock Park Road. His vehicle was parked in the laneway. Jacobs arrived at 9:23 am. The Applicant exited the residence, and they spoke and then walked to the garage area. Jacobs was observed carrying a large box from the garage and placing it into his vehicle. He retrieved a second box and a garbage bag and then took a hockey bag into the residence. He then departed.
[40] Jacobs then returned to London and drove to McNiven’s residence on Kaladar Place. He unloaded the three boxes from his vehicle. He was observed exiting the residence with a yellow envelope in hand. He returned to his apartment and removed the black garbage bag and cardboard box and carried them into his apartment.
[41] Meanwhile, the Applicant was still at the Pittock Park Road address. At 12:08 pm a pickup truck arrived and picked up a large box from the garage and left. At 2:17 pm, a different vehicle arrived and picked up a large box and departed. Both of these transactions are described by the Affiant as likely drug transactions given their brevity and that they appeared pre-arranged. On that date, the officer observed the Applicant standing inside the garage and that there were numerous cardboard boxes piled up against the wall of the garage.
[42] On November 2, 2022, Catherwood was again observed dropping off five cardboard boxes at the Red Eagle Dispensary.
[43] Relying on this ITO, the justice issued the sought after search warrants with respect to each of the four addresses and six vehicles.
Applicable Law
[44] There is no substantial dispute between the parties with respect to the applicable legal principles.
[45] Section 8 of the Charter protects individuals from unreasonable search and seizures. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the search is carried out in a reasonable manner (see: R. v. Collins).
[46] The search warrant in this case was issued pursuant to s. 87 of the Cannabis Act, S.C. 2018, c. 16. That section provides that a justice who is satisfied that there are reasonable grounds to believe that cannabis that contravenes the Act or other offence-related property is in a place may issue a warrant authorizing the search of that place and the seizure of the cannabis and property.
[47] Reasonable grounds does not equate to proof beyond a reasonable doubt, a prima facie case or even on a balance of probabilities. The appropriate standard is one of reasonable probability (see: R. v. Debot). Thus, reasonable grounds or credibly based probability requires that there be at least some evidence that might reasonably be believed.
[48] On reviewing the sufficiency of the information used to obtain a judicial authorization, the reviewing judge is not to substitute his or her judgment for that of the authorizing justice. The test is whether the judicial authorization could have been issued (see: R. v. Araujo, 2000 SCC 65, R. v. Morelli, 2010 SCC 8, and R. v. Garofoli).
[49] Courts have noted that ITOs must be considered in their totality. They are authored by police officers, not lawyers and some allowance is permitted for lack of legal precision or specificity (see: R. v. Sanchez and R. v. Nguyen, 2011 ONCA 45). The reviewing court should consider the ITO as a whole, taking a common sense, practical, non-technical view of it (see: R. v. Sadikov, 2014 ONCA 72).
[50] An issuing justice is entitled to draw reasonable inferences from stated facts (Sanchez, supra, at para. 22).
[51] A search warrant is presumptively valid, and the onus is upon the party challenging the validity of a warrant to show that it was not validly issued (see: R. v. Crevier, 2015 ONCA 619).
Analysis
[52] I am of the view that this Application must be dismissed.
[53] The Applicant’s arguments require that the police observations of him be viewed in isolation. However, that argument ignores the greater context and the web of connections between the Applicant with Catherwood and Jacobs, in particular. It also ignores the connections between Jacobs and Catherwood, both of whom link to the Applicant. All of the evidence contained in the ITO must be considered cumulatively.
[54] In my view, there were reasonable grounds to believe that Catherwood was involved in cannabis distribution. This included the information obtained from the CIs which implicated him in illicit cannabis distribution, although I have not undertaken a Debot analysis. Catherwood was observed making several very brief exchanges of boxes, bags and envelops which the Affiant described as suspected drug transactions based on his experience. Notably, Catherwood was frequently observed carrying cardboard boxes, including carrying several of them into the unlicensed Red Eagle dispensary.
[55] There was a close connection between Jacobs and Catherwoods’ residence, as Jacobs attended there regularly and knew the passcode to the garage. He was observed picking up packages and dropping off envelopes. Jacobs was reasonably implicated.
[56] It is noteworthy, although not on its own determinative, that the Applicant was Catherwood’s third most frequent telephone contact. This must be considered with all of the other observations made on surveillance, which includes not only observations of the Applicant himself, but the others thought to be operating within the network.
[57] Although the Applicant was not observed very often, the occasions on which he was observed were very telling. On the first occasion, he attended a place the police identified as a stash house, where he met Catherwood briefly. Again, it would appear that the Applicant was already inside the stash house when Catherwood arrived. The Applicant was observed carrying a large cardboard box similar to the boxes that Catherwood carried into the Red Eagle and similar to the cardboard boxes observed at Pittock Place.
[58] On the second occasion that the Applicant was observed with Catherwood, the Applicant was with a woman who was facing charges herself for being involved in the illegal distribution of cannabis. The meeting was brief and involved the exchange of packages. It is a reasonable inference, in the totality of the circumstances, that this was a drug transaction.
[59] The Applicant was observed having a brief interaction with Jacobs, who I have already indicated was clearly involved with Catherwood, in which Jacobs handed the Applicant an envelope. From there, the Applicant immediately met another individual where packages, including a cardboard box, were exchanged between the vehicles. This transaction was brief and had the hallmarks of a drug transaction.
[60] Finally, there is a sufficient link between the Applicant and Pittock Park Road. It is shown as the Applicant’s address on Versaterm and, more importantly, the subscriber information for his phone number. He was present at that residence as early as 7:21 am walking two dogs. He was observed entering the residence and the garage.
[61] Numerous cardboard boxes were observed within the garage. Catherwood, whom a CI had identified as distributing illicit cannabis, had been observed transporting cardboard boxes to Red Eagle cannabis dispensary. The Applicant had been connected to Catherwood directly, and indirectly through Jacobs.
[62] Importantly, once again, the Applicant had a meeting with Jacobs where cardboard boxes were exchanged with a hockey bag. I agree with the Applicant’s counsel that it is not clear what was in the hockey bag. However, the important aspect of the transaction in my view was that cardboard boxes departed with Jacobs. Jacobs then immediately drove those cardboard boxes to McNivens’ house, where he dropped them off and departed with another envelope.
[63] The cardboard boxes are an important feature of this case.
[64] To issue a search warrant, the justice need not be satisfied that the Applicant was the actual owner of 275 Pittock Place. The justice needed only to be satisfied that there were reasonable grounds to believe that illicit cannabis would be present at that location. In my opinion, the observations of the cardboard boxes within the garage, in conjunction with the observations of cardboard boxes being exchanged by the various individuals involved in this case, in conjunction with the two brief pick-ups that were seen on October 26, 2022, at the residence, provide those reasonable grounds.
[65] The Applicant argues that there is insufficient evidence to connect Pittock Park Road and drugs. He argues that there is no presumptive location of where drugs are stored and that the court must be mindful of “walking search warrants”.
[66] In R. v. Hibbert, 2019 ONSC 3219, relied upon by the Applicant, Dennison J. held that the temporal gap of three months between the time that Mr. Hibbert was believed to be in possession of a firearm and the submission of an ITO for a search warrant meant that there were no reasonable grounds to believe that the gun would still be located in his vehicle.
[67] In the case at bar, the Applicant was observed at the Pittock Park Road residence only two weeks prior to the issuance of the search warrant. Cardboard boxes and suspicious transactions were also observed, as well as the Applicant meeting Jacobs. I find that the information provided by the Affiant was not so stale as to diminish reasonable grounds in this case. As noted by Dennison J., the currency of the information is one of the factors to be considered in the constellation of factors. The fact that information is dated is not, in and of itself, fatal (at para. 71-72).
[68] It would be much harder to dispose of all the numerous cardboard boxes observed at the Pittock Park Road address than a firearm. Accordingly, I find that it remained a reasonable inference that the cardboard boxes would still be at that residence within a two-week time period of being observed there.
[69] The Applicant also referred me to R. v. Amponsah, 2019 ONCJ 342. In that case, Ghosh J. noted that there is no presumptive location of where drugs may be stored. In Amponsah, the accused had been arrested within a vehicle. The police sought and obtained a search warrant for his home, which was approximately 2 km from where he was arrested, to search for drugs. Ghosh J. held that there were no reasonable grounds to believe that drugs would be found in the accused’s home because the only supporting evidence in the ITO were that the accused transacted in a controlled substance with an undercover police officer and that this transaction was only 1.8 kms from the accused’s home. This was considered insufficient.
[70] In contrast, in the case at bar, observations were made of the Applicant actually at the Pittock Park Road residence, two suspicious transactions occurred there, and there were numerous cardboard boxes observed in the garage. There were also the observations involving Jacobs, about whom the ITO included substantial evidence of suspicious transactions. The case before me is distinguishable from Amponsah.
[71] The Applicant raises the inclusion of conflicting information in the ITO. There is no information about when the Applicant may have acquired Pittock Park Road or when he may have resided at 215 A Paris Road as shown in the MTO database. Similarly there is no indication of how current the subscriber information is.
[72] All of that may be true, but for the purpose of obtaining a search warrant, the authorizing justice must be satisfied that there are reasonable grounds for believing that illicit cannabis is present at a specified location. Ownership of the location is not determinative or a prerequisite for the purpose of obtaining a search warrant under the Cannabis Act. A sufficient link may be established without ownership.
[73] The Crown is still obligated to prove possession of the cannabis, and other items, by the Applicant, at trial. However, for the purpose of obtaining a search warrant, the observations of the Applicant at Pittock Park Road, the presence of the cardboard boxes, the presence of Jacobs, and the short transactions that were observed, in conjunction with all of the other observations of the Applicant, Jacobs and Catherwood, provide reasonable grounds that illicit cannabis would be found there.
[74] I have considered R. v. Herta, 2018 ONCA 927, where the Court of Appeal reversed the trial judge’s decision to uphold a search warrant. The Court of Appeal held that there was no evidence within the ITO connecting a gun to the location searched. In the case before me, in my view, the cardboard boxes, seen throughout the surveillance, as well as the brief transactions observed throughout the surveillance, both of which were observed at Pittock Park Road, connect that location to illicit cannabis in the totality of the circumstances.
[75] The Applicant also relies upon R. v. Reid, 2020 ONCJ 35, where North J. found that the issuing justice could not have issued the search warrant for the location because there was an insufficient connection between the location and the CDSA offence. Again, it is my view that this case is factually distinguishable. There was a gap of two and a half hours from the time that Reid left his residence during which he attended multiple locations and the time that he was seen engaged in what the police believed were hand to hand transactions. In the case at bar, there were transactions that occurred at Pittock Park Road and the cardboard boxes were observed at that location.
[76] As noted, search warrants are presumptively valid and the test to be applied by the reviewing justice is whether the warrant could have issued. I am of the view that the Applicant has failed to meet his onus to show that the search warrant could not have issued. His application is accordingly dismissed.
[77] In the circumstances, I am not required to conduct a s. 24(2) analysis.
Spencer Nicholson
Date: May 23, 2025